DEC-E2005-006 Full Case Report.

Ms. Patricia Buckley and Ms. Catherine Buckley -v- Tullamore & District Youth Endeavour Ltd. Tullamore Community Training Workshop

1. DISPUTE
   
   
   1. The dispute concerns a claim by Ms. Catherine Buckley and Ms. Patricia Buckley that they were discriminated against on the grounds of gender, marital status, age and disability in terms of Sections 6(1) and 6(2)(a), 6(2)(b), 6(2)(f) and 6(2)(g) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when they were not offered a place on the respondent’s training course. The respondent denies the allegations.
   2. Consequently the complainants referred a complaint to the Director of Equality Investigations on 1st July, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 20th May, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing of this claim took place on 25th November, 2004. Further additional information was received from the respondent on 13th December, 2004.
      
2. SUMMARY OF THE COMPLAINANTS’ SUBMISSION
   
   1. According to the complainants they attended for interview on 19th June, 2003 at the respondent organisation. It is the complainants’ contention that they were discriminated against when they were not offered a place on the training course. The complainants state that they were told that they would not be paid any money while attending the training course. The complainants note that the purpose of the training course was to assist participants gain employment.
      
3. SUMMARY OF THE RESPONDENT’S SUBMISSION
   
   1. The respondent denies that it discriminated against the complainants on the grounds of gender, marital status, age or disability as alleged. Without prejudice to this contention the respondent submits that the Equality Tribunal has no jurisdiction to deal with this complaint on the basis that the claim clearly relates to a decision by the respondent to decline the complainants’ application for a place on a training course at which point in time no contract and certainly no contract of employment existed between the complainants and the respondent. The respondent says that even if the complainants had been successful in their application for a place on the respondent’s training course they would never have had a contract of employment with the respondent. In these circumstances the respondent states they are not covered under the Act given the nature of the contract that would have existed between them and the respondent had they been successful in their applications for places on the training course.
   2. The respondent notes that the complainants have failed to provide any factual or other basis for claims of discrimination on the grounds of gender, marital status or disability and contends that it cannot be expected to defend claims which have no basis whatsoever. In relation to the allegation of discrimination on the grounds of age the respondent states that during the course of the interview the interviewer explained to the complainants the ethos of the respondent’s training workshop, which had been set up many years previously. The respondent says that when the workshop had been set up originally it was intended to deal with people aged between 18 and 25. According to the respondent this information was told to the complainant as a general background to how the workshop was established but it was clearly pointed out to the complainants that this was no longer the case.
   3. The respondent states that where it receives a greater number of applicants than places on the course its policy is to select the people who they deem are most likely to benefit from the course. The complainants along with a number of other applicants were unsuccessful in their applications. According to the respondent eight applicants were accepted onto the training course one of whom was male aged 31 years i.e. the same age as the complainants. On this basis the respondent argues that the complainants’ claim of discrimination on the grounds of age must fail and in this regard the respondent cites the cases ofWilton v Irish Steel² and Joanne Quigley v John Dickinson Stationery (Ireland) Ltd³.
   4. The respondent notes that the complainants allege that they were told that they would not be paid any money for training. It is the respondent’s submission that, during the course of the interview, the complainants enquired if they would be paid on days that they did not attend for training and it was explained to them that they would receive a training allowance on the days on which they attended for training but no such allowance would be paid on any days they failed to attend. According to the respondent there is nothing discriminatory or unlawful about the respondent’s practice in that regard.
   5. The respondent states that, during the course of the interview, one of the complainants stated that she believed that the respondent was guilty of discrimination. According to the respondent the complainants subsequently made a number of telephone calls to the manager of the respondent organisation in the course of which they were abusive and offensive and used foul language. The respondent says that the complainants threatened the manager saying that they would “do” to the respondent what they had “done” to Haydens Hotel in Ballinsloe. It is the respondent’s submission that it is not aware what the complainants allege they “did” to Haydens Hotel in Ballinsloe. The respondents ask the Equality Officer to take account of this intimidating and threatening behaviour in considering the merits of the complainants’ claim.
      
4. CONCLUSIONS OF THE EQUALITY OFFICER
   
   1. The issue for decision in this claim is whether or not the complainants were discriminated against on the grounds of gender, marital status, age and disability in terms of Sections 6 and 8 of the Employment Equality Act, 1998. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
   2. The first issue to be addressed in this decision is the respondent’s argument that I do not have jurisdiction to investigate this claim as it is outside the scope of the Employment Equality Act, 1998 because the respondent was not entering into a contract of employment with the complainants. Section 12 of the Employment Equality Act, 1998 sets out the provisions relating to vocational training. Specifically Section 12(2) of the Act defines “vocational training” as meaning:
      
      “any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity”.
      
      In this case the respondent was offering places on a catering course which was designed to give training to participants with a view to employment thereafter. In this regard the respondent endeavoured to place participants in employment and had within its employment an officer charged with following up on employment opportunities for course participants. The respondent also stated that participation on courses was on a needs basis and preference would be given to applicants who had not received any previous training. I am satisfied that the services provided by the respondent fall within the definition of vocational training under the 1998 Act and consequently I have jurisdiction to investigate these claims.
   3. In making a claim of discrimination the onus is on the complainants to make a prima facie case of discrimination. It is only when a prima facie claim has been established that the burden of proof falls to the respondent to submit a defence. The complainants allege that they have been discriminated against by the respondent on the grounds of gender, marital status, age and disability. In relation to gender I note that sixteen persons rang the respondent expressing an interest in the course and of these thirteen attended for interview. Five applicants, of whom 1 was male and 4 were female, were offered places on the course. As the majority of applicants offered places on this course were female and having regard to the fact that the course was offered in preference to those applicants who had received no previous catering training I find that the evidence does not support the complainants’ contention that they were treated less favourably on the grounds of their gender.
   4. The complainants also allege that they were discriminated against by the respondent on the grounds of their marital status. The complainants have submitted no evidence to support such a contention. I note that the complainants did not inform the respondent of their marital status and did not complete any forms which sought details of their marital status. Furthermore the marital status of other applicants was not known to the respondent. The respondent held that the criteria it applied in offering places on the course to candidates was to allocate places to persons who had not previously received training in catering. I am, therefore, satisfied that age was not a factor in determining suitability for the course.
   5. The complainants allege that they were discriminated against on the grounds of age. At the hearing of this claim the respondent stated that one of the complainants informed the manager in the respondent organisation, in a subsequent telephone conversation, that they were 31 years old. The complainants are twins. I note that one of the applicants, who was successful in obtaining a place on the training course, was the same age as the complainants. On this basis I am satisfied that the complainants were not treated less favourably on the basis of their age.
   6. The complainants have also alleged that they were discriminated against on the grounds of disability. At the hearing of this claim they stated that they were slow learners with difficulty at spelling and reading. When speaking with the respondent the complainants say that they asked whether or not they could retain their disability book if admitted to the course. The respondent denied that the complainants made any reference to their disability book or to the fact that they had a disability. According to the respondent the complainants had stated that they had previously undertaken a basic training course in catering. It was because of their previous training, the respondent says, that the complainants were not considered for this catering course and it was offered to others who had received no previous training. There is no evidence to support the complainants’ contention that they were treated less favourably because of their disability.
   7. Under the provisions of the Employment Equality Act, 1998 there is an onus on the respondent to provide reasonable accommodation in the event of a disability. However the respondent in this case cannot be obliged to provide reasonable accommodation where it was unaware of the disability in advance.
      
5. DECISION
   
   1. In view of the foregoing I find that Tullamore & District Youth Endeavour Ltd – Tullamore Community Training Workshop did not discriminate against Ms. Catherine Buckley and Ms. Patricia Buckley as alleged in terms of Sections 6 and 12 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.

Gerardine Coyle,
Equality Officer,
26th January, 2005

²High Court – [1999] ELR 1,
³Equality Officer Decision – EE/2004/026