Equality Officer's Decision
DEC-E2010-107
Neil Smith
versus
City of Cork Vocational Education Committee
(represented by Stephen O'Sullivan B.L, instructed by O'Flynn Exhams Solicitors)
File reference: EE/2007/123
Date of issue: 21st June 2010
Keywords: Employment Equality Acts, Gender, Race, Access to Employment, Conditions of Employment.
1. Dispute
1.1 This dispute concerns a complaint by Neil Smith against City of Cork Vocational Education Committee. The complainant alleges that he was discriminated against on the grounds of gender and race in relation to access to employment and his conditions of employment contrary to the Employment Equality Acts 1998-2008 [hereinafter referred to as the 'Acts'].
1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 27th February 2007. In accordance with her powers under Section 75 of that Act, the Director delegated the case on 25th February 2009 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 26th November 2009.
2. Summary of the complainant's case
2.1 Mr Smith has been a permanent, whole time teacher (22 hours) with the respondent since September 1999. The complainant holds a LLB (honours) which is classified as Level 8 in the National Framework of Qualifications. He also holds an LLM from University College Cork. This is classified at Level 9 of the aforementioned Framework. The complainant is a non-practising English/Welsh barrister since 1994. Mr Smith was called to the Irish Bar in 2008. The complainant submits that his 22 hours of teaching should comprise teaching Law in line with his qualifications rather than other subjects like Security. He submits he is the most qualified teacher of Law in Cork College of Commerce and therefore should be given first preference regarding the teaching of Law modules.
2.2 The complainant rejects the respondent's use of circulars for the allocation of Law teaching hours. He submits that ministerial circulars do not have the force of law and that they are administrative provisions. The complainant relies on the approach to such circulars in O'Callaghan v Meath VEC:
It is a remarkable feature of the Irish system of education that its administration by the Department of Education is largely uncontrolled by statute or statutory instrument and maybe hundreds, perhaps thousands of rules and regulations memoranda, circulars and decisions are issued and made by the Department and the Minister (dealing with some of the most important aspects of educational policy) not under any statutory power but merely as imitative measures. The measures are not, of course, illegal. But they have no statutory force and the sanction which ensures compliance with them is not a legal one but the undeclared understanding that the Department will withhold financial assistance in the event of non-compliance.
The complainant submits that each Circular must accord with the Constitution as well as Employment legislation.
2.3 The complainant submits that he only agreed to teach Security subjects as he was in his probationary year. Despite his protestations since then, he was given extra Security teaching hours. In 2003, he formally requested relief from teaching Security subjects as he wished to better utilise his legal qualifications. He repeated this request in 2004, 2005 and 2006. In 2007, he informed his employer that the teaching of Security modules was affecting his health. While acknowledging that he was a police constable for five years, Mr Smith denies that he has any qualifications and/or experience to teach Crime Prevention and other Security subjects in Ireland. He submits his experience as a security guard in Ireland was short-lived and that, therefore, he is not qualified to teach Security subjects. He submits that there are no fair and transparent procedures for the allocation of law hours.
2.4 Mr Smith is British born and holds dual Irish and British citizenship.
2.5 The complainant states that people will legal expertise should take preference in the allocation of hours over those with general qualifications. He cites Davis v Dublin Institute of Technology in his defence:
A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates together with a gender difference may give rise to such a requirement
2.6 He also submits that not all of his qualifications were previously listed on the Cork College of Commerce staff database.
3. Summary of respondent's case
3.1 The respondent denies that Mr Smith was discriminated regarding the allocation of hours on the ground of either race or gender.
3.2 City of Cork Vocational Education Committee submit that the complainant did consent to teaching Security subjects and has practical experience (he was a security supervisor in a department store in Cork) both in Ireland and the UK. Therefore, the respondent maintains he is qualified to teach same in accordance with Department of Education guidelines. Circular 32/92 states that the minimum qualifications are:
A degree in subjects relevant to the course from a recognised degree- awarding authority
OR
the degree of a recognised degree-awarding authority and either
(a) an appropriate qualification in an area relevant to the course
OR
(b) three years approved experience (including industrial and teaching experience) in the appropriate area.
3.3 The respondent submits that all teachers of Law satisfy these minimum qualifications in their organisation. City of Cork VEC points out that the complainant's additional qualifications are recognised by an additional annual monetary allowance.
3.4 City of Cork VEC reserves the right to request the complainant to teach hours in areas in which he has obtained qualifications which would comply with the above minimum requirements.
3.5 The respondent submits that Mr Smith is arguing that as he has the most legal qualifications, he should get preferential treatment in the allocation of teaching hours and that established timetable practices should not apply to him. The respondent submits that the hours are distributed each term in accordance with the needs of City of Cork VEC taking into account the student numbers, the subject choices of the students and the contracts held by the teaching staff. Enrolment numbers have been declining and this has consequential difficulties in the allocation of hours for teachers. In the event that student numbers were to increase and necessitate the employment of additional teachers, City of Cork VEC state it may, in the future, be possible to accommodate Mr Smith's requests regarding the allocation of hours but it is not practicable at the moment.
3.6 The respondent submits that there are both men and women with more and less hours teaching law than the complainant. City of Cork VEC maintains that neither gender nor race is taken into account when allocating teaching hours.
4. Conclusions of the Equality Officer
4.1 There are two issues for me to decide:
(i) Was the complainant discriminated against by City of Cork VEC in relation to access to employment on the grounds of gender and race as per Section 8 (1)(a) of the Acts?
(ii) Was the complainant discriminated against by City of Cork VEC in relation to his conditions of employment as per Section 8 (1)(b) of the Acts on the grounds of gender and race?
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory grounds in this case are gender and race.
4.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'
Access to Employment
4.4 No arguments were made claiming gender or race discrimination regarding access to employment. Mr Smith was already an employee of City of Cork VEC so this strand of his complaint fails.
Conditions of Employment
4.5 To establish a prima facie case the complainant must establish that he was treated less favourably and that this is linked to either his gender or race or both. Mr Smith is a dual national. The other teachers of law are Irish Nationals. 4 teachers have more Law teaching hours while 7 have the same or smaller allocations of teaching hours than Mr Smith. This fact is not sufficient, on its own, to raise an inference of discrimination. His gender discrimination complaint is weakened by the fact that of those with more Law teaching hours than him, 2 were men and 2 were women. 5 women had the same or less teaching hours than him.
4.6 Regarding the staff qualifications database, I note that all teachers were asked to check whether their entry in the database was up-to-date. Mr Smith did so and it was updated.
4.7 In relation to the respondent not acceding to his request to reduce his hours of teaching Security subjects, the complainant has not linked this treatment to either gender or race.
4.8 Mr Smith has failed to establish a prima facie case of discrimination on the grounds of gender or race in relation to his conditions of employment
Decision
I have concluded my investigation of Mr Smith's complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) the respondent did not discriminate against the complainant regarding access to employment contrary to Section 8 (1)(a) of the Acts on the grounds of race and gender
(ii) the respondent did not discriminate against the complainant in relation to his conditions of employment contrary to Section 8 (1)(b) of the Acts on the ground of gender
Therefore, I find against the complainant.
______________
Orlaith Mannion
Equality Officer
21st June 2010