EDA141

The Dispute
This is an appeal by the Worker (hereafter the Complainant) against the decision of the Equality Tribunal in her claim of discrimination against a Vocational Training Provider (hereafter the Respondent). The claim relates to the refusal of the Respondent to admit the Complainant to a course of vocational training in Healthcare Support. The claim was made on the disability ground pursuant to the Employment Equality Acts 1998-2011 (the Act).

Background
The Complainant has a hearing impediment. It is accepted that this constitutes a disability within the statutory meaning. In her claim before the Equality Tribunal the Complainant also contended that she suffers from Aspergers syndrome, although this condition was not relied upon in the appeal.

In or about February 2010 the Respondent caused an advertisement to be placed in a local newspaper inviting applications for participation in a course of vocational training in Healthcare Support. It is also common case that the advertisement did not specify that a particular level of educational attainment was necessary for participation in the course. Nor did it specify that previous work experience in the area was necessary. In relevant part it stated: -

“This course is designed for people with no previous qualifications”

The Respondent contends that the advertisement, as placed, was incomplete and did not properly reflect the requirements for the course.

In response to the advertisement the Complainant expressed an interest in attending the course. She later attended an information meeting in relation to the course on 1^stMarch 2010 and was subsequently interviewed by the course tutor. Following this interview the Complainant was informed that she could not participate in the course.

The Position of the Parties

The Complainant

The Complainant, through her solicitor, submitted that the advertisement inserted on behalf of the Respondent expressly stated that the course in issue was designed for people with no previous qualifications. It was pointed out that in a letter to the Complainant dated 26^thMarch 2010 the Respondent stated that the number of applicants exceeded the number of places and in consequence it was not possible to offer a place to everyone that was interested. This, it was submitted, turned out not to be the case. In a letter to the Equality Tribunal dated 19^thJanuary the Respondent asserted that the Complainant did not meet the educational qualifications for the post, namely, a Leaving Certificate. This letter further erroneously stated that the requirement for a Leaving Certificate was specified in the advertisement. It was further submitted on behalf of the Complainant that a number of applicants who did not have a Leaving Certificate were admitted to the course.

It was submitted that this contradictory series of explanations for not admitting the Complainant to the course and the fact that the advertisement expressly provided that no particular qualification was necessary for participation therein constitute facts from which discrimination can be inferred. The Complainant further contends that she was informed by the course tutor that she could not participate in the course because she was in receipt of disability allowance. This, it was submitted, is a further fact from which discrimination can be inferred.

Summary of Evidence given by the Complainant
In her evidence to the Court the Complainant said that, having seen the advertisement in the local paper, she telephoned Mr M, the Manager of the Community Centre in which the course was to be delivered. She told Mr M that she has cared for her recently deceased mother and for her father until his death. She was assured that she was suitable to participate in the course. The Complainant told the Court that she attended an information meeting in connection with the course on 1^stMarch 2010. While she sat at the top of the hall in which the meeting was held she was unable to hear the speakers. The Complainant was later interviewed by the course tutor, Ms M. The Complainant had entered on her return to education application form that she was in receipt of disability allowance. When the course tutor saw this entry she told the Complainant that she could not participate in the course. The Complainant told the Court that she felt humiliated and put down by Ms M.

According to the Complainant, Ms M told her that Mr H, the Respondent’s Director of Community Education, would telephone her on the following day to discuss the matter further. The Complainant told the Court that she did not receive a call from Mr H and on 3^rdMarch she telephoned him. In the course of her conversation with Mr H she was told that a Leaving Certificate was required in order to participate in the course. The Complainant did not have a Leaving Certificate.

The Complainant said that on the first day of the course, 8^thMarch 2010, she attended at the community centre and went into the room where the course was being held. She was ordered out by the course tutor.

Psychological Assessment
An assessment of the Complainant’s learning capacity undertaken by an Educational Psychologist was put in evidence. The import of this report was that the Complainant had the capacity to undertake a course at FETAC level 5 (the level at which the course in issue was set).

The Respondent
The Respondent accepts that the Complainant is a person with a disability. It further accepts that she applied for the course and that her application was rejected. It denies that the rejection was in any sense related to her disability. It is the Respondent’s case that the course in issue was at FETAC level 5 and that the normal educational qualification for a course at that level is a leaving certificate or its equivalent or relevant work experience. It submitted that the Complainant did not have a leaving certificate nor did she have relevant work experience.

The Respondent accepts that the advertisement for the course stated that it was designed for people without formal qualifications but it contends that the content of the advertisement in that regard was erroneous. According to the Respondent an information night in relation to the course was held on 16^thFebruary 2010 and it used that opportunity to clarify the true requirements for the course. In so far as applications without a Leaving Certificate were admitted to the course they had relevant work experience which rendered them suitable for participation in the course.

Summary of Evidence given by Ms M
Evidence was given by Ms M, who was the tutor for the course in issue. Ms M holds a BA in Education and Training and has experience of running courses at FETAC level 5 over three to four years. This witness told the Court that a need had been identified in Healthcare Support as the Health Education and Quality Authority required a FETAC level 5 qualification for those seeking employment in that area. The witness had no involvement in the placing of the advertisement for the course. She was aware that a Leaving Certificate, or its equivalent, or suitable work experience was required for a course at this level. The erroneous statement on that point was corrected on the information night held for prospective participants.

Ms M told the Court that the course in issue was structured over eight modules. About 60% of the course content involved practical on-the-job training in a residential nursing home with the remainder being delivered in a classroom setting. Both the witness and Mr H attended the information meeting held at a community centre on 16^thFebruary 2010. Approximately 50 prospective applicants attended this meeting. Because of the number of people interested in the course it was considered likely that two courses would be run.

Mr H addressed the meeting first. He explained the rationale for the course and the ethos of the Back to Education Initiative, of which the course formed part. He also explained the educational and work experience requirements for participation in the course. The witness then spoke. She explained the content of the course. She invited those interested to meet with her on a one-to-one basis and indicated that she would attend again for that purpose on 1^stMarch 2010. Each candidate for participation in the course was given a Back to Education Initiative registration form for completion. They were asked to return this form on 1^stMarch 2010.

The witness told the Court that she attended at the Community Centre again on 1^stMarch 2010, as arranged. Seventeen people attended. The purpose of these interviews was to ascertain the education attainments and work experience of candidates. Ms M recalled her interview with the Complainant. She recalled some discussion about the Complainant’s hearing impediment. According to the witness the Complainant told her that her hearing difficulty was largely corrected by the use of hearing aids. The witness told the Court that this impediment would not be a barrier to participation in the course and that she had informed the Complainant to that effect.

Ms M’s evidence was that the Complainant told her that she had primary education (it is accepted that the Complainant had, in fact, obtained a Junior Certificate) and that her last work experience was in 1974-1975. The witness told the Court that, contrary to the Complainant’s assertion, she did not remark on the fact that the Complainant was in receipt of disability allowance. In light of the Complainant’s level of educational attainment and her lack of recent work experience she formed the view that the Complainant would not be suitable for placement on the course. She informed the Complainant accordingly and suggested that she could do a level 4 course following which she could progress to level 5. The interview with each candidate lasted about five minutes.

The Court was told that the Complainant became very upset and said that she did not know what the witness was saying. The witness told the Complainant that she could speak to Mr H who would inform her of available level 4 courses that she could undertake.

Ms M told the Court that on the day the course commenced, 8^thMarch 2010, she arrived at the community centre and found that the Complainant was present. She asked her discreetly to step outside. She explained to the Complainant that the course was at too high a level for her. The Complainant said that she could not hear what was being said and she became aggressive and agitated. The witness tried to tell her that it would be easier for her to go the alternative route suggested (a level 4 course). The Complainant returned to the room in which the course was to be delivered and pointed to a participant and said that this person should be “thrown out” because this person did not have a Leaving Certificate.

It was Ms M’s evidence that a Leaving Certificate or equivalent or relevant work experience was a requirement for a FETAC course at level 5. Many of those who attended the information meeting on 1^stMarch did not pursue their initial interest in the course because of the content or because they did not have the requisite educational qualification or relevant work experience. The witness told the Court that while a number of successful candidates did not have a Leaving Certificate they were already employed as health care support workers and on that account they were considered suitable for participation in the course. The witness accepted that a number of those selected for the courses did not attend, in consequence of which they were not fully subscribed.

Summary of Evidence given by Mr H
Mr H is Community Education Facilitator with the Respondent. He holds a BA Degree, a Higher Diploma in Education and a Masters Degree in Marketing, Computers and Adult Guidance. This witness explained the background against which it was decided to provide the course in issue. He told the Court that a similar course had been provided by Cavan VEC which was directed at getting unemployed people back to work by providing them with an opportunity for further education. When it was decided to provide such a course through the Community Resource Centre the witness gave the Manager of the Centre details of the criteria applicable to a FETAC level 5 course. The advertisement was placed by this person. The witness did not see the content of the advertisement in advance. He became aware of the wording of the advertisement on the evening of the information meeting and informed those present that a Leaving Certificate or equivalent, or relevant work experience was required. None of those attending that meeting raised any issue in relation to the misinformation contained in the advertisement.

The witness said that the advertisement was placed by and paid for by the Community Association and not by the Respondent.

Mr H told the Court that he subsequently spoke to the Complainant by telephone (the Complainant has a telephone adapted to accommodate her hearing disability). He told her that she could not be accommodated on the course because she lacked the essential qualifications for admission. It was Mr H’s evidence that he arranged for the Complainant to be offered two alternative courses at FETAC level 3 an 4; in basic computers and occupational first aid. These, he considered, were more suitable and would enable the Complainant to progress to a level 5 course, should she wish to do so at a later stage. The Complainant initially indicated that she would accept these offers but withdrew her acceptance at a later stage.

The Applicable Law
As in any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof as between the Complainant and the Respondent. Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent.

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. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.

However, in deciding if the facts proved are sufficient to reverse the probative burden the Court should have regard to the totality of the evidence adduced

Particular considerations apply in cases in which discrimination is alleged in the filling of jobs, and by parity of reasoning, in the offering of places on a course of vocational training. In Determination EDA042,Kathleen Moore Walsh v Waterford Institute of Technologythis Court held that in cases involving the filling of posts 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. Consequently the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

In Determination EDA077-O’Halloran v Galway City Partnershipthe Court pointed out that the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate isclearly better qualified against the chosen criteria that an inference of discrimination could arise.

That general approach was recently upheld by the High Court inO’Higgins v The Labour Court and University College Dublin, Unreported, High Court, Cooke J. 8^thNovember 2013.

While these authorities relate to cases involving access to employment or promotion, the general principles derived from them are equally applicable in a case involving access to vocational training. They are, accordingly, adoptedmutatis mutandi(the necessary changes being made) in considering the issues raised in the instant case.

Discussion
The primary fact relied upon by the Complainant in advancing her claim of discrimination is, in effect, that the putative qualifications for the course relied upon by the Respondent were not in fact required. She also relies upon a statement attributed to Ms M to the effect that she could not be admitted to the course because she was in receipt of disability benefit. The gist of her case is that the explanation given by the Respondent for excluding her from the course was lacking in cogency against the background of the advertisement which stated that no particular qualifications were required. She further contends that others were accepted on the course whose educational attainments were equal to hers. These facts, it is contended, are sufficient to place the burden of proving the absence of discrimination on the Respondent.

The Court was told by Ms M, who was the effective decision maker on the Complainant’s application, that the operative reason for the decision was the Complainant’s standard of education and her lack of appropriate work experience. Ms M also swore that the Complainant’s disability did not influence that decision to any degree. The Court accepts the veracity of that evidence. It is corroborated by the fact that the Respondent, at the instigation of Ms M, offered the Complainant a placement on two alternative courses which it considered more suited to her needs. It seems to the Court that had Ms M been actuated by a discriminatory disposition toward the Complainant because of her disability it is unlikely that she would have sought to accommodate her on other courses of training or education. Her actions in that regard are far more consistent with abona fideconclusion that the particular course in issue was not suitable for the Complainant’s needs because of her standard of education and work experience. The evidence of Ms M on this point was also corroborated by the evidence of Mr H. The Complainant also relied on the statement ascribed to Ms M to the effect that she could not participate on the course because she was receiving disability allowance. Ms M denied having made any such statement. Having heard the evidence of both witnesses and taking account of their demeanour in giving evidence the Court has concluded that Ms M’s recollection on this point is probably more accurate and it is preferred.

In reaching its conclusions the Court has taken careful note of the assessment of the Complainant’s learning capacity undertaken by the Educational Psychologist. However, the authorities indicate that the qualifications or criteria which are to be expected of candidates are a matter for the employer (or in this case the vocational training provider) in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate isclearly better qualified against the chosen criteria that an inference of discrimination could arise (O’Halloran v Galway City Partnership). In this case the Complainant contends that the stated criterion of a Leaving Certificate was applied inconsistently in that others who did not have that qualification were admitted. While that is true, the Respondent at all times stated that relevant work experience could be accepted as a suitable alternative. The evidence tendered, which the Court accepts, was that those successful candidates who were not educated to Leaving Certificate level were already employed in health care support roles and this was an acceptable alternative. By contrast the Complainant was last employed in a role approximating to that for which the course was designed some 35 years previously.

Indirect Discrimination
In advancing her case the Complainant also contended that the actions of the Respondent constituted indirect discrimination. The basis upon which that assertion was grounded was not particularised in either the written or oral submissions addressed to the Court on her behalf.

It is well settled that indirect discrimination arises where a provision, criterion or practice in relation to employment or access to vocational training puts persons having the same protected characteristic as the Complainant at a particular disadvantage relative to others who do not have that characteristic. The operative provision, criterion or practice in this case is that of a Leaving Certificate or relevant work experience. Suffice it to say that there was no evidence whatsoever tendered in the course of the hearing to show that these requirements are intrinsically likely to place people with a hearing disability at a particular disadvantage and the Court cannot assume that to be the position.

Conclusion
For the reasons set out herein the Court has concluded that Complainant was not admitted to the course in issue because she did not have a leaving certificate, its equivalent or relevant work experience. It follows from this finding that the Complainant has failed to establish facts from which discrimination on the disability ground could be inferred. Accordingly her claim cannot succeed.

The Complainant’s appeal is disallowed and the decision of the Equality Tribunal is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
6th January, 2014.Chairman



NOTE

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