DEC-S2016-034

EQUAL STATUS ACTS

DECISION NO. DEC-S2016-034

PARTIES

A complainant

-v-

A Regional Education and Training Board

(represented by Advokat Compliance Limited)

File reference: es-152615-es-15

Date of issue: 27th May, 2016

1. Background to the Claim

1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on the 20th January, 2015. On the 22nd December, 2015, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts the Director General delegated the case to me, Enda Murphy, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 11th May, 2016.

1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.

2. Dispute

2.1 The dispute concerns a claim by the complainant that he was discriminated against by the respondent on the Gender ground in terms of Sections 3(1)(a) and 3(2)(a) contrary to Section 7(2) of the Equal Status Acts in relation to the refusal of his application for admission to a Health Support Care course at a College of Education.

3. Summary of the Complainant's Case

3.1 The complainant applied to the respondent on 17th June, 2014 for admission to a Health Care Support Course at a College of Education. The complainant submitted that this was the second occasion that he applied to the respondent for admission to this course as his previous application in 2012 had been unsuccessful. The complainant attended a briefing and information session regarding the course on 25th August, 2014 where he was informed that his interview for the course was scheduled to take place on 4th September, 2014. The complainant submitted that he received a telephone call on the morning of 4th September, 2014 to confirm that the time of his interview had been changed to 12 pm. The complainant claims that he was not afforded any explanation for the change to the time of his interview. The complainant submitted that when he arrived at the interview venue he was informed that he was two hours late. The complainant disputes that he had overslept on the morning of the interview and that he had contacted the respondent to request that the interview be re-scheduled to a later time that day. The complainant participated in the interview but was subsequently notified by the respondent in writing on 10th September, 2014 that his application for admission to the course was unsuccessful.

3.2 The complainant submitted that the interview process was manifestly unfair and that he felt an attitude of animosity and indifference towards him by the members of the interview board and that they appeared uninterested and dismissive of him. The complainant submitted that he experienced great difficulty in obtaining feedback from the respondent in relation to the interview but eventually received a letter on 15th October, 2014 which indicated that his application “was deemed unsuccessful as not having met the minimum score required”. The complainant obtained details of the scores that were attributed to him under the various assessment criteria used at the interview which he submitted clearly demonstrates that he was subjected to discrimination on the grounds of gender in terms of the manner in which his application was assessed. The complainant had a meeting with Mr. A (Unit Manager) on 1st December, 2014 to discuss his application; however, he claims that Mr. A failed to clarify or explain how his application had fallen short at the interview stage.

3.3 The complainant submitted that he disputes the respondent’s contention that he presented for the interview in an untidy and unkempt manner and claims that he had taken great care to ensure that he presented for interview in the appropriate attire. The complainant also claims that the marks awarded to him for “Previous and Relevant Experience” were overly negative considering that he had spent a year caring for his wife who had a terminal illness, had cared for both his child who had type 1 diabetes and his elderly parents and had worked for a Men’s Health Organization for three years. The complainant submitted that his application was also prejudiced on the basis that the respondent, when assessing his application, had unfairly taken into consideration information which he had voluntarily included in his Garda Vetting Form regarding a road traffic offence. The complainant submitted that the respondent underscored his application on the grounds of his gender to create a barrier to him beginning a career in a mostly female dominated occupation. The complainant submitted that his female counterparts would not have been scored so negatively and he claims that a woman on her second attempt to secure placement would have been more sympathetically viewed by the interview board. In summary, the complainant claims that the reason why he was refused admission to this course by the respondent was on the grounds of his gender.

4. Summary of the Respondent's Case

4.1 The respondent is an Education and Training Board (ETB) established and governed in accordance with the Education and Training Boards Act 2013. The respondent submitted that the complainant applied for admission to a Healthcare Support Course and attended for interview on 4th September, 2014. The complainant had previously attended a briefing and information session related to the course along with a number of other prospective candidates on 25th August, 2014. The respondent submitted that the complainant was scheduled to attend for interview at 9:00 a.m. on 4th September, 2014 but failed to attend at the scheduled time. The complainant was contacted by Ms. B, Clerical Officer to ascertain the reasons for his non-attendance and he confirmed that he had overslept and asked if the interview could be re-scheduled to a later time that day. The interview board agreed to facilitate the complainant’s request and his interview was re-scheduled to a later time that day. The respondent submitted that the scoring for the interview process was based on five distinct criteria which were applied equally to all candidates including the complainant. On 10th September, 2014 the Board wrote to the complainant confirming that he had been unsuccessful in his interview.

4.2 The respondent submitted that the complainant achieved an overall score of 23/50 marks but that a score of 25/50 marks was required in order to gain admission to the course. The respondent submitted that the scoring under the five criteria was applied objectively and fairly to the complainant. The respondent submitted that the following factors were noteworthy in relation to the assessment of the complainant’s application, namely that he arrived two hours late for his interview; he presented at interview in an untidy manner; he had a previous conviction which was disclosed in a Garda Vetting Form and admission to the course was strictly subject to a satisfactory outcome of the Garda Vetting process; he did not have the requisite employment experience required for admission to the course. The respondent submitted that it took into consideration the relevant experience which the complainant sought to rely upon in terms of the scoring allocated by the interviewers in respect of the criterion for “Previous and Relevant Experience”. However, the fact that the complainant did not have any employment experience as a Carer also had to be taken into account and it was therefore submitted that the scoring allocated under this category was appropriate and fair.

4.3 The respondent submitted that the statistical data that emerged from the interview process and in particular the balance of male and female candidates who were successfully admitted to the course (i.e. there were 10 successful candidates from each gender) demonstrates that the selection process was applied in a non-discriminatory manner to all candidates. In this regard, the respondent pointed to the fact that there was a higher number of female candidates who presented for interview who were ultimately unsuccessful in their application when compared to the number of unsuccessful male applicants. The respondent also adduced evidence to demonstrate that seven female candidates were awarded a lower overall score than the complaint following the interview process. In summary, the respondent submits that the failure of the complainant to be selected for admission to the course was in no way attributable to his gender.

5. Issue of jurisdiction regarding the correct name of the Respondent

5.2 The respondent submitted that the Tribunal (now the Workplace Relations Commission) does not have jurisdiction to investigate the present complaint on the basis that the complainant has named an incorrect legal entity as the respondent to the proceedings. The respondent submitted that the incorrect legal identity of the respondent was included on both the ES1 Form for the purposes of complying with the notification requirements under section 21(2) of the Acts and on the Complaint Referral Form (Form ES3) Form. The respondent submitted that more than a year has passed since the last alleged incident of discrimination and it is now too late for the complainant to refer a fresh complaint against the correct legal entity (in light of the time limits provided for in section 21(6) of the Acts). Accordingly, the respondent maintains that the Tribunal has no power in law to investigate and hear the case.

5.3 In considering this issue, I note that the Equal Status Act is a social and remedial statute which is designed to permit all persons to make complaints to the Tribunal. As a no-cost forum it was envisaged that there should be no need in many cases for barristers and solicitors to represent complainants and respondents, and thus the level of informality, or formality, must perforce be different to a courtroom in a formal legal proceeding. Also, in Equal Status cases, there is often no necessary prior relationship between the parties. These combined factors substantially increase the possibility of a complainant not knowing the exact legal name of a respondent. However, since these are inherent in the circumstances being legislated for in the manner as legislated, a refusal to hear a claim due to an inadvertent misnaming of a respondent would, in my opinion, amount to a frustration of the aims of the statute. Accordingly, I consider that the Equal Status Acts cannot be interpreted in a fashion that would render them impotent and that requiring an exact identification of a respondent may well render the Acts unworkable. There is also some existing authority that Tribunals may act in a more informal manner. In Sougrin v. Haringey H.A.[1] Lord Donaldson MR said:-

"Industrial tribunals are "shop floor" courts whose procedures and approaches must be attuned to the needs of litigants in person. Accordingly a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched."

5.4 In the present case, I note that it was not in dispute that the precise name of the legal entity of the respondent was not included by the complainant on the complaint notification or the complaint referral forms. However, notwithstanding the foregoing, it is clear from the evidence adduced that the relevant personnel within the correct legal entity (i.e. the relevant Education and Training Board) received both the notification of this complaint (i.e. the ES1 Form) and the complaint referral form (i.e. the ES2 Form) which was copied to this entity by the Equality Tribunal on 10th February, 2015. It should also be noted that the complainant sought and was granted an extension of the statutory time period by the Director for the notification of the respondent of the alleged discrimination in accordance with the provisions of section 21(3)(a)(i) of the Acts. This extension was granted to the complainant by the Director on 15th May, 2015 (prior to the assignment of the case to me for investigation). I note that the respondent was invited to make submissions to the Tribunal in relation to this request for an extension and that a response from the respondent was received by the Tribunal on 13th April, 2015. In the circumstances, I am satisfied that the relevant personnel in the correct legal entity were fully aware of the nature of the complaint and were not in any way prejudiced in terms of their capacity to defend these proceedings by virtue of the complainant not having included the correct legal name of the respondent on the complaint notification and referral forms.

5.5 I, therefore, consider that it would be unduly harsh to dismiss this complaint because of misnaming the respondent and that it would also constitute a possible breach of the rights of the complainant to have access to justice. Once there is a clear identification of a respondent by a claimant, it is my view that the complaint should proceed, once the Tribunal has clarified the precise respondent for the purposes of permitting that person to make representations and to defend the allegation made against them. In the circumstances, I am satisfied that the relevant Education and Training Board are answerable under the Equal Status Acts for the allegation of discrimination in this case. Accordingly, I find that I have jurisdiction to investigate the present complaint.

6. Conclusions of the Equality Officer

6.1 The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.

4.2 The respondent in the present case is an educational institution which, inter alia, provides adult and further and continuing education to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts which states that:

“7.- (2) An educational establishment shall not discriminate in relation to –

(a) the admission or the terms or conditions of admission of a person as a student to the establishment

(b) the access of a student to any course, facility or benefit provided by the establishment.

(c) any other term or condition of participation in the establishment by a student

(d) the expulsion of a student from the establishment or any other sanction against the student”

The question that I must address in the present case in whether or not the respondent’s refusal to admit the complainant to the Health Care Support course which it provided constitutes discrimination on the gender ground within the meaning of the Equal Status Acts. In considering the alleged discrimination in this case, I am obliged to examine the manner in which the selection processes was conducted by the respondent in order to establish if there is any evidence to suggest that this process was applied in a less favourable or discriminatory manner towards the complainant on the grounds of his gender.

4.3 I note that the Labour Court in the case of O’Higgins -v- University College Dublin[2] (upheld by the High Court) has set out the principles which should be taken into consideration to assess whether a complainant had established a prima facie case of discrimination with regard to a recruitment and interview process:

“1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. 2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for. 3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts. 4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination. 5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. 6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination. 7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. 8. The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

Although the above case was taken under the Employment Equality Acts, I consider that the principles enunciated by the Labour Court therein are also relevant for the purposes of assessing the existence or otherwise of discrimination in a selection process in the context of a claim under the Equal Status Acts.

4.4 Having examined the selection process together with the underlying documentation and the evidence adduced on behalf of the parties, I am satisfied on the balance of probabilities that there is no clear evidence of unfairness or manifest irrationality that could give rise to an inference of discrimination on the grounds of gender in relation to the manner which the selection process was applied to the complainant in the circumstances of the present case. In coming to this conclusion, I have had regard in particular to the following factors:

· I heard evidence from Ms. C (Recruitment Officer) who was a member of the interview board that conducted interviews with all of the candidates for admission to the course. Ms. C gave detailed evidence regarding the manner in which the interview process was carried out and how the selection criteria were applied to the candidates. I have found Ms. C to be a very reliable and credible witness and I accept that the selection criteria were applied in a uniform and consistent manner to all of the candidates that participated in the process irrespective of their gender.

· The respondent submitted copies of the interview notes and interview assessment form in relation to the complainant’s application. Having carefully examined these documents it is clear that his application was assessed and scored on the basis of the uniform selection criteria and there was absolutely no evidence to suggest that the fact of his gender was in any way determinative in the decision for his non-selection for admission to the course.

· The respondent provided copies of the interview assessment forms in relation to 7 female candidates who received lesser scores that the complainant following completion of the interview assessments, including lesser scores than the complainant in the categories of “Hygiene Awareness and Self-Presentation”. This information is particularly persuasive having regard to the complainant’s contention that a female candidate would not have been awarded such a low score as was awarded to him under this category.

· The respondent provided detailed statistical information in relation to the gender breakdown of the candidates that both applied and were successful in their applications for admission to the course. I note that a total of 45 candidates were interviewed for admission to the course (of which 18 were male and 27 were female). There were 20 successful candidates of which 10 were male and 10 were female. It is clear from the statistical analysis of this information that there were a higher number of female candidates who presented for interview who were ultimately unsuccessful in their application when compared to the number of unsuccessful male candidates.

In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in relation to the respondent’s refusal to admit his to the course in question.

7. Decision

7.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the Gender ground in terms of sections 3(1) and 3(2)(a) and contrary to section 7 of the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.

_________________

Enda Murphy

Equality Officer/Adjudication Officer

27th May, 2016

[1] [1992] 1 I.C.R. 650

[2] (2013) E.L.R. 146