Complainant

Respondent

Parties

Nicola  Spanopoulos

Brian Butler Ormonde School Of Motoring

Representatives

Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00062800-001

13/04/2024

The Complainant contends she was discriminated against on the ground of gender when she was denied access to a training course. The Respondent refutes the claim.

The Complainant completed the ES1 form but she did not receive a response from the Respondent. The Complainant contends that she was discriminated against on the ground of gender when she was denied a place on the Heavy Goods Vehicle Licence (HGV) - Artic Course (“the course”) on 16 October 2023.

The Complainant applied for a place on the course. A copy of the advertisement was opened to the hearing. No previous experience was required. The Tipperary Education and Training Board (“TETB”) told the Complainant to attend for a cab test on 6 October 2023. She met with Mr Butler. He asked her about her previous driving experience. The complainant outlined her experience driving 16-seater minibuses. Mr Butler was negative about her driving experience. She was told the test would be ten minutes only but it went on much longer and she was brought on a challenging route. Mr Butler asked her would she be prepared to pay for additional lessons. He then told her that she would probably not get on the course and there was no space left and to go and look for another job. There was one other applicant after her. He was male. He was required to drive for only five minutes and he was accepted onto the course despite having no driving experience. The Complainant submitted that she was rejected because of her gender. She felt she did a good test. On 9 October 2023, the TETB wrote to the Complainant to advise her that they were unable to offer her a place on the course at that time. She told TETB she felt she was discriminated against. Ms Crotty rang her on 10 October 2023 to give her feedback on her performance on the cab test. The Complainant played a recording of the call to the hearing. This recording was supplied to her by the Respondent. Ms Crotty told her she did okay on the test but she needed more driving experience. She asked Ms Crotty why the male candidate after her (her friend) who had no experience unlike her, was accepted onto the course. Mr Crotty denied it had anything to do with her gender. When the course started on 16 October 2023, her male friend who was successful in getting onto the course, told her the course was opened by saying that the candidates were selected on the likelihood of them getting jobs. Her friend was not at the hearing to give evidence.  

Oral evidence of Ms Crotty

The Respondent is a sub-contractor for TETB. The Respondent is contracted to deliver courses on behalf of TETB. The “super contractor” Irish Colleges Training Centre (ICTC), who liaise directly with TETB, contacted the Respondent on 2 October 2023 and asked if it could facilitate two additional candidates for a cab test for an upcoming course. The Respondent had already assessed ten candidates (interview plus cab test). The cab test is conducted as a means of selecting candidates who, in the opinion of the assessor Mr Butler, is suitable to do the Artic course with TETB and pass the driving test. Mr Butler completes all of the assessments. He observes the candidate for observation, steering, positioning, concentration, and vehicle controls. The candidate is marked out of five on each of these criteria. The Respondent is ISO accredited. The Respondent agreed to facilitate the cab tests and a brief interview was also to be completed with the two candidates before the cab test. The Complainant was one of the two candidates to complete the cab assessment and brief interview. The other candidate, a male, completed the cab test and a brief interview directly after the Complainant. The results for the two candidates was sent to TETB. The candidate is not told directly of the result of the interview or test. The TETB advise the candidate whether they have been successful, but the decision to allow the candidate onto the course is based on the assessment completed by the Respondent.

The Respondent was contacted by TETB who advised that the Complainant was dissatisfied she had been rejected for the course. The Respondent was asked to ring the Complainant and give her feedback. Ms Crotty rang the Complainant and told her that she had not passed the cab test and that Mr Butler suggested she gain some experience on a rigid truck and reapply in the future. The Complainant’s gender had nothing to do with her rejection for the course. On this occasion, thirteen candidates applied (12 males and one female), three failed the cab test, one of whom was the Complainant. The other two that failed were male. Although a disproportionate number of males apply for the course, the gender of the candidates is not a relevant selection criterion. In 2022, a female completed the course and in 2021 two females completed the course.

Ms Crotty, together with a person from TETB, opened the course on day one. In the opening address, she said to the candidates that she was hopeful, that on completion of the course, they would all get jobs as artic drivers.

Oral testimony of Mr Butler

Mr Butler is a co-director of the Respondent business. The Respondent is responsible for the full recruitment of candidates onto the course. The Respondent has a duty of care to the Road Safety Authority, the persons taking lessons, other road users, and for its own reputation to ensure that those selected to complete the course meet certain standard of competence. Mr Butler can only assess what he sees on the day during the cab test. There is no benefit to the Respondent in failing any person on the course. The Respondent is paid per candidate on the course. In assessing candidates during the cab test, Mr Butler is checking to see if they are competent to complete the course and capable of passing the course. In his experience, females perform better on the course than males. Because there was no formal interview on this occasion, he asked the Complainant about her driving experience before she took the cab test. He disputes that they had a conversation about mini-buses. Mr Butler outlined that a candidate may have driving experience and yet not perform well during the cab test and vice versa. The Complainant was marked below average across the five ratings. Mr Butler outlined to the hearing the routes taken and the reasons for same. He gave the Complainant extra time to complete her cab assessment. At no time did he say there was no room for the Complainant on the course. He has nothing to gain by not admitting the Complainant. The more people on the course the more financially beneficial it is to the Respondent.

Relevant Law: Equal Status Act, 2000 - 2018 (“the Act”)

The Acts prohibit discrimination in the provision of goods and services on ten protected grounds, including gender.

Section 3 of the Acts provides “for the purposes of this Act discrimination shall be taken to occur—

(a) 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)  . . .

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”) . . . .”

Section 5(1) of the Acts provides:

“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.”

Section 38A(1) of the Acts provides:

“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.”

Section 42(2) of the Acts provides for vicarious liability:

“Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.” (Emphasis added).

Findings

The Complainant submits that she was discriminated against on the ground of gender when she was not offered a place on the Heavy Goods Vehicle Licence (HGV) - Artic Course (“the course”). The Complainant contends that the reason for her non-selection was because she was female. She holds this view because: (1) she feels she was treated less favourably by Mr Butler on the day of the cab test, compared to the only other male candidate tested that day, in terms of the duration of the test, the route given and Mr Butler’s demeanour and friendliness towards them; (2) her male friend was successful in securing a place on the course even though he had no driving experience; (3) of the successful candidates to be offered and take a place on the course all were male; and (4) on day one of the course, the Complainant says the successful candidates were told they have been selected because of their chances of getting a job.

In relation to the latter point (no. 4), the Complainant’s male friend was not at the hearing to give evidence. Therefore, I have given more weight to Ms Crotty oral testimony that she opened the course by saying that she was hopeful, that on completion of the course, the participants would all get jobs as artic drivers. It was not contested that all candidates to secure a place on the course were male and that the other male candidate, who completed the cab test on the same day as the Complainant, had no driving experience; that his cab test was of shorter duration; and that he was successful in securing a place on the course.

The Complainant must first establish both the primary facts upon which she relies and that those facts are of sufficient significance to raise an inference of discrimination. I am satisfied that the facts relied upon by the Complainant are of sufficient significance to support the inference contended for by the Complainant, and therefore the burden of proof shifts to the Respondent to show that no unlawful discrimination took place.

I am satisfied the Respondent has successfully discharged the burden on it to show that no unlawful discrimination occurred. There is no evidence to support the Complainant’s contention that she was discriminated against on the ground of gender before or during the cab test and in accessing the training course. I accept the evidence of Mr Butler that he can only assess the candidate during the cab test, and that prior experience does not equate to actual competence. I accept his overriding concern is public safety and the reputation of the school. I accept the evidence given by Mr Butler in relation to the north and south routes and that he extended the time of the Complainant’s cab test to give her every opportunity to demonstrate her competence. Every year a disproportionate number of males apply for the course. On this occasion, thirteen candidates applied (twelve male and one female). Three candidates failed the cab test which included candidates of both genders. I accept the evidence of the Respondent that in the two previous years females were accepted onto the course. I find the Complainant was not discriminated against because of her gender and therefore, this complaint under the Equal Status Act, 2002 – 2018 is not well-founded.

I decide this complaint under the Equal Status Act, 2000 – 2018 is not well-founded.

Discrimination. Gender. Time Limit.