EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-091
PARTIES
A prospective volunteer ambassador
Complainant
AND
A non-governmental organization
(Represented by IBEC)
Respondent
File reference: ET-159012-EE-15
Date of issue: 20th June 2016
1. Introduction:
1.1 On 24 August 2015, the complainant referred a complaint pursuant to the Employment Equality Acts in relation to discrimination in access to vocational training on grounds of sexual orientation. On 31 March 2016, in accordance with powers under section 75 of the Employment Equality Acts, the Director General delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation began.
1.2 The parties made submissions in advance of the hearing and also attended the hearing on 6 April 2016. The complainant attended the hearing in person. The respondent was represented by Peter Flood, IBEC. The Volunteer Manager and HR director attended as witnesses for the respondent, a non-governmental organisation.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the complainant’s case:
2.1 The complainant applied to the respondent for a position of “Schools Visit Ambassador”. This was a voluntary position, visiting schools on behalf of the respondent for the period of September 2015 to May 2016. He came across the role in searching for roles in poverty alleviation and saw the role advertised on the respondent’s website. He attended an interview and met with two representatives of the respondent, one of whom (the volunteer manager) attended this hearing.
2.2 The complainant outlined that the interview went well, although he felt he stumbled on one question and asked to address this again at the end of the interview. After he learnt that he was not successful for the role, he obtained a copy of the interview notes. The notes do not disclose that he was not competent for the role, so the complainant was unclear why his application had not been successful. As he wished to build vocational experience in roles related to poverty alleviation and education, he was anxious to get feedback from the respondent. The complainant said that he became concerned at the lack of feedback offered and instead, the respondent offered him an alternative role in data entry. He referred to inconsistencies in the feedback later offered by the volunteer manager, where he was initially told that he did not have sufficient educational experience and later that he did not meet the required competencies. The complainant said that he had researched the educational tracks of five of the successful candidates on LinkedIn and established that they came from very different educational backgrounds to each other.
2.3 Addressing the claim of discrimination, the complainant outlined that members of the LGBT community are among the biggest sufferers of social exclusion and the more marginalised traits a person has, the more excluded they are. He said that he had expected the respondent to supply data with how they comply with their equality policy in response to his E.E. 2 form. He had researched the profiles of five successful candidates and noted that they were white women, whom he described as being “well presented”. They came from different educational disciplines. The complainant said that during the interview, he had asked about other roles and asked whether a teacher would be present in class when a Schools Visit Ambassador delivers their presentation. He also said that he had not received an E.E. 3 form back from the respondent and only received a letter. This correspondence did not show that discrimination did not occur and did not provide data. The complainant submitted that this matter falls within the scope of the Employment Equality Acts as it relates to access to vocational training. The complainant outlined that the issues of education and poverty alleviation were key to his vocational development and this role was important as part of this.
2.4 The complainant outlined that he considered the Schools Visit Ambassador role to be vocational training as training was intrinsically connected to learning and for something to be vocational, it had to be linked to a “life choice”. To be vocational, it had to be connected to a life choice and this meant that it could be subjective to the person. He outlined that he had advanced this claim on the grounds of sexual orientation as this was the most relevant category. At the end of the hearing, the complainant said that he was grateful that the volunteer manager had given the reasons why his application had not been successful and that he appreciated the feedback.
3. Summary of the respondent’s case:
3.1 The respondent made preliminary submissions that the complaint could not be advanced under the Employment Equality Acts. It was submitted that the role is a volunteer role, where only expenses were reimbursed for transport to schools. The role lasted for nine months and Schools Visits Ambassadors were expected to make themselves available to attend local schools. The number of visits depended on demand from schools and generally, an Ambassador carried out the role for one hour per month. The respondent submitted that this complaint does not relate to vocational training, relying on the decision of Feeney J. in Commissioner of An Garda Siochána v. Oberoi [2013] IEHC 267. It was submitted that vocational training is intrinsically related to a job and involves building up of skills directly related to the job. The role in this case was not training for a specific job and not covered by the Employment Equality Acts.
3.2 The respondent outlined that the training given to Schools Visits Ambassador related to the contents of the presentations, i.e. discussing homelessness and challenging stereotypes. Commenting on the complaint, the volunteer manager said that a person’s sexual orientation was irrelevant. She outlined that she made 150 or so volunteer appointments in a year and gave an example of appointing an openly gay volunteer. She said that the complainant had been listed for interview because of his experience with youth groups. Commenting on the notes of the interview with the complainant, the volunteer manager outlined that this covered the competencies of the role and the values of the respondent. She and the other interviewer decided that the complainant had a level of apprehension in managing large groups of young people, raised by his question concerning there being a teacher present in the classroom and his relief that this was the case. They were concerned that he would not be comfortable in dealing with large groups of 30 to 60 students. The complainant also asked about the respondent’s graduate programme, so it was unclear to her and the other panel member what the complainant’s aims were. She outlined that the Schools Visit Ambassador programme is a stand-alone role and an end-goal of itself. The complainant’s question suggested that he wished to develop other interests.
3.3 The volunteer manager outlined that the Schools Visit Ambassador is asked to represent the respondent in schools, and also to be able to deal with “banter” or “cheeky questions” from young people. She did not accept that the respondent had a “type” that it wished to be represented by and said that she had not known the complainant’s sexual orientation. In respect of the complainant’s request for feedback, the volunteer manager said that there was no obligation to give feedback for a volunteer position and this was acknowledged by the complainant in an email. She did not feel it worthwhile to offer negative feedback and as the complainant had asked about other roles, she offered the data entry role where the details of clients of the respondent are inputted into a database. This was in line with the objectives part of the complainant’s CV where he indicates a wish to develop a career in data. She did not believe it appropriate to complete the E.E.2 from and she wrote to the complainant instead.
4. Findings and reasoning:
4.1 The complainant asserts that he is entitled to rely on section 12 of the Employment Equality Acts to advance this claim of discrimination. He states that the programme operated by the respondent of “Schools Visits Ambassador” falls within the meaning of “vocational training” provided in section 12. The complainant outlines that he was discriminated against as he did not fit within a certain profile, relying on the grounds of sexual orientation. He says an inference can be drawn from the lack of adequate feedback he received to his interview. The respondent raised a preliminary issue of jurisdiction as the complainant is a volunteer and that the “Schools Visit Ambassador” programme falls outside the scope of vocational training. Furthermore, it denies the allegation of discrimination.
4.2 Section 12(2) of the Employment Equality Acts provides that “vocational training” has the following meaning: “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.”
4.3 The respondent relied on the decision of the High Court in Commissioner of An Garda Siochána v. Oberoi. This concerned the question of whether a member in training of the Garda Reserve was either an employee within the ambit of the Employment Equality Acts or whether he fell within the section 12 of the Employment Equality Acts. In addressing the latter question, Feeney J. held at paragraph 9.6:
“Section 12 can only apply to training to become a Garda Reserve if the Garda Reserve itself is a body exclusively concerned with training for entry into the Gardaí proper. The purpose of training to become a member of the Garda Reserve is training to be a member of that body and is not designed or intended to achieve occupational training or for a person to become a member of An Garda Síochána. The purpose of being a member of the Garda Reserve is not designed to achieve occupational training and, therefore, it cannot be said, in law, that that is what it is. It is unquestionably the case that a trained and successful member of the Garda Reserve gains experience which may assist that person in ultimately becoming a member of An Garda Síochána, but that is a by-product of the training to be a Garda Reserve and being a Garda Reserve rather than its purpose. It follows that the training for membership of the Garda Reserve cannot be considered to be vocational training for an occupational activity so as to come within the scope of ss. 8 and/or 12 of the Equality Acts. It is to become a member of the Garda Reserve which is the end in itself and the fact that some members of the Garda Reserve might have ambitions to become members of An Garda Síochána, and that service in the Garda Reserve can be taken into account in favour of an applicant, is not a basis for characterising training for or service in the Reserve as training for the Gardaí. My conclusion in relation to this matter is reinforced by the use of the word “exclusively” in s. 12(2) of the Employment Equality Act 1998. Membership of the Garda Reserve is an end in itself and even if in some instances members of the Garda Reserve might use such membership as a springboard to becoming members of An Garda Síochána, it cannot be said that the training to be a Garda Reserve is “exclusively” concerned with training to be a member of An Garda Síochána.”
4.4 Applying the above dicta to the facts of this case, it is clear that the position of “School Visits Ambassador” is an end in itself and cannot be said to be exclusively concerned with training for an occupational activity. While the role is an important one and one from which a participant may acquire relevant skills for their career development, it cannot be said to be training for the carrying on of an occupational activity and which may be considered to be training exclusively for this activity. While the complainant submitted that a broader interpretation should be given in order to include training for a life choice and that it should be subjective, this goes beyond the words used in statute.
4.5 It is clear that the respondent is entitled to succeed with its preliminary issue on jurisdiction. It is also appropriate to record that the respondent provided a cogent account of its consideration of the complainant’s application, which not only shows that there is no prima facie case of discrimination, but also provided some satisfaction to the complainant.
5. Decision:
Having concluded my investigation, I decide that the complaint does not fall within the ambit of the Employment Equality Acts as the complainant is not an employee of the respondent and because the “Schools Visits Ambassador” programme is not vocational training within the meaning of section 12 of the Employment Equality Acts.
________________________________________
Kevin Baneham
Adjudication Officer / Equality Officer
20th June 2016