CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision Adj-00033178 issued on 06/06/2023 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033178
Parties:
| Complainant | Respondent |
Parties | Linda Heffernan | Oiliuna Limited |
Representatives | Self-Represented | Mr J Naidoo BL instructed /assisted by Ms Sarah Sabanoof Becker Tansey & Company Solicitors. |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00043927-001 | 06/05/2021 |
Date of Adjudication Hearing: 22/11/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 77 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.
There were no issues raised regarding confidentiality in the publication of the decision.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Background:
The issue in contention concerns an Employment Equality Act,1998, complaint of Discrimination by a Vocational Course Participant against a Vocational Course provider. Discrimination was claimed on the Family Status & Training grounds with associated grounds of Victimisation and Harassment.
The Course began in October 2019 and the Complainant withdrew in disputed circumstances in April 2020.
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1: Summary of Complainant’s Case:
The Complainant gave an Oral Testimony supported by her written complaint form and supporting documents. She began a Hairdressing Training Course in October 2019 with the Respondent Training Organisation, a subcontractor with the KWETB. There was an initial issue with the balancing of Practical Hairdressing Modules with other more theoretical Modules. A Beauty Therapy course in the same location had raised a similar issue and had their course refocused. The Complainant and a fellow student (Ms A) asked KWETB if the same could apply to their Hairdressing course. Soon afterwards the Complainant felt that her position was being very closely monitored as regards attendance and timekeeping. She had 100% attendance but due to having to drop children to school, in heavy traffic, was sometimes late by up to 10 minutes. The Course Tutors were commenting negatively on this issue. By comparison fellow students/tutors were often taking unauthorised “Smoking Breaks”, of greater duration, during the day and nothing was said. On a Friday on or about early March 2020 an unknown Manager Ms L, called Ms A., the fellow student and the Complainant aside and warned them about their timekeeping -effectively a written warning was given. Later during an Open Day – volunteers came in to be Hairdressing “guinea pigs” Tutor Ms B had publicly humiliated the Complainant over a technical hair cutting issue and had sent her to the Canteen in disgrace. Covid 19 then struck and the course went On Line. Organisation became a problem with different Zoom Times and variability with Tutor schedules. As a single mother at home with two small children the times issue became a problem. The Complainant was often marked Absent from a Zoom class when in fact she was not. A Tutor Ms R attempted to Record Classes and make available afterwards for students like the Complainant. It never really worked out satisfactorily. Ms A, the fellow student and the Complainant asked how was a practical course like hairdressing going to be satisfactorily completed in the Covid situation. A physical resumption of classes began in late Summer but the Complainant was excluded. She only found out about the resumption of classes from fellow students who had been told not to tell her. As other students had been allowed, unlike the Complainant, to go physically back on the course the Complainant was offered a Personal Training plan. This was unsatisfactory and never worked out. The Complainant was, she claimed being constantly bullied and excluded, by the Tutors. The Complainant began raising concerns (the first major complaint was dated the 20th May 2020 with a second on the 7th September 2020) with the Organisation and KWETB. A Mr F was appointed a Mediator by the KWETB. Covid Shutdown no 2 began and the arrangements proposed did not in any way accept the fact that the Complainant was a single mother with children at home. Mr F was regularly contacted by the Complainant but to no real avail. He seemed, she alleged, to be simply an agent of KWETB & the Training organisation together and was not in any way impartial. Eventually the Complainant left the Course in April 2021 out of sheer frustration. Her Family status had been ignored and after her complaints to KWETB, she had been Victimised and Harassed by the Training Organisation, all contrary to the Employment Equality Act,1998. |
2: Summary of Respondent’s Case:
The Respondent was represented by Mr Jadel Naidoo supported by Solicitor, Ms Sabano and oral testimony was given by Mr E, the overall Manager and Ms B, the Chief Tutor/Director. Supporting written material was provided. The Respondent is a well-regarded Training Organisation that sub contracts to the Kildare, Wicklow, Educational and Training Board. (for convenience referred to as the KWETB). The course in question was a one-year Hairdressing course scheduled to run from October 2019 to September 2020. It comprises of an appropriate mixture of Practical and Theoretical elements. The course had begun satisfactorily in October 2019. The Complainant was a good learner and attentive. However, the Course is essentially publicly funded via the KWETB. Student attendance and time keeping is a major “performance /deliverable” element for the Training Sub Contractor and subject to close oversight by KWETB. In this context the Tutors noticed a very regular time keeping / lates issue with the Complainant. In keeping with the KWETB oversight this time Keeping issue was raised formally with the Complainant by Ms L. The issue appeared to be that the Complainant was a single parent and had to drop children to school on her way to the Course. The Complainant had not really reacted well to the issue being raised. The Complainant and a colleague Ms A had raised issues with KWETB regarding the structuring of the Course and the balance of Practical / Theoretical elements. These were being addressed. In March 2020 the Covid 19 emergency happened, and the Course had to go “on line”. For a largely practical course such as Hairdressing this was particularly challenging. Various patterns of ZOOM sessions and online homework sessions were implemented. It was noticed that the Complainant was not adapting well to these situations. Childcare, timing of ZOOM calls etc were cited as reasons by the Complainant. The Respondent attempted to make the course as flexible /recording sessions for later viewing etc as possible to facilitate students with attendance issues. It was recognised that the entire situation was unprecedented especially for heavily “Hands On” course such as Hairdressing. Two complaints had been lodged by the Complainant, the first on the 20th May 2020 and latterly on the 7th September 2020. In reply, a number of options were put to the Complainant in June which included deferring he course entirely to a new date if Online was not realistically feasible. A completely new course was offered in reply to the September complaint. An individual learning plan was then arranged for the Complaint and two other students. Covid restrictions were still in place and the individual plan had not worked out satisfactorily. The Respondent maintained that they had, within the constraints of Covid and the overall regulatory requirements of the KWETB, done everything possible to facilitate the Complainant. There was absolutely no suggestion of any negative agenda, arising from her single Parent status, against the Complainant. Mr F, a Mediator engaged by the KWETB, had attempted to achieve a solution but to no avail. The Complainant eventually left the course in April 2021. She had been seeking KWETB sanction to transfer to a different course in a completely different field of work. |
3: Findings and Conclusions:
3:1 The Legal Position. - the Employment Equality Act ,1998. The Law in Employment Equality cases - Employment Equality Act,1998 Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being 1. In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to being a claim? 2. Was she discriminated against on the Family Status ground with Victimisation & Harassment also present? 3. Was the treatment of the Complainant less favourable (in particular in the provision of Training than that which would apply to anther individual not covered by the Discriminatory ground? 4. Depending on these answers the Provisions of Section 85 (A) The Burden of Proof then apply. In plain English the onus is, once a reasonable inference of Discrimination – called legally a prima facie case is made by the Complainant, on the Employer to prove that no Discrimination occurred. There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The 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.” Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case. 3:2 Was the Complainant covered by the Discrimination provisions of the Act? 3:2:1 Jurisdiction A preliminary issue was the question as to whether or not a Student on a Vocational training course was covered by the provisions of the Employment Equality Act,1998 Section 12, quoted below, is sufficient to allow the complaint to continue. Vocational training. 12.—(1) 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, (c) in the manner in which any such course or facility is provided, or (d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered. (2) In this section “vocational training” means 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. 3:2:2 Qualifying eligibility It was never contested that the Complainant was a single female with children – this was sufficient to base a complaint on the Family Status Grounds. However, it has to be pointed out that membership of a “protected group” -i.e., a single parent does not automatically mean that Discrimination has taken place against then. 3:3 Did Discrimination occur.? Discrimination for the purposes of this Act is set out below. Section 6 of the Employment Equality Act ,1998 is quoted below for assistance 6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) 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) (in this Act referred to as the "discriminatory grounds") which— (i) exists, (ii) existed but no longer exists,
(iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
The key Complainant argument that was put forward was that the Course providers, in the manner the course was organised and managed (initially with the Lates policy) but particularly in the Covid remote phase, treated Single mothers with Children, less favourably than they treated or would have treated course participants without such characteristics.
To answer this question a careful review of the Oral testimony and written materials provided is required.
Taking the “Lates” issue first the Respondent evidence was that they were subject to KWETB regulatory oversight who would themselves be subject to the Public Auditor.
Bringing the Lates issue to the attention of the Complainant and another student was, in the Adjudication view, carrying out a required management function that was not treating the Complainant “any less favourably” than any other student. The Complainant argued strongly that her “lates” were minor (due to childcare issues) and compared very favourably with Tutors and Student taking unofficial “Smoking” breaks during the day.
Rules of Evidence would require that the Complainant was able to clearly establish that she was penalised for her lates solely due to her Family status and that People without the Family status grounds were treated differently i.e., not pulled up over Lates or had them ignored. This was not demonstrated, as required by the Act, by the Complainant. Other students had been spoken to by the Manager, Ms L. Managing Lates/Attendance was a KWETB supervisory requirement for the sub-contracting Training Body.
Accordingly, the Lates issue cannot stand as a Discriminatory case.
Moving to the Second Ground -the Organisation of the Course during the main Covid period and after, the Oral Testimony and other materials submitted is crucial.
The Complainant’s case was that the Covid era Training was Discriminatory against her Family status and that the Training Organisation had Victimised her as a result of her complaints to the overall Training Organisation, the KWETB.
As stated, the definition of Discrimination is that the Complainant was “Treated less favourably than another person” without the claimed Family status grounds.
Reading the written materials provided and hearing the testimony regarding the Organisation’s reply to the initial 20th May and 7th September 2020 complaints it was hard to see where specific discriminations based on Family status were evident. The three options offered referred to “Family routines” during a Covid pandemic. They appeared to be a reasonable effort to be accommodating as did the offers in late September to the Complainant.
To establish Discrimination under the Employment Equality act,1998 the Complainant would, have to establish that Better Offers or Less Restrictive Offers were being made to other non-Family Status students.
Education generally had reopened albeit in Pods and Restrictive settings in September 2020. The Complainant’s difficulties rested on her childcare arrangement and school “drop off times”.
All Parents face these difficulties and unless the Complainant can establish that the Training organisation deliberately sought to make Training offers that they knew would be next to impossible personally for the Complainant a case for Discrimination cannot really stand.
As regards the complaint of Harassment and Victimisation largely as a result of the KWETB complaints it was hard to see absolute evidence of this. Mr K of the KWEBT had acted as a mediator /facilitator and although unsuccessful this element of the case could not be described as either Victimisation or Harassment.
From the Oral Testimony it was clear that relationships had deteriorated in late 2020 between the Complainant and the Organisation. It appeared that lot of miscommunications/misunderstanding had arisen which led to the Complainant leaving the course in April 2021.
Regrettable as this was, it could not be taken to be Discrimination or “Less favourable treatment on family Grounds “as claimed.
3:4 Adjudication Summary Conclusions
As stated above a Discrimination complaint has to be based on fairly solid evidence of “less Favourable Treatment”. This complaint took place largely during the Covid Pandemic.
It has to be noted that this, in itself, is not any excuse.
What is lacking is clear proof that the Organisation systematically set out to treat the Complainant less favourably than others (because of her family Status).
On this basis the Complaint of Discrimination cannot be seen to have succeeded,
It has to fail.
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4: Decision:
CA: 00043927-001
Section 41 of the Workplace Relations Act 2015 and Section 77 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited 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.
Discrimination contrary to the employment Equality Act,1998 was not made out.
The complaint fails.
Dated: 6th June 2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Discrimination, Family Status, Victimisation, Harassment. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033178
Parties:
| Complainant | Respondent |
Parties | Linda Heffernan | Oiliuna Limited |
Representatives | Mr J Naidoo BL | Mr E O’Connor BL instructed /assisted by Ms Sarah Sabano of Becker Tansey & Company Solicitors. |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00043927-001 | 06/05/2021 |
Date of Adjudication Hearing: 22/11/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 77 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.
There were no issues raised regarding confidentiality in the publication of the decision.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Background:
The issue in contention concerns an Employment Equality Act,1998, complaint of Discrimination by a Vocational Course Participant against a Vocational Course provider. Discrimination was claimed on the Family Status & Training grounds with associated grounds of Victimisation and Harassment.
The Course began in October 2019 and the Complainant withdrew in disputed circumstances in April 2020.
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1: Summary of Complainant’s Case:
The Complainant gave an Oral Testimony supported by her Representative Mr. Naidoo BL. She began a Hairdressing Training Course in October 2019 with the Respondent Training Organisation, a subcontractor with the KWETB. There was an initial issue with the balancing of Practical Hairdressing Modules with other more theoretical Modules. A Beauty Therapy course in the same location had raised a similar issue and had their course refocused. The Complainant and a fellow student (Ms A) asked KWETB if the same could apply to their Hairdressing course. Soon afterwards the Complainant felt that her position was being very closely monitored as regards attendance and timekeeping. She had 100% attendance but due to having to drop children to school, in heavy traffic, was sometimes late by up to 10 minutes. The Course Tutors were commenting negatively on this issue. By comparison fellow students/tutors were often taking unauthorised “Smoking Breaks”, of greater duration, during the day and nothing was said. On a Friday on or about early March 2020 an unknown Manager Ms L, called Ms A., the fellow student and the Complainant aside and warned them about their timekeeping -effectively a written warning was given. Later during an Open Day – volunteers came in to be Hairdressing “guinea pigs” Tutor Ms B had publicly humiliated the Complainant over a technical hair cutting issue and had sent her to the Canteen in disgrace. Covid 19 then struck and the course went On Line. Organisation became a problem with different Zoom Times and variability with Tutor schedules. As a single mother at home with two small children the times issue became a problem. The Complainant was often marked Absent from a Zoom class when in fact she was not. A Tutor Ms R attempted to Record Classes and make available afterwards for students like the Complainant. It never really worked out satisfactorily. Ms A, the fellow student and the Complainant asked how was a practical course like hairdressing going to be satisfactorily completed in the Covid situation. A physical resumption of classes began in late Summer but the Complainant was excluded. She only found out about the resumption of classes from fellow students who had been told not to tell her. As other students had been allowed, unlike the Complainant, to go physically back on the course the Complainant was offered a Personal Training plan. This was unsatisfactory and never worked out. The Complainant was, she claimed being constantly bullied and excluded, by the Tutors. The Complainant began raising concerns (the first major complaint was dated the 20th May 2020 with a second on the 7th September 2020) with the Organisation and KWETB . A Mr F was appointed a Mediator by the KWETB. Covid Shutdown no 2 began and the arrangements proposed did not in any way accept the fact that the Complainant was a single mother with children at home. Mr F was regularly contacted by the Complainant but to no real avail. He seemed, she alleged, to be simply an agent of KWETB & the Training organisation together and was not in any way impartial. Eventually the Complainant left the Course in April 2021 out of sheer frustration. Her Family status had been ignored and after her complaints to KWETB, she had been Victimised and Harassed by the Training Organisation, all contrary to the Employment Equality Act,1998. |
2: Summary of Respondent’s Case:
The Respondent was represented by Ms Sabano and oral testimony was given by Mr E, the overall Manager and Ms B, the Chief Tutor/Director. Supporting written material was provided. The Respondent is a well-regarded Training Organisation that sub contracts to the Kildare, Wicklow, Educational and Training Board. (for convenience referred to as the KWETB). The course in question was a one-year Hairdressing course scheduled to run from October 2019 to September 2020. It comprises of an appropriate mixture of Practical and Theoretical elements. The course had begun satisfactorily in October 2019. The Complainant was a good learner and attentive. However, the Course is essentially publicly funded via the KWETB. Student attendance and time keeping is a major “performance /deliverable” element for the Training Sub Contractor and subject to close oversight by KWETB. In this context the Tutors noticed a very regular time keeping / lates issue with the Complainant. In keeping with the KWETB oversight this time Keeping issue was raised formally with the Complainant by Ms L. The issue appeared to be that the Complainant was a single parent and had to drop children to school on her way to the Course. The Complainant had not really reacted well to the issue being raised. The Complainant and a colleague Ms A had raised issues with KWETB regarding the structuring of the Course and the balance of Practical / Theoretical elements. These were being addressed. In March 2020 the Covid 19 emergency happened, and the Course had to go “on line”. For a largely practical course such as Hairdressing this was particularly challenging. Various patterns of ZOOM sessions and online homework sessions were implemented. It was noticed that the Complainant was not adapting well to these situations. Childcare, timing of ZOOM calls etc were cited as reasons by the Complainant. The Respondent attempted to make the course as flexible /recoding sessions for later viewing etc as possible to facilitate students with attendance issues. It was recognised that the entire situation was unprecedented especially for heavily “Hands On” course such as Hairdressing. Two complaints had been lodged by the Complainant, the first on the 20th May 2020 and latterly on the 7th September 2020. In reply, a number of options were put to the Complainant in June which included deferring he course entirely to a new date if Online was not realistically feasible. A completely new course was offered in reply to the September complaint. A individual learning plan was then arranged for the Complaint and two other students. Covid restrictions were still in place and the individual plan had not worked out satisfactorily. The Respondent maintained that they had, within the constraints of Covid and the overall regulatory requirements of the KWETB , done everything possible to facilitate the Complainant. There was absolutely no suggestion of any negative agenda, arising from her single Parent status, against the Complainant. Mr F, a Mediator engaged by the KWETB, had attempted to achieve a solution but to no avail. The Complainant eventually left the course in April 2021. She had been seeking KWETB sanction to transfer to a different course in a completely different field of work. |
3: Findings and Conclusions:
3:1 The Legal Position. - the Employment Equality Act ,1998. The Law in Employment Equality cases - Employment Equality Act,1998 Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being 1. In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to being a claim? 2. Was she discriminated against on the Family Status ground with Victimisation & Harassment also present? 3. Was the treatment of the Complainant less favourable (in particular in the provision of Training than that which would apply to anther individual not covered by the Discriminatory ground? 4. Depending on these answers the Provisions of Section 85 (A) The Burden of Proof then apply. In plain English the onus is, once a reasonable inference of Discrimination – called legally a prima facie case is made by the Complainant, on the Employer to prove that no Discrimination occurred. There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The 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.” Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case. 3:2 Was the Complainant covered by the Discrimination provisions of the Act? 3:2:1 Jurisdiction A preliminary issue was the question as to whether or not a Student on a Vocational training course was covered by the provisions of the Employment Equality Act,1998 Section 12, quoted below, is sufficient to allow the complaint continue. Vocational training. 12.—(1) 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, (c) in the manner in which any such course or facility is provided, or (d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered. (2) In this section “vocational training” means 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. 3:2:2 Qualifying eligibility It was never contested that the Complainant was a single female with children – this was sufficient to base a complaint on the Family Status Grounds. However, it has to be pointed out that membership of a “protected group” -i.e., a single parent does not automatically mean that Discrimination has taken place against then. 3:3 Did Discrimination occur.? Discrimination for the purposes of this Act is set out below. Section 6 of the Employment Equality Act ,1998 is quoted below for assistance 6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) 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) (in this Act referred to as the "discriminatory grounds") which— (i) exists, (ii) existed but no longer exists,
(iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
The key Complainant argument that was put forward was that the Course providers, in the manner the course was organised and managed (initially with the Lates policy) but particularly in the Covid remote phase , treated Single mothers with Children, less favourably than they treated or would have treated course participants without such characteristics.
To answer this question a careful review of the Oral testimony and written materials provided is required.
Taking the “Lates” issue first the Respondent evidence was that they were subject to KWETB regulatory oversight who would themselves be subject to the Public Auditor.
Bringing the Lates issue to the attention of the Complainant and another student was, in the Adjudication view, carrying out a required management function that was not treating the Complainant “any less favourably” than any other student. The Complainant argued strongly that her “lates” were minor (due to childcare issues) and compared very favourably with Tutors and Student taking unofficial “Smoking” breaks during the day.
Rules of Evidence would require that the Complainant was able to clearly establish that she was penalised for her lates solely due to her Family status and that People without the Family status grounds were treated differently i.e., not pulled up over Lates or had them ignored. This was not demonstrated, as required by the Act, by the Complainant. Other students had been spoken to by the Manager, Ms L. Managing Lates/Attendance was a KWETB supervisory requirement for the sub-contracting Training Body.
Accordingly, the Lates issue cannot stand as a Discriminatory case.
Moving to the Second Ground -the Organisation of the Course during the main Covid period and after, the Oral Testimony and other materials submitted is crucial.
The Complainant’s case was that the Covid era Training was Discriminatory against her Family status and that the Training Organisation had Victimised her as a result of her complaints to the overall Training Organisation, the KWETB.
As stated, the definition of Discrimination is that the Complainant was “Treated less favourably than another person” without the claimed Family status grounds.
Reading the written materials provided and hearing the testimony regarding the Organisation’s reply to the initial 20th May and 7th September 2020 complaints it was hard to see where specific discriminations based on Family status were evident. The three options offered referred to “Family routines” during a Covid pandemic. They appeared to be a reasonable effort to be accommodating as did the offers in late September to the Complainant.
To establish Discrimination under the Employment Equality act,1998 the Complainant would, have to establish that Better Offers or Less Restrictive Offers were being made to other non-Family Status students.
Education generally had reopened albeit in Pods and Restrictive settings in September 2020. The Complainant’s difficulties rested on her childcare arrangement and school “drop off times”.
All Parents face these difficulties and unless the Complainant can establish that the Training organisation deliberately sought to make Training offers that they knew would be next to impossible personally for the Complainant a case for Discrimination cannot really stand.
As regards the complaint of Harassment and Victimisation largely as a result of the KWETB complaints it was hard to see absolute evidence of this. Mr K of the KWEBT had acted as a mediator /facilitator and although unsuccessful this element of the case could not be described as either Victimisation or Harassment.
From the Oral Testimony it was clear that relationships had deteriorated in late 2020 between the Complainant and the Organisation. It appeared that lot of miscommunications/misunderstanding had arisen which led to the Complainant leaving the course in April 2021.
Regrettable as this was, it could not be taken to be Discrimination or “Less favourable treatment on family Grounds “as claimed.
3:4 Adjudication Summary Conclusions
As stated above a Discrimination complaint has to be based on fairly solid evidence of “less Favourable Treatment”. This complaint took place largely during the Covid Pandemic.
It has to be noted that this, in itself, is not any excuse.
What is lacking is clear proof that the Organisation systematically set out to treat the Complainant less favourably than others (because of her family Status).
On this basis the Complaint of Discrimination cannot be seen to have succeeded,
It has to fail.
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4: Decision:
CA: 00043927-001
Section 41 of the Workplace Relations Act 2015 and Section 77 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited 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.
Discrimination contrary to the employment Equality Act,1998 was not made out.
The complaint fails.
Dated: 6th June 2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Discrimination, Family Status, Victimisation, Harassment. |