Equality Officer's Decision No: DEC-E/2011/144
Parties
Ngongban
(Represented by Mary Honan BL Instructed by
the Equality Authority)
And
Dublin Institute of Technology
(Represented by Rosemary Mallon BL Instructed by
Arthur Cox - Solicitors)
File No: EE/2008/570
Date of issue: 19 July, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6&12 -race - vocational training - equal treatment - jurisdiction.
1. DISPUTE
This dispute involves a claim by Ms Gwendolin Mangwi Ngongban that she was discriminated against by Dublin Institute of Technology ("the respondent") on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to sections 12 and 31 of those Acts when it applied the level of fees for non-EU students to her application for a Post Graduate course in the College in June, 2008. The respondent rejects the complainant's assertions and notwithstanding this submits that the programme which she applied for does not constitute vocational training in terms of section 12 of the Acts and the complaint is not therefore validly before the Tribunal for investigation.
2. BACKGROUND
2.1 The complainant was born in Camaroon. In May, 2008 her application for a place on the respondent's MSc. Course in Pharmaceutical Quality Assurance and Biotechnology (hereafter referred to as "the course") was successful. The respondent applied the level of fees for non- EU nationals to her application - which was considerably higher than the fees applied to Irish or other EU citizens who were offered places on the course. The complainant states that she was granted an Irish passport in August, 2006 and the respondent therefore discriminated against her on grounds of race - colour, national and ethnic origins - by applying the non-EU national rate of fees to her. The respondent submits, in the first instance, that the course which the complainant applied for does not constitute vocational training in terms of section 12 of the Acts and the complaint is not validly before the Tribunal for investigation. Notwithstanding its position on this point, it (i) rejects the complainant's assertion that it discriminated against her at all and (ii) submits that if the treatment of the complainant constitutes indirect discrimination of her in terms of section 31 of the Acts, that such treatment is objectively justified in terms of that provision.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 25 August, 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 26 October, 2010 -the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 8 February, 2011. A small number of points arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until early March, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant rejects the respondent's argument that the course she applied for does not constitute "vocational training" in terms of section 12 of the Acts. Counsel for the complainant submits that contrary to the approach adopted in Employment Equality Agency v Football Association of Ireland the Tribunal should adopt the most expansive interpretation of "vocational training" in terms of section 12 of the Employment Equality Acts, 1998-2008 so as to achieve the widest possible coverage of the statute. Counsel further submits that discrimination on grounds of racial origin in respect of access to vocational training is prohibited by Article 3 of the Race Directive. Counsel submits that a number of European Court of Justice (ECJ) judgements are relevant in support of the complainant's arguments in this regard. The first of these is Gravier v City of Liege where the ECJ held that "any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training, whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education".
3.2 The second such judgement is Blaizot v University of Liege where the ECJ held that "Neither the provisions of the Treaty, in particular Article 128, nor the objectives which those provisions seek to achieve ... give any indication that the concept of vocational training is to be restricted so as to exclude all university education...." The Court further held that it was not necessary that the final academic examination "directly provides the required qualification for a particular profession, trade or employment". University courses were also covered if they "provide specific training and skills, that is where a student needs the knowledge so acquired for the pursuit of a profession, trade or employment, even if no legislative or administrative provisions make the acquisition of that knowledge a prerequisite...". "In general, university studies fulfil these criteria. The only exceptions are certain courses of study which, because of their particular nature, are intended for persons wishing to improve their general knowledge rather than to prepare themselves for an occupation.". Counsel for the complainant adds that the principles established in both the Gravier and Blaizot judgements were affirmed by the ECJ in EU Commission v Republic of Austria.
3.3 The complainant states that she applied for a place on the respondent's MSc. Course in Pharmaceutical Quality Assurance and Biotechnology and was offered a place on the course by letter dated 21 May, 2008. She adds that the Acceptance Form attached to this letter indicates that the tuition fees for the course were €11,000. The complainant states that when she queried this amount the respondent informed her it had applied its International Fee Policy to her and on the basis of the information furnished in her application she did not qualify for reduced fees under that policy as she was classified as a non-EU national. The complainant states that she was born in Cameroon and was granted Irish citizenship on 18 August, 2006. She adds that her passport indicates these facts and she submits therefore that her fees should have been assessed in the same manner as any other Irish or EU national. The complainant adds that prior to being granted Irish citizenship she had been resident in Ireland since 2001 - as an Asylum Seeker from 2001 and a Refugee from 2002. It is submitted that this constitutes direct discrimination of her on grounds of race contrary to the Acts.
3.4 The complainant further states that she qualified for reduced fees under Section C(ii) of the respondent's International Fee Policy as she was resident in Ireland or another EU Member State as either an employee or a full time student in three of the five years prior to the commencement of the course. The complainant states that she furnished documentation in support of this but the respondent rejected her application. She adds that the respondent did not ask her for any further documentation and states that the reason given to her by the respondent was that she was unable to comply with the necessary tax requirements to demonstrate her residency. The complainant submits that this constitutes indirect discrimination of her contrary to the Acts. In this regard she seeks on the decisions of this Tribunal in Two Complainants v The Department of Education and Science and Tsurova v University of Dublin (Trinity College). It is further submitted on her behalf that the policy operated by the respondent cannot be objectively justified in terms of section 31(1) of the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions that it discriminated against her on grounds of race contrary to the Acts. Notwithstanding this it submits, in the first instance, that the course which the complainant applied for - MSc. in Pharmaceutical Quality Assurance and Biotechnology - does not fall within the definition of "vocational training" provided at section 12 of the Employment Equality Acts, 1998-2008. The respondent submits that the course could not be considered "training" in terms of the Acts. It states that the course is at Level 9 of the National Framework of Qualifications and comprises two phases - the first of which involves attendance at lectures, assignments, industry visits and practical work (75% of which is academic) and the second phrase (for those students who receive an overall average mark of 50% of higher on Phase 1 of the course) involves the completion of an industry research project - the outcomes of which are contained in a 15,000-20,000 word dissertation. The respondent states that the student is required to spend approximately six months in an appropriate workplace environment in order to undertake a detailed study of a topic relevant to the industry, having at the outset submitted a comprehensive research proposal setting out the proposed outputs and research methodologies to a dedicated Supervisor. The respondent further states that the dissertation is subject to internal/external evaluation and ultimately ratification by the College Examination's Board. It submits that the course is predominately academic in nature, involving a high level of professional learning and does not therefore fall within the definition of "vocational training" contained in the Acts. In this regard it seeks to rely on the decision of this Tribunal in Kelly v UCD.
4.2 The respondent further submits that the course is not "exclusively concerned with training for such an activity." and argues that the inclusion of the word "exclusively" must be interpreted as meaning that the training involved will equip the person undertaking it with the knowledge or capacity for a specific profession or occupation, to the exclusion of all other professions/occupations. The respondent argues that the course at issue does not qualify the complainant for any particular profession or occupation. It adds that the successful completion of the course would be beneficial to the complainant in pursuing a wide gambit of career paths in the Pharmaceutical, Chemistry and Biochemistry industries and is not restricted to one particular strand of occupation. The respondent submits that the determination of the Labour Court in Employment Equality Agency v Football Association of Ireland in relevant to the instant case, in particular the Court's comment that the word "exclusively" (in terms of the definition of vocational training contained in the Employment Equality Act, 1977 - which was at issue in that case) "is not a word which readily lends itself to a wide interpretation" and invites the Tribunal to take adopt a similar approach in the instant case.
4.3 The respondent states that higher education institutions are entitled to set their own fee rates. It adds that its Fees Policy is consistent with the Department of Education and Science (as it then was) Criteria for Determining Eligibility for the Free Fees Initiative and, in particular that an applicant must fulfil both a nationality and residency requirement. The respondent states that its policy distinguishes between EU nationals (including Irish nationals) and non-EU nationals. The respondent states that the complainant's original application did not declare her nationality and in accordance with its standard practice her application was forwarded to the respondent's international student office for processing. It states that the complainant was assessed under Section C of its Policy for Oversea Students which required her to satisfy the residency element of the criteria - that she was resident in an EU Member State for three of the previous five years prior to the commencement of the course in either full-time study or working. The respondent accepts that the complainant subsequently furnished it a copy of her Irish passport which satisfied the nationality component of the criteria. It adds that she was unable to provide documentary evidence showing that she was resident in Ireland or another EU Member State in three of the preceding five years and her application was unsuccessful. The respondent adds that certification of employment requires submission of a Form P.21 from the Revenue Commissioners (or similar organisation in other EU Member States) and suggests that this may be the tax requirements referred to by the complainant. The respondent states that these criteria apply to all applicants irrespective of nationality and submits that they do not therefore constitute direct discrimination of the complainant contrary to the Acts.
4.4 The respondent further submits that the operation of the Fee Policy does not constitute indirect discrimination of the complainant either. It adds, without prejudice to this position, that its process is objectively justified in terms of section 31 of the Employment Equality Acts, 1998-2008 and the test formulated by the ECJ in Bilka- Kaufhaus GmbH v. Weber Von Hartz. It states that the rationale underpinning the Department of Education and Science's Free Fee Initiative for undergraduate programmes is that either the students themselves or their parents have contributed tax within the EU and have therefore directly or indirectly contributed to third level education over that period. Students from outside the EU have not made any such contribution and are therefore levied higher fees to cover the full economic cost of provision of the education programme. It adds that the same principle is applied to postgraduate courses and that this policy is objectively justified in those circumstances.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not (i) the course which the complainant applied for constitutes "vocational training" in terms of section 12 of the Employment Equality Acts, 1998-2008 and the complaint is therefore validly before this Tribunal for investigation, (ii) the respondent directly discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts in the manner with which it assessed the rate of fees applicable to her in order to pursue her chosen course in June, 2008 and (iii) the respondent indirectly discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 31 of those Acts in the manner with which it assessed the rate of fees applicable to her in order to pursue her chosen course in June, 2008. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
5.2 Section 12 of the Employment Equality Acts, 1998-2008 defines "vocational training" as follows -
"any system of instruction that enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be construed as exclusively concerned with training for such an activity."
5.3 The complainant submits that this Tribunal should take an expansive view in interpreting what constitutes "vocational training" for the purposes of section 12 of the Acts and cites two ECJ judgements in support of this assertion. I note in the first instance that these judgements relate to issues in the Treaties concerning free movement of workers and not equality provision of those Treaties. It appears to me that in those circumstances I am not obliged to follow them although they may be of some assistance in reaching my decision. I further note that "vocational training" is not defined in any of the equality provisions of the Treaties or the associated Directives. The respondent submits that the course which the complainant applied for - MSc. in Pharmaceutical Quality Assurance and Biotechnology - does not fall within the definition of "vocational training" provided at section 12 of the Acts as (i) it is primarily academic in nature and (ii) it is not exclusively concerned with equipping a person with knowledge for a particular occupation. It adds that the course at issue does not qualify the complainant for any particular profession or occupation and that on successful completion of the course the complainant would be able to pursue a wide gambit of career paths in the Pharmaceutical, Chemistry and Biochemistry industries. It seeks to rely on the Decision of this Tribunal in Kelly v UCD and the determination of the Labour Court in Employment Equality Agency v Football Association of Ireland in this regard.
5.4 In the Blaizot judgement the ECJ held that the course at issue in that case - veterinary medicine - was vocational training and indeed stated that university courses could amount to vocational training. It is clear that certain university courses might conform to the definition of vocational training - medicine, law, accountancy - notwithstanding that further qualifications or accreditation are necessary before a person is permitted to practice in those areas. It is also clear that qualifications in these areas of study permit the student to ultimately pursue a specific occupation. Moreover, it is clear that such university courses are highly academic in nature and I am satisfied therefore that the academic component of a particular course cannot be definitive in deciding whether or not a particular course amounts to vocational training in terms of the Acts.
5.5 Article 4 of Council Directive 76/207/EEC prohibited discrimination on grounds of gender as regards access to vocational training. This obligation was transposed into Irish legislation by section 6 of the Employment Equality Act, 1977. The definition of vocational training contained in that section is identical to that at section 12 of the Employment Equality Acts, 1998-2008, which transposes, inter alia, the Race Directive, which provides a similar prohibition as regards access to vocational training on grounds of race. In the absence of any definition of vocational training in either Directive it appears that each Member State has the discretion to define vocational training for the purposes of national legislation. The definition of vocational training at section 12 of the Acts contains the words "exclusively concerned". It is clear that the inclusion of this phrase results in a narrower interpretation of vocational training to that suggested in the ECJ cases cited by the complainant. In Employment Equality Agency v Football Association of Ireland the Labour Court (in dealing with a complainant under the Employment Equality Act, 1977) commented that the phrase "exclusively" did not "readily lend itself to a wide interpretation" and I would concur with that view. I further concur with the Court's view that if an expansive interpretation was to be placed on the definition of vocational training that the term would lose its ordinary meaning. I am also mindful of the fact that at the time the Labour Court reached its determination the ECJ had already delivered the two judgements cited by the complainant. Finally, I note that the complainant could have sought redress under the Equal Status Acts, 2000-2008 which prohibits, inter alia, discrimination as regards access and participation in courses in educational establishments and failed, or chose not to, do so.
5.6 The respondent also submits that the inclusion of the word "exclusively" at section 12 of the Acts must be interpreted as meaning that the training involved will equip the person undertaking it with the knowledge or capacity for a specific profession or occupation, to the exclusion of all other professions/occupations and I concur with such an interpretation. The respondent states that the course at issue does not qualify the complainant for any particular profession or occupation. It adds that the successful completion of the course would be beneficial to the complainant in pursuing a wide gambit of career paths in the Pharmaceutical, Chemistry and Biochemistry industries and is not restricted to one particular strand of occupation. I have examined the relevant extract from the respondent's website which was submitted as part of my investigation and this document states that graduates of the course will be equipped to take up positions as quality professionals and managers in the pharmaceutical and related industries. The structure of the course (also submitted in the course of my investigation) comprises twelve taught modules of twenty hours covering a wide range of topics related to the subject and a six month industry based research project in an appropriate workplace environment in order to undertake a detailed study of a topic relevant to the industry. I have given careful consideration to these factors and I am satisfied, on balance, that the respondent is correct in its assertion that a graduate from the course is qualified to pursue employment across a wide range of employments in the Pharmaceutical, Chemistry and Biochemistry industries and that the course is not restricted to equipping a person with the knowledge or capacity for a specific profession or occupation.
5.7 In light of my comments in the preceding paragraph I find that the course at issue in this case - MSc. in Pharmaceutical Quality Assurance and Biotechnology - does not constitute vocational training in terms of section 12 of the Employment Equality Acts, 1998-2008 and I have no jurisdiction to investigate the complaint.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that the course at issue in this case - MSc. in Pharmaceutical Quality Assurance and Biotechnology - does not constitute vocational training in terms of section 12 of the Employment Equality Acts, 1998-2008 and I have no jurisdiction to investigate the substantive aspects of the complaint.
_______________________________________
Vivian Jackson
Equality Officer
19 July, 2011