ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001472

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 31/05/2016

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or Section 25 of the Equal Status Act, 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant claims that she was discriminated by the Respondent when the Respondent refused to register the Complainant as a second level teacher in Ireland despite having qualification which is equivalent to Irish Postgraduate Certificate in Education.

The Complainant submits that she has a secondary school qualified teacher status in the UK state education system with six years teaching experience as a Language Support Teacher in English as Additional Language (EAL).

The Complainant claims that the Respondent do not include EAL on the list of specified subjects and as a result the Complainant states that there was a failure on behalf of the Respondent to recognise the equivalent within the teaching qualification at the post primary level as a result.

 The Complainant states that this amounts to discrimination on the ground of race in contravention of Section 3(2)(h) and Section 5 of the Equal Status Acts 2000 and 2012 (hereinafter the “Acts”).

The Complainant stated that on the 14^th January 2016 she applied to the Respondent. The Respondent are the only body who recognise qualifications in Ireland prior to facilitating the teacher to apply for positions in post primary schools.

The Complainant applied for recognition of her qualification as a qualified teacher of English as an Additional Language and subject within the Irish state secondary school system but this was refused by the Respondent.

The Complainant submits that the Respondent through Circular (0015/2009) provided for English as Additional Language teachers role description and alleges that she is discriminated against because of her qualification when the Respondent refused to register her as second level teacher despite other teachers teaching EAL.

The Complainant states that the Department of Education does provide for the existence of such teachers via the above Circular and it describes a very specific description of the role of an EAL teacher: ‘In collaboration with parents and mainstream class teachers, EAL support teachers identify pupils requiring additional language support, assess pupils’ proficiency in English using the assessment materials, devise appropriate language programmes, deliver the programmes and record and monitor pupils’ progress. They share their expertise with mainstream class teachers and assist in developing and disseminating good practice to support the development of students’ English language proficiency.’

The Complainant states that in Ireland without registration by the Respondent no teacher in this role can be specifically qualified for it due to the fact they cannot get registration due to the current system however, it is the precise role for which she is qualified in and has worked in for six years in the UK.

The Complainant contends that the Department of Education does provide for the existence of such teachers [English as additional language] through its Circular (0015/2009).

The Complainant notes that English as an additional language is not included on the list of specified subjects for recognition of teaching qualifications at post primary level in Ireland by the Respondent.

The Complainant also submits that the Irish system of teacher’s qualification provides only for teachers of curriculum subjects. The Complainant notes this even though numerous teachers are employed full time to teach non-curricular subjects such as IT, special needs support and EAL however they are not qualified specifically in the EAL as she is.

The Complainant submits that the fact that there is no comparable Irish qualification on the Respondents list of subjects and without registration from the Respondent to teach in post primary schools makes it impossible for her to be employed in a secondary school in Ireland.

The Complainant submits that the refusal of the Respondent to recognise her specialised qualification and allowing teachers who are not qualified in this area to teach the subject amounts to discrimination on the ground of race and less favourable treatment contrary to the Acts.

Respondent’s Submission and Presentation:

The Respondent is the professional standards body for the teaching profession, which promotes and regulates professional standards in teaching. It acts in the interests of the public good while upholding and enhancing standards in the teaching profession.

The Respondent states that the Complainant is a teacher registered with the Respondent and stated that the Complainant first registered on the 14th April 2016 where she obtained registration via Regulation 5, this is to allow her to teach in further education.

On the 8th January 2016, the Respondent stated it received an application from the Complainant to apply for recognition of her qualifications under Regulation 4 (Post Primary).

The Respondent confirmed that to meet the requirements for recognition of her qualifications under Regulation 4, the Complainant is required to meet the minimum requirements published by the Respondent for her to teach at least one post primary curricular subject.

The form requires at least one of the listed subjects to be selected. The Respondent confirmed that the Complainant did not select one of the subjects and inserted in pen English as an Additional Language.

In error, the Respondent states that a staff member informed the Complainant that she did not have sufficient qualifications, as she did not hold an accredited post-primary teacher education qualification.

The Respondent states that this was an error as the practice of the Respondent is to assess overseas qualifications in accordance with EU Directive 2005/36/EC, as amended.

The Respondent states that the Complainant was subsequently informed of this error.

The Respondent states it confirmed to the Complainant that the Respondent was prepared to offer the Complainant an assessment of her qualifications taking her chosen curricular subject as English.

The Respondent states that if shortfalls are identified in this area and in the area of her qualifications in post-primary teacher education, the Complainant will be granted recognition under Regulation 4 subject to conditions to enable her to upskill.

The Respondent states that the Complainant has chosen not to have her qualifications assessed in this manner, pending the outcome of her complaint to the Workplace Relations Commission.

The Respondent does not accept that there has been any discrimination against the Complainant including on the grounds of either her nationality or her qualifications.

The Respondent states that there are 422 teachers registered with the Respondent who are of UK nationality, including the Complainant. There are over 11,000 teachers with overseas qualifications on the register, including the Complainant.

The Respondent states that all teachers, including those of UK (or any other) nationality who apply for initial registration, or subsequently for recognition of their qualifications under another regulation, have to meet the requirements set out in the Respondent’s Registration Regulations.

The Respondent states that the Complainant was registered under Regulation 5 (Further Education), similar to many others with qualifications relating to teaching English as a foreign language, other language, or additional language. The Respondent produced evidence of a report containing a breakdown of the teachers registered under Regulation 5 (Further Education). It is evident that there are 132 teachers registered via Regulation 5 with a subject of teaching English as a foreign language.

There are 34 teachers registered via Regulation 5, with a subject of English to Speakers of Other Languages. There are 2 teachers registered via Regulation 5, with a subject of English as an Additional Language.

The Respondent states that a significant number of teachers with overseas qualifications have obtained registration via Regulation 4 (Post Primary), or subsequent to initial registration had their qualifications recognised under Regulation 4 (Post Primary), which is what the Complainant has sought.

The Respondent states that these teachers all had their qualifications assessed to determine if their qualifications were such as to enable them to meet the requirements of at least one post-primary curricular subject and that they met the post-primary teacher education requirements. The Respondent has informed the Complainant that they are prepared to assess her qualifications under Regulation 4 with English as the curricular subject and her post primary teacher education qualifications, to determine if she meets the requirements.

However, the Complainant wishes to have her qualifications recognised under Regulation 4 with the subject of English as an Additional Language and the Complainant has been informed that this is not a post primary curricular subject.

The Respondent states that if the Complainant wishes to have her qualifications assessed against the requirements of a curricular subject e.g. English, and also to have her teacher education qualifications assessed and if it becomes clear that there is a shortfall, the Complainant would be registered subject to conditions. The Respondent refers to evidence where it is evident there are who were registered subject to conditions via Regulation 4, and where the conditions were attached due to a qualification shortfall.

The Respondent notes that it is difficult to see how discrimination has occurred in circumstances where the Respondent has already registered the Complainant via Regulation 5, which is consistent with the Respondents treatment of others with similar qualifications.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Issues for Decision:

The Complainant claims that she was discriminated by the Respondent when the Respondent refused to register the Complainant as a second level teacher in Ireland despite having qualification which is equivalent to Irish Postgraduate Certificate in Education. The Complainant submits that the fact that there is no comparable Irish qualification on the Respondents list of subjects and without registration from the Respondent to teach in post primary schools makes it impossible for her to be employed in a secondary school in Ireland. The Complainant states that this amounts to discrimination on the ground of race in contravention of Section 3(2)(h) and Section 5 of the Equal Status Acts 2000 and 2012 (hereinafter the “Acts”).

Legislation involved and requirements of legislation:

The Equal Status Acts 2000 and 2012 provides that as between any two persons, the discriminatory grounds exists if they are treated differently under the protected grounds including race.

Section 3(2) (h) states that:

For the purposes of this Act, discrimination shall be taken to occur where— as between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

That they are of different race, colour, nationality or ethnic or national origins (the “ground of race”)

Section 5(1) of the Acts provides that:

A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Decision:

In regards to a claim under the legislation the Complainant must establish a prima facia case. This requires the Complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by both parties.

The Complainant has not produced any evidence to indicate who a comparator is. A claim of unequal treatment requires a comparison with a third party who, although in a position equivalent to that of the person making the claim is treated differently. The Complainant has not shown that she has been treated less favourably than a comparator, was or would have been. In relation to race or nationality for example the Respondent has not highlighted that an Irish citizen, with the same UK qualifications as the Respondent, trying to register with the Respondent would have been treated in a more favourable manner. The Respondent has provided evidence of other registered teachers under both Regulation 4 and 5 who are not of Irish nationality. There are a significant number of teachers registered with the Respondent of UK nationality and on the basis of UK qualifications.

The Complainant has not been refused registration. She was assessed as all other nationalities would be in relation to the Respondent’s registration criteria. The Respondent has previously been registered in 2010 under Regulation 45. The Complainant has been offered to have her qualification assessed to determine if her qualification are such as to enable her to meet the requirements of at least one post-primary curricular subject and that she meets the post-primary teacher education requirements. It is noted that if a shortfall is identified in this and/or area of teacher education requirements, the Complainant would be registered subject to conditions. This is consistent with the position taken with teachers from all nationalities and I am of the opinion that the Complainant was not subject to discrimination on the grounds of race contrary to Section 3(2) (h) and Section 5 of the Equal Status Acts 2000 and 2012.

The Complainant states that the Department of Education her perspective employers will not hire her to teach in a post primary setting as a teacher of English as an Additional Language because her qualifications are not recognised by the Respondent under Regulation 4. The Respondent is obliged to and has set qualification requirements for people wishing to enter or carry on the profession of teaching in Ireland. This is what it has done in making regulations to ensure that the education requirements are in line with the current level of subject requirements in Ireland and they are standard for all teachers in Ireland regardless of race. The Adjudicator is of the opinion that there is nothing unlawful in doing this.

The Adjudicator on that basis confirms that the Complainant has not met the requirement to prove her prima facie case in relation to the fact that discrimination has occurred.

In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision that the Complainant has not established a prima facie case in regards to her discrimination on the ground of race and her case fails as a result.

Dated:   9 September 2016