FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : INSTITUTE OF ART, DESIGN & TECHNOLOGY (REPRESENTED BY ROSEMARY MALLON B.L. INSTRUCTED BY ARTHUR COX SOLICITORS.) - AND - SIAVASH SEFIDVASH DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. This case concerns an appeal by a Worker referred under Section 83 of the Employment Equality Acts, 1998 to 2008. Labour Court hearings took place on the 24th January, 2012.and on 25th April 2012. A subsequent hearing was programmed for 8th November, 2013 but did not take place.
The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Mr Siavash Sefidvash against the Decision of an Equality Officer under the Employment Equality Acts, 1998 – 2008 (“the Acts”) which found against the Complainant. The Equality Officer held that the Complainant’s failure to attend a hearing was unreasonable in the circumstances and consequently concluded her investigation into the matter. She held that any obligation she had under Section 79 of the Acts had ceased.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Siavash Sefidvash will be referred to as “the Complainant” and the Institute of Art, Design and Technology, Dun Laoghaire will be referred to as “the Respondent”.
Background
TheComplainantapplied for and was offered a place in the Respondent’s Institute as a student in the third and final year of the Bachelor of Science in Computing in Multimedia Programming programme from September 2005 to August 2006, having transferred from Blanchardstown Institute of Technology. TheComplainanthas not completed the programme, nor was he awarded the Degree, as he failed to achieve a sufficient grade in one or other of two modules which remain outstanding (Database Management Systems and Networks and Distributed Systems).
The Complainant referred a complaint under the Acts to the Equality Tribunal on28thMarch 2008 and he also lodged complaints against the Respondent under the Equal Status Acts 2000 - 2008.
In his complaint against the Respondent under theActs the Complainant alleged that he had been discriminated against on the grounds of religion,age and race in relation to access to employment, promotion/regrading and training. He further claimed that he was the subject of harassment and victimisation.
He alleged that the Respondent had discriminated against him when it refused to grant him a grade sufficient to award him a Degree and by further refusing to backdate his Degree if he later succeeded in passing the repeat examination.
It is not disputed that the Complainant was never employed by the Respondent.
The complaint was investigated by an Equality Officer of the Equality Tribunal on 19thJuly 2011. The Complainant did not attend the hearing and was not represented. He told the Court that he had made attempts to have the hearing deferred until he secured legal representation. The hearing proceeded in his absence and the Equality Officer found against the complaints of discrimination.
The Complainant appealed the Decision to this Court. In the Complainant’s submission on the substantive case he withdrew his claims of discrimination on the grounds of race and religion.
Preliminary Issue
The Court held a case management conference on 24thJanuary 2012 to consider procedural matters arising in the case. It became apparent that a central issue to be considered was whether or notthe programme undertaken by the Complainantwith the Respondent, Bachelor of Science in Computing in Multimedia Programming, falls within the definition of “vocational training” under Section 12 of the Acts.
A hearing was held on 25thApril 2012 to consider the position of both sides on the preliminary issue.Mr Diarmuid Murphy, B.L., instructed by Paul A. Ferris & Company, Solicitors, submitted the position on behalf of the Complainant.Ms Rosemary Mallon, B. L., instructed by Arthur Cox, Solicitors,submitted the positionon behalf of the Respondent.
In the course of argument reliance was placed by the Complainant on Decisions of the CJEU on the meaning to be ascribed to the term “vocational training” for the purposes of European law.
Having considered the position of both sides the Court wrote to the parties on 10thMay 2012 to outline its position. The Court stated that in the context of the CJEU case-law an issue may arise as to whether or not the definition of vocational training in the Acts, as literally construed, comports with the meaning adopted by the CJEU. It held that if that question were to be answered in the negative a further question could arise as to whether or not the Court should interpret the domestic law provision in conformity with the European Union law definition of the term in issue.
In the course of its preliminary consideration of these questions the Court formed the opinion that if they were to be determinative of the case it may be appropriate to request a preliminary ruling from the CJEU, pursuant to Article 267 TFEU, on this aspect of the case.
In the alternative, the Court suggested to the parties that it could proceed to investigate the substantive matter while reserving its decision on the preliminary issue raised as to its jurisdiction. In such an event, if the Court were to find that the Complainant was not discriminated against in the manner alleged, the question of law arising on the preliminary point would become moot. If the Court were to find that the Complainant did suffer discrimination within the meaning of the Act then the question of law would fall to be considered and at that point the appropriateness of an Article 267 reference could be considered.
Accordingly, the Court invited both parties to make observations or submissions on whether or not the Court should request a preliminary ruling from the CJEU on the question of whether or not the course in issue is a course of vocational training for the purposes of Directive 2000/43/EC or whether the Court should reserve its Decision on that question and proceed to hear the substantive case on the basis outlined above.
Both parties responded to the Court. By letter dated 23rdAugust 2012, Partners At Law, Solicitors, who were then representing the Complainant, and by letter dated 16thMay 2012, Arthur Cox, Solicitors, on behalf of the Respondent, wrote to the Court stating that the Court should proceed to hear the substantive case in the first instance. Submissions were sought and received by the Court on the substantive case and a hearing was scheduled for 8thNovember 2013. At this point the Complainant was no longer represented by Partners At Law, Solicitors, and he failed to turn up for the hearing as it transpired that he had not been informed of the hearing date. The Court wrote to both parties on 19thNovember 2013 to advise them that it wasof the view that it had sufficient information on the case to issue its Determination without the necessity to hold a further hearing. There was no objection from either party to the Court’s intention.
Summary of the Complainant’s Case on the Substantive Issue
In his submission to the Court the Complainant outlined his claim of alleged discrimination on the age ground. He referred to an incident which allegedly occurred during January of 2006 when he said that one of his Lecturers harassed him in front of his two colleagues and threatened to fail him in a group project the three were involved in if he refused as a mature student in his fifties, to take a leadership role in ensuring his colleagues, who were in their twenties, attend lectures, inspection meetings and meet assignment deadlines. This Lecturer was his Supervisor for the purposes of the group project referred to. The Complainant stated that in an email dated 18thJanuary 2006 he expressed his concerns about the making of this remark to the Lecturer concerned but never received a reply.
The Complainant submitted that the comment made about“leadership”by his Lecturer would, even if was not accompanied by any other alleged discrimination, constitute discrimination within the meaning of the legislation. In support of this position he cited the case ofByrne v FÁS, Equality Tribunal Decision E2002-045where the complainant in that case alleged that a comment was made to her at an interview she attended for a place on a FÁS Interior Design course, where the interviewer said in reply to her question about her ability to do technical drawing“the reason I am asking this is that some people find this very difficult and some are not able to learn it at all. And I have to say this, and you may not like what I am going to say, that it is always the older people who have a problem with it. They just cannot do it. In fact one woman in the class, she is an older woman, failed to make the grade because she just could not do the technical drawing”.
The Equality Officer found that she had been discriminated against on the ground of age contrary to the provisions of the Acts.
Furthermore in support of his allegation of discrimination the Complainant alleged that he was treated differently because of his age when he was accused of plagiarism and the Respondent refused to award him a grade sufficient to be awarded a Degree. In support of his contention that he was discriminated against he referred to the manner in which two named students in their twenties were treated when during the academic year 2004/5 they were similarly accused ofplagiarismyet they wereallowed toprogress into the following year as scheduled.
In support of his allegation of discrimination in respect of the assessment process, the Complainant compared the system in the Respondent’s Institute to the Institute he had transferred from and was critical of the Respondent’s quality assurance in teaching and assessment methods, as promoted by the Department of Education and Skills, which he said lacked transparency and had a heavy reliance on one-to-one behind closed-door oral exams. He said that the Lecturer referred to above conducted the bulk of his assessments in this fashion. He said that during the academic year 2005/2006 only one paper-based student feedback exercise took place for the whole year. He submitted that the lack of quality assurance by the Respondent has resulted in significant drop-out rates by mature students. He stated that his class was predominantly populated by students under age 25.
When he received no response to his complaints made on 18thJanuary 2006 he then brought his concerns to management and to the Students Union as a result of which he was permitted to have a witness present for his assessment. Following the raising of further concerns with members of management the Complainant stated that the Respondentconceded to make a special arrangement whereby hewould be assessedby his Lecturer and the Lecturer’s Assistant and silently observedby a member of management on behalf of the Lecturer. He was also informed that he couldstop and defer theproceedings at any stage if he feltoverwhelmed.
The Complainant stated that at the assessment itself the normal format of a fifteen-minute session was set aside in favourofanhour-long grillingwith persistent interruptions while he was giving his presentation and his Lecturer asked him who the"real author"of theproject was.
Two weeks later he received a letter from management inviting him to a disciplinary hearing in relation to "plagiarism issues". The Complainant stated that following two disciplinary hearings into the matter it became clear no substantiation of the allegations could be offered. He said that he was not allowed to log the disciplinary proceedings and had to rely on the Respondent’s records, therefore, he submitted that his allegation of ageism was omitted from the subsequent minutes.
The Complainant was given the opportunity to present his project again which he availed of. By letter dated 9thOctober 2007, he was informed that he had been awarded a Grade C and the panel was satisfied that the work was his own and that he could explain the codes and programme satisfactorily. Nevertheless, he could not graduate due to the pass threshold as his grade point average had not reached the required 2.0. He was offered the opportunity to resit the examinations.
In support of his contention that he was discriminated against because of his age, the Complainant cited the Labour Court caseNevens, Murphy Flood v Portroe Stevedores[2005] 16 ELR 282 where the Court held:-
- “Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. . Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence””(see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).
Summary of the Respondent’s Position on the Substantive Issue
The Respondent noted the Complainant’s withdrawal of his claim of alleged discrimination on the grounds of race and religion and contended hehad not provided any substantive evidence that he was treated less favourably than any other student in a comparable situation due to his age within the meaning of Section 6(2)(e) of the Acts.
The Respondent stated that the Complainant was enrolled as a student at the Institute on the Bachelor of Science in Computing in Multimedia Programming Course from 30thSeptember 2005 to 31stAugust2006. He has not completed the course and/or been awarded the Degree as two modules remain outstanding, namely Database Management Systems and Networks and Distributed Systems. The Complainant received Grade Ds in each of these modules.It is necessary for the Complainantto receive a Grade C in at least one of these modules in order to achieve the requiredgrade point average to be awarded the Degree. The Respondent submitted that the Complainant was subject to the sameassessment and examination criteria as all other students on the BSc in Computing in Multimedia Programming Course.
At the outset of its submission in response to the Complainant’s submission on the substantive case the Respondent raised a preliminary matter that the alleged incidents complained of were all out of time. The Complainant relied upon alleged incidents which commenced in late 2005/early 2006, terminating with disciplinary hearings in late 2006.
The Respondent stated that as the Complainant’s claim was received by the Equality Tribunal on the 28thMarch 2008 then in accordance with the provisions of Section 77(5) of the Acts, the complaints must relate to matters which occurred within the six-months prior to 28thMarch 2008 from the date of occurrence and/or the last act of any alleged continuing act of discrimination. The Respondent submitted that it quite clear from the Complainant's submissions that his complaints relates to matters which allegedly occurred prior to the 28thSeptember 2007. Consequently it submitted that the Complainant's claim was statute-barred.
The Respondent referred to the fact that the Complainant makes no argument of alleged on-going discrimination up to and after 28thSeptember 2007 and no alleged incident after that date has been raised or referred to. Therefore, the Respondent contended that the earlier alleged incidents (i.e. matters which allegedly occurred in 2006) cannot and should not be considered during this appeal.
In relation to the alleged incidents complained of the Respondent stated that a hearing of the Respondent's Disciplinary Committeewas convened in September 2006 to investigate concerns the Respondent had in relation to the Complainant'ssoftware
project in response to a concern of plagiarism as he had by his own admission received "help" with his software project and this combined with an inability to credibly answer questions on the project when posed to him in the course of his project assessment presentation. The Respondent stated that this was entirely unrelated to the Complainant's age. The Respondent carried out disciplinary hearings in accordance with its Disciplinary Procedure which applies to all students.
The Respondent referred to the alleged discrimination in how the issue of plagiarism of the assessment of the group project that the Complainant and two other colleagues completed. It stated that the Lecturer referred to was the appropriate person to carry out the assessment as he was the academic supervisor involved due to his area of expertise. The Respondent submitted that the Complainant has failed to establish any alleged discrimination due to his age and in any event he seems to be implicitly accepting that the other two students in his group were treated in a similar fashion to him. These students were of a different age profile to the Complainant and consequently he has failed to establish any link to the matters he raises in this connection and his age.
With respect to the Complainant’s allegation concerning a lack of quality assurance by the Respondent contributing to discrimination on the age ground, the Respondent submitted that this was a sweeping and broadly speculative statement and that the Complainant had offered no evidence to substantiate this claim. The Respondent said that it is subject to stringent internal and external quality assurance procedures and guidelines. It is monitored for quality procedures by a number of national bodies and is subject to external institutional and programmatic reviews for all programmes and services. The Respondent also has in place robust programme board systems, external examiners procedures and systems and student liaison and feedback systems. An Academic Council Sub-Committee on Quality Enhancement audits and monitors the Respondent's quality systems.
Each third level Institute determines its own assessment proceduresin line with HETAC guidelines and protocols.The Respondent has strict procedures in relation to assessments as outlined in the Respondent's Marks and Standards document.The Respondent submitted that the Complainant had provided no evidence that he was discriminated against in this regard.
The Respondent denied that it"threaten to fail"the Complainant if he did not "take on a leadership role amongsthiscolleagues". The Respondent stated that it is of significance that the Complainant makes no complaint,formal or informal,against the Lecturer under the Respondent's Mutual Respect Policy.
The Respondent said that the assessment took longer than the usual fifteen minutes. This was merely due to the attempts made during the assessment to ascertain the Complainant's level of knowledge. The Respondent disputed that the assessment was an act of discrimination on its part and rejected any suggestion that it was an"interrogation"or a"grilling"as alleged.
The Respondent denied that references to age were deleted from the minutes of the disciplinary hearings. It stated that the Complainant was accompanied by a representative at the hearings and he made no allegation of "ageism" or "discrimination" at the hearings. Furthermore, the Respondent submitted that it is impossible to ascertain how the attendance of a representative of the Students Union at the assessment was or is an act of discrimination connected in any way to the Complainant's age. The Respondent noted that in any event the Complainant was not in fact found guilty of plagiarism by the Respondent on foot of the disciplinary hearings.
Included in the Respondents appendices to its Submission to the Court were two tables which indicated that the Respondent encourages students from all age profiles. The first table provided figures for mature student (over 23 years) entry. The second table provides information in relation to students with an older age profile attending the Respondent’s Institute between 2004 and 2009. The Respondent stated that his table establishes the age profile of these students and the fact that many of these students have successfully completed their courses.
In respect of the two named students who were allegedly treated differently to the Complainant, the Respondent stated that for data protection reasons it could not comment on them. However, the Complainant appeared to suggest that they were allowed to progress and he was not. In this regard the Respondent stated that the Complainant had successfully passed the second project assessment and that he could have repeated either or both of the subjects to achieve the required grade point average.
The Respondent stated that certain matters outlined in the Complainant's submission were unrelated to the protectedground of age.Furthermore, it asserted thatcertain allegations made by the Complainant related to matters prior to hiscommencement of studies at the Respondent Institute.The Respondent stated that it wasnot in a position to comment on those allegations and that they were beyondthe remit of this complaint.
Without prejudice to its contentions above the Respondent submitted that theComplainant's claim was not properlybeforetheCourt as theComplainantis not
currently and never has been employed by the Respondent and furthermore that the programme of study undertaken by the Complainant does not constitute vocational training as defined by Section 12 of the Acts. Moreover, the Complainant had failed to establish facts from which it could be presumed that he suffered discrimination on the ground of age.
The Court’s Findings on the Substantive Case
At the preliminary hearing the Court heard submissions on the question of whether or not the programme undertaken by the Complainantwith the Respondent, Bachelor of Science in Computing in Multimedia Programming, fell within the definition of “vocational training” under Section 12 of the Acts. For the reasons set out above the Court makes no finding on this point.
Section 85A of the Acts 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. The test for applying that provision is well-settled in a line of Decisions of this Court starting with the Determination inMitchell v Southern Health Board [2001] E.L.R. 201.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.
In this case it was submitted that the Complainant was treated badly by the Respondent because of his age. He was in his fifties while most of his fellow students were in their early twenties.
In cases in which discrimination is alleged involving the filling of posts the Court had held that it is not the function of the Court to substitute its views on the relative merit of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination, c.f. Determination EDA042,Kathleen Moore Walsh v Waterford Institute of Technology.
Therefore, the Court must examine whether or not the decision-making process used not to grant the Complainant a grade sufficient to award him a Degree and/or the decision to allow him backdate his Degree if he later succeeded in passing the repeat examinations was discriminatory on the age ground. Consistent with its views on the filling of posts the Court has constantly held that it is not for the Court to express a view as to the appropriateness of the selection criteria used, it is only if the chosen criteria are applied inconsistently that an inference of discrimination could arise. That approach is consistent with the decision of the Northern Ireland Court of Appeal inWallace v. South Eastern Education and Library Board[1980] IRLR 193. Here, Lowry LCJ held that the appointment of a less qualified man to a position in the Respondent Library Board in preference to a more qualified woman was in and of itself sufficient to raise an inference of discrimination.
Where aprima faciecase is made out the onus shifts to the Respondent to prove the absence of discrimination. In all discrimination cases the Court should be alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious -Nagarajan v London Regional Transport.While that case involved a claim of racial discrimination the general principle enunciated by Lord Nicholls is equally applicable in cases involving other forms of discrimination.
Therefore, the Court must examine the primary facts upon which the Complainant relies in seeking to raise an inference of discrimination. These can be summarised as follows:-
- •Alleged remark made by his Lecturer in January 2006 regarding his duty as a mature student in his fifties to take a leadership role.
•Difference in treatment because of his age when he was accused of plagiarism and the Respondent’s refusal to award him a Degree as a result.
•Alleged lack of transparency in the assessment process resulting in significant drop out rates by mature students.
•Failure to allow him log minutes of the disciplinary meetings thereby omitting his allegation of ageism.
•Eventual exoneration of his project nevertheless not allowing him to graduate .
The Respondent has raised the matter of timing of the alleged discrimination and contended that the complaints are statue-barred as they are out of time. In his submission to the Court the Complainant stated that “mindful of time limitations” he lodged his complaint on 5thOctober 2007, however, it is very clear from the Equality Tribunal date stamp that the complaint was not received by the Equality Tribunal until 28thMarch 2008.
Within the six-months covered by the claim the only incident relied upon by the Complainant refers to the revised assessment which took place on 5thOctober 2007 and subsequent notification to him on 9thOctober 2007 that he was awarded a Grade C for his presentation. The 9thOctober 2007 letter, sent to him by the Respondent’s Registrar, informed him that the panel was satisfied that the work was his own and that he could explain it to the panel’s satisfaction. However, it pointed out that despite being awarded a Grade C, his grade point average had not reached the 2.0 required to enable him to achieve a Degree, as he had achieved a Grade D in two modules and he needed a Grade C in at least one. The Registrar offered him the opportunity to resit the examinations as an external candidate.
The Court has not been presented with any facts to suggest that the Complainant met the requisite academic standards but was prevented from graduating due to his age. The facts presented support the position that he did not reach the required standards and was given every opportunity and encouragement to do so. The Court notes that throughout the process, from the time the Complainant was informed that he was subject to disciplinary hearings as a result of telling the assessors that he had received “help” with his project coupled with their assessment that he had not been able to adequately answer questions about his work, he was given opportunities to make his case while being supported by others to assist him. He was granted special facilities.
In a letter to the Complainant dated 15thJuly 2007 the new Registrar outlined the details of how the new assessment process would work. He was told that he could present an updated version of his original project, the date for the new assessment was planned for September so as to be “still in time for the November conferring” if he was successful, and allowed for an external academic to be present. He was allowed to bring a friend if he wished and the Registrar also offered to sit in on the assessment panel as an observer if he so required. Based on these circumstances and the lack of any facts to support his allegation the Court is not satisfied that the events of October 2007 constitute discrimination for the purposes of the Acts.
Prior to events of October 2007 the new Registrar had written to the Complainant on 4thJuly 2007 in relation to his appeal of two exam results he had been given and informed him that while his grades were being upgraded from Fs to Ds in Database Management Systems and Network & Distributed Systems, she could however see no academic rationale for upgrading these subjects from Fs to Cs, as requested by him. In response to his application to submit a new project, the Registrar informed him that the Respondent was prepared to allow him to re-work and re-submit his original project. The Complainant submitted that this letter exposed the arbitrary nature of the Respondent’s assessment process.
On the day of his initial project assessment on 25thMay 2006 the Complainant submitted that the original format for the assessment was set aside in favour of an hour-long grilling with persistent interruptions during his presentation. He said that an Academic Supervisor who was intended to be present as an independent person turned out quite differently as he joined in with the two examiners in what the Complainant described as “quickly became an interrogation”.
The Complainant referred to an email dated 7thJune 2006 from the Head of Department to the previous Registrar which outlined the outcome of a disciplinary report into the Complainant’s project assessment. In this report the Head of Department stated that as a result of his original assessment disciplinary proceedings was initiated against the Complainant as the panel of assessors were concerned that he had presented the work of others as his own and therefore his assessment was deemed inconclusive.
This report from the Head of Department included a number of reports from those in attendance at the assessment, and one from the Complainant’s Course Co-ordinator, dated 2ndJune 2006. The latter referred to a meeting held between himself and the Complainant, regarding the latter’s concerns that he was being treated unfairly by some Lecturers and that the mode of examination in the Respondent’s Institute was different to what he had been used to. The Course Co-ordinator suggested to the Complainant that he should talk to his Lecturer to sort out any misunderstandings between them. He explained that as he was not involved in teaching the Complainant he was prepared to offer himself as a neutral observer at such a meeting. No such meeting took place.
Instead, two disciplinary meeting took place a couple of weeks later between the Complainant, the Head of Department and the President of the Student’s Union, the outcome of which was decided that the Complainant could reschedule his original project presentation in order to allow him prepare himself better and in order to control the stress that he had undergone in his original assessment. He was told that both an independent Academic Supervisor and the President of the Student’s Union would attend in a neutral observer capacity.
- •Alleged remark made by his Lecturer in January 2006 regarding his duty as a mature student in his fifties to take a leadership role.
The Court notes that the initiation of the Complainant’s difficulties arose when he alleged that his Lecturer made a comment referring to his agein January 2006. The Complainant stated that in an email dated 18thJanuary 2006 he expressed his concerns about the making of this remark to the Lecturer concerned but never received a reply. He supplied a copy of this email to the Court. Having examined the email there is no reference to the comment made and no reference to age/discrimination on age grounds. It refers to fact that he missed a lab and mentions the kind of pressure he is under. In the email he says“regarding co-ordination between team members”due to his workload“ there is little to co-ordinate on”,he proceeds to say“I just want to appeal to you to go easy in order to avoid any possibilities of misunderstandings”.
In his submission to the Court the Complainant compared the alleged“leadership”comment made by the Lecturer to that made in theByrne v FÁScase. The Court finds this very difficult to accept. It is clear from the Lecturer’s report to the Head of Department dated 29thMay 2006 that the former was concerned about the Complainant’s ability to achieve a pass grade for this project work as he was in his final year. Later that year, he offered to meet with the Complainant and his two fellow students during the Easter holidays in order to assist them in their project work. It is difficult to see how these actions amount to discrimination on the age ground. Similarly when the Complainant raised concerns about the pressure he was under the Lecturer offered to defer the submission of his project until September 2006. Furthermore the Registrar in her letter dated 15thJuly 2007 offered him a date pre-November 2007 to present his updated project so as to allow him the opportunity to graduate if he was successful.
- •Difference in treatment because of his age when he was accused of plagiarism and the Respondent’s refusal to award him a Degree as a result.
The Court has not been provided with details of a difference in treatment because of his age when he was accused of plagiarism. The Complainant referred to two students in their twenties who were similarly accused but managed to proceed to the next academic year whereas in his case he was not awarded a Degree nor allowed to graduate. No details have been supplied to the Court to substantiate this assertion. In any event there is nothing to suggest that he too could have progressed to graduation, despite the accusation of plagiarism, as he successfully passed his project assessment the second time, it was his failure to achieve the requisite grade point average which prevented his progress. In such circumstances the Court cannot find that he was treated less favourably than others of a different age.
- •Alleged lack of transparency in the assessment process resulting in significant drop out rates by mature students.
The Complainant submitted that there were significant drop out rates by mature students due to the lack of transparency in the assessment process. No details were supplied to the Court to substantiate this assertion. The Respondent submitted details of students aged over 47 in the years from 2004 until 2009 inclusive and these figures do not demonstrate significant dropout by this cohort of students. Such an inference as the Complainant suggests could only be drawn if there was evidence of some weight from which it could be concluded that persons of a younger age were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.
- •Failure to allow him log minutes of the disciplinary meetings thereby omitting his allegation of ageism.
The Complainant alleged that the Respondent’s failure to allow him to log minutes of the disciplinary meetings resulted in his allegation of ageism being omitted. However, in his submission to the Court, the Complainant stated that he was allowed to amend the minutes of the process with his version of events, which it would then be up to the committee to accept or reject. The Court notes that the Complainant never made any complaints to Management about alleged discrimination on the age ground and he made no reference to such allegations being made at the disciplinary hearings. While there is no evidence of issues concerning his age being raised with the Respondent, it is clear that the Complainant raised some concerns regarding his Lecturer and that he was being unfairly treated by the Respondent. However, he was offered assistance in this regard from a number of people and he was advised by his Head of Department to formally make a complaint if he wished to do so but he never did. On that basis the Court does not accept that the facts presented are of sufficient significance to raise a presumption of discrimination.
- •Eventual exoneration of his project nevertheless not allowing him to graduate.
While the Complainant’s project assessment was deemed successful when he re-submitted it for evaluation in October 2007, he has not completed the course as two modules remain outstanding, Database Management Systems and Networks and Distributed Systems. In order to be awarded the Degree he must receive a grade 2.0 average i.e. he needs a Grade C in at least one of these modules . This option is still open to the Complainant. These facts do not suggest any irrationality in the graduation process. The Court fully accepts that the requirement is the same for all students regardless of their age and can see no reason to suggest that the Complainant was treated any differently than others of a different age in this regard.
Conclusion
In all the circumstances presented to the Court and in light of the lack of substantiation of facts from which discrimination could be inferred the Court finds that the Complainant has failed to establish aprima faciecase of discrimination.
Determination
For the reasons outlined above the Court does not uphold the Complainant’s complaints under the Acts and accordingly rejects his appeal. The Decision of the Equality Officer is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th December, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.