EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-057
PARTIES
John Cahill
AND
Ballyhoura Development Ltd.
(represented by IBEC)
File Reference: Et-151475-ee-14
Date: 4th April 2016
1. The Claim
1.1 This claim concerns a claim by John Cahill (hereinafter the “Complainant”) that he was discriminated against on the grounds of age and gender when the Respondent (hereinafter the “Respondent”) denied him access to a vocational training and educational course which allegedly resulted in his discrimination on the ground of age contrary to Section 6 (2)(f) and the ground of gender contrary to Section 6 (2)(a) of the Employment Equality Acts (hereinafter the “Acts”).
1.2 The Complainant referred his claim to the Director of the Equality Tribunal on 12th December 2014 under the Acts.
1.3 On the 29th December 2015, in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Caroline McEnery, an Adjudicator, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides.
1.4 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 15th January 2016.
1.5 The Respondent attended the hearing along with their representative IBEC. The Complainant was not represented.
1.6 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 84 (3) of the Workplace Relations Act 2015.
2. Complainant’s Submission
2.1 The Complainant stated that he was denied access to a vocational training and educational course entitled “Logistics and Distribution Training Course – FETAC Level 5” and that this denial of access was based on discrimination, contrary to statute.
2.2 The Complainant stated that this denial of access to the said vocational training and educational course was based on age and gender discrimination.
2.3 The Complainant stated this alleged discrimination is contrary to Section 12(1) of the Employment Equality Act, 1998 -2011.
2.4 The Complainant stated that the vocational training and educational course was advertised on Sunday 27th July 2914 in the Mitchelstown Parish and Community Newsletter. It was a full time course due to start in September 2014 and was scheduled to take place over a nine month period. The Complainant stated he called the Respondent and was directed to Ms. G who took details of his email and forwarded an application form to the Complainant. This application form was completed and issued via the post to the Respondent on the 14th August 2014. On the 21st August 2014 the Respondent was asked to attend an interview. The interview was conducted by Ms. G and Ms. S. On the 1st September 2014 the Complainant contacted the Respondent for feedback on his interview. The Complainant received a letter dated 8th September 2014 stating “we gave first preference to unemployed people with lower education skills.” The Complainant requested a copy of the interview notes in his letter dated 15th September 2014. The Respondent stated, in their correspondence dated 23rd September 2014 that the “primary target participants are 35 years of age or under, with no formal qualifications are incomplete secondary level qualifications. The targets includes people who are long-term unemployed, early school leavers, those recovering from substance dependence and Travellers”. The Complainant stated he did not receive the requested interview notes and again requested them as per his letter of 27th September 2014. The Complainant did not receive any correspondence from the Respondent subsequent to this.
3. Respondent’s Submission
3.1 The Respondent stated that all applicants received a 20 minute time slot for interviews. All applicants were asked for details of previous work experience and training undertaken, computer literacy, and their reason for wanting to do the course. The interview was used also as an opportunity to tell applicants more about the course and assess their suitability for other supports they provide.
3.2 The Respondent stated that first round offers are sent to successful candidates and when all places are accepted only then are regrets issued. Sometimes this crosses over the commencement date of the course and the Complainant received a letter of regret on the 8th September 2014.
3.3 The Respondent stated that the mission of the Respondent Company is set down by the programme funder, the ETB and that other candidates more closely matched the criteria than the Respondent.
3.4 The Respondent supplied one note from Ms. G that they did not furnish to the Respondent. It stated ‘John Cahill, wants logistic services for government, health board, qualified solicitor.’
3.5 The Respondent stated that upon notification from the Equality Tribunal that further communication would be forthcoming, the Respondent decided to cease all direct communication with the Complainant.
3.6 The application form for the course, which asks for date of birth and the age of the applicant, originated from Cork Education and Training Board.
3.7 Information regarding to the age of target participants is taken from the funder eligibility criteria.
3.8 The Respondent stated that Ms. G used the interview as an opportunity to engage with all applicants and the Respondent has stated that Ms. G n was not implying anything other than 25 years is a long time in one employment by stating this.
3.9 Regarding the statement contained within the Complainants regret letter stating “your CV as presented highlights your high level of qualifications” the Respondent states that there were a large number of applications for this course, more applications than places. Therefore, the Respondent states that as the primary target is people under 35 with an educational disadvantage, they were given priority.
3.10 The course can have a minimum of 14 and a maximum of 20. 20 applications were received of which the Complainant was one. 17 applicants were successful, 3 were not successful. Another 3 participants joined the course after from further applications to bring the number to 20.
3.11 Of the 20 successful applicants the Respondent stated 16 were less than the age of 35, 4 were older than 35 years of age. 17 of the successful applicants all had less than 5 D’s in their Leaving Certificate. Of the 20 applicants that completed the course; not one had a 3rd level qualification.
3.12 In regards to the composition of the interview panel the Respondent states that the interview process for all LTI applicants is undertaken by coordinators. At times this could be a male / female mix, sometimes is may be all men and on other occasions may be all female. The Respondent has stated it does not discriminate when taking on employees and does not look specifically for a gender mix for LTI co-ordinators but rather chose the best qualified, best suited individuals for the job.
3.13 The Respondent notes that all applicants for the course were male and all successful candidates were male.
3.14 Ms. S did not ask questions in the interview with the Complainant. This was agreed in advance of the interviews commencing.
4. Findings And Conclusions
4.1 In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.
4.2 Section 6 (1) of the Employment Equality Act, 1998 provides:
“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”) one person is treated less favorably than another is, has been or would be treated.”
4.3 Section 8 (1) of the Act provides:
“In relation to-
(a) Access to employment
(b) Conditions of employment
(c) Training or experience for or in relation to employment
(d) Promotion or re-grading, or
(e) Classification of posts,
an employer shall not discriminate against an employee or prospective employee….”
4.4 The Complainant stated this alleged discrimination is contrary to Section 12(1) of the Employment Equality Act, 1998 -2011, which states:
12.—(1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—
(a) in the terms on which any such course or related facility is offered,
(b) by refusing or omitting to afford access to any such course or facility, or
(c) in the manner in which any such course or facility is provided.
4.5 Discrimination
4.5.1 Section 6(1) of the Acts provides: “Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”, one person is treated less favourably than another is, has been or would be treated.
4.5.2 Section 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, civil status, religion, disability, race or a member of the Traveller community for the case to succeed.
4.5.3 The Council Directive 2000/78 of November 27, 2000 establishing a general framework for equal treatment in employment and occupation. Recital 25.
(25) The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.
4.6 Gender Discrimination
4.6.1 Section 6(2)(a) refers to gender discrimination:
6.—(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
4.6.2 Composition of Interview Panel: The Complainant is stating that there should have been a mix of gender on the Interview Panel for good practise in relation to equality. This fact alone cannot be attributed to gender discrimination as this is their role and their roles are based on qualifications and experience. All successful candidates on the course were male therefore it can be stated that no gender discrimination occurred against the Complainant who is male. It is the decision of this Adjudicator that the Complainant was not treated less favourable than another has or would have been treated on the grounds of gender. In regards to the composition of the interview panel the Respondent states that the interview process for all LTI applicants is undertaken by coordinators. At times this could be a male / female mix, sometimes it may be all male and on other occasions may be all female. The Respondent has stated it does not discriminate when taking on employees and does not look specifically for a gender mix for LTI co-ordinators but rather chose the best qualified, best suited individuals for the job. This is reasonable and does not constitute discrimination.
4.6.3 Failure to Respond: The Complainant is stating that there was a failure by the Respondent to answer Question 7 of the official Form EE2. In addition, the Complainant has stated that the failure of Ms. S to ask any questions at interview indicates it was a foregone conclusion in the mind of the aforementioned person not to award a position on the training course to the Complainant. The Respondent stated that upon notification from the Equality Tribunal that further communication would be forthcoming, the Respondent decided to cease all direct communication with the Complainant.
4.7 Age Discrimination
4.7.1 The Application Form: The application form required the Complainant to note his date of birth in the format of DD-MM-YYYY and was asked to state his age. The Complainant filled out the application in full. The application form for the course, which asked for date of birth and the age of the applicant, originated from Cork Education and Training Board. The Complainant also included in his application form that he has a Degree from UCC and was not in receipt of a social welfare payment.
4.7.2 Website Information: The website information stated the age requirements of persons partaking in training courses. This states “Ballyhoura Development deliver three Local Training Initiatives (LTI’s) for unemployed persons across the Ballyhoura area. The LTI programme is designed to provide opportunities for marginalised learners who are unable to participate in other mainstream training interventions for personal, social or geographic reasons. Local Training Initiatives are targeted primarily at people under 35 of age, with no formal qualifications or incomplete secondary level qualifications. LTI’s provide vocational training opportunities, learning supports and project-based learning to assist participants to achieve awards on the NFQ and to develop the capacity to progress to further training, education and work.” The Respondent stated that the mission of the Respondent Company is set down by the programme funder, the ETB and that other candidates more closely matched the criteria than the Complainant. The wording states that the LTI’s are for unemployed persons. The application form for the course, which asks for date of birth and the age of the applicant, originated from Cork Education and Training Board. Website information regarding to the age of target participants is taken from the funder eligibility criteria.
4.7.3 The Interview: The Complainant states that the nature of the questioning in relation to the time the Complainant worked with the Southern Health Board was over emphasised at interview. The Respondent supplied one note from Ms. G that they did not furnish to the Respondent. At the hearing it was stated that Ms. G used the interview as an opportunity to engage with all applicants and the Respondent has stated that Ms. G was not implying anything other than stating 25 years is a long time in one employment. Ms. S did not ask questions in the interview with the Complainant. This was agreed in advance of the interviews commencing. The Respondent stated that all applicants received a 20 minute time slot for interviews. All applicants were asked for details of previous work experience and training undertaken, computer literacy, and their reason for wanting to do the course. The interview was used also as an opportunity to tell applicants more about the course.
4.7.4 Letter 23rd September 2014: States “primary target participants are 35 years of age or under, with no formal qualification or incomplete secondary level qualifications.” The Respondent stated that the mission of the Respondent Company is set down by the programme funder, the ETB and that other candidates more closely matched the criteria than the Complainant. The Respondent states that had there been fewer applicants who met the criteria more closely, the Complainant would have been fortunate enough to get a place on the course. I do not believe this was the case based on the evidence presented as 17 of 20 places were only filled at the time of the decision regarding the Complainants application. However, I do not believe from the evidence presented that this decision was based on age or gender and instead I do believe that it was based on the Complainant not being educationally disadvantaged.
4.7.5 Letter 23rd September 2014: States “your CV as presented highlights your high level of qualifications”. The Complainant is stating that where an applicant is refused access to a course of training or instruction on the grounds that they are already too qualified either academically or professionally, that this is further grounds for discrimination of age, as it takes many years to acquire academic and professional qualifications. The Respondent states that there were a large number of application for this course, more applications than places. Therefore, the Respondent states that as the primary target is people under 35 with an educational disadvantage, they were given priority. The Respondent states that had there been fewer applicants who met the criteria more closely, the Complainant would have been fortunate enough to get a place on the course.
4.7.6 Right to Information: The Respondent stated that the failure of the Complainant to respond to his Right to Information is prima facia evidence that he was age discriminated against. The Respondent stated that upon notification from the Equality Tribunal that further communication would be forthcoming, the Respondent decided to cease all direct communication with the Complainant.
4.7.7 Failure to Provide Information: The Respondent stated that the failure of the Complainant to respond to his Right to Information is prima facia evidence that he was discriminated against based on age.In addition, failure to provide the interview noted of 21st August 2014, supply a breakdown of the number of applicants, age and number of successful candidates over the age of 40. The Respondent stated that upon notification from the Equality Tribunal that further communication would be forthcoming, the Respondent decided to cease all direct communication with the Complainant. The Respondent has failed to have screening documents and a paper trial to support the selection criteria used etc. which means the Company has not reached the required burden.
4.8 This Equality Officer concludes that the preference afforded to those who ‘are 35 years of age or under, with no formal qualification or incomplete secondary level qualifications’ in the mission statement of the Respondent has not put the Complainant at a disadvantage compared with applicants who were younger than 35 years of age.
4.9 The Complainant is stating that where an applicant is refused access to a course of training or instruction on the grounds that they are already too qualified either academically or professionally, that this is further grounds for discrimination of age, as it takes many years to acquire academic and professional qualifications. I am in disagreement with this and am of the view that the course is specifically targeted to those who do not have a qualification.
4.10 It is my opinion that based on the evidence provided by both parties that giving priority to applicants who have no formal qualification or incomplete secondary level qualifications and primarily under the age of 35 was not liable to put the Complainant at a particular disadvantage compared with other applicants.
4.11 In making my decision I have taken into account the possibility of the Complainant getting a place under the present mission of the Respondent to what it would have been if the age rule was not applied. I find that the Complainants probability of getting a place in the latter scenario would have been similar as the Complainant has qualifications in the form of a degree from University College Cork and does not qualify for the section of the mission of ‘no formal qualification’. Therefore, I found that Complainant was not at a particular disadvantage compared to younger candidates as a result of the preferential treatment afforded to those under the age of 35.
4.12 I have considered whether the mission was proportionate and could be objectively justified. I am satisfied that the mention of age as stated is in keeping with the stated aim of “supporting Community Growth” and “to provide opportunities for marginalized learners who are unable to participate in other mainstream training interventions” and thus objectively justified as being wholly legitimate. In addition, the target refers to the work ‘primarily’ stating that in certain cases whereby applicants fulfil the other prerequisite criteria except for age they would be accepted to participate in the course.
4.13 Finally, in relation to the necessity of the measure of the mission I am concluding that the continuing benefits provided by the link between unemployment and admission to the course meant that the inclusion of the ‘age rule’ is a necessary step in creating an admissions policy which is proportionate and balanced for the community.
4.14 To summarise, having assessed all of the evidence provided I conclude that the Complainant was not selected for the course because of his third level education and I conclude that this selection was not due to age or gender discrimination.
4.14 I am finding that the Complainant was not subject to fair procedures in relation to the interview process, note taking, nor was due process afforded in regards to best practise recruitment. It is my opinion that the Complainant did not meet the prerequisite criteria from the outset to comply with the course. It is poor practise for the Respondent to invite the Complainant to an interview to which he had not met the prerequisite criteria. The advert for the course did not note the selection criteria nor was the Complainant told prior to interview that he did not meet the prerequisite criteria as dictated by the application form in specifying his Degree from University College Cork. The Respondent did not keep sufficient paperwork nor specific selection criteria as to who was selected for what reason. In my opinion these lack of fair procedures, note taking, screening process etc. accumulated and have compelled the Complainant to take a case under the grounds of age and gender discrimination. However, these lack of procedures do not lead themselves to a case of age and gender discrimination as I am satisfied the Complainant did not get a place on the training course due to his qualification.
5. Conclusion/Decision
5.1 I have investigated the above complaint and make the following decision in accordance with the relevant Sections of the Acts set out above and the following are my conclusions:
5.1.2 I find that the Respondent has not discriminated against the Complainant on the grounds of age contrary to Section 6 (2)(f) of the Employment Equality Acts (hereinafter the “Acts”).
5.1.3 I find that the Respondent has not discriminated against the Complainant on the ground of gender contrary to Section 6 (2)(a) of the Employment Equality Acts (hereinafter the “Acts”).
____________________
Caroline McEnery
Equality Officer