THE EQUALITY TRIBUNAL
An Binse Comhionannais
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-088
PARTIES
Thomas Basset
AND
Department of Education and Science,
(Represented by Cliona Kimber SC, instructed by the Chief State Solicitor’s Office)
File reference: EE/2014/266
Date of issue: 18 September 2015
HEADNOTES: Employment Equality Acts Sections 6 and 8 – Age – Access to employment-Indirect Discrimination
1 DISPUTE
1.1 This dispute concerns a claim by Mr Basset (TB) that he was discriminated against by the Department of Education & Science (DES) on the grounds of age in that it ruled him to be ineligible for a job vacancy on the basis of a degree which it claimed did not meet the criteria for the competition. Mr Bassett says this represented indirect discrimination on age grounds contrary to sections 6 and 8 of the Employment Equality Acts.
1.2 The complainant initially referred the claim to the Director of the Equality Tribunal on 7th March 2014 under the Equal Status Act and this was subsequently re-entered as a claim under the Employment Equality Acts on 15th May 2014.
1.3 In accordance with his powers under section 75 of the Acts, on June 30th 2015 the Director delegated the case to me, Pat Brady, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on July 9th 2014.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant applied for a job in the DES advertised on the Public Jobs website which, inter alia, required a degree or a Master’s Degree that was ‘ICT related’. He is the holder of a B.Comm degree which he acquired in 1978 which included a module in Information Systems. He claims that this was the only, or one of the few, IT degree options available at the time and that he should have been considered for interview as he met the criteria.
2.2 He claims that his exclusion represents indirect, age related discrimination.
3 RESPONDENT'S SUBMISSION
3.1 The respondent states that as a matter of fact there were recognisable IT degrees in Irish universities at the time the complainant was an undergraduate. Further, there was no bar to his acquisition of a Master’s or other qualification in the meantime which would have brought him within the scope of the job eligibility criteria. It points out that other candidate with primary degrees from the 1980’s did so.
3.2 The respondent also submitted that it conducted a review of the Complainant’s degree and found that it fell short of the requirement of being IT related and also undertook further investigations with the university authorities regarding the availability of IT related course which were submitted in evidence.
3.3 It also points out that the requirement was a bona fide requirement for the position and outlined the needs of the DES for high quality, qualified personnel who would commit to a career in the DES.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was subjected to indirect discriminatory treatment on the grounds of age. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 On the basis of a very strict construction of the term ‘related to’ an argument might be made that the Complainant’s degree could have rendered him eligible for interview. However, in respect of few disciplines, and certainly not the IT sector could a qualification gained in 1978 be regarded as ‘related to’ the discharge of a function such as that required here. I do not propose to decide this matter on an excessively literal interpretation of that phrase although the DES could easily avoid such difficulty by the use of the preposition ‘in’, rather than ‘related to’ which would have avoided the current difficulty.
4.3 It was accepted by all parties that the requirement was a bona fide requirement.
4.4 In any event, I am required to deal with the fact of his exclusion and whether it represents indirect discrimination on the grounds of age.
4.5 In doing so I draw a distinction between the simple passage of time since 1978 and the fact of the Complainant’s age. The question is whether, per se, it represents indirect age discrimination to disregard a 1978 degree (in a primary subject other than IT but making due allowance for the then youth of that academic discipline) and to seek a current qualification in one of the most rapidly changing parts of our economy within which the acquisition of additional qualifications is the norm and the standard of a Masters is commonplace.
4.6 I note that the complainant had the opportunity to acquire a relevant qualification.
4.7 A number of authorities were placed before me and I also considered the case of The Chief Constable of West Yorkshire Police and West Yorkshire Police Authority v. Homer In that case the introduction of a requirement for employees to have a law degree in order to achieve the highest pay band constituted indirect discrimination on grounds of age was challenged as the complainant, at the age of 61 would have been actually unable to obtain a degree before retiring at 65 whereas other younger workers could. The Supreme Court of the United Kingdom concluded that “put simply the reason for the disadvantage was that people in the 60-65 age group did not have time to acquire a law degree. And the reason why they did not have the time to acquire a law degree was that they were soon to reach the age of retirement”. I find this to represent a much higher requirement than in the current case.
4.8 While this is held to be ‘indirect’ discrimination there is a clear proximate and consequential linkage between the requirement and the capacity of an applicant to comply and the ‘bar’ in that case is set much higher than in the current case. Put another way while the complaint in the West Yorkshire case relates to ‘indirect’ discrimination the impact of the complained of act was quite direct in that the complainant could not comply with it because of his age.
4.9 In the instant case the complainant could at any time have brought his qualifications to what might be considered to be a reasonable level. There cannot be an indefinite elasticity in the connection between the two events at the heart of this case sufficient to ground a claim. It was not the complainant’s age that creates the disadvantage but his failure to update and upgrade his qualifications in the course of a long interval in his career in circumstances when it would have been reasonable to expect him to do so.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· There was no discriminatory treatment as defined in Section 8 (5) (b) of the act and I dismiss the claim.
______________
Pat Brady
Equality Officer
18 September 2015