EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-121
PARTIES
Simon Redmond
-AND-
Ryanair Limited
(Represented by Mr Frank Beatty SC,
Instructed by McDowell Purcell Solicitors)
File Reference: EE/2013/469
Date of Issue: 2nd September 2016
1. DISPUTE
1.1 This concerns a claim by the Complainant that he was discriminated against by the Respondent on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) in relation to access to training which would have enabled him to obtain employment as an airline pilot on behalf of the Respondent, along with related claims of harassment and victimisation.
1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 9th September 2013. On 25th September 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication / 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 had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 8th October 2015. The Complainant indicated that he was happy to proceed without representation and the Respondent was legally represented. I acceded to the Respondent’s application to have Gwen Malone Stenography record and transcribe the hearing for the purposes of its own record upon its undertaking that the recording and transcript would not be used for any other purposes and the privacy of the hearing pursuant to Section 97 of the Acts would be respected and upheld. At the outset, I confirmed the nature of the Complainant’s claim and outlined the relevant legal provisions in lay terms. As the Respondent raised a number of preliminary issues fundamental to my jurisdiction to hear the substantive complaint, I proceeded to hearing on a preliminary basis. I indicated that I would be relying upon the key statutory provisions and relevant case law. I have considered all evidence, submissions and documentation relevant to determining this matter on a preliminary basis.
1.3 This Decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. BACKGROUND
2.1 By way of background, the Complainant previously ran a light aircraft flying school and currently has a model airplane business, but his life’s ambition is to become a passenger airline pilot. Over the years he has expended a considerable amount of resources in this pursuit without success. This quest has also given rise to a troubled history with the Respondent. Previously, in 2007, the Complainant was successful in passing the assessment day used as selection for a Ryanair Type-Rating Course (hereinafter ‘pilot / training course’) to train as a pilot. If passed successfully, this would have enabled him to fly planes on behalf of the Respondent but he was unable to complete that course. Thereafter followed a protracted exchange of correspondence between the Complainant, the Respondent and the training company. He pleaded for a second chance and was eventually readmitted to the assessment day on 12th March 2013, but this time did not pass and so could not be admitted to the training course, giving rise to the instant complaint. He had also undergone a pre-assessment course with the Respondent to prepare for the assessment day. The assessment day consists of a simulator assessment, a technical knowledge assessment and a personnel interview to assess suitability to join the Respondent’s team. The Complainant contends that he was discriminated against on the ground of age on the basis of alleged ageist comments made during the assessment and operation of a recruitment policy favouring younger recruits. He believes that previous assessments confirm that his potential piloting competencies are far above average. The Respondent wholly refutes these allegations and contends that the Complainant simply will not accept that he does not have the requisite competencies to become a passenger airline pilot. If anything, it is contended that the Respondent assisted with his re-entry to the assessment day.
2.2 The Respondent further contends that it is not correctly named as a Respondent as CAE provides the assessment and pilot training course in question. Depending upon how this issue is resolved a number of jurisdictional issues may then arise, as the Complainant is resident in England and the subject-matter of this complaint took place in England. Although the named Respondent, Ryanair Limited (hereinafter ‘Ryanair’) is an Irish registered company, the training company, CAE, and the ultimate employer/contractor, Brookfield Aviation International Limited (hereinafter ‘Brookfield) are registered in England and Canada respectively. Ryanair is the only named Respondent in relation to this claim. To further complicate matters, the Complainant initially brought and subsequently withdrew an identical complaint before an equivalent forum in England to avoid a possible order for costs when it became apparent that the first claim was one day out of time. In summary, the Respondent submits that it is not correctly named as it did not provide the assessment and training course, there is no jurisdiction to hear the claim under Council Regulation EC No. 44/2001, and further that it constitutes an abuse of process.
3. PRELIMINARY ISSUE
Whether Ryanair is correctly named as the Respondent
3.1Counsel for the Respondent sought a determination on the issue of whether it is correctly named in relation to this claim on a preliminary basis before any investigation of the substantive complaint.
3.2In accordance with my investigative duties and particularly where the Complainant is a lay litigant, it is necessary to consider this preliminary issue in relation to all potential causes of action proffered by the Complainant under the Employment Equality Acts. Essentially the Complainant complains that owing to his age, he was denied access to a training course which if completed successfully could ultimately have enabled him to obtain employment as a passenger airline pilot on behalf of the Respondent. Specifically, he contends that the assessment day was rigged by the Respondent so as to fail him and thus deny him access to the course in question. In this respect, he ticked the relevant boxes on his claim form confirming complaints of discrimination on the ground of age in relation to ‘Giving me Training’ and ‘Getting a Job’. I note that the claim form does not provide separate boxes for complainants to indicate whether the complaint is one of training within employment or vocational training. It was also clear from the body of the form and submissions that these are interrelated aspects of the same complaint.
3.3Counsel for the Respondent contended that this was more of a complaint in relation to access to training and not access to employment. He also contended that access to vocational training clearly did not apply in the instant case without elaborating further. When the Complainant was asked to clarify how he felt he was discriminated against on the ground of age, he replied that it was in relation to: “Access to employment but the fact that there was a training course to access that employment.” I therefore consider it necessary to consider the preliminary objection to this complaint both in relation to access to employment under Section 8 of the Acts and access to vocational training under Section 12 of the Acts.
Relevant Evidence to the Preliminary Issue
3.4 Counsel for the Respondent submitted that CAE and not the Respondent assess pilots to see whether they should be trained on Boeing 737-800’s and then carry out the training both independently of and in conjunction with Ryanair so as to ensure the training is tailored to its particular needs and specifications. CAE are registered in Canada with training bases around the world (including Stansted Airport where the Complainant underwent his assessment) and provide training services to a host of airlines. As the pilots will ultimately be flying its planes which are incredibly expensive and passenger safety is paramount, the Respondent’s involvement is required to ensure that the training courses are run to their exacting standards. He confirmed that although the Respondent had previously recruited pilots directly, they are now contracted mainly from Brookfield to meet seasonal needs and other demands. Particular reliance was placed upon the following in support of the contention that the Respondent is not correctly named:
· A Deputy Director for the Respondent and in HR at the material time, Mr AB, outlined the assessment process in question. He confirmed that applicants for such pilot training courses apply directly to CAE who screen the applications to ensure that the technical requirements are fulfilled and then select students for assessment and propose those to Ryanair. He further confirmed that: “Ryanair and Brookfield then carry out the assessments at Stansted Airport near London… and then from the candidates who are chosen as acceptable to Ryanair and Brookfield, they are then placed on training courses by CAE and CAE run the training… If they come out the other end successfully then they are offered a contract with Brookfield Aviation.” When asked what level of control the Respondent has over the application and assessment process, Mr AB replied: “Well, the final decision on the enrollment process ultimately rests with the training organisation but Ryanair effectively has I suppose a veto because part of the training is what is called line training where you are actually training on a real live aircraft. Ryanair and Brookfield have taken the position that they don’t want people entering those training courses unless there is a reasonable prospect of them getting to the end and successfully completing it. So yes, absolutely that is Ryanair’s interest. As an airline operator we think it is a responsible decision to play that role in screening those people at that stage.” He also confirmed that the Ryanair headed assessment paperwork was completed on the day and that participants usually apply online and pay via CAE for the assessment. He was unclear as to whether the Complainant had applied online given his prior history with CAE. When asked whether in fact CAE provide a training service on behalf of the Respondent, he stated: “Well it is actually more the opposite way around. We provide the service to them in the sense that they are able to use our aircraft for the line training, for the training that they are selling to students.”
· Mr AB’s evidence was confirmed by Mr CD, the HR Manager with the Respondent who interviewed the Complainant regarding his suitability for work with the Respondent during the assessment. In particular he confirmed: “CAE collect the applications, CAE screen them, make sure as (Mr AB)pointed out that they have the correct hours, the licence, that they have everything they need to come to an assessment, that they are legal I suppose to come to an assessment. Then they send them out the information about the assessment date and about the payment link. Then I would send out the actual briefing pack and CAE would contact the people for courses if they have been successful.”
· The witnesses also confirmed that instructors for the assessment days varied but in the instant case, were drawn from various sources including an experienced Captain (formerly with the Respondent) on behalf of Brookfield and Mr CD, HR representative from Ryanair. The Captain gave evidence confirming that the assessors decide whether or not a participant passes on the day, and in this case, he assessed the Complainant on a technical basis whilst Mr CD assessed him on a personnel basis.
· Reliance was also placed upon the correspondence from the Head of Training for the Respondent, notably another experienced Captain, to the Complainant and in particular a letter dated 31st May 2010 confirming: “As you were advised previously enrollment decisions are matters for the individual training organisations and while Ryanair monitors standards (including assessment of technical skills of potential students), the final decision on admittance is a matter for the training school. I will speak to both OAA and CAE to request that they review your application again however, I cannot insist that they enroll you on one of their training courses or that your application is given priority over the many thousands of applications received by the schools annually.”
3.5 The Complainant contended that the Respondent was the gatekeeper to the training course as:
· The Respondent had facilitated the Complainant’s re-entry to the assessment day for the training course when CAE were reluctant to have him back after previously failing to pass the training course. An email dated 12th December 2012 from the Customer Service Manager of CAE in response to his request for readmission stated: “Our CAE standpoint is that we will not forward you for assessment. We have had the opportunity to work with you a couple of years ago and after several remedial training sessions it was clear to us that your basic flying skills were not sufficient to reach the required level. This has also been our advice to Ryanair. We have always stated that if Ryanair wants to give you a new opportunity, that will then be up to them. However, we have been informed by Ryanair that they will not take any re-applicants at this point. I kindly but urgently ask you not to contact CAE anymore regarding this matter, as there is nothing further we can do for you.”
· Correspondence from the Head of Training for Ryanair supported his position that the Respondent had influenced his readmission and in particular, a letter dated 2nd January 2013 confirming that despite a policy not to allow the reassessment of pilots who have previously failed the training course or the assessment, “…on an exceptional basis I am prepared to allow CAE to make an exception to this policy so if they are prepared to offer you an assessment, Ryanair will not object.”
· A further exchange of emails
with CAE post-assessment confirmed that the Respondent and not CAE is responsible for the outcome of the assessment day and therefore determined entry to the training course in question. Further to failing the reassessment on 4th April 2013, the Complainant had written again to the Customer Services Manager of CAE asking: “Would you kindly confirm who is ultimately responsible for the decision on evaluating Ryanair’s assessment results and the subsequent decision on admission or refusal for a CAE / Ryanair Type Rating Course?” The Manager responded by return email stating: “Ryanair Recruitment is responsible for this decision.”
· Communications about the assessment day and results and feedback were relayed via Ryanair and also referred to a ‘Ryanair Assessment’. The Ryanair logo was used on the assessment materials including a form entitled ‘Pilot Assessment Application’ to be completed and brought to the assessment. The logo was further used on the assessment marking form, also containing boxes confirming that participants have been informed that potential pilot contracts are with Brookfield.
· The assessment day includes an interview with a Ryanair representative to assess participants’ suitability for a future career of flying with Ryanair and the training in question is specifically designed to fly Ryanair planes on behalf of Ryanair albeit via a third party, Brookfield.
· In his written submissions, the Complainant alludes to a link from the Ryanair website to the CAE website in relation to the availability of the assessment day and pilot training course in question.
· The Complainant also made a number of post-hearing submissions reiterating his position.
3.6 Counsel also disputed the Complainant’s contention that he had applied directly to the Respondent for the assessment day in question and questioned the veracity of the email from CAE’s Customer Services Manager to the Complainant as referred to above. There was no dispute that the training course in question would have been provided and carried out by CAE and that any ultimate employment would also be with a third party, Brookfield. The Respondent agreed to furnish a copy of its contract with CAE for the assessment/training in question with a view to clarifying its legal relationship between the Parties.
3.7 Subsequent to the hearing and under cover of letter dated 13th October 2015 from Solicitors for the Respondent stating: “We enclose a copy of the standard terms and conditions that were in place at the time which has been furnished to us by CAE, as requested by you at the hearing.”, a document entitled ‘CAE Aircraft Training Services General Terms & Conditions for Europe & Africa’ was furnished. These terms and conditions confirm that whilst the customer (airline) retain a degree of control in relation to the entry requirements and standards achieved, the training itself is provided by CAE.
3.8 Under cover of letter dated 23rd October 2015, Solicitors for the Respondent submitted further documentation comprising of an unsigned/undated page outlining the Respondent’s legal relationship with CAE. In particular, it stated that Ryanair provides CAE with a license to use the Ryanair footprint and training syllabus including use of its name & logo to train pilots to fly Boeing 737-800’s. Further hearsay evidence in the form of a print-out of a post from an internet forum purportedly from the Complainant using a pseudo-name was also submitted. Noting that the veracity of this post-hearing evidence cannot be tested, I am however satisfied that it was not required to reach a preliminary finding.
Access to Employment under Section 8 of the Employment Equality Acts
3.9 Specifically Section 8(1) of the Acts provides: “In relation to (a) access to employment,… an employer shall not discriminate against an employee or prospective employee….” Section 6(1) provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(f) of the Acts defines the discriminatory ground of age as arising in circumstances when "as between any two persons, ... that they are of different ages." There was no dispute between the Parties that Brookfield, and not the named Respondent, would be the potential prospective employer or contractor in relation to flying for the Respondent in the event of the Complainant successfully passing the assessment day and pilot training course. Additionally, I do not believe that the Complainant had advanced to a stage of an access to employment-type situation with the Respondent, such as where an interview or selection process against an existing or potential employer could be challenged. For these reasons, I am satisfied that a complaint under this particular Section cannot be entertained against the Respondent on any factual or legal basis. For the same reasons, is therefore unnecessary to consider the various arguments regarding the applicability ofCouncil Regulation EC No. 44/2001 in relation to the possible location of any future employment. It also follows that the related claims of harassment and victimisation requiring an employee-employer relationship under the Acts cannot be pursued.
Access to Vocational Training under Section 12 of the Employment Equality Acts
3.10 Turning to the provisions in relation to training under the Acts, vocational training is defined by Section 12(2) as “…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.” As there is no dispute that the training course in question afforded a route to a professional career as a pilot and was designed and delivered solely for this purpose, I am satisfied that the training course for which the assessment day enabled access could conceivably constitute vocational training.
3.11 Section 12(1) prohibits discrimination in relation to vocational training on any of the listed grounds including age under Section 6 of the Acts, providing:“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.” For a complaint to fall within this definition, the potential Respondent must therefore be the person, educational or training body who offers such training.
3.12 Having concluded that the pilot training course in question could conceivably constitute vocational training within the meaning of Section 12 of the Acts, the potential respondent is the “…person, including an educational or training body, who offers a course of vocational training…”. Based upon the evidence of both Parties, there is no doubt that Ryanair, the named Respondent retains a high degree of control in relation to the specifications, entry requirements and standards for the pilot training course in question. The high level of control exercised over the course is understandable in circumstances where successful participants may ultimately fly Ryanair planes. I further accept that given the Complainant’s troubled history with CAE, the Respondent was highly influential in allowing him to undertake the assessment day again for the course in question. However, it was not in dispute that CAE, an entirely independent company from the named Respondent, actually provide and carry out the training course in question. I am further satisfied that notwithstanding the Respondent’s influence, applications for the training course can be made directly to CAE who have the final say in relation to enrolment decisions. Giving the word ‘offers’ its ordinary common sense meaning, I am satisfied that CAE offers the course in question for the purposes of any complaint in relation to access to vocational training under Section 12 of the Acts. It therefore follows that considerations such as whether the Respondent influenced the Complainant’s re-entry, ran the assessment day or influenced the outcome are irrelevant.
4. DECISION
4.1 I have concluded my investigation of this preliminary issue pursuant to Section 79(6) of the Employment Equality Acts and based upon the foregoing, I am satisfied that Ryanair is not correctly named in relation to the complaints being made herein and therefore I do not have jurisdiction to hear this matter. Having so found, it is unnecessary to consider further the other preliminary objections raised by the Respondent.
____________________
Aideen Collard
Adjudication / Equality Officer
2nd September 2016