Complainant

Respondent

Parties

Mark J.  Savage

 Fingal County Council

Representatives

  Self

Mr Christopher Hughes BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030592-001

01/09/2019

The complainant alleges that on two grounds the Local Enterprise Office engaged in prohibited conduct when they rejected his application to compete in Ireland’s Best Young Entrepreneur Competition 2019 as follows:

“I am being treated less favourably in respect of the age eligibility requirements

than persons wishing to enter the competition like me but who are between the ages of 18 and 35 unlike me as I am aged 54. Furthermore the failure of a response by the Respondent to my request for confirmation that in the event I had met the eligibility requirements concerned then notwithstanding that the Respondent was made aware

of certain particular religious beliefs I hold as stated herein aforesaid; the fact I held such beliefs would not have excluded me from eligibility to the competition concerned if in the event I had met the age eligibility criterion”

The complainant argues that the targeting of Young Entrepreneurs, to compete for Irelands Best Young Entrepreneur, with an outstanding and innovative business/business idea and open to people between the ages of 18 and 35 is discriminatory and offends the Equal Status Act alleging age discrimination. As the complainant was older he was denied access to the competition. He also alleges that his proposal or business idea contained a unique targeted business marketing proposal to a  cohort of Evangelical Christians who hold compatible values and beliefs. The complainant sought clarification from the Local Enterprise Office, contextualised on an assumption that if he met the competition eligibility criterion, would his disclosed religious beliefs as set out in his application,  have led to his exclusion from the competition. As the Local Enterprise Office  has not responded to this query, he believes that this failure raises an inference of discrimination that requires to be rebutted.

The respondent argued that the complainant named the wrong party and in any event the matter complained of is not a service as defined under the Equal Status Act. The complainant must rely on primary facts which tend to raise an inference of discrimination, referred to as the prima facie test. He has failed to present facts which are of a significance that meet the prima facie threshold before the respondent is obliged to rebut that presumption or inference of discrimination. Alternatively the respondent argued that there was a justifiable basis for Ireland’s Best Young Entrepreneur Competition and the eligibility criterion. In this regard reference was made to section 5(2)(h) and/or section 14 of the 2000 Act and that the difference in treatment was reasonably necessary.

The complainant alleges that the Council engaged in prohibited conduct on two separate grounds: Age and Religion.

I first deal with the complaint concerning religious discrimination.

The complainant states that he meets the prima facie test to ground his claim that the Council engaged in religious discrimination, based on the fact that he disclosed his religious beliefs in his application form and that hypothetically if he had met the age criterion, his disclosed religious beliefs may have given rise to his application being rejected. The complainant argues that the prima facie test is met as the respondent remained silent when he asked them to clarify if that would have been the case in the event that he had met the age eligibility criterion.

The prima facie test requires that the primary facts relied upon have a significance that possibly show discrimination. The facts relied upon by the complainant are speculative. The competition is targeted at a specific age cadre. The complainant sought clarification that if he had been eligible would his religious beliefs have precluded him from the competition? He contends that the failure to provide such clarification raises the inference of religious discrimination.  When the prima facie test is met it places an onus on the respondent to rebut the inference. Therefore the primary facts relied upon to underpin such a presumption must be significant and tend to show that discrimination may have occurred. The evidential proposition relied upon is speculative and does not have a factual significance to give rise to a presumption of religious discrimination.

At Section 38(a) the Act states:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

As that test has not been met I determine that the respondent has not been discriminated against on the ground of religion.

The second complaint relates to Age discrimination. On the facts there is a difference in treatment based on age. This is accepted by the respondent. However, the respondent relies upon statutory exceptions such as where the difference in treatment is reasonably necessary to promote the special interests of persons in a category for a bona fide purpose. The respondent relies upon section 5(2)(h) in the first instance to argue that the service is not discriminatory.

The service is  provided to a category of persons aged between 18 and 35 to promote their special interests based on the fact that they are at the early stage of their working life and consequentially possess less life and business experience to draw upon when planning to start a new business or when running a business. The service addresses the special interests of this category of person by running a competition in order to provide access to professional business support to meet the special interests of this group based on the fact that they are at the very early stages of their  working life and can benefit very significantly from the targeted support. The service is proportionate and reasonable.  The Council promote the special interests of persons aged 18 to 35 as it is reasonably necessary to do so. The service is proportionate and reasonably necessary. In turn if successful that new business or implementation of a business idea makes a positive contribution to the local community and to the wider economy. Section 5(2)(h) states:

5.—(1) 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.

(2) [ Subject to subsections (4) and (4A) , subsection (1) shall not apply in respect of — ]

( h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests

The competition’s aim is to:

IBYE is a programme run by the 31 Local Enterprise Offices (LEOs) with the support of the Department of Enterprise and Innovation and Enterprise Ireland. The competition is open to people between the ages of 18 and 35 with an innovative business idea, new start-up or established business. Now in its 5th year, IBYE has an investment fund of up to €2million. IBYE is a nationwide competition, run across three categories: Best Business Idea, Best Start-Up Business and Best Established Business. Up to 450 young entrepreneurs will be invited by the LEOs to attend free regional ‘Entrepreneur Bootcamps’ later in the year to help them develop their business and new venture ideas.

Based on the evidence,  the competition has a clear bona fide purpose and is delivered in a bona fide manner.

Having determined that the competition has been established for a bona fide purpose and operates in a bona fide manner, is the difference in treatment reasonably necessary to promote the special interests of persons in the age category 18-35?

In this regard the complainant referred to a recent Equality case Boyle [Dec-E2020-003] where it was held that the difference in treatment based on age was not objectively justified. The facts of each complaint are different and must be considered on their own merits.  In that case the Adjudication Officer having regard to Employment Equality legislation concluded that the facts as detailed to justify the difference in treatment were not reasonably necessary.

Irelands Best Young Entrepreneur competition is open to persons aged 18-35 and the complainant based on his age was not eligible to participate in the competition. Its purpose is to encourage as early as possible persons in a specific age category to explore and commit to entrepreneurial endeavour, and to provide them with targeted business support and mentoring having regard to their stage of business experience and special interests or needs that primarily arises because of their age. Establishing a successful business or implementing a new business idea requires support, particularly at the very beginning and especially when the category of person commencing a new business by virtue of their age is more likely to have limited business experience. There is a bona fide purpose to providing help to budding younger entrepreneurs, usually with support from more experienced business experts and mentors so that their business plans are implemented more successfully. The service provided is proportionate and reasonably necessary to promote the special interests of this category.

There are many business supports available to persons not linked to age. This competition is  reasonably necessary based on the special interests of persons aged 18-35. Early support in their business career can accelerate business competence and help to avoid costly mistakes. That objective while clearly addressing the special interests of that category of person also benefits the whole community. The difference in treatment addresses the special interests of this age category as provided for at section 5(2)(h) of the Act. Judy Walsh in Equal Status Acts 2000-2011, at 2.6.4,Blackhall Publishing 2012 edition, states that this section provides for difference in treatment in relation to services that are provided for the principal purpose of promoting the special interests of people in a special category. While section 14(1)(b) provides for positive action intended to promote equality of opportunity for persons who are disadvantaged (see Walsh at section 8.2).

While the respondent also relies upon section 14(1)(b), on careful consideration of the facts of this case I consider that section 5(2)(h) is the more relevant section. In contrast to section 5(2)(h) cited above, section 14(1)(b) states the following:

( b) preferential treatment or the taking of positive measures which are bona fide intended to—

(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or

(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons  who do not have those special needs, or

 I determine that Fingal County Council has not engaged in prohibited conduct by virtue of the exception as provided by section 5(2)(h) of the Equal Status Acts 2000. This service is provided by the Council through the Local Enterprise Office, so that it meets the special interests of persons in the age category 18 to 35 who have special interests when looking to start a new business, stay in business or implement a new business idea. The service provided through Irelands Best Young Entrepreneur competition, meets those special interests of this category of person and its purpose is bona fide and delivered in a bona fide manner. It is also a proportionate measure and is reasonably necessary so that the special interests of this category of person can be met.

I determine that the complainant has not made out a prima facie case concerning alleged religious discrimination against Fingal County Council. I therefore determine that on this ground Fingal County Council did not engage in prohibited conduct.

I determine that Fingal County Council has not engaged in prohibited conduct, on the ground of alleged age discrimination, by virtue of the exception as provided by section 5(2)(h) of the Equal Status Acts.

Competition; Age Discrimination; Religious DiscriminationI