DEC-E2005-021 Full Case Report

Healy -v- National Car Testing Service Limited (NCTS) (represented by Management Support Service Ltd)

1. CLAIM
   1. The case concerns a claim by Mr. Edwin Healy that the National Car Testing Service Limited (NCTS), Dublin directly discriminated against him on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to training in employment.
      
2. BACKGROUND
   1. The complainantwas employed as a Vehicle Inspector on a one year fixed term contract. All Inspectors were obliged to participate in a three week intensive training course. The complainant was not successful at the end of the training period. The complainant alleges that during his training, references were made to his age and he was discriminated against on the age ground. The respondent denies the allegation of discrimination and submits that the complainant did not pass the three week training programme due to his overall attitude to training and also his lack of progress throughout the training programme.
   2. The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 5 January 2004. On 13 October 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 19 November 2004 and from the respondent on 1 December 2004. A joint hearing of the claim was held on 1 March 2005.
      
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   1. The complainant submits that he was engaged to do a 3 week training course by the NCT in Dublin in July 2003. From the first day of the training, staff started making remarks about his suitability to be a vehicle inspector. He submits that on several occasions, he was asked why he was limping like an old man. He submits that he had an accident two days before the course started in which he damaged the ligaments in his ankles and that he had a letter from the Mercy Hospital where he was treated which he showed to the company doctor at the medical examination.
   2. He submits that he was also asked by the trainer a few times if he needed new glasses as he seemed to have problems with his vision. He submits that the comments were made on a daily basis which made it very difficult to concentrate on learning to become a vehicle inspector.
   3. He submits that he may have been the oldest person on the course but was told at the interview in Cork that age was not a problem as there were several people employed by the company who were older than he was.
   4. At the end of the course, the other candidates were given a test on their ability and he was not given any test. He submits that he was then taken to the office and told that he should consider other career options and also told that he could leave on the second last day of the course.
      
4. SUMMARY OF THE RESPONDENT ’S SUBMISSION
   1. The respondent submits that the complainant attended for an interview on 2 June 2003 for the position of vehicle inspector on a one year fixed term floater contract for non core hours. The interview was conducted by the Test Centre Manager of Cork and the Regional Manager for the South region. Arising from the interview, the complainant was informed that he had been successful at interview and was being offered the position based on the terms and conditions of the offer letter, contract, performance agreement and other documents issued to him.
   2. Training commenced for 12 new recruits on 7 July 2003 at the Test Centre, North point, Dublin. Accommodation was arranged for the complainant for the duration of the stay. At the end of the first week, the complainant was spoken to by one of the Technical Trainers (Mr. O’B) in relation to his capability regarding testing. He was advised that he needed to improve and if there was no improvement he would not be passed out. He was also advised that if he needed additional training in the evening time of the following week, that one of the trainers would be willing to stay behind.
   3. The complainant was spoken to by the trainers on several occasions during the training programme about his attitude and the test process. One of the trainers stated that the complainant absented himself from training for an hour and a half on 23 July 2003 having asked a trainer if he could go to post a letter. The trainers subsequently discovered that the complainant had returned to his B & B for tea and that was why he was not back in the expected timeframe. The complainant was not the only recruit to fall behind during training. There was another new recruit who also needed extra guidance and in the end he successfully completed the training course.
   4. As far as the company is concerned, the complainant did not pass the three week training programme due to his overall attitude to the training and also his lack of progress throughout the training programme was of grave concern to the trainers. The complainant was assessed on an individual basis by the trainers throughout the course and he missed the simplest items on the car. The trainers are all professional in their role and have often spent longer with an individual to try and help them pass the training successfully. The trainers would be involved in training people from all walks of life and would not treat any employee differently from another regardless of their race, sex, age etc.
   5. The decision not to pass out the complainant was not taken lightly by the Training Manager and was taken following on from discussions with the Training Team. They felt that all resources had been offered to the complainant and at the end of the training period, there was no other option but not to pass him out as he was not suitable. It had nothing to do with his age and people of all ages are employed by the company.
   6. As part of the contract of employment, all new recruits are obliged to attend a company doctor who conducts a medical examination to ensure that the employee is physically fit to undertake the duties of a vehicle inspector. During the second week of training, the complainant attended the company doctor to undergo his examination. The complainant was passed physically fit to carry out his duties as a vehicle inspector. It was after the complainant had left the company that the company doctor informed Ms. B in Human Resources about the complainant’s ankles. Clearly the doctor saw no reason why the complainant could not carry out his normal duties or training due to the injuries to his ankles and the company was of the same view.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. In this case, the complainant alleges that the respondent directly discriminated against him on the age ground in relation to training in his employment. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
   2. Section 8(1) of the Employment Equality Acts 1998 - 2004 provides:
      
      “In relation to-
      (a) access to employment,
      (b) conditions of employment,
      (c) training or experience for or in relation to employment,
      (d) promotion or re-grading, or
      (e) classification of posts,
      an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
      
      
   3. Section 8(7) provides:
      
      Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
      
      
   4. Section 6(1) of the Employment Equality Act, 1998 provides that:
      
      “Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”
      
      Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
      
      (f) that they are of different ages, …… (in this Act referred to as “the age ground”),
      
      
   5. Caselaw on establishing a prima facie case of discrimination
      The Labour Court has stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
      
      “It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.”¹
      
   6. More recently, in the case of the Department of Health & Children v. Gillen², the Labour Court stated:
      
      “A case of age discrimination presents particular difficulties. Where there is no direct evidence on age grounds for the alleged discriminatory actions and decisions, the complainant is often faced with a great difficulty in discharging the burden of proof placed upon him. The complainant faces special difficulties in a case of alleged institutional discrimination, which, if it exists, may be inadvertent and unintentional. This Court needs to address the primary facts (if any) from which it may be possible to draw inferences of discrimination and examine the totality of these facts in order to see whether it is legitimate to infer that the action complained of was committed on the discriminatory grounds. In conclusion, the Court must also carefully assess the evidence of the parties and their witnesses. It must take into account the explanations furnished by the appellant in respect of their decisions.”
      
      
   7. The complainant accepted that at his interview, he asked whether he would be too old for the job and he was informed that age was not an issue and that there were several people employed by the company who were older than he was. The complainant was successful at interview and was employed as a vehicle inspector on a one year fixed term contract with the respondent which commenced on 7 July 2003. The complainant passed his medical on 15 July 2003. All vehicle inspectors were required to participate in a three week intensive training course. The complainant’s contract of employment specified that failure to achieve the company standard during training would result in termination of the contract without notice. The complainant submits that during his training, he was asked why he was limping like an old man and asked if he needed new glasses. He submitted that the comments were made on a daily basis which made it difficult to concentrate on learning to become a vehicle inspector. The complainant was 52 years old at the relevant time. I will proceed to consider whether the respondent afforded to the complainant the same opportunities for training as that afforded to other employees whilst in employment. The respondent submitted that one of the trainers, Mr. Mc C took the complainant aside on the last day of the second week of the course and told him he would have to improve. It submitted that it was at that stage, the complainant informed him that he had some ankle problem. It also submitted that the complainant informed Mr. C, another trainer on the last week of his training that he had a difficulty with his ankles. It was denied by the respondent that the complainant was asked at any stage why he was limping like an old man and it submitted that in any case, speed of walking was not an issue. In relation to the issue of glasses, the respondent submitted that it was not Mr. Mc C who raised the issue of his eyesight but Mr. L and the complainant was asked was his eyesight okay as he was squinting and trying hard to read. The comment recorded on the assessment which was completed by Mr. L in respect of the complainant states “Very poor with computer. I think eyesight is very poor.”
   8. On the first week of the complainant’s training, there were two trainers, Mr. O’ B and Mr. Mc C, on the second and third week of training, there were three trainers, Mr. Mc C, Mr. L and Mr. C. Mr. Mc C and Mr. C were present at the hearing. The complainant submitted that he could not remember his performance being brought to his attention during his training. His only recollection in that regard was that Mr. O’ B mentioned his ability in relation to computers in the first week but told him not to worry as he would get the hang of it and another person whose name he could not remember asked him in the last few days of the course whether he thought he would be suitable to go to Macroom on the Monday. The respondent submitted a memo from Mr. O’ B to Mr. G, the Training Manager dated 21 August 2003 which indicates that the complainant did have a difficulty with the use of computers and that he was informed that he should speak to the trainers who would give him some extra tuition. Mr. L sent an e-mail to Ms. G in Human Resources and Mr. G (the Training Manager) on 3 November 2003 indicating that he spoke to the complainant in relation to his performance during the third week. He stated that he advised him that he was not up to the standard required and that if he put the effort in, he still had nearly a week to improve.
   9. The respondent’s evidence was that the complainant was spoken to on the first week of training by Mr. O’ B, on the second week by Mr Mc C and by Mr. C and Mr. L on the last week of training. Four assessments which were completed by the trainers during the course of the complainant’s training were made available. Mr. C submitted that in the second week of training having received a status report on the complainant, he put a trainer with him on a one to one basis for the next five days. He also put a trainer on a one to one basis with another trainee who was having difficulty. The trainers shadowed the trainees for the next few days. The complainant agreed at the hearing that he could remember Mr. L and Mr. Mc C following him around. At the end of the five days, Mr. C requested a report again and having received the report on 23 July 2003, submits that he personally took the complainant for tuition and found a number of items of concern regarding his work and aptitude. The complainant also remembered being taken to another test centre for tuition. The complainant accepted that he had been absent from training for an hour one day having requested permission to go out to post a letter.
   10. The respondent submitted that it employs 418 people and 60 vehicle inspectors and team leaders are in the 50 or over age category. Including other positions in the company, the company submitted that there are in total 96 people employed in the over 50 age category. At the hearing, it provided a detailed list of the employees in question. However, I note that five people on the list of total employees who are over 50 are not yet 50 years old but will reach 50 later this year. There are also three people on the list of Vehicle Inspectors and team leaders who have not yet reached 50 years old but will do so later this year. Accordingly, 22% of the respondent’s total employees are in the over 50 age category and 14% of the respondents vehicle inspectors and team leaders are in the over 50 age category. There were 12 people on the same training course as the complainant and they ranged in age from 21 to 58 years old. The 58 year old in question was also having some difficulties during training but with additional tuition, he passed his training. The respondent submitted that the success rate on the training course generally was 99%-100%. The respondent denies that the complainant was asked why he was limping and accepts that the complainant was asked whether his eyesight was okay. I do not consider that a question as to why he was limping or a question whether he needed new glasses as alleged by the complainant is indirectly a reference to age. On the balance of probabilities and taking into account the totality of the evidence, I am not satisfied that the complainant has established any facts that would raise a presumption of discrimination and I therefore find that he has not established a prima facie case of discrimination on the age ground in relation to training in his employment.
       
6. DECISION
   1. I find that the complainant has failed to establish a prima facie case of direct discrimination on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to training in his employment.

Mary Rogerson,
Equality Officer,
20 May 2005

¹Flexo Computer Stationery v. Kevin Coulter EED0313 9 October 2003 ,
²ADE/03/15 Determination No. 0412 27 July 2004