EDA1335

The facts
The facts of the case are not in dispute and can be summarised as follows.

The Complainant is of Nigerian national origin. At the time material to this claim she was also of Nigerian nationality. She has since become a citizen of Ireland.

The Respondent is a statutory body established by the Dublin Institute of Technology Acts 1992 to 2006. It is a third level education institute and is accountable to the Higher Education Authority.

In 2008 the Complainant applied to the Respondent to undertake a course leading to a BA in Hospitality Management. She was accepted for the course and attended for registration in or about September of that year. On the application form on which she applied for the course the Complainant gave her nationality as Nigerian. The Respondent designated the Complainant as an overseas or international student. On that designation the Complainant was required to pay fees in accordance with the Respondent’s international student fee policy. That policy, which took effect from 1^stSeptember 2008 provided, in relevant part, as follows: -

• “For the purpose of this document non-EU refers to territories outside the European Economic Area and Switzerland, and applicants from EEA/Switzerland that do not meet the residency requirement, in line with the Higher Education Authority guidelines

  DIT sets higher fees for non-EU students attending full time undergraduate and full time postgraduate programmes. This document outlines the circumstances in which these higher fees will apply”.

  This document sets out the criteria for determining the status of students for fee purposes as follows: -

  Category A- Free Fees

  To qualify for the free fees scheme an applicant must meet the following three criteria:

  • 
    (i)First Undergraduate Qualification; Application for study in the DIT must be the applicant’s first undergraduate programme of study at a recognised NFQ (National Framework for Qualifications) Level
    
    (ii)Nationality Test: The Applicant must be in possession of a valid EU passport OR an original long form Irish Birth Certificate OR an original EU National Identity Card, OR be in possession of Official Refugee Status. Please note that EEA and Swiss applicants are assessed as EU nationality in terms of fee assessment
    
    (iii)Residency: The applicant must have been ordinarily resident in an EU Member State for at least three of the five years preceding their entry into an approved third level course.
  
  Category B- EU Rate of Fees:

  The ‘EU Rate’ of fees is the total tuition fee plus capitation for each programme type as determined by the Irish Department of Education and Science each year. It is the same as a Self-Support Student would have to pay.

  Applicants are charged the EU Rate of Fees if they meet the following criteria;

  • 
    (i) The applicant is ordinarily resident in the EU and has received full-time post primary education in the EU for three of the five years immediately preceding admission OR
    
    (ii) The applicant is ordinarily resident in the EU and has worked full-time in the EU for three of the five years immediately preceding admission OR
    
    (iii) The applicant holds a passport from a EU State and has received full-time education in the EU for three years of the five years immediately preceding admission OR
    
    (iv) The applicant has been granted humanitarian leave to remain in the State and has been resident in the EU for three years of the five years immediately preceding admission.

The Complainant contends that the criteria against which applicants were assessed for the EU rate of fees constituted indirect discrimination on grounds of race. This is based on the readily acceptable contention that those who were not born in an EU Member State or who do not normally live in one of these States are more likely to be disadvantaged by these criteria.

The Complainant also contends that the course for which she applied is one of vocational training and comes within the meaning ascribed to that term in European law. She contends that it also comes within the ambit of the Act, when construed in conformity with Directive 2000/43/EC.

The complaint was referred to the Equality Tribunal and was investigated by an Equality Officer who found that the course in issue was not vocational training as that term is defined by the Act. On that finding her claim was dismissed. The Complainant appealed to this Court.

Issues Arising
There is no dispute between the parties on the material facts of this case. There are, however, significant questions of law arising in relation to the interpretation and application of domestic and European law. Those questions relate to whether the course in issue can properly be classified as vocational training and whether, on the facts of the case, the Complainant can maintain a cause of action under the Act grounded on her race or ethnic origin.

Vocational Training

Section 12 of the Act provides: -

• (1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise) —

  (a) in the terms on which any such course or related facility is offered,

  (b) by refusing or omitting to afford access to any such course or facility, or

  (c) in the manner in which any such course or facility is provided.

  (2) In this section “vocational training” means 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.

It was conceded on behalf of the Complainant that the course at issue in this case is not exclusively concerned with training for an occupational activity. It was on that basis that the Equality Officer decided the case against the Complainant. However counsel for the Complainant, Ms Honan BL, relied on the decisions of the former ECJ (now the CJEU) in case C-293/83, Gravier v City of Liege[1985] ECR 593, and case C-24/86,Blaizot v University of Liege & Ors[1988] ECR 379 in contending that as a matter of European Law the concept of vocational training must be given a more expansive meaning.

InGravier,the Court held that vocational training includes: -

• “[A]ny form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment or which provides the necessary training whatever the age and level of training of the pupils or students, and even if the programme includes an element of general education”.

• “with regard to the issue of whether university studies prepare for a qualification for a particular profession, trade or employment or provide the necessary training or skill for such a profession trade or employment, it must be emphasised that that is the case not only where the final academic examination directly provides the required qualification for a particular profession trade or employment but also in so far as the studies in question 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 even if no legislative or administrative provision make that acquisition of that knowledge a prerequisite for that purpose.”

  In general university courses fulfil those criteria. The only exceptions are certain courses of study which, because of their particular nature are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation”

Scope

• 1. Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

  (a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

  (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;

  (c) employment and working conditions, including dismissals and pay;

  (d) membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations;

  (e) social protection, including social security and healthcare;

  (f) social advantages;

  (g) education;

  (h) access to and supply of goods and services which are available to the public, including housing.

  2. This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

The Court has no doubt that the course in issue in this case is not one of vocational training as that term is statutorily defined. If the literal meaning of the definition were to be applied in this case the Court would have no option but to uphold the decision of the Equality Tribunal and dismiss the appealin limine. However, Counsel for the Complainant submitted that the Court is bound by the well-known obligation to interpret and apply a domestic law provision in light of the wording and purpose of a relevant provision of Union law so as to produce a result consistent with Union law. Authority was opened to the Court in advancing that argument although the principle underlying counsel’s submissions cannot be in doubt. Equally there can be no doubt that the interpretative obligation relied upon is not without its limitations. It applies ‘as far as possible’ It is well settled that it cannot be extended to the point that a statutory provision is interpretedcontra legem. There are conflicting authorities of the Superior Courts on how far a statutory tribunal can go in applying the doctrine before that point is reached. For reasons that follow it is unnecessary for the Court to review those authorities in this case. The Court is, however, mindful that inKelly v National University of Ireland[2008] IEHC 464 McKechnie J. remarked as follows: -

• One such rule emerged from the Marleasingcase (Marleasing SA v La Comercial Internacional de AlimentacionSA[1991] 1 ECR 4135) and is now known as the “Marleasing principle” or the “principle of conforming interpretation”. This means that a national court has an obligation to interpret domestic legislation “so far as possible” in a manner both compatible with and in conformity to European law.This phrase “so far as possible” has been the subject matter of several decisions. Broadly speaking this interpretive method cannot be stretched to a point which involves a departure from the fundamental or cardinal feature of the provision in question.Subject however to this qualification, the Marleasing principle pervades all pieces of domestic law which necessarily are or ought to be influenced by Community law (see Commissioners for Her Majesty's Revenue and Customs v IDT Card Services Ireland Ltd[2006] EWCA Civ 29andPfeiffer v Deutsches Rotes Kreuz[2005] ICR 1307). [emphasis added]

There are a number of other issues that arise in this case which require consideration. Directive 2000/43/EC does not define the terms ‘vocational training’. BothGravierandBlaizotconcerned the principle of free movement in accordance with Regulation 1612/68 and ex Article 39 of the Treaty. It cannot be assumed that a similarly expansive interpretation of the term would be taken for the purpose of Directive 2000/43/EC. It may also be of relevance that even if s.12(2) of the Act were to be given its literal interpretation the Complainant would not be without a remedy in domestic law if she suffered discrimination in relation to access to the impugned course. If the course is not one of vocational training in domestic law it is one of education. The Equal Status Act 2000 prohibits discrimination, inter alia, on grounds of race in relation to access to education and the Complainant could seek a remedy under that enactment.

Against that background counsel for the Complainant proposed that the Court should consider asking the CJEU to give a preliminary ruling pursuant to Article 267 TFEU on what constitutes vocational training for the purposes of the Directive. The Court could only consider that proposal if the outcome of the case turned on that question. This would only arise if the Court came to the conclusion that the decision to charge the Complainant the non-EU scale of fees was otherwise capable of being considered an act of indirect discrimination on ground of her race contrary to Directive 2000/43 and the Act.

Discrimination on Grounds of Race
Serious questions were raised by the Respondent as to whether a claim of discrimination on grounds of race could be sustained on the facts of this case. In these circumstances the Court asked the parties to make further submissions on this question. It indicated to the parties that it would decide as a preliminary matter if the complaint of racial discrimination was sustainable. Only if that question was resolved in the Complainant’s favour would it go on to consider if a reference under Article 267 TFEU was necessary.

It is clear that the criteria against which the fees payable by prospective students are assessed by the Respondent are neutral on their face as regards race or racial origin. They relate to residence in the EU or citizenship of the EU. The criteria are applied equally to all applicants and no question of direct discrimination arises nor is one contended for. It is the Complainant’s case that the criteria give rise to indirect discrimination in that they place persons of her ethnic origin at a disadvantage relative to persons of a different racial origin.

At the first hearing of this case the position being advanced by the Complainant was clarified as predicated on the proposition that those whose racial origin can be classified as EU or European constitute a racial group and that all others who are not European or EU constitute a different racial group. It should be noted that the impugned criteria apply to the EU and the EEA and not to Europeper se. Europeans who are not ordinarily resident in an EU or EEA Member State, or are not citizens of such a State are in the same disadvantaged group as the Complainant and cannot be part of the comparator group for the purpose of assessing any disparate impact which the criteria have. Hence the case proceeded on the basis that those whose racial origin can be classified as EU constitute a racial group who are advantaged by the criteria and all others constitute a racial group who are disadvantaged by these criteria.

The legal questions posed by this proposition are complex and the Court was greatly assisted by careful and eloquent submissions by counsel on both sides, for which the Court is grateful.

The question thus posed turns essentially on whether there can be a recognised racial group located in or referable to the European Union and whether, by exclusion, there can be another racial group comprising all others.

Before addressing that question there are a number of domestic and Union legal provisions that should be reviewed.

Directive 2000/43/EC
The purpose of the Directive is set out at Article 1 thereof as: -

The purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment.

Article 2 provides: -

• 1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.

  2. For the purposes of paragraph 1:

  (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin;

  (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

  3. Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.

• 2. This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

In the course of argument in the instant case it was submitted that Article 3(2) of the Directive only excludes direct discrimination on grounds of nationality and that any form of indirect discrimination referable to nationality is not captured by that exclusion. That proposition, if correct, would appear to run counter to the purpose of the exclusion and could not on that account be accepted as correct. This point will be considered further below in relation to the construction of s.12(7) of the Act.

The Act
Unlike the Directive the Act expressly includes nationality within the definition of the race ground and discrimination based on nationality is prohibited in most but not all circumstances. An exception which reflects the provision at Article 3(2) of the Directive is contained at s.12(7) of the Act, as follows: -

• (7) Without prejudice to section 3 of the Refugee Act 1996 nothing in subsection (1) shall make unlawful discrimination on the age ground or the ground of race in respect of any course of vocational training offered by an educational or training body where—

  (a) it provides different treatment in relation to—

  (i) the fees for admission or attendance at any such course by persons who are citizens of Ireland or nationals of another Member State of the European Union, or

  (ii) the allocation of places on any such course to those citizens or nationals, or

  (b) it offers assistance to particular categories of persons by way of sponsorships, scholarships, bursaries or other awards, which assistance is reasonably justifiable, having regard to traditional or historical considerations, or

  (c) in the case of a university or other third-level institution, it provides different treatment in the allocation of places on any such course to mature students withinthe meaning of the Local Authorities (Higher Education Grants) Acts 1968–1992.

What is in issue in this case does involve a difference in treatment as between those who meet the eligibility criteria for the EU rate of fees and those, including the Complainant, who do not meet those criteria. The fact that all racial groups are treated the same within both the advantaged group (those who meet the impugned criteria) and the disadvantaged group (those who do not meet the criteria), the fundamental cause of complaint is that those in the disadvantaged group are treated less favourably than those in the advantaged group. If an examination of the racial makeup of both groups discloses that the impugned criteria places those in one racial group at a particular disadvantage relative to those in another racial group a prima facie case of indirect discrimination on racial grounds will be made out. What s.12(7) provides is that where a difference in treatment in respect to the matters referred to in the subsection exists as between people based on their nationality that difference is not rendered unlawful.

This point is further illustrated by the definition of the word ‘discrimination’ contained at s.6 of the Act. It provides: -

• For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
  • (a) a person is treated less favourably than another person, is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—
    • (i) exists,

      (ii) existed but no longer exists,

      (iii) may exist in the future, or

      (iv) is imputed to the person concerned,

      (b) a person who is associated with another person—

      (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

      (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

• Let me start by emphasising, perhaps unnecessarily, that indirect discrimination is a type of discrimination. The adjective 'indirect' has sometimes been criticised as insufficiently descriptive of the type. It has been suggested that 'secret' or 'concealed' might be more descriptive. But the adjective is less important than the noun. What is being looked for is discrimination. Has one sex been subjected to a disadvantage that the other sex is not subjected to? The Directive, entirely consistently, asks whether the provision in question 'disadvantages' one sex proportionately more than the other.

Race and Racial Origin
Neither the term race nor racial origin is fully defined by either the Act or the Directive. However, both parties were agreed that a definitive explanation of the terms is to be found in the judgment of the House of Lords inMandla v Lee[1983] 1 ICR 385. That case involved an interpretation of the definition of race in UK legislation identical to that of the Act.

According to the headnote of the report, the facts of that case were as follows: -

• “The case involved the refusal of the headmaster of a private school to admit as a pupil to the school a boy who was an orthodox Sikh, and who therefore wore long hair under a turban, unless he removed the turban and cut his hair. The headmaster's reasons for his refusal were that the wearing of a turban, being a manifestation of the boy's ethnic origins, would accentuate religious and social distinctions in the school which, being a multiracial school based on the Christian faith, the headmaster desired to minimise.

  The boy, suing by his father, sought a declaration in the County Court that the refusal to admit him unless he removed his turban and cut his hair was unlawful discrimination unders 1(1)(b)a of the Race Relations Act 1976 against a member of a 'racial group' as defined in s 3(1)b of that Act. The boy contended that the headmaster's 'no turban' rule amounted to discrimination within s 1(1)(b)(i) and (ii) because the boy was not a member of a 'racial group … who can comply' with the rule and the headmaster could not show the rule to be 'justifiable irrespective of [the boy's] ethnic … origins'.

  The evidence before the court was that the Sikhs were originally a religious community founded at about the end of the fifteenth century in the Punjab area of India, and that the Sikhs were no longer a purely religious group but were a separate community with distinctive customs such as the wearing of long hair and a turban although racially they were indistinguishable from other Punjabis, with whom they shared a common language. The judge dismissed the boy's claim on the ground that Sikhs were not a 'racial group' within the definition of that term in s 3(1) of the 1976 Act since Sikhs could not be 'defined by reference to … ethnic or national origins'.

  The boy appealed, contending that the term 'ethnic' embraced more than merely a racial concept and meant a cultural, linguistic or religious community. It was common ground that Sikhism was primarily a religion, that the adherents of a religion were not as such a 'racial group' within the 1976 Act and that discrimination in regard to religious practices was not unlawful. The Court of Appeal dismissed the boy's appeal on the grounds that a group could be defined by reference to its ethnic origins within s 3(1) of the 1976 Act only if the group could be distinguished from other groups by definable racial characteristics with which members of the group were born and that Sikhs had no such characteristics peculiar to Sikhs. The boy appealed to the House of Lords.”

• For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant: (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.

  A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purpose of the 1976 Act, a member. That appears to be consistent with the words at the end of sub-s (1) of s 3: 'references to a person's racial group refer to any racial group into which he falls.' In my opinion, it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the 1976 Act is concerned, by which route he finds his way into the group. This view does not involve creating any inconsistency between direct discrimination under para (a) and indirect discrimination under para (b). A person may treat another relatively unfavourably 'on racial grounds' because he regards that other as being of a particular race, or belonging to a particular racial group, even if his belief is, from a scientific point of view, completely erroneous.

• A racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins. I agree with the Court of Appeal that in this context ethnic origins have a good deal in common with the concept of race just as national origins have a good deal in common with the concept of nationality. But the statutory definition of a racial group envisages that a group defined by reference to ethnic origin may be different from a group defined by reference to race, just as a group defined by reference to national origins may be different from a group defined by reference to nationality. In my opinion, for the purposes of the 1976 Act a group of persons defined by reference to ethnic origins must possess some of the characteristics of a race, namely group descent, a group of geographical origin and a group history. The evidence shows that the Sikhs satisfy these tests. They are more than a religious sect; they are almost a race and almost a nation. As a race, the Sikhs share a common colour, and a common physique based on common ancestors from that part of the Punjab which is centred on Amritsar. They fail to qualify as a separate race because in racial origin prior to the inception of Sikhism they cannot be distinguished from other inhabitants of the Punjab. As a nation the Sikhs defeated the Moghuls, and established a kingdom in the Punjab which they lost as a result of the first and second Sikh wars; they fail to qualify as a separate nation or as a separate nationality because their kingdom never achieved a sufficient degree of recognition or permanence. The Sikhs qualify as a group defined by ethnic origins because they constitute a separate and distinct community derived from the racial characteristics I have mentioned. They also justify the conditions enumerated by my noble and learned friend Lord Fraser. The Sikh community has accepted converts who do not comply with those conditions. Some persons who have the same ethnic origins as the Sikhs have ceased to be members of the Sikh community. But the Sikhs remain a group of persons forming a community recognisable by ethnic origins within the meaning of the 1976 Act. Gurinder Singh is a member of the Sikh community which qualifies as a racial group for the purposes of the 1976 Act.

What is now the European Union is a political and economic union of independent nation states which has grown in number from six on the conclusion of the Treaty of Rome in 1957 to 27 since the last enlargement. While the people of Europe may have a long history the EU does not. Moreover, the people of the Member States do not have a shared history the memory of which keeps it alive. It is made up of a diverse range of different people with different history. In many respects the Union grew out of difference and rivalries between the people of what is now its Member States, which resulted in wars and conflict over many centuries. Nor does it have a single discernible cultural tradition of its own. There are a range of different cultural traditions within and amongst its Member States. While the Union has a common geographical origin in Europe it does not have a common language or a common literature. While, as presently constituted, it could be said that the people of its Member States have historically been predominately Christian in terms of religion the differences of religion has divided the people of Europe over much of its history rather than united them. In his 7th distinguishing characteristic Lord Fraser referred to the possibility of an oppressed and conquered people being an ethnic group and their conquers and oppressors being a separate ethnic group. What is now the Union was founded by those who were oppressed and by their oppressors and the conquered and their conquerors.

In the Court’s view the people of the Member States comprising the EU have none of the characteristics of a racial group identified inMandlaand could not be properly classified, in law or in logic, as having a common ethnicity. It follows that if there is no common EU ethnicity there can be no common non-EU ethnicity. In any event, the Court could not accept the proposition that the people of the entire world, other than those of the EU Member States, could be regarded as comprising a common ethnic group.

National Origin
The Complainant also contends that she is part of racial group defined by national origin. Reliance was placed on the decision of the Court of Sessions inBBC Scotland v Souster[2001] IRLR 150 in support of the proposition that a racial group can be so defined. In that case the appellant argued that the words ‘national origin’ should be construed narrowly as meaning ‘nationality’ in its narrow legal sense of citizenship. In addressing that point Lord Cameron said: -

• Moreover it is clear that the word 'nationality' is not related to any precise point of time such as the word 'origins' suggests. It can encompass a change in nationality after an individual's birth. Equally, an individual can become a member of a racial group defined by reference to 'origins' through adherence, as for instance by marriage, as was pointed out by Lord Fraser in Mandla[1983] IRLR 209.

• The word nationality is as referable to the present nationality of an individual as it is to his nationality at birth derived from his national origins. Since it is possible for a person to change his nationality, the word does not, in my opinion, refer only to his nationality at birth

However, in the context in which the word ‘nationality’ is used in Article 3(2) of the Directive it must have been intended, in the words of Lord Cameron, as being referable to a person’s present nationality as well as to his or her nationality at birth derived from his or her national origin. If it were otherwise an absurd situation could ensue. Take the paradigm case of a person whose present nationality is Australian, and that is also their national origin. If such a person suffered discrimination on grounds of their nationality, the exclusion contained in Article 3(2) of the Directive could easily be circumvented by grounding a claim of discrimination not on their nationality in the sense of citizenship but on their national origin which is precisely the same. Such a result could not have been intended. On the same logic the reference to ‘nationality’ in s.12 (7) of the Act must similarly be construed as including both citizenship and national origin.

Considered in that context, it is difficult to see how a claim of indirect discrimination on grounds of race, based on the Complainant’s national origin (which is Nigerian), could realistically succeed when a claim of either direct or indirect discrimination on grounds of her nationality (which at the material time was also Nigerian) would be plainly unsustainable by operation of both Article 3(2) of the Directive and s.12 (7) of the Act.

Racial Group Defined by Colour
Finally, the Complainant contends that she is part of a racial group defined by colour. There is no doubt that a racial group can be so defined. Moreover, it could readily be accepted that substantially more white people are citizens of the EU Members States than black people and that fewer black people that white people meet the residency criteria for the EU rate of fees chargeable by the Respondent. However that simple proposition cannot avail the Complainant in making out a case of indirect discrimination on grounds of race referable to colour.

In any case in which indirect discrimination is pleaded the selection of the appropriate pool for comparison is crucial. It has been held by the UK Court of Appeal inGrundy v British Airways PL[2008] IRLR 74 that the correct principle is that the pool must be one which suitably tests the particular discrimination complained of: but that is not the same thing as the proposition that there is always a single suitable pool for every case. The decision of the CJEU in case C-247/11,Kenny v Minister for Justice Equality and Law Reform[2013] IRLR 463 makes it clear that groups are not relevant for comparison purposes in cases of indirect discrimination where they are formed in an arbitrary manner so as one group comprises those having the characteristic relied upon and the other does not.

InRutherford and another v Secretary of State for Trade and Industry[2006] IRLR 551, Baroness Hale of Richmond pointed out the following: -

• But the notion of comparative disadvantage or advantage is not straightforward. It involves defining the right groups for comparison. The twists and turns of the domestic case law on indirect discrimination show that this is no easy matter. But some points stand out. First, the concept is normally applied to a rule or requirement which selects people for a particular advantage or disadvantage. Second, the rule or requirement is applied to a group of people who want something. The disparate impact complained of is that they cannot have what they want because of the rule or requirement, whereas others can.

Conclusion
In so far as the Respondent’s fee policy gives rise to disparate impact as between applicants for the Respondent’s courses it does so on the basis of nationality. It is clear that the underlying rationale for the policy is to distinguish between citizens and those established in Ireland and other EU Member States and the EEA Area on the one hand, and those from third countries on the other. Section 12(7) of the Act is clearly intended to place this type of policy outside the purview of the anti-discrimination provisions of the Act. The fundamental requirement in construing a statutory provision is to give effect to the intention of the Oireachtas. That is clear from s.5 (1) of the Interpretation Act 2005, which provides: -

• 5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

  (a) that is obscure or ambiguous, or

  (b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

  (i) in the case of an Act to which paragraph (a) of the definition of “Act” insection 2(1) relates, the Oireachtas, or

  (ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

  the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

Accordingly the Court must hold that the Respondent’s decision to charge the Complainant the non-EU scale of fees did not amount to unlawful discrimination on the race ground.

Determination

Although for different reasons than those upon which it was based the Court upholds the decision of the Equality Tribunal and disallows the appeal.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
23rd December, 2013.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.