Complainant

Respondent

Anonymised Parties

A Student

An Education and Training Board

Representatives

The Complainant attended the Hearing in person and was not represented

The Respondent attended the Hearing in person and was not represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00019659-001

07/06/2018

The Complainant is a transgendered female and commenced a pre-Nursing PLC course at a college under the auspices of the Respondent on 11 September, 2017. The Complainant claims that she was subjected to discrimination and harassment by the Respondent on the grounds of her gender and sexual orientation contrary to the Employment Equality Acts in relation to her participation in this course. The Complainant also claims that she was subjected to victimisation contrary to Section 74(2) of the Acts. The Respondent denies the Complainant’s claims of discrimination, harassment and victimisation.

The Complainant commenced a pre-Nursing PLC course as a mature student on 11 September, 2017 at a college under the auspices of the Respondent and was hoping to pursue a career in nursing or the health care sector after completing her studies.

The Complainant is a transgendered female and she claims that personnel at the college she was attending became aware of this fact via the Garda Vetting process which she had to complete prior to commencement of the course. The Complainant claims that she was subjected to discrimination, harassment and victimisation by the Respondent after it became known within the college that she was a transgendered female.

The Complainant outlined details in relation to a number of incidents that occurred during her period of participation on this course which she claims amounted to discrimination, harassment and victimisation, namely:

·         She was not provided with any help or assistance by her Tutor, Ms. A, to secure work experience.

·         She was subjected to sniggering in the classroom, avoidance and isolation by others from class discussion and projects.

·         She felt prohibited from speaking in the classroom and generally made feel unwelcome at the college.

·         She was ostracized by other students and found it difficult to interact with them for exercises and study groups. Apart from one other female student who spoke to her she felt alone. On one occasion this student asked for a lift home and her Tutor said to her “Do you want to go home with him”.

·         Her class Tutor, Ms. A, made references in the classroom regarding her being unemployed, her level of education and mental ability to do the course.

·         She was homophobically teased in the classroom on different occasions and in the ladies’ bathroom because she mentioned to her Tutor about caring for gay and transgendered patients in nursing homes and hospitals.

·         She was victimised for expressing her views during a class debate.

The Complainant contends that she applied for grant assistance to participate in the course in September, 2017 but subsequently found out that her application was submitted outside the closing date for applications. She claims that the Respondent offered her no assistance or help in relation to the grant application process. As a result of not being eligible for grant assistance, the Complainant was unable to pay the college fees but continued to participate in the course for as long as possible in the hope that the Respondent might be able to resolve the matter. However, the Complainant was unable to continue with the course during the academic year 2017/18.

The Complainant had a meeting with the College Principal, her Tutor, Ms. A, and the Course Director on 11 December, 2017 to discuss her inability to pay the course fees. The Complainant was advised by the Respondent that it would be preferable if she repeated the course during the next academic year as a result of the difficulties that she had experienced in trying to obtain grant assistance. The Complainant claims that she was assured by the Respondent at this meeting that there would be no difficulties with her repeating the course the following year.

However, the Complainant claims that she subsequently received a telephone call from the Course Director in April, 2018 to inform her that she was not wanted back on the course. The Complainant contends that she was informed by the Course Director that she did not have the patience or demeanour to complete the course and that she had caused problems with other students during her participation on the course the previous academic year.

The Complainant accepts that she was eventually allowed by the Respondent to return to the college for the academic year 2018/19 and that she re-commenced the course in Nursing Studies in September, 2018. However, she contends that the only reason the Respondent allowed her to re-commence the course was due to the fact she had referred a complaint to the WRC under equality legislation in relation to the discrimination harassment. The Complainant contends that this treatment by the Respondent amounts to victimisation contrary to the Employment Equality Acts.

The Respondent is an Education and Training Board operates 18 post-primary schools and colleges. The Complainant was accepted as a student of Nursing Studies on a PLC course at one of these colleges and attended this course from 11 September, 2017 to 16 November, 2017 during the 2017/2018 academic year.

The Respondent disputes the Complainant’s contention that the college became aware of the fact that she is a transgendered female via the Garda Vetting process or that it had any knowledge of this fact while she was a student from 11 September to 16 November, 2017. The Respondent denies that the Complainant was subjected to discrimination, harassment and/or victimisation during the period of her participation on this course.

The Respondent made the following response to the specific allegations of discriminatory treatment, namely:

Work Experience: The PLC Student Contract which was signed by the Complainant on 11 September, 2017 states: “It is up to the individual student to obtain Work Experience. This is a mandatory part of all programmes. Students will be required to participate in all aspects of work experience as required by their individual tutors”. The Respondent submits that contrary to what has been suggested by the Complainant, the Course Tutor, Ms. A, informed all students (including the Complainant) at the beginning of the year of possible work experience locations. The Respondent understands that the Complainant was offered a place at a Nursing Home, but she chose not to take up the placement because she was not satisfied with the rate of pay being offered. It is denied that the Complainant was treated in any way differently from the other students in respect of securing work experience while on the course.

Isolation, Sniggering in the Classroom: The Respondent denies the Complainant’s contention that when the college became aware of her transgendered status that she was subjected to sniggering in the classroom, avoidance and isolation by others from classroom discussion and projects and that she was victimised for expressing medical views during a class debate. The Respondent submits that when the Complainant informed the Course Tutor, Ms. A, on 18 October, 2017 that there had been an interaction with students during lunch, Ms. A informed the Principal of the matter. A meeting was called with the Complainant on 20 October, 2017. However, the Complainant declined to attend this meeting. A further meeting was offered by the Principal on 27 October, 2017, but this was also declined by the Complainant. At no other time during the period from September to November, 2017 did the Complainant make a complaint regarding her treatment by fellow students. The Complainant wrote to the Course Director on 27 November, 2017 to outline the difficulties which she had been experiencing in securing a work placement. The Respondent submits that although the Complainant was critical about the fact that the college was not more involved in organising work experience for students, there was no suggestion in her letter that Ms. A had treated her any differently than any other student.

The Respondent submits that the claim of victimisation contrary to Section 74 of the Employment Acts is misconceived. It is submitted that the first time the Respondent became aware that the Complainant was a transgendered female was in the course of a telephone conversation with the course Director in April, 2018, long after she had finished participation in the course. When the Complainant sent an ES.1 Form to the Respondent in May, 2018 alleging discrimination, the Respondent responded in detail to the allegations.

In addition, the Respondent made efforts to facilitate the return of the Complainant to a course in one of its Centres. By letter dated 6 July, 2018, the Respondent wrote to the Complainant and indicated that it would do all possible to support her in either pursuing a nursing qualification or to pursue an alternative course. The Respondent sent a further letter to the Complainant dated 26 July, 2018 in which it was acknowledged that the Complainant’s preferred option as to return to the College to complete the PLC course in Nursing Studies. The Respondent subsequently confirmed to the Complainant that she had been offered a place on this course which she commenced in September, 2018. The Respondent confirmed at the oral hearing that the Complainant was currently participating in this course at that juncture.

Vocational Training

The first issue that I must address is whether or not the course which the Complainant was participating in constitutes “vocational training” within the meaning of Section 12 of the Employment Equality Acts. Having regard to the evidence adduced, I am satisfied that the material course in question in the instant case can properly be classified as “vocational training” within the meaning of Section 12(2) of the Acts. Accordingly, I find that the Complainant can maintain a cause of action under the Act grounded on her gender and sexual orientation.

Jurisdictional Issue in relation to claims of Discrimination and Harassment

The Respondent raised a preliminary objection in relation to the jurisdiction of the Director General of the WRC to investigate the claims of discrimination and harassment in the instant complaint on the grounds that they do not comply with the relevant time limits provided for in Section 77(5) of the Acts. The Respondent submits that the claims of discrimination and harassment relate to the period of time within which the Complainant participated in the course during the academic year 2017/18 i.e. from 11 September, 2017 to 16 November, 2017, and therefore, the most recent date of alleged discrimination cannot be later than the date that she left the course. The Complainant referred the complaint to the WRC on 7 June, 2018 which was more than six months after the most recent occurrence of the alleged act of discrimination.

The Respondent further submits that a complaint of ongoing discrimination is incompatible with the Complainant having left the course on 16 November, 2017. The Complainant has provided no detail regarding how she was discriminated against by the Respondent after she left the college. On her departure from the course, the Complainant ceased to be a student of the college and any complaint of discrimination would have to concern a refusal by the Respondent to allow her access or admission to a course provided by it. The Respondent submits that in actual fact the Complainant sought to return to the college for the academic year 2018/19 and was facilitated in doing so.

The Complainant disputes the Respondent’s contention that the instant complaints of discrimination and harassment do not comply with the time limits provided for in Section 77(5) of the Acts. The Complainant contends that the alleged discrimination/harassment was ongoing during the period of her participation in the course during the academic year 2017/18. The Complainant contends that she sent notification to the Respondent of her intention to refer a complaint to the WRC in relation to the discrimination/harassment on 1 May, 2018 (by way of an ES.1 Form) and that a copy of this Form was also sent to the WRC on this date. The Complainant contends that the WRC was therefore, also aware of her complaint on 1 May, 2018 and that the alleged acts of discrimination occurred within six months of this date.

Section 77 of the Employment Equality Acts make provision for the relevant time limits for referral of complaints by a person who intends to seek redress under the Acts in relation to an alleged incident(s) of prohibited conduct. Section 77(5) of the Acts provides as follows:

“(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Director General. This period can be extended to twelve months in accordance with the provisions of section 77(5)(b) in circumstances where the complainant can demonstrate that there was “reasonable cause” which prevented her from referring the complaint within the prescribed time limits.

In considering this issue, I note that it was not in dispute that the Complainant initially commenced participation in the course in Nursing Studies in September, 2017 but did not complete the course during the academic year 2017/18. The Respondent adduced evidence, which was not contested by the Complainant, that the final date upon which she actually attended class during the academic year 2017/18 was 16 November, 2017. The Complainant was unable to provide any cogent or compelling evidence in relation to the precise dates upon which the alleged acts of discrimination/harassment actually occurred. I note that the Complainant subsequently reapplied for the same course in Nursing Studies for the academic year 2018/19 and was granted a place on the course by the Respondent which she commenced in September, 2018. However, I am satisfied that the alleged incidents of discrimination/harassment as outlined by the Complainant in the context of the instant complaint occurred during the actual period of her attendance at the college during the academic year 2017/18.

Based on the totality of evidence adduced in the present case, I accept the Respondent’s evidence that the Complainant’s last date of attendance on the course during the academic year 2017/18 was 16th November, 2017. In the circumstances, I find that the date of occurrence of the most recent act of alleged discrimination/harassment in relation to the manner in which the vocational training was provided to the Complainant in the instant case could not have occurred any later than 16 November, 2017. The question then turns to the issue of whether or not the complaint was referred to the Director General of the WRC within six months from that date.

In this regard, I note that the Complainant forwarded notification to the Respondent on 1 May, 2018 (by way of an ES.1 Form) of her intention to seek redress in relation to the alleged discrimination/harassment and she contends that a copy of this Form was also sent to the WRC on that date. The Complainant therefore contends that the date of referral of the instant complaint is 1 May, 2018. On this matter, I would firstly point out that the ES.1 Form (albeit not a statutory form) is ordinarily used by a person to notify a service provider of alleged discriminatory treatment under the Equal Status Act, 2000 and of his/her intention to seek redress under that legislation if not satisfied with the Respondent’s response to the allegation. Therefore, the ES.1 Form is not the correct form that should be used by a Complainant to refer a complaint to the Director General of the WRC in relation to a claim of discriminatory treatment contrary to the Employment Equality Acts.

Notwithstanding the foregoing, I am satisfied that the WRC did not receive a copy of the ES.1 Form as contended by the Complainant on 1 May, 2018. In the circumstances, I am satisfied that the instant complaint was referred to the Director General of the WRC on 7 June, 2018 and that this date is the relevant date for the purpose of determining whether or not the Complainant has complied with the time limits provided for in Section 77(5) of the Acts. As I have already indicated above, I find that the most recent occurrence of the alleged discrimination could not have occurred any later than 16 November, 2017. Accordingly, I find the instant complaint which was referred to the WRC on 7 June, 2018 does not comply with the six-month time limit provided for in Section 77(5)(a) of the Acts.

I also note that no application or submission has been made by the Complainant that any failure to refer the within complaint to the DG of the Workplace Relations Commission within the time limit prescribed in Section 77(5)(b) of the Acts was for reasonable cause.

Having regard to the foregoing, I find that I do not have jurisdiction under section 77(5) of the Acts to investigate the claims of discrimination/harassment by the Complainant in relation to the manner in which the vocational training was provided by the Respondent.

Victimisation

The second element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation” occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a)    a complaint of discrimination made by the employee to the employer,

(b)    any proceedings by the complainant

….. ….. …..

(f)     an employee having opposed by lawful means an act that is unlawful under this Act….

(g)    an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In the case of Tom Barrett -v- Department of Defence[1]the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.

In the instant case, I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”. It was not in dispute that the Complainant was unable to complete the Nursing Studies course during that academic year 2017/18 after she failed to obtain grant assistance. The Complainant subsequently sought assurances from the Respondent that she would be allowed to recommence the course the following academic year i.e. commencing in September 2018. The Complainant contends that a meeting took place between the parties on 11 December, 2017 at which she was assured by the Respondent that there wouldn’t be any difficulties with her recommencing the course the following academic year. However, the Complainant claims that she was subsequently informed by the Course Director during a telephone conversation in April, 2018 in relation to this matter that she was not wanted back on the course. The Complainant claims that the Respondent’s reluctance to allow her to repeat the course was directly connected to the fact of her gender as a transgendered female and the discrimination/harassment that she had been subjected to during her attendance on the course during the academic year 2017/18.

The Complainant further contends that the only reason the Respondent allowed her to re-commence the course was due to the fact she had referred a complaint to the WRC under equality legislation in relation to the discrimination harassment. It was not in dispute that the Complainant sent and ES.1 Form to the Respondent on 1 May, 2018 to inform it of her intention to seek redress in relation to the alleged discrimination/harassment and that she also referred a complaint to the WRC under the Employment Equality Act on 7 June, 2018 in relation to this matter. In the circumstances, I therefore find that this fact satisfies the requirement outlined in (i) above.

In considering whether the Complainant has satisfied parts (ii) and (iii) of the test outlined above, I have taken cognizance of the case of Roy Mackarel –v- Monaghan County Council[2] where the Labour Court held that: “Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”

Having regard to the evidence adduced, I am satisfied that the earliest date upon which the Complainant could have taken the “protected act” (as discussed above) was 1 May, 2018 i.e. the date upon which she sent the ES.1 Form to the Respondent. It was not in dispute that there was interaction between the parties after the Complainant was unable to complete the course during the academic year 2017/18 with a view to facilitating her to recommence the course in September, 2018. I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the Complainant was subjected to any adverse treatment by the Respondent as a result of having taken the protected act. On the contrary, I find that the Respondent proactively engaged with the Complainant after she was unable to complete the course during the academic year and facilitated her by affording her access to recommence the course in September, 2018. I also accept the Respondent’s evidence that it has been very supportive of the Complainant in relation to her desire to pursue a nursing qualification and has provided additional supports in terms of her participation in the course since recommencing in September, 2018.

Accordingly, I find that the Complainant has failed to establish facts from which it may be inferred that he subjected to victimisation contrary to Section 74(2) of the Acts.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I find that:

(i) the Complainant’s complaints of discrimination and harassment do not comply with the prescribed time limits set out in Section 77(5) of the Employment Equality Acts, 1998 to 2015. Accordingly, I do not have jurisdiction to inquire into the alleged acts of discrimination and harassment contrary to Section 12 of the Acts.

(ii) the Respondent did not subject the Complainant to victimisation contrary to section 74(2) of the Acts. Accordingly, I find in favour of the Respondent in this matter.

Employment Equality Acts, 1998 to 2015 – Vocational Training – Section 12 – Discriminatory Treatment - Harassment - Section 14A – Victimisation – Section 74(2) – Jurisdiction