MCBRIERTY
(REPRESENTED BY EQUALITY AUTHORITY)
AND
NATIONAL UNIVERSITY IRELAND - GALWAY
(REPRESENTED BY IBEC)
1. DISPUTE
This dispute involves a claim by Ms. Fiona McBrierty that she was (i) discriminated against by National University Ireland (NUI) Galway on grounds of gender and race, in terms of section 6 of the Employment Equality Act, 1998 and contrary to sections 8 and 31 of that Act as regards her conditions of employment and (ii) victimised by the respondent within the meaning of section 74 of the Act.
2. BACKGROUND
2.1 The complainant, who is Welsh, responded to a newspaper advertisement in September, 2000 seeking applications for casual short-term (part-time or full-time) secretarial/clerical work with the respondent. The advertisement also sought applications for temporary full-time posts which had the possibility of permanency at some future date. The complainant did not apply for these latter posts. The complainant was successfully placed on the Casual Panel and some months later she applied to be transferred to the Panel from which the temporary full-time posts were being filled but the respondent would not let her do so. She submits this constitutes less favourable treatment of her on grounds of race because she did not have Leaving Certificate Irish. The complainant adds that she attended Irish classes which were organised by the respondent during 2001 and she was not permitted to sit the internal examinations in December, 2001. She submits that this constitutes victimisation of her in terms of section 74 of the Act. The complainant further states that the respondent's failure to renew her contract in December, 2001, at a time when it was aware she was pregnant and there was a vacancy in the respondent, constitutes discrimination of her on grounds of gender and victimisation, contrary to the Act. The respondent rejects the complaint's allegations in their entirety.
2.2 The Equality Authority, on behalf of the complainant, referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 28 March, 2002. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Submissions were received from both parties and a Hearing of the complaint took place on 17 January, 2007. A number of points emerged at the Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer. This process concluded in early July, 2007. The complainant also referred a complaint of discriminatory dismissal under the Act to the Labour Court prior to the transfer of jurisdiction for such complaints to this Tribunal. The Court confirmed, by way of letter dated 13 April, 2005, that it would hear that matter and it is therefore excluded from the complaint before this Tribunal.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is a native of Wales. In September, 2000 she responded to an advertisement in the Connaught Tribune seeking applications for casual short-term (part-time or full-time) secretarial/clerical work with the respondent (hereafter referred to as Panel A). The advertisement also sought applications for temporary full-time posts which had the possibility of permanency at some future date (hereafter referred to as Panel B). The complainant only applied for positions on Panel A because the flexibility it offered fit in with her personal circumstances at the time. The complainant was successfully placed on Panel A and completed the first of her casual appointments in the respondent's Adult Education Office between 4-8 December, 2000. She states she was subsequently assigned 2/3 half days during the week commencing 18 December, 2000 also in the Adult Education Office and worked full-time in the Accommodation Office for the week 15-19 January, 2001. The complainant adds that the following week she was offered and accepted a full-time post in the Library for a period of six months, 22 January, 2001 - 21 July, 2001 on foot of the casual employment arrangements. She states that as she was effectively working full-time she decided to apply for a transfer to Panel B in May, 2001 and raised this with Ms. X, the respondent's Personnel Officer, in the course of a meeting on 3 June, 2000 and was informed by Ms. X that this was possible. The complainant adds that she met again with Ms. X on 18 June, 2001 and was advised that transfer to Panel B was not possible and she (the complainant) understood the barrier to her transferring between Panels to be the fact that she did not have Leaving Certificate Irish. The complainant submits that such a requirement constitutes indirect discrimination of her contrary to the Act. The complainant adds that the respondent published a similar advertisement in October, 2001 seeking applications for temporary full-time posts which had the possibility of permanency at some future. The advertisement stated that applicants were required to have Leaving Certificate Irish and consequently, the complainant did not apply. She submits that such a requirement constitutes indirect discrimination of her contrary to the Act.
3.2 The complainant states that she informed Ms. C (the respondent's Administration Manager) that she was pregnant when she met with her on 6 July, 2001 and that the next occasion she raised this matter with the respondent was in her e-mail of 31 August, 2001 to Ms. X. She adds that on conclusion of the assignment on 21 July, 2001 she was immediately given a further appointment which concluded on 24 August, 2001. The complainant states that she was reappointed to a temporary post in the Library on 13 September, 2001(which was intended to conclude on 31 October, 2001) to cover another employee's absence on sick leave and this was extended on two occasions so as the final day of her employment was 21 December, 2001. She adds that he was her understanding, following a discussion with her Line Manager (Ms. D) in November, 2001, that she would remain in that post until the commencement of her maternity leave in February, 2002, unless the employee on sick leave returned and she was therefore surprised when Ms. D informed her about a week before her employment ceased that her contract was not being extended beyond 21 December, 2001. The complainant contends that the post she vacated on 21 December, 2001 was not filled immediately and remained vacant for some time. She further contends that the respondent could have extended her contract for a further period and that its failure to do so, at a time when she was pregnant, constitutes discrimination of her on grounds of gender. She further submits, without prejudice to this argument, that the treatment constitutes victimisation of her in terms of section 74 of the Act.
3.3 The complainant states that following her failure to be permitted transfer from Panel A to Panel B in May/June, 2001 she attended the respondent's internal Irish classes and completed the course. She adds that she was informed by the respondent that she was not entitled to sit the examination at the end of the course because she was employed on the Panel A (the casual panel). The complainant submits that this treatment of her constitutes victimisation of her in terms of section 74 of the Act.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent agrees that it placed the newspaper advertisements in September, 2000 and October, 2001 as detailed by the complainant. It accepts that the 2000 advertisement makes no reference to applicants having Leaving Certificate Irish and adds that this was an oversight on its part as all administrative appointments which may result in permanent positions at some future date requires those appointees to have Leaving Certificate standard Irish or its equivalent. These staff must then demonstrate the necessary proficiency in Irish before the end of the standard probationary period (normally one year) by passing the respondent's own Irish Examination. If necessary an employee's probation may be extended to enable him/her pass the examination. The respondent adds that the University College Galway Act, 1929 places an obligation on it to appoint people who are competent to discharge their duties through the Irish language, provided it is satisfied that the candidate is suitable in all other respects. The respondent relies on the ECJ judgment in Grovenan v Minister for Education and City of Dublin VEC in support of its policy to require permanent administrative employees to be proficient in Irish for employment purposes. The respondent adds that it fosters and promotes the Irish language and this is one of the seven key priorities contained in its Strategic Plan. Consequently, considerable supports are put in place to support this initiative. It concludes its arguments on this point by stating that the newspaper advertisement in October, 2001 was for temporary full-time posts only and it therefore correctly included the Leaving Certificate Irish requirement in accordance with standard practice and notes that the complainant did not apply for those posts.
4.2 The respondent states that the complainant applied for Panel A (the casual panel) only and consequently her application was dealt with on that basis throughout the entire selection process, culminating in written confirmation of her appointment to that Panel on 24 November, 2000. The respondent's HR Manager (Mr. Z) chaired the Interview Board and states that he clarified which Panel each candidate was seeking appointment to at the start of the interview. The respondent adds that Mr. Z made the decision to waive the Irish language requirement from candidates seeking appointment to Panel A because it was never intended that successful candidates on that Panel would have a pathway to permanent posts within the University. The respondent adds that the selection process in 2000 was the first and only occasion it used such an approach - establishing a Casual Panel for direct recruitment - as it required flexibility at that time. It adds that it now uses an agency for temporary/casual vacancies.
4.3 The respondent accepts the details of employment records submitted by the complainant. It states that whilst the complainant may have appeared to be employed on a continuous basis she was always on casual, temporary fixed/short-term assignments. It adds that the Contract of Employment sent to the complainant on 26 March, 2001 (which she declined to sign) clarifies this. The respondent accepts that Ms. X led the complainant to believe that it was possible to transfer from Panel A to Panel B when they met in June, 2001. It adds that this was however an error on the part of Ms. X and she subsequently corrected it when she met with the complainant on 18 June, 2001. This corrected position was confirmed to the complainant by Ms. X in the course of her letter on 9 July, 2001 when it was made clear that employees could not transfer between Panels. The respondent adds that no person moved from Panel A to Panel B during the life of the Panel. It states that the complainant decided to apply for Panel A only and submits that its decision not to permit her transfer between Panels does not constitute less favourable treatment of the complainant on grounds of race.
4.4 The respondent states that the complainant was assigned to a post in its Library from 13 September, 2001 to 31 October, 2001 (initially) to provide cover for an employee on sick leave. It adds that the duration and terms under which the assignment was made were confirmed to her by letter dated 18 September, 2001. This assignment was extended to 30 November, 2001 (by letter dated 30 October, 2001) and subsequently to 21 December, 2001 (by letters dated 3 and 5 December, 2001). The respondent states at this stage it had formed the view that the absence in the Library was likely to be longer term than originally envisaged and it decided that the vacancy which was to arise on 21 December, 2001 would be filled subsequently by an employee from Panel B who was about to finish another temporary appointment with the respondent. The respondent states that the only person who could indicate any possible extension of the complainant's assignment at any given time was Ms. C - and not Ms. D who was the complainant's Supervisor at local level. It adds that Ms. C never spoke in such terms to the complainant as she (Ms. C) was unable to predict future events. The respondent submits therefore that the non-renewal of the complainant's assignment on 21 December, 2001 was for reasons unconnected with her pregnancy and cannot therefore constitute discrimination of her on grounds of gender contrary to the Act. It further submits that it does not constitute victimisation of the complainant contrary to the Act. In conclusion on this point the respondent states that it offered the complainant a further assignment in May, 2002 which she refused for personal reasons. The respondent advised the complainant it would retain her details on file and asked that she contact Ms. C when she was in a position to resume employment. It adds that the complainant wrote to Ms. C on 3 April, 2003 seeking work on afternoons only because of family circumstances. The respondent was unable to facilitate this request and informed the complainant of same. It states that the Panel subsequently lapsed and the complainant was informed of same on 26 November, 2003.
4.5 The respondent states it informed the complainant on several occasions that access to posts which were permanent in nature or which would give rise to permanency at a future date required candidates for those posts to have Leaving Certificate Irish or its equivalent. It further states it informed the complainant that as she was not on the Panel with the possibility of such appointment she would have to undergo the selection process for such posts, along with any other applicant. It argues that Leaving Certificate Irish does not necessarily equate to an appropriate level of proficiency in the language to enable an employee discharge his/her duties through Irish. It adds that all permanent administrative staff must sit an internal examination which satisfies the respondent of their capability in this regard. It therefore organises Irish classes for staff and whilst all staff can avail of these classes - as the complainant did - access to the examination is restricted to staff who are in permanent posts or posts with that possibility. The respondent states that as the complainant's employment was casual in nature she was not permitted to sit the examination. It submits therefore that the refusal to allow her sit the examination does not constitute victimisation of her contrary to the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender and race in terms of section 6 of the Employment Equality Act, 1998 and contrary to sections 8 and 31 of that Act as regards her conditions of employment and (ii) victimised her within the meaning of section 74 of the Act. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 At the time the impugned behaviour is alleged to have taken place the Employment Equality Act, 1998 was the statute in force. It was well established caselaw of this Tribunal and the Labour Court at that time that in cases of alleged discrimination the complainant must, in the first instance, establish primary facts from which it an be inferred that she suffered discriminatory treatment on the grounds cited. It is only when such a prima facie case has been established that the burden shifts to the respondent to rebut the inference of discrimination raised. This approach now forms part of Irish anti-discrimination legislation under section 85A of the Employment Equality Acts, 1998-2007.
5.3 The first point for consideration by me is whether or not the respondent discriminated against the complainant on grounds of race when it refused to permit her transfer from Panel A to Panel B in May/June, 2001. It is clear to me that the respondent intended to create two separate Panels to service its future employment requirements on foot of the selection process it conducted in or around September, 2000. The newspaper advertisement distinguishes between (i) temporary full-time posts with a possibility of permanency at some future date and (ii) casual short-term appointments on a part-time and full-time basis. Whilst the selection processes was the same for both Panels it is clear from the application form completed by the complainant that candidates were requested to indicate which of the Panels s/he was applying for. I note form the complainant's application form that she expressed interest in the Casual Panel only - a fact which she confirmed at the Hearing - and she had done so because the flexibility afforded by the Casual Panel suited her personal circumstances at the time. The respondent states that the complainant's application for employment was therefore considered on the basis of placement on the Casual Panel (Panel A) only. It further states that whilst the selection processes were the same for both Panels the selection criteria and requirements for applicants for Panel B differed significantly from those for Panel A because the ultimate nature of the employment relationship which might ensue between the parties was significantly different - candidates on Panel A were never envisaged to have any prospect of access to a permanent position with the respondent. In this regard the requirement to have Leaving Certificate Irish was waived for applicants for that Panel, including the complainant. On the basis of the evidence submitted by the parties on this point I am satisfied the complainant was unaware that she could not transfer between Panels until she raised the matter with Ms. X in May, 2001. Whilst I find it odd that someone of Ms. X's senior position in the University did not realise it was not possible for someone to transfer between Panels, I am satisfied that her response to the complainant that it was possible was a genuine mistake on her part and she subsequently took swift steps to rectify this misunderstanding. I also note that no other person transferred between the Panels. On the basis of the evidence submitted on this point I am satisfied that the complainant was not in a similar position to candidates on Panel B and her conditions of employment differed significantly. She made a conscious decision to apply for casual type employment only and she did not have any right to transfer between Panels. Consequently, I find that the respondent's refusal to transfer her to Panel B was not connected with her nationality and her complaint in this regard must fail.
5.4 The respondent published an advertisement in October, 2001 seeking applications for temporary full-time posts which had the possibility of permanency at some future. The advertisement stated that applicants were required to have, inter alia, Leaving Certificate Irish and consequently, the complainant did not apply. She submits that such a requirement constitutes indirect discrimination of her contrary to the Act. Section 31 of the Employment Equality Act, 1998 prohibits indirect discrimination, inter alia, on grounds of grounds of race. Indirect discrimination can arise where a rule or criterion for employment is specified which a particular group or class of persons find more difficult to comply with on one of the proscribed grounds than those to whom the proscribed ground does not apply. I accept the complainant's submission in the instant case that the requirement to have Leaving Certificate Irish impacts more significantly on persons whose nationality is not Irish and the complainant has therefore established a prima facie case of indirect discrimination on grounds of race, although this scenario will change over time as the demographic of our education system changes. In accepting this proposition I note, notwithstanding the respondent's assertions to the contrary, that the newspaper advertisement does not state Leaving Certificate Irish or equivalent. I am satisfied that it was perfectly clear to the complainant that Leaving Certificate Irish was required and it was reasonable for her to assume she could not apply as she did not fulfil this requirement. On the basis of the evidence given at Hearing on this point by a number of employees from the respondent HR Department who had responsibility for processing the applications, I am satisfied that had the complainant submitted an application it would have been rejected by the respondent on the basis she did not have Leaving Certificate Irish. In the circumstances I consider it unreasonable to expect the complainant to have made a formal application for the scheme to maintain a locus standi to pursue her complaint to this Tribunal.
5.5 Section 31(1) of the Employment Equality Act, 1998 (which was the Act in force at the time) requires the respondent to justify the impugned practice as reasonable in all the circumstances, where a complainant has established a prima facie case of indirect discrimination on grounds of race. The essence of the respondent's arguments in this regard is that Section 3 of the University College Act, 1929 places an obligation on it to appoint people who are competent to discharge their duties through the Irish language, provided it is satisfied that the candidate is suitable in all other respects. This requirement was waived in 2000 in respect of staff who were employed on a casual basis (Panel A) but evidence was given by Mr. Z that the requirement to demonstrate an acceptable level of proficiency in Irish was always there in respect of staff who had an opportunity for permanent employment status at some future date. I have examined the relevant provision of the 1929 Act and I am satisfied that the inclusion of the word "shall" in the provision places an obligation on the respondent to ensure potential permanent staff are competent to discharge their duties through the Irish language. The respondent states that it does not view Leaving Certificate Irish as fulfilling this requirement - it therefore organises internal Irish classes which staff can avail of and sit a customised examination at the end of the classes which satisfies the respondent of the employee's competency to discharge his/her duties through Irish. The employee is required to pass this examination before the end of his/her probationary period and probationary periods have been extended to enable this. The respondent submits therefore that promotion/fostering of the Irish language in a fundamental element of University's existence. In support of this assertion it states that one of the seven Key Strategic Priorities in its Strategic Plan is to promote the Irish language in the work of the University.
5.6 I have examined the evidence submitted by the respondent on this point and I am satisfied that a central element of the its strategic direction and objectives is to support the sustainable development of Irish as a living language (particularly given its location on the fringes of the largest Gaeltacht community in the country) through the provision of higher education through Irish, the achievement of an effective bilingual communications culture within the University campus and the review of its internal structures to achieve those aims. It appears reasonable to me therefore that it requires staff to have proficiency to conduct their duties through Irish to attain those objectives. Consequently, I find that the requirement imposed by the respondent in this regard is reasonable in the circumstances of this particular case and it can therefore rely on the defence available to it at section 31(1)(d) of the Employment Equality Act, 1998.
5.7 The complainant contends that the refusal of the respondent to allow her sit its internal Irish examination following her completion of the respondent's classes constitutes victimisation of her. The respondent states that as the complainant's employment was casual in nature she was not permitted to sit the examination as it is restricted to staff who are required to demonstrate the necessary proficiency in the language to acquire permanent status. Having examined the evidence submitted by the parties I am not satisfied, on balance, that the complainant has established a prima facie case of victimisation.
5.8 The complainant contends that the failure of the respondent to extend her employment beyond 21 December, 2001 constitutes discrimination of her on grounds of gender because she was pregnant at this time. She further contends, without prejudice to the foregoing, that this failure constitutes victimisation of her contrary to the Act. The complainant was employed on a casual basis to fill vacancies that arose unexpectedly in the University - the respondent confirmed this in writing to her on 24 November, 2000 and it was clear from the Contract of Employment forwarded to her on 26 March, 2001. It is common case that the first assignment on foot of her employment was for the week commencing 4 December, 2000. It is also common case that she was subsequently assigned 2/3 half days during the week commencing 18 December, 2000 in the Adult Education Office, that she worked full-time in the Accommodation Office for the week 15-19 January, 2001 and she was assigned a full-time post in the Library for a period of six months, 22 January, 2001 - 21 July, 2001. This period was subsequently extended to 31 August, 2001. The complainant was then re-assigned to a full-time post in the Library from 13 September, 2001 and this assignment was extended on a couple of occasions and terminated on 21 December, 2001. There is conflict between the parties whether or not the complainant informed Ms. X that she was pregnant when they met on 6 July, 2001. However, it is clear that Ms. X was aware of the complainant's condition on 31 August, 2001. If the complainant's assertion is accepted about the events of 6 July - and I make no finding on this point - then it appears odd to me that an organisation which, she asserts, was disposed to treating her less favourably on grounds of pregnancy, continued to employ her almost continuously for the following five months and at that time (July, 2001) also agreed an increase in her salary. It is also noteworthy that the respondent continued to employ the complainant for almost four months (on a full-time basis) after a time when I am satisfied it was aware of her condition.
5.9 The complainant asserts that she was given to understand by her immediate Line Manager (Ms. D) that she would remain in the post until February, 2002 - around the time she was due to commence maternity leave - and that that this discussion took place in early December, 2001. On the basis of the evidence submitted by the respondent it was clear to the complainant that her assignment was to end on 21 December, 2001. Whether or not Ms. D gave the complainant another impression is not relevant as she had no authority to engage the complainant - this was at all times handled by Ms. C. The fact that the respondent had a vacancy somewhere within its organisation which it did not fill immediately following the departure of the complainant is not of itself, sufficient to raise an inference of discrimination. An employer must be permitted to utilise its resources in whatever way it deems fit. The decision not to fill that vacancy immediately, and in the process not renew the complainant's assignment, is therefore a matter for the respondent and it cannot be considered unlawful under anti-discrimination legislation unless it was influenced by factors connected with the complainant's pregnancy . I am satisfied that the complainant has failed to discharge the initial burden required of her in this regard and her claim must therefore fail. I also find that the complainant has failed to establish a prima facie case of victimisation on this element of her complaint.
6. DECISION OF THE EQUALITY OFFICER.
I find that -
(i) the complainant has failed to establish a prima facie case of discrimination on grounds of race in respect of the respondent's refusal to permit her transfer between Appointment Panels in May, 2001;
(ii) the respondent did not discriminate against the complainant on grounds of race by imposing a requirement that permanent employees must be competent to discharge their duties the Irish language;
(iii) the complainant has failed to establish a prima facie case of victimisation in respect of the respondent's refusal to allow her sit its internal Irish examination;
(iv) the complainant has failed to establish a prima facie case of discrimination on grounds of gender and victimisation in respect of the respondent's decision not to renew her assignment when it concluded on 21 December, 2001 as indicated by her letter of assignment;
and her complaint therefore fails.
____________________________
Vivian Jackson
Equality Officer
3 December, 2007
1 Case C-379/87
2 C-438/99 Melgar v Ayumtamiento de Los Barros