Employment Equality Acts 1998-2011
DECISION NO: DEC-E2013-017
PARTIES
A Complainant
(Represented by John Gerard Cullen Solicitors)
- v -
A Vocational Educational Committee
(Represented by Cathal L Flynn & Co. Solicitors)
File references: EE/2010/452
Date of issue: 7 March 2013
Keywords
Employment Equality Acts - discriminatory treatment - disability ground - prima facie case - victimisation
1. Dispute
1.1. This dispute concerns a claim by the complainant that she was discriminated against on the grounds of her disability in relation to access to a Healthcare Support Course which was offered by the respondent. The complainant stated that she applied for the course but was denied access to same and when she enquired as to why she was unsuccessful, she was given various different reasons by the respondent and strongly was of the view that she was denied access on grounds of her disability which is severe hearing difficulties and Asperger's syndrome. The complainant is also alleging that she was victimised by the respondent as a result of complaints she made to the North Western Health Board in the early 1980's.
1.2. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 16 June 2010 under the Employment Equality Acts. The claim was made on the disability ground. In accordance with his powers under section 75 of the Acts, the Director then delegated this case to Valerie Murtagh- an Equality Officer - on 1 October 2012 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 30 October 2012. Final supplementary documentation was received by the Tribunal on 7 December, 2012.
2. Case for the Complainant
2.1. The complainant has severe hearing difficulties and also has Aspergers syndrome. In February, 2010 she saw an advertisement in the local newspaper for a Healthcare Support Course which was being run by the local VEC. The advertisement stated that applicants must have experience of caring for an individual/relative. The complainant telephoned Mr. M, manager of the community centre and enquired about the course and advised him that she had cared for her late mother and that she had experience in that regard. Mr. M advised her that she did qualify for the course. The complainant advised Mr. M that she had a hearing problem and Mr. M stated that he did not think that would be a problem. Mr. M stated that the course would be mostly practical and was easy. The following week, the complainant was contacted by a female employee of the VEC and requested to attend the community centre on 16 February 2010 for an open evening. On the night, a large number of applicants attended. Due to the large attendance on the open night, the group was informed that there would be two training programmes running Monday and Tuesday evenings. Candidates were invited to attend the following Monday and Tuesday evening and had a one-to-one meeting with the course tutor. The complainant following the meeting with the course tutor formed the view, based on the discussions that transpired on the night that she was accepted on to the course.
2.2 The complainant arrived at the community centre on Monday evening, 1 March. She asked the course teacher Ms. M if she could join the class. Ms. M called the complainant out of the room and advised her that it was not alright that she attend the course. Ms. M had previously given each of the applicants 'back to education initiative forms'. Ms. M looked at the complainant's form and stated 'you cannot do the course because of this - disability allowance'. Ms. M then stated to the complainant that Mr. H, Director of Community Education "will telephone you tomorrow morning in relation to the matter". The complainant stated that she received no phone call the following day on 2 March. On the morning of 3 March, the complainant contacted Mr. H and he stated to the complainant that she needed a Leaving Certificate in order to attend the Healthcare Support course as it is at Level 5. On 8 March, the complainant attended the community centre and went into the class for the Health Care Support course; there were five other attendees present. The complainant states that Ms. M, the course tutor shouted at her and ordered her to leave the class. The complainant stated to Ms. M that one of the other successful applicants did not have the Leaving Certificate and questioned Ms. M as to why this person was being allowed do the course.
2.3 The complainant submits that the respondent gave totally contradictory explanations for her refusal of a place on the course. It was firstly stated that all eligible applicants were accepted. She was subsequently advised by the CEO of the VEC by letter dated 26 March that the number of applicants exceeded the number of places available and it was not possible to offer a place to all those who were interested. She was also advised that no prior qualifications were required and the advertisement for the course stated "this course is designed for people with no previous qualifications". She was subsequently told that she did not have a Leaving Certificate and that a Leaving Certificate was required. The complainant also asserts that she was disbarred because she was in receipt of a disability allowance. The complainant's representative submits that no notes of any objective assessment were carried out by the VEC and that matters were determined by "subjective considerations and the look of the candidates". The complainant's legal representative submits that the non-retention of notes relating to the assessment of candidates is further evidence of alleged bias and discriminatory treatment by the respondent. The complainant's legal representative also asserts given that only four persons were turned down for the course on the basis of educational attainment, one of which was the complainant with English as a first language and the other three were Polish nationals who were turned down on the basis of lack of proficiency in the English language; this is further evidence of bias and discriminatory treatment of the complainant on grounds of her disability.
2.4 The complainant's legal representative in his submission to the Tribunal states "..the claimant applied for a vocational course with the VEC in 2010. She suffers from mental disability and was an employee of the Rehab centre in 1970's in consequence of her mental disability. She received a rudimentary education from the VEC. She has encountered considerable prejudice as a result of her disability especially from State institutions. She has been unsuccessful at entering employment during her unfortunate life. The claimant had received only a very limited education at secondary school having been labeled by the authorities as mentally retarded and handicapped. The claimant, who understood at times that she was participating on the course was also treated shabbily and in a discriminatory fashion while on the course. She says that she was picked on publicly, rejected, embarrassed, defamed and humiliated in class... The claimant in virtue of her chequered history with institutions believes that her cards had been marked and that she was furthermore subjected to victimisation by the respondent." The complainant gave evidence on the day of the hearing in relation to alleged sexual abuse she suffered by a staff member at a Rehab centre in late 1970's early 1980's. She made a complaint to the North Western Health Board and the Gardaí at that time and the staff member involved was removed from the centre. The complainant is alleging that she is being victimised by the respondent as a result of making complaints about her treatment when she was at the Rehab centre in the late 1970's and early 1980's. The complainant is alleging inter alia that the VEC and the HSE conspired in victimising her by denying her access to the Healthcare Support course in consequence of her attempted vindication of her statutory rights within the North Western Health Board in the early 1980's.
3. Case for the Respondent
3.1 The respondent states that the complainant expressed an interest in attending a part-time (3 hours per week) Healthcare Support Course which was offered by the VEC commencing March 2010 under the VEC's Back to Education Programme. The respondent submits that this was a FETAC Level 5 course for which the normal entry requirement is Leaving Certificate or equivalent standard. However, the respondent states that Mr. M, a local community development officer, not an employee of the respondent inadvertently placed the advertisement in the local newspaper but the advertisement was not completely correct, in that, the entry level requirement for a FETAC Level 5 course is National Vocational Certificate Level 4, Leaving Certificate or equivalent qualifications and/or relevant life and work experiences. The respondent submits that although the content of the advertisement was not entirely accurate, it was aware that it would have an opportunity to clarify the issue on the opening night for candidates which was held on 16 February 2010. On the open night, there was a very positive response and in excess of fifty persons attended. Mr. H, director of community education explained the rationale for the programme, the ethos of the Back to Education Initiative and the necessary educational/work experience requirements to be eligible for the course. Ms. M, course tutor explained the programme content and the assessment process to ensure that all candidates fully understood the workload of the programme. The group was informed that there would be two training programmes on Monday and Tuesday evenings given the volume of interest. Candidates were given a Back to Education Initiative registration form to complete and return. On the following Monday and Tuesday evening, Ms. M met each of the individuals on a one-to-one basis to clarify their understanding of the programme and to evaluate their individual education attainment and/or workplace experience required to complete the training. During one-to-one preliminary interviews, the course tutor, Ms. M formed the view that the complainant and several other applicants did not have the required educational standard or sufficient appropriate work experience to successfully complete the programme.
3.2 FETAC Level 5 Courses are validated by the Further Education Training and Awards Council and are commonly described as Post Leaving Certificate Courses. When deciding on suitability for admission, course tutors and the VEC's Community Education Director take account of equivalent qualifications (e.g. GCE/GCSE) and prior relevant learning, work experience and training. During the one-to-one meeting with the complainant, it was established that she did not have the required education attainment or workplace experience to complete the programme. Ms. M explained this to the complainant and suggested that she complete a Level 4 which would give her a foundation to progress on to Level 5 at a later date. Ms. M states that the complainant became very annoyed and would not accept the outcome. Ms. M then stated to the complainant that she should contact Mr. H, director of community education. Mr. H explained the educational requirements for the course and again offered her alternative training at a level suitable for her with a progression path to Level 5, however the complainant would not accept the outcome. On 1 March, the complainant attended the training although it was already explained to her by Ms. M and Mr. H that she had not been offered a place on the course. Ms. M requested the complainant to come out of the room to discuss the matter in private. Ms. M again explained the situation to the complainant who became very aggressive and volatile towards her. Ms. M states that the complainant refused to discuss the situation with her and started to run back into the class and started shouting at the top of her voice saying Ms. M was throwing her out. Ms. M states that she then proceeded to insult another member of the class shouting that Ms. M should throw her off the programme as well as she did not have a Leaving Certificate. Ms. M states that the person in question did have current relevant work experience. Ms. M states that she tried to calm the complainant down but that she proceeded to verbally abuse her and would not accept that she was not offered a place on the course. Ms. M states that four candidates including the complainant were turned down for a place on the course on the grounds of educational attainment. The other three persons were Polish nationals and their spoken and written English was not proficient to complete the programme.
3.3 The respondent rejects the complainant's allegation that the VEC discriminated against her on the grounds of her hearing disability and submit that the complainant was refused admission to the course because the course tutor formed the view that the complainant did not have the required educational standard or work experience to complete this FETAC Level 5 course. The complainant was offered places on two other courses, Basic Computers and Occupational First Aid which were at a more suitable level and would enhance her education and training to participate in any subsequent Level 5 course. The respondent states that initially, the complainant accepted these offers but withdrew from same at a later date. The respondent submits that participants on the Healthcare Support Course are required to complete eight FETAC Level 5 Modules as follows;
1. Care Skills 5. Infection Control & Prevention
2. Care Support 6. Human Growth & Development
3. Communications 7. Work Experience
4. Health & Safety 8. Occupational First Aid
The respondent states that in order to complete the above modules, the learner must inter alia have the capacity to take course notes, complete a series of written 800 word assignments, prepare formal letters and memos, keep a journal, follow written instructions/prescriptions and complete written examinations of up to two hours duration. The respondent refers to the many statements about the complainant's educational capacity, attainments and shortcomings which her legal representative made some of which are listed at 2.4 above. The respondent asserts that taken in aggregate, they establish beyond doubt that the VEC tutor had ample justification for forming the view that the complainant did not have the required educational standard to undertake and successfully complete a Level 5 PLC course. The course tutor holds an Honours BA degree in Education & Training and has considerable experience in delivering the Healthcare course and similar programmes for both the VEC and FAS. Her judgment of the complainant's educational attainments and capacity to complete the course was based on information supplied by the complainant including a one-to-one interview/meeting at which the complainant herself mentioned her lack of education.
3.4 The respondent totally rejects the allegation by the complainant that she was publicly humiliated, defamed or "sent down" by the respondent as alleged. It states that the complainant was informed privately both by the course tutor and the director of community education that she was not being offered a place on the course. The respondent affirms that there was no issue regarding the complainant's hearing difficulties, which it understands is substantially corrected by hearing aids and therefore no special facilities would have been required to accommodate the complainant if she met the criteria regarding the educational entry requirement. In relation to her lack of the required educational standard, the respondent is of the view that it behaved positively and reasonably by offering the complainant two alternative courses which would have enhanced her prospects for admission to and her capacity to complete a Level 5 course. The respondent completely rejects the complainant's assertion that "her cards had been marked" due to "her chequered history with institutions". The respondent submits that it has no knowledge of the complainant's educational or work history other than the information supplied and alleged by her legal representative. The complainant is alleging inter alia that the VEC and the HSE conspired in victimising her by denying her access to the Healthcare Support course in consequence of her previous attempted vindication of her statutory rights within the North Western Health Board in the early 1980's. The respondent completely denies the allegation of victimisation and is satisfied that there is no basis for such an allegation.
4. Conclusions of Equality Officer
4.1 I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"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. 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."
4.2 The complainant has alleged that she was discriminated against on the grounds of her disability in relation to access to the Healthcare Support course and that she was subjected to victimisation by the respondent as a result of complaints she made to the Health Service in the early 1980's. Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
4.3 I am satisfied that the complainant's disability which she refers to as severe hearing difficulties and Asperger's syndrome comes within the above definition of disability as set out in the Acts. Having examined the advertisement for the course which was placed in the local newspaper, it states "...FETAC Level 5 Certificate in Healthcare Support commencing Spring 2010.. this course is designed for people with no previous qualifications." The respondent submits that Mr. M, a local community development officer, not an employee of the respondent placed the advertisement in the local newspaper but the advertisement was not completely correct, in that, the entry level requirement for a FETAC Level 5 course is National Vocational Certificate Level 4, Leaving Certificate or equivalent qualifications and/or relevant life and work experiences. The respondent submits that although the advertisement was inadvertently placed in the newspapers, it was aware that it would have an opportunity to clarify the issue on the opening night for candidates which was held on 16 February 2010. At this meeting, both the director of community education and the course tutor outlined the rationale for the course and the requirements and criteria for selection on to the course. Candidates were split up into two groups and given a back to education initiative registration form and requested to attend on Monday 22 February and Tuesday 23 February for one-to-one meetings with the course tutor to clarify their understanding of the programme and to evaluate their individual education attainment and relevant life and work experiences.
4.4 Ms. M states that the respondent does not have notes of the interviews or the back to education initiative registration forms for candidates as these were destroyed a few months after the course commenced. Ms. M states that the complainant in her educational attainment section of the form had stated that she had a primary education. On the day of the hearing, the complainant submitted documents including a reference regarding her time as a pre-trainee nurse in St. Mary's Auxiliary Hospital, Dublin during the years 1974-1975 dated October 2012 together with various different courses she attended with FAS and the VEC. The complainant also stated that she was the main carer for her mother, who suffered a stroke and she cared for her over a 10 year period and submits that she had adequate life experience in that area given her training at St. Mary's Hospital and caring for her mother. Having examined the list of candidates who were offered a place on the Healthcare Support course, 24 persons had the Leaving Certificate, the other 14 candidates had Junior Certificate or Primary Education and were in full-time or had part-time work experience in the health care area. The respondent submits that the person to whom the complainant referred to on the first evening of the course (requesting that she be thrown off the course as she did not have a Leaving Certificate) was in fact at that time employed by the Health Service Executive as a carer and in that respect met the criteria for being offered a place on the course.
4.5 Overall, having questioned the complainant and the members of the VEC at length on the day of the hearing, I am of the view that the course tutor, following the individual one-to-one meetings with the applicants came to the decision that the complainant would have difficulties in completing the course as she felt the level was too high and suggested that she complete a Level 4 course which would then give her a foundation to undertake the Level 5 subsequently. Ms. M gave testimony regarding the course content, assignments required etc. and was of the view that given the lack of educational qualifications together with a lack of current relevant work experience in the Healthcare area that the complainant would feel demoralised and that her confidence would be greatly affected on an ongoing basis if she undertook the course. Ms. M states that in this regard, she advised the complainant that she was unsuccessful in her application for the course and suggested to the complainant that she should consider completing a Level 4 course which would be a stepping stone on to Level 5 subsequently. While the complainant alleges that Ms. M advised her that she was not getting a place on the course because she was in receipt of disability allowance, given the sequence of events, I prefer the evidence of Ms. M and I am satisfied that the complainant did not meet the qualifying criteria to be accepted on to the course. In addition, I am of the view that it was reasonable that Ms. M directed the complainant to two other courses at FETAC Level 4 so as she could subsequently progress to Level 5 in due course.
4.6 The complainant states that she was not offered alternative courses at Level 4, however, a letter was submitted in evidence to the Tribunal of the complainant turning down the Basic Computer skills course, at this time. In addition, the complainant completed the other courses at Level 4 as recommended by the respondent subsequent to the incident. I am satisfied based on the initial complaint form, the submissions to the Tribunal and the testimony given on the day of the hearing that the complainant's Asperger's syndrome was not a factor in her unsuccessful application for a place on the Healthcare Support course. However, the complainant had advised various members of the VEC that she had hearing difficulties. The respondent submits that there was no issue regarding the complainant's hearing difficulties, which it understands is substantially corrected by hearing aids and therefore no special facilities would have been required to accommodate the complainant if she met the criteria regarding the educational entry/work experience requirement. The respondent was aware that the complainant had already undertaken courses with the VEC and FAS with the use of hearing aids previously. The respondent in its testimony affirmed that its goal is to assist persons avail of education. Members of the VEC also stated that they have 18 persons on various courses with disabilities and have the highest number on courses (in relation to members of the Traveller Community, early school leavers, refugees and non-nationals) for a VEC given its size. On balance, having examined all the evidence in this case, I am satisfied that the complainant has not established a prima facie case of discrimination on grounds of disability in relation to access to the Healthcare Support course.
4.7 The complainant is also alleging that the VEC and the HSE conspired in victimising her by denying her access to the Healthcare Support course in consequence of her attempted vindication of her statutory rights within the former North Western Health Board. In relation to the issue of victimisation, Section 74 (2) states:
.....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, ......."
In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. The complainant sought to vindicate her rights in the early 1980's following her claim of sexual abuse by a staff member of the North Western Health Board while she was employed at the local Rehab centre and this matter was dealt with by the Health Authorities and the Gardaí at that juncture. It is clear from the wording of victimisation in the Employment Equality Acts that a complaint of victimisation must relate to a complaint made under the Act and not a general complaint of victimisation. In addition, the matter referred to by the complainant happened over 30 years ago and related to a different respondent which was at that time the Health Board and not the VEC. Having examined all the information and documentation submitted in relation to the complainant's allegation of victimisation, I am satisfied that there is no basis to this complaint. Consequently, I find that the complainant has failed to establish a prima facie case of victimisation by the respondent under the Employment Equality Acts.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that (i) the complainant has not established a prima facie case of direct discrimination on the disability ground and (ii) the complainant has not established a prima facie case of victimisation in terms of section 74 (2) of the Employment Equality Acts.
____________
Valerie Murtagh
Equality Officer
7 March, 2013