FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : NUI GALWAY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - FIONA MCBRIERTY (REPRESENTED BY MARY HONAN B.L. AS INSTRUCTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Act, 1998
BACKGROUND:
2. The worker referred her appeal to the Labour Court on the 2nd January, 2008, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 5th December, 2008, in Galway. The following is the Court's determination.
DETERMINATION:
This is an appeal by Ms. Fiona McBrierty against the Decision of an Equality Officer in a claim rejecting her complaint of discrimination against National University of Ireland, Galway on the gender and race grounds in breach of terms of Section 6(2) (a) and (h) of the Employment Equality Acts, 1998 (the Act) and in contravention of Section 8 of the Act and that her treatment constituted victimisation under Section 74 (2) of the Act.
For ease of reference in this determination the parties will be referred to by the designations given to them at the original hearing i.e. the Complainant and the Respondent.
Ms. Fiona McBrierty (the Complainant)contends that she was subjected to discriminatory treatment by the National University of Ireland, Galway (the Respondent) on the following grounds:
(i) on the gender ground in that the non-renewal of her contract on 1st January 2002 was due to the fact that she was pregnant;
(ii) on the grounds of race in respect of access to employment opportunities; and
(iii) that the Respondent’s treatment of her when she indicated that she was considering a complaint to the Equality Authority constituted victimisation under Section 74 (2) of the Act.
The Complainantis Welsh, is a national of the United Kingdom and was educated in Wales. She was appointed by the Respondent to a secretarial/clerical panel for the filling vacancies on a casual basis on short-term contracts in November, 2000, and was employed thereafter on a number of contracts until 21st December, 2001.
At the relevant time the Respondent had a practice whereby secretarial/clerical roles within the University were filled from two panels. Panel A was established for the filling of long-term, full-time positions with the potential of permanency. Panel B, the panel for which the Complainant was originally selected, was established for the filling of both part-time and full-time secretarial/clerical vacancies on a casual basis on short-term contracts.The crucial difference between the two panels was that the Respondent, in pursuance, as it saw it, of its statutory duty under Section 3 of the University College Galway Act 1929 insisted on proficiency in Irish for those candidates who wished to be appointed to Panel A.
Summary of the Complainant’s Case
-Claim of Gender Discrimination
Ms. Mary Honan, B.L., Counsel for the Complainant, stated that the Complainant had replied to an advertisement for secretarial/clerical vacancies in September, 2000, which sought applicants for two different panels. Panel A was for the filling of long-term, full-time positions with the potential of permanency. The advertisement for Panel A did not mention proficiency in Irish. It merely states that candidates should have an appropriate post-Leaving Certificate qualification. Panel B was for the filling of vacancies on a casual basis on short-term contracts, both part-time and full-time. The Complainant applied for Panel B only. She was successful and was appointed to Panel B in November, 2000.
While on Panel B the Complainant was appointed to different roles within the University to provide casual short-term employment cover as the need arose. On 25th May, 2001, the HR Department wrote to her advising her that her temporary casual part-time contract of employment would expire on 31st August, 2001, when she would be re-assigned to Panel B and would be contacted in the normal way when vacancies arose.
The Complainant states that she informed the Administration Manager of the Respondent on the 6th of July, 2001, that she was pregnant. She states that she first e-mailed Ms. B., Personnel Officer, regarding her pregnancy on 31st August, 2001. On 13th September, 2001, she was appointed to a post in the Library which was due to expire on 31st October, 2001. Her contract was further extended by one month to 30th November, 2001.
In November, the Respondent became aware that the person for whom the Claimant was filling in was likely to be out sick for quite some time, and decided to replace him with an appointment from Panel A. The Panel A person was not available until the end of November so the Respondent further extended the Claimant’s contract to 21st December, 2001, (the Christmas closure date).
The Claimant asserts that Ms. M., Library Assistant, had told her that her contract in the Library would be extended up to the earlier of the commencement date of her maternity leave on 1st February, 2002, or the return of the employee from sick leave.
However, she received a letter dated 5th December, 2001, stating that her contract of employment would cease from 21st December, 2001. She contended that the fact that it was not renewed after the Christmas shutdown period was due to her pregnancy and her impending maternity leave.
-Claim of Race Discrimination
Ms. Honan stated that as the Complainant was employed full-time on an almost continuous basis and in or around May, 2001, she decided to apply to transfer to Panel A.Having made enquires she was initially told by Ms. B., Personnel Officer, that she could transfer.
However, she was later informed that a transfer to Panel A was not possible. She understood the obstacle to be the fact that she did not have Leaving Certificate Irish or its equivalent. This was confirmed to her by email from Ms. C., Administration Manager, in or around 12th October, 2001.
The Claimant attended Classes in Irish from September to December, 2001, along with others. However, when it came to sitting the Proficiency Examination she was not allowed to and was given no reason for this.
On 12th October, 2001, the Respondent advertised for full-time positions and stipulated that applicants must hold a Leaving Certificate in Irish and English. These were Panel A positions. The Complainant stated that as there was a requirement for Leaving Certificate Irish, she was precluded from applying. On 14th October, 2001, the Complainant informed the Respondent that she had made contact with the Equality Authority regarding possible race discrimination.
The Complainant told the Court that she had reached a high level of proficiency in Irish by December, 2001.
She claims that she was discriminated against on the nationality ground in that she was not allowed to apply for appointment to Panel A because she did not have an Irish qualification. She claims that the requirement to have Leaving Certificate Irish is discriminatory under the provisions of Section 31 of the Act and that such a provision cannot be justified as being reasonable in all the circumstances of the case.
-Victimisation Claim
Ms. Honan contended that in the absence of any adequate explanation for the Respondent’s decision not to allow her to sit the Irish Examination, such action must constitute victimisation under the Act.
Furthermore, she contended that the failure to renew her contract in December, 2001, after she had informed the Respondent of a possible discrimination claim in October 2001, also constitutes victimisation under the Act.
Summary of the Respondent’s Case
-Claim of Gender Discrimination
Mr. Niall Beirne, B.L., Counsel for the Respondent, submitted that the Respondent had been informed of the Complainant’s pregnancy by email to the Personnel Officer on 31st August 2001. It contended that the issue of her pregnancy was immaterial and pointed out that she was appointed to a post in the Library commencing on 13th September, 2001, which was due to expire on 31st October, 2001. Her pregnancy had no bearing on the extension of that contract nor on its final termination, which was due to a need to replace the employee out sick on a more permanent basis due to the nature of his illness. As it was likely to be long term there was a requirement to replace him with an appointment from Panel A and that could not be done until the end of November, 2001, and so therefore the Respondent further extended her contract to 21st December, 2001. From that date there was no further work available.
The Respondent refuted the Complainant’s assertion and stated that at no point was the Complainant told that her contract in the Library would be extended up to the earlier of either the commencement date of her maternity leave on 1st February, 2002,or until the return of the employee from sick leave.
The Complainant’s maternity leave commenced from 1st February, 2002, until May 2002. On 16th May, 2002, the Respondent offered her a casual position in the MIS Department, however, she declined the offer. On 17th May, 2002, Ms. C. advised the Complainant that she should contact her directly when she was in a position to resume employment on Panel B. She made contact on 3rd April, 2003, to inform them that she was available for work in the afternoons only but the Respondent had no afternoon work available either at that time or subsequently.
In November, 2003, the Respondent dispensed with the need for a panel equivalent to Panel B as it had reached an agreement with the Trade Unions representing administrative staff to utilise the services of an agency to provide short-term casual secretarial staff as required from time to time.
-Claim of Race Discrimination
Mr. Beirne submitted that the Complainant was made aware at all times that if she wished to be considered for a position on Panel A then, in the first instance, she would have to apply for it. This was made clear to her at her interview for the Panel B position in November, 2000, and on subsequent occasions.
Mr. Beirne told the Court that a requirement for proficiency in the Irish language was a mandatory requirement for any appointments to “an office or situation in the College”. This requirement is laid down in the University College Galway Act, 1929. Section 3 provides:
- “It shall be the duty of the Senate of the National University of Ireland, the Governing Body of the College, or the President of the College (as the case may be), when making an appointment to any office or situation in the College, to appoint to such office or situation a person who is competent to discharge the duties thereof through the medium of the Irish language; provided a person so competent and also suitable in all other respects is to be found amongst the persons who are candidates or otherwise available for such appointment.”
The Complainant did speak to Ms. B., Personnel Officer, early in May, 2001, and Ms. B. informed her that she could transfer from Panel B to Panel A without any further examinations. The Respondent later confirmed, however, that Ms. B. was mistaken in this view and explained that no one had ever transferred from Panel B to Panel A.
In order to be considered for a Panel A position it was necessary to apply on foot of an advertisement for such a position. Ms. B. met with the Complainant on 18th June, 2001, to rectify the erroneous information previously given and this was further reiterated at a meeting with Ms. C. of the Personnel Office held on 6th July, 2001. At this meeting the Complainant was also advised that the only requirement was to pass the examination in proficiency in the Irish language.
The Complainant enquired what the situation would be if she commenced Irish Classes and went on to pass the Irish proficiency examination at some point in the future. Ms. C. confirmed that she could in future apply for Panel A and would be put on the panel provided she then passed the Irish proficiency examination.
On the 12th October, 2001, the Respondent placed an advertisement for ‘Secretarial and Clerical Vacancies’. These were Panel A positions and the qualifying criteria included Leaving Certificate passes in Irish and English. However, the Complainant did not apply for these positions and indeed never applied for a position on Panel A at any time.
Mr. Beirne contended that in accordance with its statutory obligations it is entirely reasonable and an objective justification for the University to have such a requirement for proficiency in the Irish language coupled with the test, in order to provide the level of service, which it is required to give. Therefore, the Respondent stated that under Section 31(1)(d) of the Act, the requirements can be justified as being reasonable in all the circumstances of the case.
The Respondent also cited the 1989 European Court of Justice case ofAnita Groener –v- Minister for Education and City of Dublin VEC,Case C-379/87, in which it was held that a linguistic requirement (to have Irish) is valid where it is essential for the promotion of the national and first official language.
-Victimisation Claim
The Respondent refuted the Complainant’s contention that it refused her the opportunity to sit the Irish proficiency examination. She never applied for inclusion in Panel A. For that reason the issue of the Irish proficiency examination simply did not arise for her. It is the second of a two-stage process operated by the Respondent to establish the proficiency in Irish of applicants. Given that there was no refusal it cannot be claimed that a refusal amounted to victimisation. The advice about the requirement to sit an Irish proficiency examination, in the context of Panel A, was made known to the Complainant in advance of any complaint being made under the Act.
Furthermore, the Complainant’s pregnancy had no bearing on the expiry of her contract on 21st December, 2001, and, accordingly, the Respondent disputes the allegation of victimisation.
Witness Testimony
-The Complainant’sEvidence
The Complainant told the Court that she had been providing casual short-term employment as the need arose in different roles within the University since November 2000. On 29th November, 2001, she was working in the Library and was asked to remain in her temporary contract at the time until the Christmas closing date of 21st December, 2001. Her line manager, Ms. M., told her that the contract would be extended until the earlier of either the commencement of her maternity leave on 1st February 2001 or until the person on sick leave returned. However, she was asked to train in Ms. McG. (from Panel A) and Ms. McG. replaced her when her contract finished on 21st December, 2001, despite the enormous amount of work which needed to be done in the special needs section of the Library at the time. She told the Court that the reason she believed her contract was not renewed was due to her pregnancy and her pending maternity leave.
The Complainant told the Court that she originally applied for the Panel B work in September, 2000, as she had other work interests and was therefore only available for temporary casual work. However, by April 2001, as she was effectively working whole-time, she decided to enquire about Panel A positions which had the potential to become permanent positions. When she had her meeting with Ms. B. on 5th May 2001, Ms. B. agreed with her that it made no sense to be on Panel B and gave her the impression that it was a straightforward process to transfer to Panel A. She was subsequently informed that such a transfer was not possible and that she required Leaving Certificate Irish. On 19th June, 2001, she outlined her concerns in writing to Ms. B.
The Complainant said that by email dated 16th July, 2001, to Ms. C. she asked if she could offer her ‘A’ Level Welsh as a possible alternative, at least until she could begin Irish Classes in September, and she was told that she could, so she proceeded to attend the Classes commencing in September and finishing in December, 2001. The Complainant told the Court that she understood that if she attended the Irish Classes and passed the Irish proficiency examination she would be able to transfer to Panel A. She did not have to apply to attend the Irish Classes but she just turned up at them. She explained that the format was to attend the Classes and then to be invited to sit the Irish proficiency examination. However, she was not invited to sit the examination.
The Claimant told the Court that although she ignored advice when she applied for a secretarial/clerical position in Social Care (in November, 2000) in which proficiency in the Irish language was also a requirement (she was unsuccessful in the interview) the reason she did not apply for the Panel A vacancies was because she did not have Leaving Certificate Irish.
The Complainant told the Court told that she decided to raise the matter of discrimination with the Equality Authority in July, 2001. She said that the reasons she did so were due to the Respondent’s refusal to appoint her to a permanent position and its refusal to allow her to transfer to Panel A. She believed that it was this action, which resulted in the Respondent’s refusal to allow her to sit the Irish proficiency examination and the non-renewal of her contract after 21st December, 2001, which victimised her.
-Ms. C.’s Evidence
Ms. C. was the University’s Administration Manager at the pertinent time. She told the Court that the Complainant was fully aware of the nature of her employment with the University that it was for the filling of temporary full-time/part-time positions as the need arose, with no prospects of permanency. Ms. C. said she became aware at the end of November, 2001, that the person out sick, for whom the Complainant was filling in, was unlikely to return for some time. Therefore, it became necessary to make a more permanent appointment to fill the vacancy i.e. an appointment from Panel A. As Ms. McG. was becoming free from her contract at the time, it was decided to offer her the position on a long term basis. She occupied that position for 1 ½ years.
Ms. C. told the Court that she learned of the Complainant’s pregnancy in October, 2001, prior to her contract’s renewal on 1st November, 2001.
She explained that the University had had many women employees who were pregnant and had availed of maternity leave; indeed there were other occasions when temporary employees were covering for women on maternity leave andvice versa. It had no difficulty with such situations. She also said that it was the University’s policy to ensure that Panel A employees were provided with work.
Ms. C. explained that the advertisement was for short-listing purposes only and that it was the University’s policy to accept applicants with “Leaving Certificate Irish or its equivalent” - there were 300 applicants for 30 positions in 2001. However, it accepted that this was not clear in the advertisement posted on 12th October 2001. However, had an applicant applied stating that they had the equivalent standard in Irish to Leaving Certificate Irish then they would have been permitted to apply and do the Irish proficiency examination.
Ms. C. told the Court that the standard of Irish required by the University for proficiency purposes is Honours Leaving Certificate Irish.
Ms. C. told the Court that she had a long chat with the Complainant on 6th July, 2001, about her request to transfer to Panel A. Ms. C. told her that in order to be considered she needed to apply for the position. She said that all she had to do in her application was to state that she would be able to pass the Irish proficiency examination. Ms. C. cited a number of examples of people who did not have Leaving Certificate Irish but who were proficient in the language and passed the examination.
Ms. C. said that she was confident that had the Complainant applied for the position in October, 2001, and indicated her proficiency in the Irish language, she would more than likely have been successful. During a recruitment drive, only those who apply for the positions are invited to sit the Irish proficiency examination and considered for the positions. In deciding on successful candidates, applicants were ranked according to their overall assessment and results in the Irish proficiency examination.
Ms. C. explained that occasionally if applicants were assessed at the top level in the competition but were unsuccessful in the Irish proficiency examination, they were appointed to Panel B and they were given the opportunity to reapply at a later date.
Ms. M.’s Evidence
Ms. M. was the Complainant’s line manager in the Library at the time her contract came to an end on 21st December, 2001. Ms. M. stated that she did not give the Complainant a commitment that her contract would be extended up to the earlier of either the commencement date of her maternity leave on 1st February, 2002, or until the return of the employee on sick leave. She said that she had no authority to do so and that the Complainant’s contracts were issued by the Administration Office.
The Court’s Conclusions
The Probative Burden
Section 85 A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination.
The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination inMitchell v Southern Health Board[2001] ELR 201. That test requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged, and the Court is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden, which she bears, her case cannot succeed.
-Claim of Gender Discrimination
The Law Applicable
It has been made clear by the Court of Justice that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender (see decision in Case C-177/88Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941).
On the facts of this case the Court must consider if the Respondent discriminated against the Complainant contrary to section 8 of the Act by not renewing her contract after 21st December 2001, while she was pregnant. In support of her claim, the Complainant cited the case ofMelgar v Ayuntemiento de Los Barrios [2001 I.R.L.R.848]. The Court of Justice in this case held that a failure to renew a contract of employment because of an employee’s pregnancy constitutes direct gender discrimination.
Finding
The Complainant informed the Respondent of her pregnancy on 31st August, 2001, and handed in dates of her maternity leave on 19th November, 2001.
The Court notes that her contract was renewed on three occasions after the Respondent became aware of her pregnancy – on 13th September, 31st October, and 30th November, 2001. Furthermore, in accordance with the casual nature of her Panel B contract, from 21st December, 2001, she was re-assigned to the Panel and informed that she would be contacted in the normal way when vacancies arose.
The Court notes that the reason for the termination of her temporary contract on 21st December, 2001, was due to the need to replace the employee who was out sick on a more permanent basis and the nature of the absence to be covered on that basis required an appointment from Panel A in such circumstances. Having heard the evidence from Ms. M., Library Assistant, the Court is satisfied that the Complainant was not given any form of commitment that her contract in the Library would be extended up to the earlier of either the commencement date of her maternity leave on 1st February, 2002, or the return of the person from sick leave.
An email to the Complainant from Ms. C. dated 17th May, 2002, concerning alternative casual employment, stated:
- “I will therefore leave your name on file and I would ask you to contact me directly yourself when you are in a position to take on any casual vacancies with us”.
In these circumstances, the Court cannot find grounds to substantiate the contention that the reason for the non-renewal of her contract after the Christmas shutdown period was due to her pregnancy and impending maternity leave. Furthermore, the Court accepts that while she may not have been actively engaged in employment after 21st December, 2001, she was still considered as employed on this Panel, she was placed on maternity leave in the same circumstances as any other similar employee on Panel B, was kept “live” on Panel B and was offered employment of a casual nature post her maternity leave.
In all of these circumstances the Court finds that the Complainant was not discriminated against on the gender ground. Her appeal on this ground must fail.
-Claim of Race Discrimination
The Law Applicable
Section 31 of the Act, which prohibits indirect discrimination inter alia on the race ground, states as follows: -
- 31.—(1) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment—
(a) applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8(1),(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and(d) cannot be justified as being reasonable in all the circumstances of the case, then, subject to subsections (4) and (5), for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8, on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).
Finding
The Court must consider whether the Respondent’s requirement for proficiency in the Irish language is discriminatory against non-Nationals. On the face of it, it undoubtedly is.
For the purpose of this Determination the Court is prepared to assume (without so holding)that non-Irish nationals, in the main, do not hold Leaving Certificate qualifications in the Irish language. There are a limited number of equivalent qualifications, e.g. the Ceard Teastas Gaeilge, Gael Linn Course Certificate(s) of the required standard, the holding of a “Fáinne”, etc. However, in any event, the Complainant did not hold such qualifications.
The protection of national languages has been given a special place in the jurisprudence of the European Court of Justice. The Court has been referred to the case ofAnita Groener –v- Minister for Education and City of Dublin VEC,Case C-379/87, in which it was held that a linguistic requirement (to have Irish) is valid where it is part of a policy for the promotion of the national language which is also the first official language. Although this case relates to the free movement of persons rather than equal treatment, the Court accepts that the European Court of Justice has always regarded the promotion of indigenous languages as a worthy policy aim and provided that such a policy is reasonable and proportionate it has accepted that a requirement for a candidate to be proficient in the language of the country in which they are applying for employment (where such a proficiency requirement obtains) is not discriminatory. In these circumstances, the Court finds that the requirement of the Respondent, given its statutory obligations deriving from both the Irish language and its special relationship with local Gaeltacht areas, that its employees have proficiency in the Irish language is not unreasonable. This would not necessarily apply in all other cases.
The University is therefore entitled to rely on Section 31 (d) of the Act. The Court finds that the requirement to have proficiency in the Irish language was reasonable in all the circumstances of the case.
The Complainant in her evidence told the Court that she had applied for a position in Social Care in October 2000 despite the requirement for Irish and had simply answered “no” to the question of Irish. This was around the same time as she applied for the Panel B post. She was unsuccessful in her application for the Social Care post. The Respondent was clear that if her application for that position had been successful and she had been ranked at the higher level for appointment, she would have been required to sit a test in Irish to establish her proficiency and, subject only to passing that test, the Irish proficiency requirement was no bar to the Complainant’s candidacy.
This is particularly curious as by this time she had been attending Classes in Irish and according to her own evidence she had reached a high level of proficiency.
It is reasonable to infer, based on the University’s previous history that even though she did not hold Leaving Certificate Irish, if she was ranked sufficiently high, she would have been invited to sit the Irish Proficiency Examination, if she had applied for a Panel A position.
The Court also accepts that the Complainant was not prevented from applying for a position with Panel A. The Court accepts that the Respondent made it clear to the Complainant in a letter dated 9th July 2001, that the recruitment requirements for appointments to the full-time secretarial panel were entirely separate to those for the casual panel, when it stated “in effect, it is not possible for casual panel applicants to be considered for permanent vacancies when they were not formally applicants for such positions”. It is also significant that no one has ever transferred from Panel B to Panel A.
The Court accepts that she had been fully informed of the correct position in that if she applied for Panel A and succeeded at interview she would then be allowed to sit the proficiency examination.On 16th July, 2001, the Complainant was told that she could in the future re-apply for such a Secretarial/Clerical Panel A (permanent) post, provided she were in a position to sit and pass an Irish proficiency examination. While the advertisement of October, 2001, was undoubtedly misleading, it could not be said to be discriminatoryvis-�-visthe Complainant as she had been informed of the true situation and indeed had previously applied for a position in which proficiency in Irish was a requirement.
The Complainant’s appeal on this ground must therefore also fail.
-Victimisation Claim
It was submitted on behalf of the Complainant that the acts alleged to constitute discrimination were the Respondent’s failure to renew her contract in December, 2001, and its decision not to allow her to sit the Irish proficiency examination after she had informed the Respondent of a possible discrimination claim in October, 2001.
Section 74(2) defines victimisation as occurring where: -
- “the dismissal or other penalisation of the Complainant was solely or mainly occasioned by the Complainant having, in good faith –
(a) sought redress under this Act or any enactments repealed under this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause under any such repealed enactment”(b) opposed by lawful means an act which is unlawful under this Act or which is unlawful under such repealed enactment,(c) given evidence in any criminal or other proceeding under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
Findings of the Court on Victimisation
-Claim of Race Discrimination
Having considered the facts of the case, the Court is satisfied that there were genuine reasons, which were completely unrelated to her pregnancy, for the non-renewal of her contract after the Christmas shutdown in December, 2001.
-Claim of Gender Discrimination
Furthermore, the Court is satisfied that there was no victimisation of the Complainant. The Court accepts the Respondent's evidence that it informed her on several occasions that she could apply for Panel A and then sit the proficiency examination. It may be that the Complainant misunderstood these advices but the Court is satisfied that they were given.
Therefore, the Court does not uphold the claims of victimisation under the Act.
DETERMINATION
The Court is not satisfied that the Complainant has demonstrated that the Respondent discriminated against her on the gender ground in respect of both her access to employment and her continuing in employment nor that it indirectly discriminated against her on the race ground in respect of the application of the agreed mandatory proficiency in Irish requirements with respect to her access to permanent employment.
Accordingly, the Court is satisfied that there is no case of discrimination within the meaning of section 6 (2) (a) or (h) and no contravention of section 8 of the Act.
Accordingly, the Court allows the Respondent’s appeal and upholds the Equality Officer’s Decision.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th January, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.