DEC-S2012-031- Full Case Report

The Equality Tribunal

Equal Status Acts 2000-2011

Decision DEC-S2012-031

Parties

Ihor Davydchak

v.

University of Limerick
(represented by Mr. Mark Dunne B.L. instructed by Holmes O' Malley Sexton solicitors)

File Reference: ES/2010/003 & ES/2012/084
Date of Issue: 15/08/2012

Key words
Equal Status Act, 2000 - 2011, Direct discrimination, Section 3(1) - less favourable treatment, Race - 3(2)(h), victimisation - 3(2)(j), access to education - Section 7(2), harassment- Section 11, statutory time limits - section 21(2), section 38A - burden of proof, no prima facie case.

Delegation under Equal Status Acts, 2000-2011

The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2011 on the 12th January 2010, 25th of January 2010 and on 4th March 2010. On the 3rd October 2011, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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. On this date my investigation commenced. A submission was received from the complainant on the 6th of September 2010 and the 24th of October 2011 and from the respondent on the 26th October 2010 and10th October 2011. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 26th October 2011 and the hearing resumed on the 13th of January 2012. Further correspondence was received from both parties and a further complaint form was referred by the complainant on the 13th of April 2012 and this complaint which was delegated to me was investigated in conjunction with the original referrals. The final correspondence in relation to all the complaints was received on the 25th July 2012.

1. Dispute

1.1 The dispute concerns a claim by Ihor Davydchak (hereinafter the
complainant) that he was discriminated against and victimised on the race ground in relation to his application through the CAO for a place in the University Limerick. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1) and 3(2)(h) and (j) of the Equal Status and contrary to Section 7(2) of that Act. He also states he was harassed contrary to Section 11 of the Acts.

2 Background

2.1 In January 2007 the Minister for Education and Science introduced a new Graduate Medical Education Programme (GEM). The programme was first established in the University of Limerick and the Royal College of Surgeons in Ireland and for the years 2008 onwards the graduate programme was also run in UCD and UCC. The application process is through the CAO. Entry to the programme is open to candidates who hold or expect to hold a minimum of a 2:1 (second class honours) degree (NFQ level 8) or equivalent. Candidates also had to undertake a Graduate Medical School Admission Test (GAMSAT) the score is used to select candidates for the programme.
Ihor Davydchak v CAO (Decision number DEC-S2012-027) is a linked case to this claim and it gives the full background to this case and the procedures for applying for places in third level institutions.

3 Complainant's Case

3.1 The complainant, a Ukraine national, referred a complaint to the Equality Tribunal claiming that the respondent discriminated against him in relation to his applications for Graduate Entry to Medicine in the years 2008 and 2009. The complainant first applied in 2007 through the CAO to the University of Limerick and the RCSI, but he was not successful. During the course of the first hearing he said that he had no complaint about the 2007 application process and accepted that he did not get a place because his score (GAMSAT) was too low. However he raised the 2007 application process at the further hearing on the 13th of January 2012 and subsequent to the hearings he notified the Tribunal he was complaining about the 2007 application for GEM and on the 13th of April 2012 he referred a complaint to the Director. Having sought information through Freedom of Information he became dissatisfied about the way the respondent handled his 2007 application. He submitted that the information he got through the FOI request raised his suspicions that inappropriate procedures were followed given that he was not provided with any documentary confirmation that he was on the waiting list for the 2007 rounds of offers made by the CAO on behalf of the respondent. He submits that the rules are clear that any person who meets the requirements for the course have to be put on the waiting list and allowed to compete for places. He submits that it was discriminatory on the race ground if he had not been put on the list.

3.2 The complainant submitted that he applied again in 2008 to all the Universities including the respondent University offering the GEM programme and again he failed to get a place on the programme. On the 5th of March 2008 he received an acknowledgement of his application from the CAO which set out the educational requirements for the course. He received a letter dated 8th April 2008 from the CAO stating that he did not meet the minimum entry requirement of a NFQ level 8 honours degree at 2:1 level or an equivalent. The complainant submitted his Ukraine qualifications and also a letter from the National Qualification Authority stating his qualifications were considered comparable to Honours Bachelor Degree which is level 8 on the NFQ and a comparability statement from UK NARIC which indicated his qualifications were comparable to a British Bachelor degree standard. He said that he believed that the issues around his qualifications were resolved. He said that despite regular communications with the respondent through the CAO his application was refused on the 17th of July 2008.

3.3 He learned subsequently that it was for reasons connected with his EU status. He said that he had submitted information to UL in 2007 in response to a letter received from them which clearly indicated that he had EU status. He said that there was no mention in the information sent to him in 2008 that he had to satisfy a residency status. Unlike 2007 no form was provided to him to fill out in relation to his EU status. In relation to his qualifications, he subsequently learned that only one institution UL accepted that his Ukraine qualifications met the standard for entry to the GEM programme. UL decided, because they had accepted his qualifications in 2007 as equivalent to a 2:1 level 8, that they would accept him for 2008. The other Institutions determined that his qualifications were not listed as comparable to an honours degree in UK NARIC. The complainant said that under the Freedom of Information he received this information in e-mails which passed between the Institutions and the CAO pertaining to his application. He said that there was a committee of the Institutions participating in the GEM programme set up by the Institutions and they reviewed all the applications and it was this committee which rejected his qualifications. He submits that this was discriminatory.
The complainant telephoned the CAO office at the end of August 2008 and he said that he was surprised to learn that his name was not on the eligible list of applicants for UL. He also learned that the GAMSAT score for UL was 55 points the same as he had. He was informed that his status was deemed non-EU and as such he was not eligible for the GEM programme. He visited the CAO office and UL admission office in early September 2008. As a result of this visit the complainant was deemed eligible for the GEM course by the respondent and he was put on the CAO waiting list. He failed to get an offer of a place from UL. He submitted that UL did admit some applicants with a GAMSAT score of 55 and he believes that if he had been put on the list at the outset he would have got an offer of a place. He submits that the random number was not created for him at the same time as other applicants because UL discriminated against him in relation to his status and qualifications. He submits that the random number which was created for him was a deliberately low number so that he would not get a place in the round zero offer. He was next in line for a place on the round zero offer and despite deeming him eligible, UL delayed putting his name on the list until 4th of September 2008 and at that stage all the places on the course were filled.

3.4 The complainant applied to UL through the CAO again in 2009 and he was not offered a place. He did not apply to the other Institutions offering the GEM course. He knew UL had said in 2008 that his Ukraine qualifications may not be accepted in the future. He wrote the CAO on the 25th of January 2009 and supplied the documentation in relation to his qualifications, a statement from the National Qualification Authority, verification of his GAMSAT score, and a statement in relation to his EU status. He understood that his application was proceeding and on the 18th of May 2009 he received a general letter from the CAO which was sent to all applicants setting out the GAMSAT score and the educational qualifications required for the course and reminding applicants to supply the documentation no later than the 15th of July 2009. On the 17th of July he received a letter from the CAO informing him that the Institutions concerned had reviewed his application and he had not met the educational requirements of a 2:1 level 8 Honours Degree. He had a right of appeal which he utilised and he wrote to the CAO on the 23 July 2009. The complainant pointed out in the appeal that UL had accepted his qualifications in 2007 and 2008 and that he had only applied to UL in 2009 and he raised concerns about the fact that the other Institutions were considering his qualifications as well. He got no response to his appeal and on the 14th of August 2009 he received a notification from the CAO with an asterisk beside the GEM course in UL which indicated he was not qualified for the course. He also received a circular letter from the CAO which issued to all applicants who were not offered a place explaining the asterisk and the process from then on. He was also advised to contact the admissions office of the University if he had any queries. He then telephoned the CAO office in Galway and he spoke to the General Manager (GM) who told him that he had been deemed ineligible and he was not on the list for the next round of offers. He also said that he could not be put back on the list except with the agreement of UL and at that point he was being treated as a special case. He then spoke the Admissions Officer in UL who told him that his name was not on the waiting list but if the GAMSAT score dropped to 55 his case would be considered. The score did not drop to 55 so he was never put on the waiting list for 2009. The complainant submits that this was discriminatory and he should have been treated like all of the other applicants and he should have been assigned a random number and put on the list like all other eligible applicants. He believes that this was discriminatory and that he was not treated in the same manner as other applicants. He also submits that UL allowed a committee of the Institutions to assess his applications even though he only applied for a place with UL.

4 Respondent's Case

4.1 The respondent's barrister submitted that the complaint is time barred and notwithstanding this argument he denies that the complainant was discriminated against or victimised or harassed on the race ground. The GEM Programme first introduced in 2007 is a restricted course and in 2007 only two colleges were approved by the HEA to run the course. Applications must be made to the CAO before the 1st February each year and applicants must be EU residents. Applicants from outside the EU must apply directly to the colleges as a different fee structure applies. The Educational Qualifications acceptable were NFQ level 8 honours degree at 2:1 level or an equivalent. The GEM course was offered by RCSI and UL only and it was stipulated by the HEA that there should be a common entry requirement and a committee composing of the Admission Officers was set up by the Institutions running the course to ensure that they all used the same criteria when vetting the applicants. The complainant submitted his application in 2007, but he did not submit any evidence of his EU status to the CAO, but he did provide it to the respondent at a later time. The complainant's qualifications were vetted by UL's International Office and they deemed him eligible and his academic qualifications were in accordance with the criteria and he was put on the waiting list. The complainant's GAMSAT score was 54. The score for entry to UL was 59 and therefore the complainant was not offered a place.

4.3 In 2008 the complainant applied through the CAO to the respondent and the three other institutions running the graduate medical course. He did not submit evidence of his EU status with his application in February and neither UL, the Institutions nor the CAO keep information on applicants from the previous years. The CAO wrote to the complainant in March informing him that he had applied for the Graduate Medicine and reminding him to forward to the CAO proof of his eligibility in relation to his educational qualifications i.e. level 8 honours degree at 2:1 level or equivalent. He was also informed that he would be ranked in accordance with his GAMSAT result. The Institutions, in accordance with the common entry standard for GEM established a commission with representatives from the four institutions to review the applications. The complainant was deemed ineligible for the course by this commission. The Admission Officer (Ms. A) of UL attended the meetings which reviewed the applications and following the meeting the CAO was instructed to write to the ineligible applicants. Ms. A said that she understood the reason the complainant was deemed ineligible was due to his EU status. On the 8th of April 2008 the CAO wrote to the complainant on behalf of all the Institutions to inform him that the institutions concerned deemed him ineligible because his educational qualifications did not meet the minimum entry requirements. A further letter issued to him on the 9th of May reminding him to submit evidence of his qualifications by the 15th of July and asking him if the GAMSAT score on file was correct. The complainant appealed the decision by letter dated the 26th of June and sent in copies of his qualifications and letters from the NQAI and NARIC regarding his qualifications. These documents were scanned and attached to his application which UL had access to. Ms. A said that the commission met again on July 18th to review all the documentation submitted by the applicants who were deemed ineligible at the initial meeting. Some were now deemed eligible but others including the complainant were still deemed ineligible. Ms. A said that the Institutions did not accept the complainant's qualifications were equivalent to a 2:1 Honours Degree level. The CAO then issued a standard letter which was approved by the commission to all the ineligible applicants informing them of this fact and reminding them of the requirements for the course.

4.4 On the 29th of August 2008 the complainant went to the CAO Office in Galway with documentation about his EU fee status. The CAO sent an email to the admission officers of the 4 Universities asking them to review the complainant's application given the documentation provided. The complainant then visited the Admission Office in Limerick and spoke to Ms A and following this Ms. A said that she emailed the other three Institutions. In the e-mail she stated because UL, in 2007, had deemed the complainant's qualifications as equivalent to a 2:1 she was proposing to accept him as eligible and she was satisfied that he has EU status. The other Institutions said that his qualifications were not equivalent to an honours degree in the UK NARIC standard. UL requested the CAO to put the complainant on the waiting list. A number of applicants with the same GAMSAT score to the complainant, but who had a higher random number than him, were offered places before the complainant was put on the list and even if the complainant was on the list he would not have been offered a place at that time. However a number of applicants who had a higher GAMSAT score provided extra information and they were now on the list ahead of the complainant. The complainant was on the waiting list for the graduate medical course in Limerick (LM101) since early September. UL authorised the CAO to make offers in the next rounds, but all of these offers were made to applicants with a higher GAMSAT score of 056 than the complainant's score of 055 and he was not offered a place. On the 5th of September 2008 the complainant wrote a letter of complaint to the President of UL which was responded to by the VP (Academic and Registrar). In that letter it was explained to the complainant that as the number of eligible applicants exceeded the number of places available and not all applicants on the score of 55 points could be offered a place, the random selection procedure was applied and unfortunately he was not randomly selected. In response to the complainant's claim that there was a delay in creating his random number and ratings Ms. A submitted in evidence an e-mail from the CAO which confirmed that the random number was created on the 18th of July 2008 and before the round zero offers were made.

4.6 In 2009 the complainant again applied to UL through the CAO for the GEM course. The CAO wrote to the complainant by standard letter on the 18th of May 2009 about his GAMSAT score and reminding him to send in any extra supporting document re his qualifications by the 15th July 2009. The Institutions followed the same procedures as 2008 and a committee of the institutions reviewed the applications and informed the CAO about the eligible applicants. The complainant was deemed ineligible and the CAO wrote to the complainant on the 17th of July 2009 informing him that he had not met the minimum academic qualifications. The complainant appealed this decision by letter to the CAO. The complainant's rating and random number which was created by the CAO on the 17th of July 2009 was 055277, but he was deemed ineligible by the institutions and he was not placed on the waiting list. After the round 1 offer applicants, who had not received an offer, were sent a statement of their application along with a letter explaining that the institutions had not authorised them to issue an offer, and explaining if an asterisk appeared to the right of the course code the institutions had deemed them ineligible for the course and that they should contact the admission office. Ms. A said that UL deemed his qualifications eligible based on the fact the they had accepted his qualifications in 2007 and 2008 and he would have been offered a place if the GAMSAT score dropped to 55 but the score never dropped below 56 and they could not offer him a place.

4.7 The respondent's barrister submitted that the complainant has failed to establish a prima facie case of discriminatory treatment. He has failed to provide any evidence of the discriminatory treatment other than to say he is from the Ukraine. He had to satisfy the respondent of his EU status and once he did that he was on the list for a place in each of the years from 2007, 2008 and 2009. He was unsuccessful for a place in UL in 2007 and 2009 because his GMSAT score was not high enough and 2008 his random number was not selected because it was too low. He said that there was no question of different treatment because of his race. The respondent was prepared to accept his qualifications as equivalent to a 2:1 Honours degree in each of the years. Furthermore the GEM programme was for applicants with EU status and the respondent was obliged to ensure the complainant had such status and it is not discrimination to make such enquires under Section 7(3) of the ES Acts.

5. Conclusion of Equality Officer

5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1) and 3(2)(h) and j of the Equal Status Act and in terms of Section 7(1) and harassed in terms of Section 11 of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

Preliminary Issues

Statutory Time Limits
The first matter I have to consider is whether the complaint has been notified to the respondent within 2 months of the prohibited conduct in accordance with section 21(2) of the Acts and referred to the Director within the statutory period. Section 21 provides:
"(2) Before seeking redress under this section the complainant --

(Ms. A) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of --

(i) the nature of the allegation,

(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) On application by a complainant the Director or, as the case may be, the Circuit Court may --

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and where such a direction is given, this Part shall have effect accordingly.

(b) In deciding whether to give a direction under paragraph (Ms. A) (ii) the Director or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including --

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent's ability to deal adequately with the complaint."

(4) The Director shall not investigate a case unless the Director is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent."

5.2 The respondent's barrister submitted that the complainant's complaints of discrimination, which the complainant alleges started with his 2007 application and was repeated in 2008 and 2009, are time barred and that I have no jurisdiction in the matter. He submitted that the notification pursuant to Section 21 of the ES Acts was served on the respondent by Form ES1on the 24th of December 2009 and this complaint was referred to the Director on the 12th of January 2012. Under the legislation the complainant has two months from the last date of the discrimination to notify the respondent of the complaint and the Director cannot investigate until a month has elapsed and therefore this referral is invalid because a month has not elapsed. He further submitted that as the last offer by the CAO was on the 3rd of September 2009 and the offer season ended on the 14th of October 2009 and the latest date for serving the notification was either the 2nd of November 2009 or the 13th of December 2009 at the latest. Therefore the notification is not valid as it was only served on the respondent on the 24th of December and without a valid notification there can be no valid referral under Section 21. He submitted that while I had jurisdiction to extend the time limit for serving the notification the complainant must show reasonable cause. The complainant submitted that the respondent misrepresented the facts to him in relation to the reasons he was not successful in his applications. He applied for information under FOI to the respondent, the other Institutions and the CAO. The complainant received information from UL on the 15th of November 2009 which led him to believe that he was treated in a discriminatory manner. He said that the respondent made an incorrect decision about his EU fee status even though at the time information was available that he had EU status and he was not put on the waiting list in a timely manner. He applied for an extension of the time-limits on the 4th of March 2010 and he referred me to his letters in that regard during the course of the hearings.

5.3 The complainant has put forward his three applications (2007, 2008 and 2009) for the GEM course in UL and he submits that he was discriminated against and victimised on the race ground in relation to his applications and for these reasons he failed to secure a place on the graduate medicine programme. He also submits he was harassed in his 2007 referral. Firstly I will consider the 2008 and 2009 referrals and I will deal with the 2007 referral separately given that it was only received on the 13th April 2012 and after the completion of the hearing in relation to the other applications. I have considered the evidence presented in relation to these two years and having regard to section 21 cited above, I am satisfied that each of these alleged incidents of discrimination in relation to applications are connected and intertwined in that the complainant was seeking the same service from the respondent on each occasion i.e. access to the graduate medical course and he believes that the respondent operated a discriminatory policy against him. Section 21, in my opinion, envisages an act of alleged discrimination extending over a period of time, that could be either a once off incident or a number of incidents, and the date of notification to the respondent is the date of the last occurrence or the end of the period The Act clearly provides that where the alleged prohibited conduct extends over a period of time that the 2 month time limit for serving the notification in accordance with section 21 runs from the last occurrence or the end of the period. In considering the time limits issue in respect of the notification, I have considered the reasoning in a Labour Court Decision under the employment equality legislation on this point. While this legislation does not have a statutory notification requirement it has similar time limits for referring a case to the Director. In the case of County Louth VEC -v- Don Johnson EDA0712 the Labour Court considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.
In Department of Health and Children v Gillen EDA0412 the Court considered an application to include a claim of discrimination, which occurred outside the time limit, the Court found:
"The first of these relates to whether the complaint in relation to the interview held on the 22nd of November, 1999, was in time. Section 77(5) of the Employment Equality Act states that
"a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the occurrence, or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The complainant's complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies.
In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground".
I am satisfied that the complainant has established a link between the incidents in 2008 and 2009 in that he is alleging that the reason he did not get a place on the course were for reasons connected to his EU status and recognition of his Ukraine qualifications. I am satisfied that the alleged acts can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing act or a continuum of discrimination within the meaning of section 77.

5.4 Therefore I will examine the last application and determine if the notification complies with the statutory 2 month period. The complainant notified the respondent of the alleged discrimination on the 24th of December 2009 by Form ES 1. The CAO offer season ended on the 14th of October 2009 and up to that date he could have hoped to get an offer of a place. He did not get an offer of a place in UL, so this date, in my opinion, is the date the 2 month notification period started to run and therefore the period ended on the 13th of December 2009. Therefore the notification of the 24th of December is outside the statutory period. In a letter to the Equality Tribunal of the 9th of January 2010, the complainant requested the Director to dispense with the notification requirement in accordance with section 21(3)(ii). In considering this application I note that the complainant did serve the notification so I am going to consider his application under section 21(3)(i) i.e. was there reasonable cause for the delay in serving the notification on the respondent. The complainant states that he was in ongoing communication with the respondent for a considerable period of time about his application and he appealed the decision of the Institutions that he did not meet the minimum academic requirements contained in the CAO letter of the 23 July 2009 and he received a further letter from the CAO 17th of August 2009 stating that he did not meet the minimum entry requirements. He also submitted an FOI request seeking information relating to his applications and received a response on the 21st of September. He sought an internal review and a further response was given by letter dated the 9th of November 2009. He believes that the response showed that there was a misrepresentation of the facts and led him to believe he was treated in a discriminatory manner. In deciding whether I should extend the statutory notification period to 4 months I have taken into consideration the aforementioned letters and communications the complainant had with the respondent, the length of the delay in the notification which was less than 2 weeks, which is not excessive, and the fact that the respondent has not been prejudiced by the delay because he was aware of the facts of the case particularly from the letters and other contacts with the complainant. For these reasons I have extended the notification period to four months and I hold that the notification of the complaint of the 24th of December 2009 is valid in accordance with the statutory requirements.

In relation to the respondents point that the referral of the complaint to the Tribunal of the 12th of January 2009 was no a valid referral because one month had not elapsed in accordance with Section 21(4) above, I am satisfied that it is a valid referral as the investigation of the case did not commence until 3rd of October 2011. I not also that the complainant made three referral of the complaints on the 12th of January 2009, the 25th of January 2009 and the 4th of March 2010. I find therefore complaints were validly referred to the Tribunal within the six months time for referring a complaint. Therefore the complaints are admissible and I have jurisdiction to hear the substantive case in relation to the 2008 and 2009 applications.

5.5 In relation to 2007 referral received on the 13th of April 2012 and notified to the respondent on the 12th of February 2012, the complainant said during the course of the first hearing on the 26th of October 2011 in relation to the 2008 and 2009 complaints that he had no complaint about the way his 2007 application was treated and he understood that he did not get a place on the course because his GAMSAT score was too low. He raised some issues in relation to 2007 at the second hearing on the 13th of January. However after this hearing and before the investigation was completed and the decision issued the complainant notified the respondent on 12th February 2012 that he was complaining about discrimination and harassment on the race ground in relation to his 2007 application for the graduate medical programme. He then referred the complaint to the Director on the 13th of April 2012 and requested an extension of time in relation to the notification and referral on the basis that the facts around his 2007 application were misrepresented to him. This complaint was notified to the respondent and a number of written submissions were provided by both parties. The complainant submitted that following the experience he had with his applications in 2008 and 2009 he began to have doubts whether the explanation provided in relation to 2007 were true. He requested information under FOI in August 2009 He then requested information from UL on waiting lists and round offers for 2007 and he said that despite UL having information about his 2008 and 2009 application they failed to release any information to him for 2007. He said that he appealed this decision and this was rejected by UL on the 14th of December 2011 on the basis that the lists did not exist. He said that from 2007 to 2012 he was always assured that he not discriminated against and that his application was treated in the same way as any other applicant and that it was only after the rejection of his request under FOI on the 14th of December 2011for information in relation to 2007 that he was in a position to conclude that he was discriminated against and that he would refer a complaint. He then served a notification in accordance with Section 21 on the respondent on 12th of February 2012 and he referred the complaint to the Tribunal on the 13th of April 2012.

5.6 Having reviewed the documentation sent to the Tribunal, I am satisfied that no new information came into the complainant's possession on the 14th of December 2011 to justify granting an extension of the statutory time limits. He was informed on that day that UL did not have a copy of the list of people who were offered places in each round in 2007. I am fully satisfied that if the complainant intended to complain about his 2007 application he would have included it in the referral of the complaints in relation to his 2008 and 2009 applications. Or that at the very least he would have raised his complaint during the hearing or the copious submissions he made to the Tribunal during the course of the investigation. In fact he accepted during the course of the hearing that he was not complaining about the 2007 application. He knew that his qualifications were accepted by UL, but his GAMSAT score was too low and this was the reason he did not receive an offer. I note that in his submission received by the Tribunal dated 24th October 2011 he refers to the 2007 application and he sets out the contacts he had with the CAO and UL in relation to his residency status and the fact that UL accepted his qualifications and status and that he was an eligible applicant for graduate medical programme but he was unsuccessful because of his GAMSAT score. I am satisfied that the complainant has failed to establish any reasonable cause for the delay in notifying this complaint to the respondent and referring the matter to the Director. Therefore I find the referral in relation to the 2007 application inadmissible.

5.7 Discriminatory Treatment - Race
Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (In this case the race ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(h) provides that: as between any two persons, the discriminatory grounds ... are ... that they are of different race, colour, nationality or ethnic or national origins (the "ground of race")," and

Section 7 provides:
"7. -- (1) In this section ''educational establishment'' means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

(2) An educational establishment shall not discriminate in relation to --

(a) the admission or the terms or conditions of admission of a person as a student to the establishment,

(b) the access of a student to any course, facility or benefit provided by the establishment,

(c) any other term or condition of participation in the establishment by a student, or

(d) the expulsion of a student from the establishment or any other sanction against the student."

The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

5.8 Therefore a person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that he was discriminated against because of his nationality. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In examining all the evidence at the hearing and the considerable amount of documentation submitted by the complainant it appears to me that the complaint is about the following in relation to his applications for graduate medicine in 2008 and 2009:
(i) his application for 2008 was turned down because he did not satisfy the requirement of EU fee status even though the respondent had in their possession verification that he had EU status, (ii) His application was put aside without notifying him of the reason, (iii) He was only put on the waiting list in early September 2008 and at this stage all the places were filled and applicants submitted further information after the cut off date and the respondent deemed them eligible and they went ahead of him on the waiting list, (iv) the respondent provided no proof that he was on the waiting list and was not put on the order of merit list in 2009.

5.9 In relation to 2008 the respondent states the complainant had a GAMSAT score of 55 and only some applicants got in with this score and they all had a higher random number than the complainant. In 2009 the complainant's GAMSAT score was 55 and no applicants got in with this score and only some applicants were admitted with a score of 56. In addition they submit they accepted the complainants Ukraine qualifications as equivalent to a 2:1 Honours degree in both years.

5.10 In order for the complainant to establish that he was discriminated against on the race ground he has to submit some evidence that he was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances. The GEM programme was introduced for EU students only and a different fee structure applies to applicants applying outside the EU and these applicants apply directly to the Universities concerned. I am satisfied that the complainant's application was treated the same as the same as other applicants where queries arose either in relation to EU status or educational qualifications. I am satisfied that applicants who gave their nationality on the CAO form from a country outside the EU were required to provide evidence to UL that they qualified for EU fee status otherwise the Institutions would have considered their applications ineligible. I note that pursuant to Section 7(3)(d) it is not discrimination to treat applicants differently in relation to fees for admission and allocation of places in third level Institutions. It is up to the complainant to provide the information and he knew from 2007 application that evidence of his EU status was required by the Institutions and it was not the responsibility of either UL or the CAO to ensure that this information was provided and had reached UL. Similarly it was up to the complainant to contact UL directly and in a timely manner in relation to his educational qualifications given that he already had his qualifications accepted in 2007 by UL. The respondent could not have been expected given the volume of applicants received by the University to identify the complainant's applications for the years 2008 and 2009 and put him on the list as an applicant they deemed eligible by them in 2007 without going through the checking procedures. It is clear that when the complainant clarified these matters the respondent instructed that he was put on the waiting list by the CAO.

5.11 Having examined all the evidence presented to me including all the documentation in relation to the applications for graduate medicine, I can find no evidence that the treatment of the complainant's applications related in any way to his nationality. I am not satisfied that the complainant has presented any evidence from which I could conclude that he was treated less favourably than an Irish applicant or an applicant with EU status was treated in similar circumstances. I am satisfied that the complainant's application for the GEM course in 2008 was unsuccessful because of the random selection procedure and his score was too low and in 2009 he was unsuccessful because his GAMSAT score was too low. I find therefore that the complainants have not adduced any facts from which discrimination can be inferred. The Labour Court, in examining the circumstances in which the probative burden of proof applies in employment equality cases held in the case Melbury Developments and Valpeters (Det. No. EA AO917) as follows:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
I am satisfied that the above reasoning of the Labour Court is applicable to the case herein, in relation to the burden of proof as both Acts have similar provisions. The complainant has made assertions unsupported by any evidence and he has not produced any facts from which discrimination on the race ground can be inferred. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment on the race ground.

5.12 The complainant also submitted that he was victimised by the respondent in terms of the manner in which he was treated S. 3(2)(j) of the ES Acts defines victimisation as
"(j) that one --

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ''victimisation ground'')".
Having regard to the evidence adduced, I find that I have not been presented with any evidence from which I could conclude that the complainant has been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.

5.13 In the interest of clarity and notwithstanding of my finding of inadmissibility at paragraph 5.6 above in relation to the 2007 referral, I am satisfied that there was no discrimination or harassment whatsoever by the respondent on the grounds of race in relation to the complainant's application for the GEM programme in 2007.

6. Decision

6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 25(4) of the Equal Status Acts, 2000 to 2011. I find that:

(i) the respondent did not discriminate against the complainant on the race ground pursuant to sections 3(1) and 3(2)(h) of the Acts and contrary to section 7(2) of the Acts.

(ii) the respondent did not victimise the complainant pursuant to sections 3(1) and 3(2)(j) of the Acts.

(iii) the complaint of discriminatory treatment and harassment on the race ground in relation to the 2007 application was notified to the respondent and referred and referred to the Director outside the statutory time limits.

___________________
Marian Duffy
Equality Officer
15th August 2012