Complainant

Respondent

Anonymised Parties

A Student

A Third Level Institution

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00007346-001

29/09/2016

The case concerns a complaint by a Third Level Student of Discrimination on the Age Ground.

It is specifically based on a decision by a Third Level Institution to refuse his entry to a particular Diploma Course.

The Complainant applied via the Springboard programme for a Level 8 Supply Chain Management Higher Diploma Course in June 2016. The application was unsuccessful.

He queried the decision with the College and the responses received were belittling and argumentative.

Having considered all the various possibilities, he came to the view that the only plausible explanation was that the Institution had made an act of discrimination against him on the Age grounds – specifically that he was an older adult mature student. As a Comparator, he cited the case of another student who was granted admission to the course despite having lesser qualifications than himself.

The attitude of the college was at all times belittling and unnecessarily argumentative towards the Complainant.

The Higher Diploma course at the centre of this Complaint has specific academic and other entry requirements laid down by the Higher Education Authorities. These were set out in evidence.

Unfortunately for the Complainant he did not satisfy these requirements and his application was not successful.

There was absolutely no discrimination on any basis and particularly on age Grounds. (Evidence was provided of the Age Profile of Students on the Diploma Course with some students older and some younger than the Complainant.)

The College had never acted dismissively towards the Complainant and had made numerous efforts to communicate with him and to see how to alleviate his concerns. This had proved unsuccessful.

The College had internal Appeals Procedures which were available to the Complainant. Apart from communication with the College’s Quality Assurance and Customer Complaints Officer Dr. XA the Complainant had not fully utilised these avenues of redress.

At all times the Life Long Learning Manager, who gave oral evidence, had attempted to establish and maintain contact. He had issued a detailed e mail to the Complainant on the 4th August 2016 setting out in detail the College’s position. On the 16th August 2016, the College’s Quality Assurance and Customer Complaints Officer Dr. XA wrote by e mail to the Complainant expressing regret that the Complainant felt that he had suffered an unsatisfactory experience. She directed him to the College’s Complaint Forum Website. It did not appear that this avenue was ever utilised by the Complainant.

In summary, the College had administrated pre-determined Academic entry requirements for the Higher Diploma Course in question. There was absolutely no question of age discrimination and the claim must be set aside as not well founded.

3:1     The Law and the Burden of Proof.

In an Equal Status Act ,2000 case much of the jurisprudence is derived from the closely related employment Equality Act 1998. The key issue is one of the Burden of Proof. In plain English, the Complainant is required to establish in the first instance a prima facie case of the inference of discrimination. Once this is established the case moves to the Respondents to rebut the inference and the detailed Complainant’s arguments.

Section 85A of the Employment Equality Acts imports the burden of proof requirement to be established by both the Complainant and the Respondent. The section shifts the burden of proof to the Respondent where facts are established by a Complainant “from which it may be presumed that there has been discrimination in relation to him or her”.

The issue of what is required in evidence from both Complainants and Respondents has been carefully considered and set out in the case law of the former Employment Appeal Tribunal and the Labour Court.

The starting point is the decision of the Labour Court in Southern Health Board v Mitchell, [2001]ELR 201 which still remains the leading decision on the shifting of the burden of proof.

The Labour Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

The facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or in this case an Adjudicator at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthyEDA /21/2008 as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In the now famous Valpeters case [2001]ELR 64 the Labour Court stated

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”366

In other word making an assumption based on membership of a particular category, in this case mature students, cannot not in itself be the basis for a prima facie case.

3:2    Consideration of the Evidence in the case in hand.

In the case in hand the evidence presented and supported orally by College’s witnesses demonstrated that the Complainant had failed to satisfy the entry requirements of the Higher Diploma course in question. These requirements are not set arbitrarily by the Institution in question but are in effect almost national regulations overseen by the Higher Education Authorities.

The course was described as a Supply Chain “Conversion” Course for Graduates of other Disciplines. The Complainant was, ironically as it transpired, already qualified in Supply Chain management and the Higher Diploma course would not, in the College’s view based on the published Requirements, have been appropriate for him. This “Conversion” situation, effectively limiting access to Non-Supply Chain Primary degree holders only was reflected in the entry requirements of the Course.

This proved to be, without doubt, irritating and upsetting to the Complainant. However, and most importantly nowhere in the oral or written evidence from the Complainant or the College could I see any even minimal suggestions of Age related discrimination in relation to the Complainant’s application.

The age profile statistics of students on the Diploma program for several years showed a wide range of ages and was not indicative of any preference for any age cohort.

The Comparator identified for the Complaint was demonstrated to not have been an appropriate Comparator as this student had a different academic profile and experience range.

A Complaint in an Equality or Equal status case of this nature is expected to have fully utilised the available Appeal or internal redress options. The Appeal options, or the avenues of access to same, were identified by the Quality Assurance and Customer Complaints Officer in August 2016. It appeared that these avenues were not utilised.

3:3     Conclusion.

Having considered all the evidence both oral and written, I came to the firm conclusion that the Burden of Proof Argument required in an Equal Status case was not satisfied.

I could not find a prima facie case to raise even the inference of age related discrimination.

Accordingly, the case must be dismissed as it is not well founded.

Act

Complaint/Dispute Reference No.

Summary Decision/ Refer to Section 3 above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00007346-001

Claim dismissed – no prima facie inference of Age Discrimination evident.