EQUALITY OFFICER'S DECISION NO: DEC-E/2012/174
PARTIES
AWOJUOLA
(REPRESENTED BY MS. MARY HONAN BL - INSTRUCTED BY
THE EQUALITY AUTHORITY)
V
DUBLIN INSTITUTE OF TECHNOLOGY
(REPRESENTED BY ARTHUR COX - SOLICITORS)
File No: EE/2009/142
Date of issue: 12 December, 2012
Headnotes: Employment Equality Acts 1998-2008 - sections 6,12 & 31 -race- discriminatory treatment - vocational training - jurisdiction.
1. DISPUTE
This dispute involves a claim by Ms. Tolulope Awojuola (hereafter referred to as "the complainant"), who is a Nigerian national, that she was discriminated against by Dublin Institute of Technology (hereafter called "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 an Undergraduate Course in the College in September, 2008. The respondent rejects the complainant's assertions and notwithstanding this submits that the course 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, who is a Nigerian national, applied for a place on the respondent's BA in Hospitality Management (hereafter referred to as "the course") in 2008. The complainant was successful in her application and attended for registration in September, 2008. The respondent subsequently 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 had been granted permission by the State to remain in Ireland on the basis of her parentage of an Irish born child and submits that 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 February, 2009. 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 1 July, 2011 -the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 19 October, 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, 2012.
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 Employment Equality Acts, 1998-2008. Counsel for the complainant submits that the Course Prospectus is occupationally focussed for graduates to pursue careers in management positions in the hospitality industry/sector and therefore supports the argument that the course is one of vocational training. Counsel also notes the reliance placed by the respondent on Decision of this Tribunal in Kelly v UCD1 and the Determination of the Labour Court in The Employment Equality Agency v Football Association of Ireland2 in terms of the phrase "exclusively concerned with training" contained at section 12(2) of the Acts and submits that these authorities and the statutory provision are at variance with the jurisprudence of the European Court of Justice (as it then was and hereafter called the "ECJ"). It is submitted on behalf of the complainant that the judgement of the ECJ in Gravier v City of Liege3 is relevant wherein the Court held that "any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training or skills for such a profession, trade or employment is vocational training, whatever the age and the level of the pupils or students and even if the training programme includes an element of general education."
3.2 Counsel further submits that the ECJ judgement in Blaizot v University of Liege4 is relevant in support of the complainant's assertion that the course is one of vocational training. Counsel quotes paragraph 17 of that judgement wherein the Court held that "Neither the provisions of the Treaty, in particular Article 128, nor the objective which the provisions seek to achieve, in particular those relating to freedom of movement for persons, give any indication that the concept of vocational training is to be restricted so as to exclude all university education. Counsel also quotes paragraphs 19 and 20 of the judgment wherein the Court held that university studies could amount to vocational training if they "provide specific training and skills, that is to say where a student needs the knowledge so acquired for the pursuit of a profession trade or employment" and went on to state that "In general, university studies fulfil these criteria, the only exceptions are general course of study which, because of their particular nature, are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation". Counsel adds that the principles established by the ECJ in both the aforementioned judgements were affirmed by that Court in EU Commission v Republic of Austria5.
3.3 Counsel for the complainant states that the EU Race Directive6, which prohibits discrimination on racial and ethnic origin, extends this prohibition to access to vocational training7. She adds that this Article provides an expansive reference to the types of vocational training and guidance the Directive applies to. Counsel notes that Employment Equality Acts, 1998-2008 transpose, inter alia, the Race Directive into Irish law. She submits that the restriction provided at section 12(2) of the Acts, i.e. "exclusively concerned with training"8 is at variance with the Directive and argues that the Tribunal must adopt a purposive interpretation of the provision. Counsel states it is well settled that national courts must interpret national legislation in light of the wording and purpose of the relevant EU legislative provisions, that where there is a conflict, the EU law take precedence and that this approach has been approved by the Supreme Court in Nathan v Bailey Gibson Ltd9. It is submitted that the judgement of Hedigan J in HSE v Umar10 is of little assistance in the instant case as the principle of precedence set out in the Bailey Gibson judgement is quite clear. Counsel submits that a literal interpretation of section 12(2) of the Acts would render the protection provided by the EU Race Directive ineffective and argues that the Tribunal is obliged, in light of the foregoing, to adoptive a purposive interpretation of that provision.
3.4 The complainant is a black Nigerian national. She states that she came to Ireland in 2001 as an asylum seeker and that this remained her status in 2008, although she had a Stamp 4 from 2005. She adds that she was never granted refugee status although she was granted official leave to remain in the State as she is the mother of an Irish born child. She states that she applied to the respondent in June, 2008 to pursue a course entitled BA in Hospitality Management. She adds that she was offered a placement on the course and attended registration in September, 2008, during which she was asked if she had been assessed by the respondent's International Student Office. The complainant states that she did not consider herself to be an international student as she had been living in Ireland for the previous seven years and she did not require an international student visa to attend college. She states that she subsequently encountered difficulties in completing the course, in particular accessing the college library facilities and she wrote to the Faculty Administrator on 2 October, 2008 seeking assistance in relation to the level of fees she had been informed she would have to pay. The Faculty Administrator replied the same day advising that the fees for an international student were €11,000 which must be paid before the complainant would be registered as a student. The complainant was also advised to contact the respondent's International Student Office in the matter.
3.5 The complainant states that she subsequently contacted the International Student Office and supplied details of her husband's tax affairs for the previous two years. She states that she was requested to furnish additional documentation from the Revenue Commissioners and in the course of the Hearing confirmed that she never furnished this documentation. The complainant states that the Faculty Administrator wrote to her on 4 November, 2008 advising that she had still not registered for the course, that she should contact the Registration Office immediately and if she did not do so by 14 November, 2008 her acceptance of the course would be removed from the respondent's record. The complainant states that she wrote to the Faculty Head on 12 November, 2008 advising that she had contacted the International Student Office and was endeavouring to provide the documentation sought and asked that she (the complainant) be allowed register for her examinations. The complainant states that the Faculty Head replied the same day advising that she had been informed by the International Student Office that there was no record of the complainant having attended that Office for a fee assessment. The complainant states that she wrote to the Faculty Head on 18 November, 2008 advising that there appeared to have been a mix up and she had arranged to meet with Ms. A, Head of the International Student Office, to deal with the matter. The complainant states that she met with Ms. A within a couple of days during which she was advised by Ms. A what action and documentation she required for her assessment to be processed. In the course of the Hearing that complainant stated that during this meeting Ms. A made a number of comments which the complainant considered racially offensive.
3.6 The complainant states that she subsequently contacted the Refugee Information Service to seek its advice on the matter. She adds that it was informed by the respondent's International Student Office that it required formal confirmation the complainant had been given leave to remain in the State on humanitarian grounds. The complainant adds that she received a letter from the Irish Naturalisation and Immigration Service (INIS) dated 25 November, 2008 confirming that she had been granted permission to remain in the State on the basis that she was the parent of an Irish born child. She states that she immediately forwarded this letter to the respondent and Ms. A wrote to her on 28 November, 2008 advising that she did not qualify for the EU Rate of Fees as she did not comply with the criteria contained it the respondent's Fee Policy, in particular (i) she did not have leave to remain in the State on humanitarian grounds, (ii) neither she nor her spouse could provide the appropriate documentary evidence from the Revenue Commissioners that either had worked full-time in the State for the three years prior to 2008 and (iii) the complainant did not hold an EU State passport and could not demonstrate that she had received full-time education in the EU for the three years prior to 2008. The complainant states that she was subsequently refused permission to attend lectures and sit her examinations.
3.7 Counsel for the complainant submits that the above treatment of the complainant amounts to indirect discrimination of her on grounds of race contrary to section 31 of the Employment Equality Acts, 1998-2008. She argues that sections B(ii) and B(iv) of the respondent's Fee Policy, in particular, place non-EU nationals at a particular disadvantage and that the process adopted by the respondent cannot be objectively justified in terms of section 31(1) of those Acts. The complainant seeks to rely on the Decisions of this Tribunal in Two Complainants v Department of Education and Science11 and Tsurova v University of Dublin (Trinity College)12 in this regard.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against her on grounds of race contrary to the Acts. Notwithstanding this position it submits that the course which the complainant applied for, a BA in Hospitality Management, does not come within the definition of "vocational training" at section 12 of the Employment Equality Acts, 1998-2008. It states that the course is at Level 7 of the National Framework for Qualifications and that Framework generally categorises vocational training as courses which are regarded at Level 5/6. The respondent adds that the course at issue is not one which is "exclusively concerned with training"13 for a particular occupational activity. It states that the course is a three year programme of lectures and assessments in a wide range of subjects, many of which are business related, and during the second year of which the participant completes a period of internship preceded by a tailored induction programme. Consequently, the course is 75% theoretical and 25% practical and is therefore academic in nature. The respondent adds that completion of the course does not qualify graduates for a particular profession or trade and states that the only a minority of the graduates in 2008 and 2009 acquired employment in the hospitality sector. It states that of the eighteen graduates from the course in 2008 fifteen pursued further academic courses. It adds that the figures for 2009 indicate that of sixteen graduates, eleven pursued further academic studies. The respondent submits this data supports the argument that successful completion of the course does not qualify a graduate for any particular profession, trade or occupation but instead offers them an opportunity to pursue a wide range of graduate courses and careers.
4.2 The respondent rejects the complainant's argument that the Tribunal must adopt an expansive interpretation of the phrase "vocational training" in terms of the Acts in light of the jurisprudence of the ECJ and submits that the definition of vocational training contained in the Acts is consistent with that jurisprudence. The respondent adds that the EU Race Directive14 does not contain a definition of "vocational training" and therefore Member States have discretion to define that term for the purposes of national legislation. It reiterates the phrase "exclusively concerned with training"15 contained in the statute and submits that the Tribunal must interpret the definition of vocational training as contained in that provision. It adds that the provision in the statute is clear and unambiguous and the Tribunal has no authority to adopt a purposive or teleological interpretation that runs against the express language enacted by the legislature and relies on the Judgement of Hedigan J in HSE v Umar16 in this regard. Finally the respondent states that such an approach had been applied previously and relies on the Decision of this Tribunal in Kelly v UCD17 and the Determination of the Labour Court in The Employment Equality Agency v Football Association of Ireland18 in the matter.
4.3 The respondent states that applicants are not automatically entitled to EU Fee status by virtue of their nationality and that all applicants must comply with the criteria set out in its Fee Policy. It submits therefore that the Policy does not amount to direct discrimination of the complainant contrary to the Acts. It states that Section B of its Fee Policy sets out the four criteria which apply to applicants for the EU Rate of Fees and adds that these criteria closely follow those set down by the Department of Education and Science guidance document in respect of the Free Fee Initiative for Third Level Education for those applicants having refugee status. The respondent submits moreover, that the criteria contained in its Policy also take account of issues identified in the document "Promoting Anti-Racism and Interculturalism in Education - Draft Recommendations towards a National Action Plan" which was co-ordinated by the Department of Justice, Equality and Law Reform in 2002. The respondent states that it made all reasonable efforts to assist the complainant process her assessment for the EU Rate of Fees and advised her of the documentation required. It adds that the documentation submitted by the complainant did not fulfil the criteria set out in its Policy and the International Student Office wrote to her on 28 November, 2008 advising her of the reasons for the decision to refuse her request that the EU Rate of Fees should apply to her. In this regard the respondent agrees that the reasons set out at paragraph 3.6 above were those it detailed in its letter of 28 November, 2008. It adds therefore that as the complainant did not pay the appropriate rate of fees she was not permitted to register for her placement on the course.
4.4 The respondent rejects the assertion that the operation of its Fee Policy amounts to indirect discrimination of the complainant. It states that during 2008 one hundred and fourteen students from outside of the EU fulfilled the criteria for eligibility for application of the EU Rate of Fees. It adds, without prejudice to the foregoing position, that the process it applied to the fee assessment 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 Hartz19. The respondent states that the rationale underpinning the Department of Education and Science's Free Fee Initiative for undergraduate programmes, which is replicated in the respondent's process in respect of assessing entitlement for the EU Rate of Fees, is that either the students themselves or their parents have contributed to the tax regime in Ireland or within another EU Member State. It adds therefore, that in those circumstances, those persons have contributed either directly or indirectly to the costs associated with the provision of 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 providing the course of education.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the course which the complainant applied for amounts to "vocational training" in terms of section 12 of the Employment Equality Acts, 1998-2008 and the complaint is therefore validly before the Tribunal and if so (ii) whether or not 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 31of those Acts in relation to the manner in which it assessed the level of fees applicable to her in respect of the third level course she wished to pursue. 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 presented at the Hearing.
5.2 Section 12 of the Employment Equality Acts, 1998-2008 defines "vocational training" as follows-
"any system of instruction which 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 considered as exclusively concerned with training for such an activity."
5.3 It is submitted on behalf of the complainant that the definition of "vocational training" contained at section 12 of the Acts is inconsistent with the jurisprudence of the ECJ and she relies on a number of judgements of the Court in that regard. I have carefully considered these authorities and note that they relate to issues in the Treaties concerning free movement of workers as distinct from any equality provisions of the Treaties. I am not satisfied that in those circumstances I am obliged to follow them although they may be of some assistance to me in reaching my conclusions. The respondent submits that the course which the complainant applied for is predominately academic in nature and argues that a course of that nature has previously been held not to amount to vocational training and relies on the Decision of this Tribunal in Kelly v UCD20 and the Determination of the Labour Court in The Employment Equality Agency v Football Association of Ireland21 in this regard. It is submitted on behalf of the complainant that the ECJ has previously held that certain courses offered by universities can amount to vocational training (see Blaizot v University of Liege22). It is arguable that certain university courses might conform to the definition of "vocational training" contained at section 12 of the Employment Equality Acts, 1998-2008, for example medicine, although further qualifications or accreditation may be necessary before a person is permitted to practice in that area. It is also evident that a qualification in that discipline may ultimately enable a graduate to pursue a specific occupation. Whilst courses of this type are highly academic in nature I accept the proposition advanced by the ECJ in the authorities cited that the academic component of a course cannot be definitive in deciding whether or not a particular course amounts to vocational training in terms of the Acts.
5.4 Counsel for the complainant correctly states that the EU Race Directive23 is transposed into Irish law by the Employment Equality Acts, 1998-2008. She also correctly states that the prohibition of discrimination provided in the Directive extends to access to vocational training. Counsel submits that the definition of "vocational training" contained at section 12 of the Acts is inconsistent with the Directive and argues that the Tribunal must adopt a purposive interpretation of the provision, relying on the principle that national courts must interpret national legislation in light of the wording and purpose of the relevant EU legislative provisions and that where there is a conflict, the EU law take precedence - citing the Supreme Court judgement in Nathan v Bailey Gibson Ltd24. Counsel submits that a literal interpretation of section 12(2) of the Acts would render the protection provided by the EU Race Directive ineffective and argues that the Tribunal is obliged, in light of the foregoing, to adoptive a purposive interpretation of that provision. The respondent states that "vocational training" is not defined in the Directive and therefore it is open to Member States to define the concept, which the Oireachtas has done at section 12 of the Acts. It argues that the provision in the statute is clear and unambiguous and the Tribunal has no authority to adopt a purposive or teleological interpretation that runs against the express language enacted by the legislature and relies on the Judgement of Hedigan J in HSE v Umar25 in this regard.
5.5 I fully accept the argument advanced by Counsel for the complainant as regards the obligations of this Tribunal in terms of Nathan v Bailey Gibson Ltd26. However, the EU Race Directive does not contain a definition of "vocational training". Article 3 of the Directive extends the prohibition of discrimination on grounds of racial or ethnic origins (as provided at Article 1) to access to a wide range of vocational guidance and training. I am therefore satisfied that it was open to the legislature to define "vocational training" for the purposes of the statue as it saw fit and that definition is contained at section 12 of the Acts. In doing so the legislature decided to adopt the definition of vocational training which had previously existed at section 6 of the Employment Equality Act, 1977 - the precursor to the Employment Equality Acts, 1998-2008. This definition contains the phrase "exclusively concerned" which clearly results in a narrower interpretation of vocational training to that contained in the ECJ jurisprudence cited on behalf of the complainant. However, the statutory definition is clear and unambiguous in this regard. Moreover, section 12(1) of the Acts renders it unlawful for any person offering a course of vocational training to discriminate on grounds of racial or ethnic origin as regards (i) the terms on which such a course is offered, (ii) access to such a course and (iii) the manner in which such a course is provided all of which comply with the obligations set out at article 3(1)(b) of the EU Race Directive. In light of the foregoing I am not satisfied that the statute is inconsistent with the EU Race Directive and therefore the Supreme Court judgement in Nathan v Bailey Gibson Ltd27 is not relevant.
5.6 The course at issue therefore falls to be considered in terms of the statutory definition of "vocational training" contained at section 12 of the Acts. Counsel for the complainant submits that a literal interpretation of section 12(2) of the Acts would render the protection provided by the EU Race Directive ineffective and argues that the Tribunal is obliged, in light of the foregoing, to adoptive a purposive interpretation of that provision. It is argued on behalf of the respondent that provision in the statute is clear and unambiguous and the Tribunal has no authority to adopt a purposive or teleological interpretation that runs against the express language enacted by the legislature and relies on the Judgement of Hedigan J in HSE v Umar28 in this regard. In this judgement Hedigan J held "that a court must be faced with some obscurity or ambiguity that requires resolution before it can give a purposive interpretation. If there is no such obscurity or ambiguity then it must apply the law as the Oireachtas provided. To do otherwise is to amend the statute by imposing something which is not there.". As I said in the preceding paragraph the language of section 12(2) is clear and unambiguous. Consequently, it must be interpreted in a literal sense. In The Employment Equality Agency v Football Association of Ireland29 the Labour Court, albeit was dealing with a complaint under the Employment Equality Act, 1977 (wherein the definition of vocational training was identical to that contained at section 12(2) of the Employment Equality Acts, 1998-2008) held that the word "exclusive" did not "readily lend itself to a wide interpretation" and I concur with this opinion. I further concur with the view of the Court set out in that Determination 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 issued its Determination the ECJ had already delivered the judgments cited on behalf of 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 course in educational establishments and she failed, or chose not to do so.
5.7 I have examined the prospectus in the instant case and whilst a number of the subjects are focussed on the hospitality industry/sector many of the other subjects have a broader application and can apply equally to management, in the broadest sense, in a large variety of occupations. It does not therefore equip graduates of the course with the knowledge or capacity to enable them pursue a particular profession or occupation. In light of my comments in this and the preceding paragraphs I find that the course at issue in this case - BA in Hospitality Management -does not constitute vocational training in terms of section 12 of the Employment Equality Acts, 1998-2008.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2011 I issue the following Decision. I find that the course at issue in this case - BA in Hospitality Management -does not constitute vocational training in terms of section 12 of the Employment Equality Acts, 1998-2008 and I therefore have no jurisdiction to investigate the substantive elements of the complaint.
_______________________________________
Vivian Jackson
Equality Officer
12 December, 2012
1 DEC-S2006/076
2 DEE6/1991
3 Case C- 293/83
4 Case C-24/86
5 Case C-147/03
6 Council Directive 2000/43/EC
7 (Article 3(1)(b).
8 Section 12 of the Employment Equality Acts, 1998-2008
9 [1998] 2 IR 162
10 [2011] IEHC 146
11 DEC-S2003-042/043
12 DEC-S2004/162
13 Section 12 of the Employment Equality Acts, 1998-2008
14 Council Directive 2000/43/EC
15 Section 12 of the Employment Equality Acts, 1998-2008
16 [2011] IEHC 146
17 DEC-S2006/076
18 DEE6/1991
19 Case C-170-84
20 DEC-S2006/076
21 DEE6/1991
22 Case C-24/86
23 Council Directive 2000/43/EC
24 [1998] 2 IR 162
25 [2011] IEHC 146
26 [1998] 2 IR 162
27 Ibid.
28 [2011] IEHC 146
29 DEE6/1991