FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : GAELTEC UTILITIES LIMITED (REPRESENTED BY ELAINE FINNERAN B.L., INSTRUCTED BY KILRANE O'CALLAGHAN & CO. SOLICITORS) - AND - DAVID PRYLE (REPRESENTED BY ROBERT A. BOURKE B.L., INSTRUCTED BY DONAL TAAFFE & CO. SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 20th April, 2012. A Labour Court hearing took place on the 5th September, 2014. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Mr David Pryle (the Complainant) against the Decision of an Equality Officer in a claim alleging discrimination on the race ground against Gaeltec Utilities Limited (the Respondent) where he alleged that he was discriminatedagainstby theRespondent on ground of race pursuant to Section 6(2) ofthe Employment Equality Acts 1998-2011 (hereafter the Acts)and contrary to Section 31 of the Acts in relation to his application for two positions in the Company.By Decision dated 13thMarch 2012 the Equality Tribunalfound as follows:-
(i)the Complainant's claim of direct discrimination on grounds of race, was frivolous and vexatious in terms of Section 77A of the Acts and dismissed the claims under that Section,
(ii)the Complainant had failed to establish a prima facie case of discrimination on grounds of race in terms of Section 6(2) of the Acts and contrary to Section 31 of those Acts,in respect of the failure of the Respondent to offer him employment following two separate selection processes in April, 2009 and
(iii)the Complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of Section 6(2) Acts and contrary to Section 8 of those Acts in respect of the question asked of him by the Respondent at interview for the position of Safety Officer in April, 2009 and
(iv)his complaint fell in its entirety
At the appeal hearing before the Court, the Complainant’s representative informed the Court that the sole appeal to this Courtrelated to the Equality Tribunal’s finding that the Complainant failed to establish aprima faciecase of indirect discrimination on grounds of race in terms ofSection 6(2) of the Acts,contrary to Section31 of the Acts in his application for an advertised position of Linesman with the Respondent Company by reason of his Irish nationality.
BACKGROUND
The Respondent is asubsidiary of Tegael, a Portuguese company. Itspecialises in the design and installation of electricity and telecommunications infrastructuresand is a contractor to the ESB. The Respondent's operational crew comprise mainly of Portuguese and Brazilian nationals. In April, 2009, in response to an advertisement in a local FÁS Office, the Complainant applied for an advertised position as Lines Person with the Respondent. The advertisement stated that applicants should be a qualified Lines Person with at least three years' experience of building high voltage lines (11OKV plus)and that a knowledge of Portuguese is preferred.The Complainant was not called for interview. He claimed that the reason he was not called was related to his Irish nationality.Two of the sixteen applicants for
the position were called for interview.
SUMMARY OF COMPLAINANT'S CASE
Mr Robert A Bourke, B.L. instructed by Donal Taaffe & Co. Solicitors, on behalf of the Complainant submitted that the Complainantwas discriminated against by the Respondent due to his nationalityand in particular byreason of his lack of knowledge of Portuguese and thatthe grounds of discrimination wereunlawful.
Mr Bourke stated that the Complainant had the necessary qualifications for the position as Lines Person save for an ability to speak Portuguese. Being an Irish national he does not speak Portuguese.The work,for which the positions were being advertised,was to be carried out in Ireland. Hesubmitted that the statement in theadvertisementconstituted aground for
selectionwhich,in theabsenceofobjectivejustification,wasprima facieindirectly
discriminatory.
Mr Bourke submitted that the preference for persons with knowledge of Portuguese is effectively a requirement so far as a prospective candidate for the job is concerned. He further submitted that this requirement discriminates against Irish nationals who are unlikely to have knowledge of Portuguese. Therefore, he maintained that this isprima facieindirectly discriminatory and in this regard he relied on the Decision of this Court in the case ofNoonan Services LimitedvA Worker [EDAll/26],where the Court held ina claim of discrimination ongroundsofnationalitythat;
- "...it is clearthat a requirementtohavecompetencyin English islikelyto placepersons
whosenativelanguageisotherthanEnglish ata disadvantagerelativeto persons whosenativelanguageisEnglish. Hence,prima facia,a requirementofcompetencyinEnglish
isindirectlydiscriminatory unless it isobjectivelyjustified.Itis wellsettled thata
potentiallyindirectly discriminatorymeasureis objectivelyjustified ifit isin pursuanceof a legitimateobjectiveof the employer and themeans chosenare appropriateand necessaryto thatend..."
Mr Bourkesubmitted that thisstatement isacorrect statement of the applicablelegal
principles,thatis,thatarequirementtohaveknowledge in a language other than one's nativelanguage isprima facieindirectlydiscriminatory in the absence of objective justification. He maintained thatfor theComplainant tobe certain to bechosen for interview,knowledgeof Portuguesewasrequired.The effectofthiswas to discriminateagainst the Complainant whoisan Irish national.
SUMMARY OF THE RESPONDENT’S POSITION
Ms Elaine Finneran, B.L., instructed by Kilrane O’Callaghan & Co. Solicitors, on behalf of the Respondent denied the Complainant’s assertion that a knowledge of Portuguese was effectively a requirement so far as a prospective candidate for the job was concerned and denied that any such reference in the job description was intended or operated as a barrier to the employment of Irish nationals.
Ms Finneran stated that the Complainant'sCurriculum Vitaeand further that theCurricula Vitaeof the two candidates who were selected for interview made no reference to knowledge of Portuguese, the latter both had the required experience to comply with the essential criteria for the post.Having examined theCurriculum Vitaeof the Complainant, the Respondent formed the opinion that whilst he had extensive experience working on low voltage lines, he did not have the necessary experience on high voltage lines. Due to this, the Complainant was not selected amongst the candidates called for interview. The two applicants called to interview by the Respondent were Irish nationals.
Ms Finneran contended thatthe statement in the advertisement that knowledge of Portuguese is preferred is unrelated to any discriminatory ground and that the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
CONCLUSIONS OF THE COURT
The Court has taken account of the oral and written submissions made by both parties along with the statement made by the Complainant at the hearing.
Section 31 of the Acts prohibits indirect discrimination and states that;
- "Indirect Discrimination occurs where an apparentlyneutral provision puts
personsof a particular race,colour,nationalityor ethnicor national originsat a particular disadvantagein respect of anymatter other than remuneration comparedwith other employees of theiremployer."
The Complainant contends that the preference for knowledge of Portuguese being an apparently neutral provision, placed him at a disadvantage in his application for the position as Lines Person with the Respondent due to his Irish nationality and thereby constitutes indirect discrimination against a person of Irish nationality. Proficiency in a language is not one of the discriminatory grounds under the Act and the Court does not accept that it is inherent in an Irish person not to be in a position to have knowledge of Portuguese, in any event no such contentions were submitted by the Complainant to the Court.
It is not disputed that the two applicants who were successful in being called for interview were also of Irish nationality. In order to succeed in a claim of indirect discrimination it is necessary to prove that the fundamental cause of the complaint is that those in the disadvantaged group are treated less favourably than those in the advantaged group. No such contention has been submitted in this case, as is evident from the selection of two Irish applicants for interview for the position, neither of which had any knowledge of Portuguese. In such circumstances there is no basis in law for the proposition that the Complainant was indirectly discriminated against based on his nationality.
Determination
The Court is satisfied that the Complainant has failed to establish primary facts upon which he relies to prove that he was discriminated against on the race grounds. Accordingly, the Complainant has failed to establish aprima faciecase of discrimination on the race ground.
The Court upholds the Decision of the Equality Tribunal and disallows the appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd September, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.