FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : AN EMPLOYER (REPRESENTED BY MS AOIFE CARROLL B.L. INSTRUCTED BY JOHN F KELLEHER SOLICITOR) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011
BACKGROUND:
2. This is an appeal under Section 83 of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 1st May 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal by the Complainant against the Equality Officer Decision DEC-E2013-177, in a complaint of discrimination made against the Respondent under the Employment Equality Acts 1998-2011 (hereafter the Acts).The Complainant alleges that she was discriminated in the course of applying for a position withthe Respondent on grounds of marital status, family status, age and nationality contrary to Section 6(2) of the Employment Equality Acts in relation to access to employment in terms of sections 8(1)(a) of the Acts.
Background
The Respondent is an agency that supplies cabin crew to various airlines in Europe. It held a selection process for candidates to participate in a training programmeoperated by the Respondentat their own expense. When the person completes the training program successfully they will be subcontracted to an airline. All Cabin Crew are employed by the Respondent.
The Complainant is Hungarian, is married with a family and was 48 years old at the time of the alleged discrimination. On 16thMarch 2011 the Complainant attended an assessment day for the purposes of assessing whether she was suitable for a position on the training course. She undertook a written test in English. She then was invited to an interview. She was subsequently informed that her application was unsuccessfuland she was not offered a place on the training course.
The Complainant referred her claim under the Acts to the Equality Tribunal on 8thJuly 2011.
Preliminary Issue
The Complainant raised a number of issues concerning the procedures adopted by the Equality Tribunal in the investigation of this complaint and contended that the she had not been given an opportunity to review documents correctly and prepare her case. She expressed difficulties with the conduct of the investigation.The role of this Court is to determine an appeal by way of ade novohearing of the case; it has no jurisdiction to entertain complaints concerning the way in which the Equality Tribunal fulfils its statutory mandate. As the Equality Officer’s hearing was heard on 5thDecember 2013, the Complainant has had adequate opportunity since then to read the documents presented by the Respondent at the Equality Tribunal hearing and to prepare for her appeal.Accordingly this Court will deal with the case on its merits by way of a full rehearing on all questions of fact and law.
Summary of the Complainant’s Case
The Complainant stated that at the assessment day on 16thMarch 2011 she passed both the English written and oral exams, and was rated “approved” by a qualified English Language Assessor. The Assessment Form confirmed this as follows:
- "This is to certify that above cabin crew applicant has satisfactory demonstrated his/her ability to use the English Language in accordance with the requirements of J4R-FCL 1.200 & JAR-OPS 1.025.”
However, she contended that at the interview she was asked discriminatory questions related to her age and nationality. She said that the interviewer asked her her age and her date of birth was inserted on the Assessment Form. The Complainant disputed the Respondent’s need to ask details of her age as she was required to bring her passport to the assessment day, and she contended that it was unnecessary to write her date of birth on the assessment form, in the section reserved for the Name of the Applicant.
The Complainant contended that when she was asked the reasons for moving to Ireland, when she moved to Ireland and why she had finished her previous stewardess job, she replied “because I got married”; at this point the interview was ended. The Complainant contended this was indicative of discrimination by the Respondent on marital status, family status and nationality grounds.
The Complainant told the Court that she had previously worked for Malév Hungarian Airline as a cabin crew member for a year and as Deputy Shop Manager for the airline for further nine years. She said that she was proficient in six languages however, she submitted that the Respondent took no notice of her previous work experience, qualifications, knowledge of languages or references. She disputed the Respondent’s assertion that languages and previous airline experience were not important criteria in the recruitment process. She told the Court that the other applicants on the day had less experience, qualifications and knowledge of language.
On 18thMarch 2011 she received an email stating she was unsuccessful in her application. The Complainant stated that she made attempts to contact the Respondent seeking the reasons she was unsuccessful but got no response.
Summary of the Respondent’s Position
Ms. Aoife Carroll, B.L. instructed by John F Kelleher Solicitors on behalf of the Respondentdenied the allegations of discriminationand submitted that the Complainant had failed to make out anyprima faciecase that the decision was tainted by discrimination in anyway.
Counsel for the Respondent submitted thatas the Complainant was not being interviewed for a job her complaint does not fall within the terms and meaning of Section 8(1)(a) of the Acts and therefore the Labour Court had no jurisdiction to hear the complaint.
Ms Carroll stated that the Complainant attended an assessment day for the purposes of assessing whether she was suitable for a position on a self-funded training course operated by the Respondent.Ms Carroll stated that the reason for the rejection of the Complainant’s application was that she had poor communication skills in English.
Ms Carroll stated that in order to qualify to take part in the training course all persons must meet certain criteria, which incorporate minimum legal requirements, requirements of the Irish Aviation Authority and certain other criteria agreed with the airline, as follows:-
- i.Pass interview assessment
ii.Intermediate + level of English
iii.Aged over 18
iv.Able to swim
v.Height between 5"2' (I57cm) and 6"2' (188cm)
vi.Willing and have unrestricted right to work anywhere in- Ireland and the EU
viii.No previous criminal record
ix.Weight in proportion to height
x.Hold current EU passport valid for minimum of 1 year
xi.No visible tattoos
Ms Carroll stated that in addition to meeting these criteria, all candidates must be proficient in the English language in line with the standards set by the International Civil Aviation Organisation (ICAO). They must also have confident communication and interaction skills and be able to use those skills inEnglish. For safety reasons, it is essential that all employees are able to properly and clearly communicate in English.The interview assessment form found that the Complainant was “nice lady, however had a very strong accent, I found it quite hard to understand her.Has previous experience”
Without prejudice to the foregoing, Counsel submitted that if it is accepted by the Labour Court that aprima facieallegation of discrimination on the grounds of race has been raised by reason of the requirement of applicants to be proficient in the English language it is submitted that this requirement is objectively justified having regard to the safety requirements that exist in the aviation industry. In support of its position in this regard it cited the decision of the Labour Court inNoonan Services v. A WorkerEDAl126.
Ms Carroll said that it is not a requirement that all employees be native English speakers and indeed the Respondent employs staff from many different backgrounds. Candidates must have a positive attitude, be flexible to relocate,able and available to operate a shift roster, motivated, enthusiastic, adaptable, capable and hard working.
Ms Carroll stated that if successful at the assessment day the candidate is sent to itstraining centre in Hahn, Germany, the training course is self-funded and at the time in question cost €1,649 plus a €300 administration fee. She said as it is a self-funded course the Respondent must be satisfied that the candidate meets all the criteria. Being invited to the assessment day does not amount to an offer of employment.Similarly, being successful in the assessmentday does not amount to an offer of employment.It qualifies a person to take part in a training course which may lead to an offer of employment.
The Respondent runs 2-3 assessment days throughout Europe each week between October and June. On average the Respondent receives 26,000 applications per year. During the course of an assessment day, the Respondent may see up to 300 applicants. Each training course has 35 places on it.
Ms Carroll stated that while the Complainant met the technical standards required in relation to her English, it was felt that her communication skills were not good enough and in particular it was difficult to understand her.It was for this reason she was not offered a place on the training course.
Ms Carroll denied that the interview only dealt with her nationality, reasons for moving to Ireland and why she finished her previous job. In particular she denied that the interview was ended after the Complainant stated that she left her previous position because she got married. Interviewees are asked a range of questions and are asked to tell the interviewer about themselves and their own history. She said that the Complainant was not asked directly about her marital status.
All persons who are offered employment may have to relocate to one of the
Respondent’s cabin crew bases around Europe and a willingness to relocate is an essential prequisite for any candidate as they will be required to work a six month roster and may be moved between bases at any time depending on the particular needs of the airlines.
Ms Carroll stated that the only issue that arises in relation to age is whether an applicant is over the age of 18.No other considerations in relation to age are taken into account in the assessment process and the Interview Assessment Form shows that nothing relating to the Complainants age formed part of the decision making process.
Witnesses
The person who carried out the interview was not available to give direct evidence as she had left the Respondent’s employment.
The Complainant
Evidence was given by the Complainant with the assistance of an interpreter, the details of which are as outlined in the Summary of the Complainant’s case above.
Ms. A, Operations Manager
Evidence was given by Ms. A, Operations Manager with the Respondent. She told the Court that on the Assessment day the interviewer has a standard form of questions and that it is normal practice to insert the date of birth on the Assessment Form so as to ensure it records the fact that the candidate is over 18 years of age and that the date of birth tallies with the details on the passport. She said that the main criteria for the job is the ability to communicate effectively in English. This was a specific legal requirement and was essential for the training course which was all conducted in English, with 34 others in a class.
The witness said that previous experience as cabin crew with an alternative airlinedoes not provide any advantage and, in some cases, may actually hinder a person being successful on the training course, as airlines prefer to instruct staff in their own style.
The witness said that of the twelve people who attended the assessment day on 16thMarch 2011, 8 people were successful.Of the 4 persons who were unsuccessful in the assessment 3 were native English speakers and the final person was the Complainant. The persons who were successful in their applications comprised of both native and non-native English speakers.
Ms. B, Director
Ms. B, Director with the Respondent, told the Court that it was easy for the Respondent to fill the training courses however, they were reluctant to send people to Germany on a self-funded course where they were of the view that their ability to communicate in the English did not meet the required standard. She said that they do not refund monies paid.
The witnesses said that the English exam was assessed formally by each candidate completing structured questionnaires and completing a report. She said that many candidates who successfully completed these tests however would not be successful at the interview due to their poor communication skills in English.
Ms. B said that the Respondent employs people from aged 18 to mid-40. However, she said that the flexibility and mobility requirement of the job does not suit a lot of people. She said that while the Respondent does not compile or record details of the marital status or family status of its staff, she was aware that thestaff were made up of both single people, married people and people with families. In her evidence to the Court Ms B stated that its organisation has a multi-cultural and multi-nationality work force. It employs over 2,300 people from across Europe, 9% of the workforce is Hungarian.
Issues for Consideration
The first issues for consideration by the Court concerns the matter raised by the Respondent. Ms. Carroll referred to the claim form submitted to the Equality Tribunal by the Complainant under the Acts. Ms. Carroll contended that the Court has no jurisdiction to hear this case asas the Complainant was not being interviewed for a job, therefore her complaint does not fall within the terms and meaning of section 8(1 )(a) of the Acts.
It has been presented to the Court that the interview was directed at providing access to employment in the sense that it was the first stage in selection process the object of which was to provide participants with the opportunity to work as a cabin crew member. The Court is satisfied that if it was not directed at employment it was most undoubtedly directed at vocational training.
Section 12(2) of the Act defines Vocational Training as: -
- “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.”
The Court is satisfied on the admitted facts that the assessment for which the Complainant applied for related to access to training, exclusively for entry to an occupational activity – Airline cabin crew, and therefore comes within the statutory definition of “vocational training” for the purpose of the Act.
The circumstances in which the details on a claim form such as that in issue in this case can be amended was considered by the High Court in CountyLouth VEC v The Equality Tribunal and Brannigan[2009] IEHC 370. Here McGovern J pointed out that forms of this nature have no statutory basis and are intended to set out, in broad outline, the nature of the complaint. At paragraph 6.2 of his judgment the judge said the following:-
- I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, thena fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say, that complaints going back over a very lengthy period would have to be considered, as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
These authorities indicate that statutory tribunals, such as the Rights Commissioners and this Court, should not apply a more stringent approach to the amendment of originating forms than is applied by the ordinary courts to the amendment of pleadings.
Therefore the Court is of the view that the claim properly constructed involved access to vocational training rather than access to employment, and is satisfied that the claim form can be amended to reflect this.
Conclusions of the Court
Having regard to the evidence adduced in the course of the appeal, the submissions advanced by the parties and the evidence tendered, the Court has reached the following conclusions in respect of each of the within complaints.
Discrimination on Grounds of Nationality
The Complainant claims that she was discriminated on the grounds of her nationality as she was required to have a proficiency in English.
The Interviewer formed the view that despitethe fact that she passed the written language assessment, her command of theEnglish language did not meet the standards required as she had difficulty understanding the Complainant and accordingly she was not successful.
InNoonanthe Court held that it is clear that a requirement to have competency in English is likely to place persons whose native language is other than English at a disadvantage relative to persons whose native language is English. Hence,prima facie, a requirement of competency in English is indirectly discriminatory unless it is objectively justified. It is well settled that a potentially indirectly discriminatory measure is objectively justified if it is in pursuance of a legitimate objective of the employer and the means chosen are appropriate and necessary to that end.
It is not disputed thatpersons working as cabin crew must meet the minimum requirements of being able to communicate effectively in the English language, as set down by the ICAO, whichsets standards and recommended practices for the safe and orderly development of international civil aviation. This abilityis a central requirement relating to safety procedures on board aircrafts and to that end the Respondent sought to ensure that cabin crew cansatisfactorily demonstrate their ability to use the English Language in accordance with the requirements of J4R-FCL 1.200 & JAR-OPS 1.025.
These requirements are set down at international level for the safety and well- being of passengers on board aircraft, therefore, the Court is satisfied that adherence to this standard requirement constitutes a legitimate aim of the Respondent which must met its obligations under ICAO rules accordingly is both appropriate and necessary to the achievement of that objective. Furthermore, as training of cabin crew is an essential component of the job and such training is conducted in English, the Court is satisfied that the requirement of a competence in English for all successful candidates was objectively justified within the statutory and jurisprudential meaning of that term. Therefore the Court finds that the complaint of discrimination on grounds of nationality is not well-founded.
Discrimination on Grounds of Age
The complaint of discrimination on the age ground relates to the question asked at interview and the inclusion of that information on the Assessment Form. The Respondent has submitted that there were legitimate reasons for the inclusion of this information on the Assessment Form – to ensure the person was over 18 years and to check that the information tallied with the passport details. Both of which were essential criteria in the selection process.
Discrimination on the age ground can be inferred from questions asked at interview which suggest that age is a relevant consideration. However, based on the conclusions reached above the Court is not satisfied that the Complainant’s age was a causal factor in her not being successful on the assessment day.
On balance the Court does not believe that the Complainant’s evidence goes far enough to establish as a fact that age was a factor in her non-selection. Therefore the Court finds that the complaint of discrimination on grounds of age is not well-founded.
Discrimination on Marital Status and Family Status Grounds
On the claims relating to discrimination on marital status and family status grounds, there appears to be no evidence linking the Respondent decision to reject the Complainant’s application to these grounds. The decision of theCourt of Appeal for England and Wales in Madarassy v Nomura International[2007] IRLR 246 is clear authority that the mere difference in status and a difference in treatment is insufficient in itself to raise an inference of discrimination. That appears to be the extent of the evidential basis upon which the Complainant grounds these complaints. Therefore the Court finds that the complaints of discrimination on grounds of marital status and family status are not well-founded.
Determination
For the reasons set out in this Determination, the appeal herein is disallowed and the Decision of the Equality Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th June 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.