Equal Status Acts, 2000 to 2008
Equality Officer Decision DEC-S2009-076
A Complainant
(represented by The Irish Nurses Organization)
-v-
An Educational Institution
(represented by Ronan Daly Jermyn Solicitors)
Date of Issue: 6th November, 2009
Keywords
Equal Status Acts, 2000-2008 - Section 3(1)(a) - Direct discrimination, Section 3(1)(a) - Gender Ground, Section 3(2)(a) - Family Status Ground, Section 3(2)(c) - Disposal of Goods and Services, Section 5(1) - Educational services, Section 7(2)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 14th April, 2005 under the Equal Status Acts, 2000 to 2004. On 24th January, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 7th October, 2009. Final correspondence was received from the parties on 16th October, 2009.
1. Dispute
1.1 This dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Gender and Family Status grounds in terms of sections 3(1)(a), 3(2)(a) and 3(2)(c) of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to sections 5(1) and 7(2) of those Acts.
2. Summary of the Complainant's Case
2.1 The complainant was a qualified nurse and midwife when she applied for the Public Health Nursing course being provided by the respondent in 2004. This was the fourth occasion that she had made an application for this course and was delighted to have been offered a place in 2004. The complainant was five months pregnant when she accepted the place on the course and she sought to meet the Course Co-ordinator, Ms. A, to discuss her pregnancy and her intentions on meeting the course requirements. The complainant felt that this meeting which took place on 19 August, 2004 had gone well and she assured the respondent that she would endeavour to take as little time as possible out of the course as a result of her pregnancy. The complainant subsequently received a letter from the respondent on 8 September, 2004 in which it referred to the demanding nature of the course and the requirement for full attendance at both the practical and theoretical elements of the course. The complainant commenced the course in September, 2004 and she initially enjoyed her participation in the course which was run informally and without a roll call of attendance at class.
2.2 The complainant developed a pregnancy related illness and was required to take some time off the course on medical advice from 22 November until 3 December, 2004 when her baby girl was born. She also developed post-pregnancy related illness which necessitated sick leave from the course from 10 January to 21 January, 2005. The complainant accepts that she did not attend her two week community placement during this period, however, she stated that she repaid this time during the Easter recess in April, 2005. The complainant stated that she recorded a message on the telephone of the Course Co-ordinator, Ms. A, informing her that she would be unable to attend her clinical placement however, she claims that this message was not forwarded to her clinical placement. The complainant subsequently returned to the course following maternity leave on 24 January, 2005 (having been absent since 22 November, 2004), however she did attend the institution on 21 December, 2004 in order to participate in a group presentation in relation to the health promotion module of the course. The complainant stated that her baby also attended the presentation with her on this date and stayed for three hours.
2.3 As there was a year's waiting list for the respondent's creche and due to the fact she was an un-sponsored student, the complainant, her husband and family were supporting her baby's care whilst she participated in the course. The complainant stated that she brought her baby to three classes to facilitate breastfeeding and she claims that the Lecturers had not remarked on this when asked for permission. On 24 January, 2005 the complainant asked Ms. A, Course Co-ordinator, if she could bring her baby into the class and Ms. A agreed to raise this issue with Professor B, Head of Faculty of Nursing. However, the complainant claims that Ms. A did not revert to her regarding this matter. On 8 February, 2005 the complainant was compelled to bring her baby to college to facilitate breastfeeding as her nominated carer for the day, her mother in law, had been called upon at short notice, to attend other children in the extended family who were ill. The complainant claims that Ms. A obstructed her access to the classroom on this occasion and she had no option but to return home without attending the lecture. The complainant claims that she was discriminated against by the respondent by virtue of it's failure to allow her to bring her baby into classes/lectures in order to facilitate breastfeeding.
2.4 The complainant stated that she had a meeting with the Course Co-ordinator, Ms. A, on 25 January, 2005 during the course of which attention was drawn to her attendance both at lectures and her clinical placement. Ms. A informed the complainant that if she did not meet the attendance requirements that she could be excluded from the examinations in the subjects concerned and she also informed her that the matter would be brought to the attention of the Head of the Faculty of Nursing, Professor, B. The complainant attended a meeting with the Management Team (comprising of Ms. A, Professor B and Ms. C, Senior Lecturer) on 3 February, 2005 during the course of which an issue was raised regarding her attendance record at certain classes being below the required minimum levels (of 80%). The complainant claims that the respondent failed to produce any formal records of her attendance at this meeting and she was requested to respond in writing with her intentions for the course. The complainant also claims that she was informed at this meeting that she wouldn't be allowed sit her examinations and that "it would be more in her line to go home and look after her child rather than tackling the course". The complainant stated that upon hearing this she became very distressed and requested that the meeting be adjourned.
2.5 On 11 February, 2005 the complainant attempted to submit an essay of 3,000 words to the respondent, however she was informed by Ms. C, Senior Lecturer, that she could not accept the essay on account of her attendance record. The complainant stated that she was precluded from sitting her exam in one module of the course and was given a fail mark in two clinical placement modules despite having already repeated these modules. The complainant stated that she was required to repeat four modules in the Autumn sitting of the exams in 2005. The complainant contends that had she not been absent as a result of maternity leave and pregnancy related illness, she would have been assessed/examined by the respondent and would have qualified as a Public Health Nurse following the Summer examinations in 2005. It was submitted that to deny the complainant the right to be assessed/examined during her course constitutes discrimination by the respondent on the grounds of her gender and family status. The complainant referred to a number of cases in support of her claim, including Dekker -v- Stichting Vormingscentrum voor Volswassenen , CNAVTS -v- Thibault and Myles Delaney -v- Jameson Hotel .
3. Summary of the Respondent's Case
3.1 The respondent denies that it discriminated against the complainant on either the gender or family status grounds. The respondent stated that the complainant registered with it as a student on the Higher Diploma in Public Health Nursing course in September, 2004. In late August, 2004 she requested to meet the Course Co-ordinator, Ms. A, in order to advise the respondent that she was expecting her first child in November, 2004. Ms. A stated that she advised the complainant at this meeting that pregnancy was not a deterrent to participation in the course, however, she explained that the course was full-time and very demanding which required full attendance at both the practical and theoretical elements. The respondent subsequently wrote to the complainant on 8 September, 2004 and reiterated the requirements in terms of attendance and it advised her that, in circumstances where she was not sure that she could attend the entire course, that perhaps she could consider the advisability of re-applying for the course the following year. This was in circumstances where deferrals of a place on the course were not facilitated for any student. Notwithstanding this, the complainant subsequently decided to proceed with the course for the academic year 2004/05 and this was facilitated in full by the respondent.
3.2 The respondent acknowledged that there was no formal roll call of attendance at classes, however, it stated that all students on this course were monitored in terms of their attendance by the Course Co-ordinator who conducted a headcount at each class and was aware of any attendance issues with regard to a particular student. The respondent stated that the complainant's attendance record was monitored in the same manner as all other students during the period of her participation in the course. The respondent stated that the complainant missed a total of 160 hours of lectures and community placement days up to 24 January, 2005 including a two-week clinical placement which she failed to attend in January, 2005. The respondent stated that the complainant did not notify it that she would be absent from this clinical placement and her absence only came to it's attention when Ms. A, Course Co-ordinator, contacted the placement centre to obtain a routine progress report. The respondent stated that in light of her failure to achieve a pass mark in an essay on 7 January, 2005 and combined with her unacceptable attendance record, the complainant was requested to attend a meeting with the School of Nursing management team on 3 February, 2005. The respondent stated that the School of Nursing has a practice of discussing unacceptable attendance levels with students in this manner and the concerns expressed to the complainant on this date related entirely to her unacceptable attendance record on the course and had nothing to do with the fact that she had had a baby in December, 2004. The respondent emphatically denied that any comments were made to the complainant at this meeting to the effect that "it would be more in her line to go home and look after her child rather than tackling the course".
3.3 The respondent stated that the complainant did not at any stage raise the issue of bringing her baby into classes/lectures for the purpose of breastfeeding. The respondent stated that on 8th February, 2005 the complainant approached the Course Co-ordinator, Ms. A, outside of the lecture hall and raised the issue of bringing her baby into the lecture. The complainant was advised by Ms. A that it was not permissible to bring her baby into the class on health and safety grounds (both general health and safety on the respondent's premises and specifically as there was construction work ongoing in the facility where these lectures were taking place). The complainant was advised that the baby might become unsettled and fretful which would be disruptive from the lecturer's perspective and also from the perspective of her peers as students in a learning environment. The complainant was also advised that from a student learning perspective that such disruption in class would be grounds for mitigation in an exam appeal situation. The respondent stated that it has a clear policy, which operates throughout the institution, that no person, regardless of age, is allowed to attend lecturers/classes if they are not a registered student or staff member. The respondent submitted that lectures are adult environments and for academic and health and safety reasons the respondent does not allow any student to bring babies/children or any other attendees to lectures with them. The respondent submitted that this policy was not implemented for the purpose of prohibiting a mother from breastfeeding on the premises.
3.4 The respondent denied that the complainant was facilitated on two occasions by allowing her to bring her baby to lectures or that certain lecturers on the complainant's course had allowed her to bring her baby to class to facilitate breastfeeding. The respondent stated that the complainant's lecturers were never approached by her to seek permission to bring her baby to class to facilitate breastfeeding. The respondent accepts that the complainant brought her baby into the presentation which she attended on 21 December, 2004, however this was without prior approval and the respondent did not become aware that the baby was present until after the presentation was completed. The respondent stated that the complainant did not breastfeed her baby during the course of her attendance at the presentation on this occasion. The respondent stated that breastfeeding facilities are provided in the respondent's Student Centre (in compliance with it's obligations under the Maternity Protection Acts) and these facilities were available at the time the complainant was attending lectures. The respondent submitted that it is noteworthy that on at least one occasion on which the complainant sought access for her baby to the lecture theatre i.e. 8th February, 2005, it was because her babysitting arrangements had been cancelled at the last minute. The respondent submitted that the complainant's desire to bring her baby to lectures was not to facilitate breastfeeding but rather to facilitate child-minding arrangements.
3.5 The respondent accepts that the complainant was precluded from submitting an essay in respect of a core course module in February, 2005 on the basis that she hadn't met the required criteria in terms of her attendance for that particular module. The respondent submitted that if a student does not meet the required attendance levels for the course then that student cannot be allowed to pass the course regardless of the reason for their non-attendance. This is in accordance with the regulations set out by the Nursing Board in circumstances where the Higher Diploma Course in Public Health Nursing leads to a professional qualification. The respondent stated that the complainant failed a number of the course modules in the Summer of 2005 but went on to repeat these modules in the Autumn of 2005 and was ultimately successful in passing these modules and went on to receive her Higher Diploma in Public Health Nursing. The respondent stated that in circumstances where a student receives a fail mark from her Lecturer, the matter is referred to a second member of staff for review and finally to an external Examiner for further review. This procedure was applied in the case of the complainant as with all other students. It was therefore submitted that the complainant was not treated any less favourably on the grounds of her gender or family status than any other student would have been in similar circumstances in terms of the manner in which the issues regarding her attendance or the assessment of her examinations were dealt with.
4. Preliminary Issue regarding the issue of jurisdiction
4.1 Prior to the hearing of the complaint, the Equality Officer raised an issue with the parties regarding whether or not the course in which the complainant was participating in the present case comes within the definition of "vocational training" in section 12(2) of the Employment Equality Acts, 1998 to 2008. Accordingly, the question arose as to whether the Tribunal had the jurisdiction to investigate the case under the provisions of the Equal Status Acts, 2000 to 2008. The Equality Tribunal sought and obtained Counsel's Opinion regarding this issue and a copy of this Opinion was forwarded to both parties for consideration on 10th February, 2009. Both parties were afforded an opportunity to forward their respective observations regarding Counsel's Opinion on this issue. I subsequently received submissions from both parties in relation to this issue which, in turn, were copied to the other side for information. Having carefully considered this issue, I found that the course being pursued by the complainant in the present case is covered by the provisions of section 7(2) of the Equal Status Acts, 2000 to 2008. Accordingly, I found that the Tribunal did have jurisdiction to investigate and hear the substantive allegations of discrimination that have been made by the complainant in the present case under those Acts (and the parties were notified in writing on 26th March, 2009 of my decision in relation to this issue).
5. Conclusions of the Equality Officer
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2 I have identified the following key questions which must be addressed in considering whether a prima facie case of discrimination has been established by the complainant in the present case:
1. Was the complainant subjected to discrimination on the grounds of her gender and/or family status in terms of the respondent's refusal to allow her to bring her baby into classes?
2. Was the complainant subjected to discrimination by the respondent on the grounds of her gender and/or family status in terms of her attendance and participation in the course?
3. Was the complainant subjected to discrimination by the respondent on the grounds of her gender and/or family status in terms of the manner in which her assessment was conducted?
Issue in relation to the Respondent's refusal to allow Complainant to bring her baby into classes/lectures
5.3 In considering the first question identified above, I note that the complainant claims the respondent failed to facilitate and support her as a mother who was breastfeeding her baby by allowing her to bring her baby into classes/lectures. The respondent claimed that it had a clear policy in place that no person, regardless of age, is allowed to attend classes/lectures if they are not a registered student or staff member. The respondent submitted that this policy was not implemented for the purpose of prohibiting a mother from breastfeeding on the premises but rather on the basis that lectures are an adult environment and for academic and health and safety reasons it does not allow any student to bring babies/children or any other attendees into lectures with them. The respondent submitted that the complainant did not at any stage request permission to bring her baby into class for the purpose of breastfeeding and it claims that on the occasions when the complainant did in fact bring or seek permission to bring her child into class it was to facilitate childcare arrangements rather than breastfeeding.
5.4 In considering this issue, I note that it was not disputed between the parties that the respondent would not allow the complainant to bring her baby into classes/lectures. The actual issue that is in dispute is whether the complainant sought to bring her child into lectures for the purpose of breastfeeding or to facilitate her childcare arrangements. The complainant stated that she had put arrangements in place with family members to care for her child whilst she attended the course and that it was not her intention to bring her child into lectures on a consistent basis. I accept the complainant's evidence that she did, in fact, bring her child into lectures on three separate occasions during the period of her participation in the course. However, notwithstanding this, I am satisfied that the complainant has failed to establish, on the balance of probabilities, that she either approached the respondent or sought it's consent to bring her child into these lectures for the specific purpose of facilitating breastfeeding. In coming to this conclusion, I note the complainant stated in evidence that she did not breastfeed her child during the course of any of the lectures which she actually attended. It was accepted by both parties that there was an incident on 3rd February, 2005 in which Ms. A informed the complainant that she would not be allowed to bring her baby into a lecture. Having considered the evidence of both parties in relation to this incident, I have found the evidence of Ms. A to be more compelling and I accept her evidence that the complainant did not raise the issue of breastfeeding during the course of this conversation and I am satisfied that the reason the complainant sought to bring her child to class on this occasion was as a result of difficulties with her normal childcare arrangement rather than for the specific purpose of breastfeeding.
5.5 I also accept the respondent's evidence that the complainant did not raise the issue of breastfeeding with it at any juncture and that she didn't seek permission from the respondent to bring her child into lectures in order to facilitate breastfeeding. I note that the respondent provided breastfeeding facilities on the campus in order to facilitate students with children and I am satisfied that these facilities were available to the complainant during the course of her attendance at the institution. Having regard to the evidence adduced, I find that the reason the respondent refused to allow the complainant to bring her child into classes/lectures was not in any way attributable to the issue of breastfeeding but rather was in compliance with it's policy which prohibited the attendance at classes/lectures of persons who were not registered as students. I am satisfied that this policy would have been applied uniformly by the respondent to any student who sought to bring an un-registered person (including a child) into classes/lectures regardless of their gender or family status. In the circumstances, I find that the complainant was not subjected to less favourable treatment by the respondent on the grounds of her gender and family status in terms of it's refusal to allow her to bring her child into class/lectures.
Issues in relation to the Complainant's attendance and participation in the course
5.6 I will next consider the second question identified above, namely, whether the complainant was subjected to discrimination by the respondent on the grounds of her gender and/or family status in terms of her attendance and participation in the course. In considering this issue, I note that it was accepted by both parties that there was a meeting between the complainant and Ms. A, Course Co-ordinator, in August, 2004 (which was convened at the request of the complainant) during which the issue of the complainant's pregnancy and the strict attendance requirements for participants in the course were discussed. I am therefore satisfied the respondent was fully aware that the complainant was pregnant before she commenced the course in September, 2004 and that she was due to give birth to her child during the academic year. Furthermore, I am also satisfied that the complainant would have been left in no doubt prior to commencement that the course was very intensive and demanding in terms of the attendance requirements which a student was obliged to comply with in order to successfully complete the course. Notwithstanding the foregoing, I am satisfied that the complainant was afforded access to the course by the respondent on the same terms as any other student and I have not been presented with any evidence from which I could conclude that the issue of her pregnancy and the impending birth of her child during the academic year were put forward by the respondent as an obstacle to her participation in the course at that juncture.
5.7 The complainant's baby was born on 3 December, 2004 and it was accepted by both parties that she was absent from the course from 22 November, 2004 until 24 January, 2005 due to combination of pregnancy related illness and maternity leave. It would appear that a number of issues were raised by the respondent in terms of the complainant's attendance subsequent to her return to the course after the birth of her child. Having regard to the evidence adduced, it would appear that there was an informal meeting between the complainant and Ms A. on 25 January, 2005 during which the issue of the complainant's attendance was raised. It was accepted by both parties that the complainant was requested to attend a meeting with the School of Nursing management team (comprising of Ms. A, Professor B and Ms. C, Senior Lecturer) on 3 February, 2005 in order to discuss the issues that had arisen regarding the complainant's attendance. I accept the complainant's contention that the respondent did not provide her with any formal records at this meeting regarding her periods of absence up to that juncture. However, it is clear from the evidence adduced that the complainant had been absent for a significant part of the course, albeit as a result of her pregnancy, up to 24 January, 2005 (including her two week clinical placement) and that it was this absence which prompted the respondent to call the meeting.
5.8 There is a clear conflict in the evidence of the parties regarding this precise nature of the discussions that took place at the meeting on 3rd February, 2005. The complainant, on the one hand, has claimed the respondent threatened that she would not be allowed to sit her examinations because of her attendance record to date and that she was informed by the respondent at this meeting that "it would be more in her line to go home and look after her child rather than tackling the course". The respondent denied that the tone or the demeanour of the participants that attended this meeting on it's behalf was in any way threatening and it claimed that the meeting was convened in order to discuss it's concerns in relation to the complainant's attendance and to offer her the appropriate support which would enable her to successfully complete the course. It was also emphatically denied in oral evidence by Ms. A and Ms. C, Senior Lecturer (both of whom attended this meeting on behalf of the respondent) that the aforementioned remark was made at this meeting. Having regard to the evidence adduced, I have found the respondent's evidence regarding the nature of the discussions at this meeting to be more compelling and I accept that the respondent would have raised similar concerns with any student, regardless of his/her gender or family status, in circumstances where this student had accumulated a similar period of absence to that of the complainant. I am also satisfied that it was the normal practice of the respondent to address any concerns that arose with students, in terms of their attendance, in such a manner. In the circumstances, I am satisfied that I have not been presented with any evidence from which I could conclude that the complainant was treated any differently, or indeed less favourably, on the grounds of her gender or family status in terms of the manner in which she was allowed to participate in the course.
Issue in relation to the manner in which Complainant's assessment was conducted
5.9 Finally, I will consider the third question identified above, namely whether the complainant was subjected to discrimination by the respondent on the grounds of her gender and/or family status in terms of the manner in which her assessment was conducted. The complainant has claimed that the respondent's refusal to assess/examine her in a number of the course modules because of the pregnancy/maternity related absences amounts to discriminatory treatment. It was submitted that had she not been absent as a result of the need to deliver her baby and pregnancy related illness, she would have been assessed/examined by the respondent and could have qualified as a Public Health Nurse following the Summer examinations in 2005. In considering this issue, I note the complainant failed four (out of the nine) course modules in the Summer of 2005 and that it was necessary for her to repeat these modules for the Autumn examinations. The complainant subsequently passed these modules in the Autumn and graduated with a Higher Diploma in Public Health Nursing. I would point out that I do not have any jurisdiction to investigate or decide upon the validity, fairness or accuracy of the assessments which the respondent carried out in respect of the complainant's participation in the course. The only jurisdiction that is conferred upon me in terms of my investigation of the present case under the Equal Status Acts relates to the issue of whether or not the complainant was subjected to less favourable treatment on the grounds of her gender and/or family status in terms of the manner in which these assessments were carried out. It was accepted by both parties that the complainant was absent from the course for a period of time as a result of her pregnancy/maternity leave and I am satisfied that these absences had a direct impact on her capacity to complete and pass these course modules. However, I am also satisfied that all of the students who participated in the course were subjected to the same requirements in terms of their attendance and the manner in which their course module assessments were carried out by the respondent regardless of their gender or family status.
5.10 I note that the complainant has referred to a number of employment equality cases, including the Dekker and CNAVTS cases where the European Court of Justice has held that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on the grounds of gender. The complainant has argued that the principle established in these cases should be applied to the circumstances in the present case. I fully accept that the precedents established in employment equality cases can be of persuasive value in the context of complaints under the equal status legislation. However, notwithstanding the foregoing, in the instant case, the respondent was providing an educational service to the complainant in the form of a course which lasted for a finite duration of one academic year (i.e. a 39 week period from September '04 to June '05). Given the nature of the course and the qualification conferred upon graduates i.e. a professional qualification to practice as a Public Health Nurse it was incumbent upon students to attend the required level of theoretical and practical modules in order to acquire the competence to successfully complete the course. I am satisfied that there was no obligation upon the respondent, in the circumstances of the present case, to modify the established assessment process or to put further additional measures in place in order to facilitate the complainant on the basis that she had been absent for a period of time due to pregnancy/maternity related absences. Therefore, in the context of the present complainant, I am satisfied that the respondent did not subject the complainant to less favourable treatment on the grounds of her gender or family status in terms of the manner in terms of the manner in which her assessment was conducted. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the gender and family status grounds with the meaning of the Equal Status Acts.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the Gender and Family Status ground in terms of sections 3(1), 3(2)(a) and 3(2)(c) of those Acts. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
6th November, 2009