Complainant

Respondent

Parties

Vesna  Markovic Radosevic

Dundalk Institute of Technology

Representatives

  Self-represented

 Gerald O’Driscoll, HR Manager

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-00058629-001

04/09/2023

The Complainant referred a claim pursuant to the Employment Equality Acts, as amended to the Director General of the WRC on 4 September 2023. She alleged that she was discriminated against by the Respondent on the grounds of her gender and age. She alleged that the Respondent treated her unlawfully by discriminating against her in the context of giving her training. She also alleged that the Respondent treated her unlawfully by discriminating against her in “other”.

The Respondent rejects the claim.

The Respondent raised a preliminary matter of the status of the Complainant and that she referred her claim under incorrect legislation.

The Respondent submits that, in her complaint form, the Complainant stated that she holds the position of an SNA with the Respondent and is paid fortnightly. The Complainant is not, and has never been, an employee of the Respondent. She is registered as a full-time student with the Respondent. Her complaint is in relation to her programme of study. The Respondent, therefore, submits that the Complainant’s case is outside of Section 77 of the Employment Equality Act, 1998.

The Respondent also submits that this matter should have been referred to the Student Ombudsman as this is the normal channel for dealing with unresolved issues in relation to student matters. The Respondent requests that this claim fails.

The Respondent did not object to the amendment of the complaint form to reflect the correct legislation, if required.

At the adjudication hearing , the Complainant confirmed that she was not an employee of the Respondent but a student. The Complainant requested that the complaint form be amended, if required.

On 29 April 2024, the Complainant furnished a written submissions as follows.

The Complainant submits that she started her Early Years Education in 2011 at O’Fiaich College in Dundalk through night courses. The Complainant’s interest was focused on the early years and special education needs. Mandatory volunteering in local crèches, preschools, playschools or similar over a few weeks in order to gather information and be able to write assessments or sit exams was a part of this course.

The Complainant submits that during COVID-19 pandemic in 2020/2021, she decided to complete the QQI level 6 in ECCE. She submits that she needed a few modules as she had some already completed.

The Complainant submits that during all that time and at present she was a part-time employee of the Northeast Bluebird Health Care agency as the home support. The Complainant’s duties include working with children and families with additional needs. She also volunteers in the same capacity in the local charity and community group.

First Attempt

The Complainant submits that her original idea was to finish the full course in 2 years, to save her time and government/SUSI money. At the Respondent’s open day in autumn 2021, it was confirmed that there were a few spaces left for mature students in the Early Years Program and O’Fiaich College encourages students to apply for those places over the winter and spring 2021/2022.

The Complainant applied through advanced entry and CAO. The process involved the submission of the form and an interview during the summer which included previous experience and certifications. The Complainant submits that this never occurred and she was admitted through CAO in the first year of the BA (Hon) in Early Childhood Studies and was advised how to fill out the forms for module exemption in the first week of the course commencing.

The Complainant submits that she filled out three forms and sent them in three different emails with all supporting documents on 3 October 2021. She shared this information with all her classmates and some of them applied too. On the form, it was stated that the responding time was a fortnight. The Complainant submits that her classmates get their answers before the reading week (Halloween week) but she did not. The Complainant requested the answer in writing and upon receiving it she made a complaint to the Head of Department. As the complaint was not answered, the Complainant complained to the Head of the Function and Registrar. The response time for the above emails was over a week or more. The Complainant asked for an external review, but that request was never responded to, and the semester finished in the second week of December 2021. At this stage, she did not avail of the RPEL process.

Second attempt

The Complainant submits that at the beginning of the second semester, she applied for two other different modules for the RPEL process. Her application was denied.

The RPEL policy and procedure provides that an Academic Advisor would be appointed to help the applicant in building a portfolio and mentoring the whole process. The Complainant submits that she was denied such a person. The RPEL officer did help with the application, but he was not an expert in the Complainant’s chosen area of study, he was not from the Complainant’s department at all.

The Complainant submits that she felt that the Respondent did not follow the procedure, so she followed up with a complaint email to the Registrar.

The Complainant felt that the decision made was biased and based on the presumption that, because of COVID-19 she did not work with children during that year, which was not true. The response time to emails was 10 or more working days which was not a sufficient period for the 10-12 weeks long semester. The Complainant’s portfolio preparation lasted only 3 days but communication and arranging the meeting took from 11 October 2021 until 31 January 2022.

The Complainant submits that on 7 March 2022 she emailed the Head of the Function and asked for a meeting to discuss the RPEL procedure as well as the Garda vetting issue. This meeting never happened, and she was directed to another department.

Garda Vetting and Disciplinary

The Complainant submits that she applied for her Garda vetting certification as per the Placement Officer's suggestion and the same arrived at the Institute in October. After a brief written communication with the Garda Vetting Officer, the Complainant went to the Respondent to collect her certificate but she was denied it on the pretext that she did not submit all documentation. The Complainant submits that she did submit the original police clearance certificate that she received from the Embassy in 2020, together with an email to which document was attached. In the email from the Embassy, it was stated what the document was and what it consisted of. The Respondent’s Garda Vetting Officer was not satisfied with the documentation, but she did not communicate adequately what she would accept and what not.

The Complainant submits that she explained to her what communication she had from the Embassy and suggested to have the documents translated by an agency approved by the Respondent. The Complainant submits that in cases such as hers, all documentation from the country of origin goes through the Embassy in the official language and form.

The Complainant submits that, because of the delay of her Garda Vetting Certification and no communication with the Garda Vetting Officer on the matter, she asked a parent to agree to supervise the free play activity with her child. The Complainant would fill out the Student Declaration of Parental Consent form, declaring that the parent was present and gave consent to the play activity. The Complainant submits that because of that action, she was accused of breaching the Institute's Student Code of Conduct.

The Complainant submits that she received the decision on 1 April 2022. In that letter, it was stated that if the Complainant decided to appeal the decision, the Appeal Committee had the power to increase the penalty. The Complainant submits that she understood this as a threat. The Complainant did not find where in Irish law a person could be treated harshly because they appealed a decision.

The Complainant submits that one member of the disciplinary commission mentioned that her police clearance certificate was sent for translation. This was a breach of the GDPR policy and procedure as the Respondent did not have the Complainant’s permission to share her personal/sensitive information with a third party (excluding the HEA).

The Complainant submits that the Head of Department should have informed her that her registration for the second year was on hold. The Complainant’s email was blocked in the second week of September 2022 even though the Disciplinary Commission issued their decision in April 2022.

The Complainant submits that she did her practical exercise in the work placement as she was required by the Disciplinary Commission, but she never witnessed an approved Parent Consent form. The Complainant submits that malpractice in that place was evident to her during her placement and it raised her concern as of 60+ children, she got permission from the manager to do activity for only one.

Third attempt

The Complainant submits that, after completing the first year and recovering her student email, she sent an email to the RPEL office looking for the exemption. The Complainant was not granted the Academic Advisor in preparation of her portfolio for the process. She communicated with the RPEL Officer, but the decision was communicated to her by the Head of Department.

The Complainant started the process on 7 October 2022 and got a response on 25 January 2023. The Complainant appealed that decision and got a response on 28 February 2023.

The Complainant submits that, as all her documents were shared from the student share point, she knew which of the assessors opened which document on what day. It was clear to her that one of them did not open all 49 documents that were submitted as the part of application.

Recognition

The Complainant submits that the Department of Children, Equality, Disability, Integration and Youth (‘DCEDIY’) recognise qualifications for the early years education and care professionals. When the Complainant enrolled into the Respondent’s early years study course, she had an Advanced Diploma in ECCE, QQI level 6 and she was fully qualified to be a Room Leader or a Supervisor by the DCEDIY standards and as such be paid for the work she had done. The Complainant submits that, when attending any of the above-mentioned placements her personal experience and earned accreditation were stripped from her and she was not accepted by the Respondent as a learning individual with specific needs and requirements. In the first year, the Complainant was sent to do work that was below the QQI level 5 in ECCE. If her learning was the goal for sending her to that place, she should be at least given the role of AIM - Access and Inclusion Model assistant, which she did ask for and did not get any response to her request. The Complainant submits that, she (and all the students who had QQI 6), should be paid for that work.

The Complainant submits that she did complain to her academic supervisor and a few other employees of the Respondent about the work placement but the response she got was to be quiet. The Complainant submits that she expressed her concern as the crèche did not comply with the Child Care Act 1991 (Early Years Services) Regulation 2016 but to her knowledge, nothing was done regarding this, even though there is a prescribed procedure in place in the Respondent organisation.

The Complainant submits that, as per emails received regularly it is evident that, in mathematic logic: 1st year of study in the Respondent Institute = QQI level 5. Therefore, following that logic: QQI level 5 = 1st year of study in the Institute, then following up  2nd year of study = QQI level 6.

The Complainant was researching other universities and institutes so that she could compare irregularities. For example, the Dublin City University has an accredited course, so after completing two years, students are awarded a higher diploma QQI level 6. They can leave or continue and in the next two years they can achieve a BA degree or BA (Hon) level 8.

The Respondent’s Early Years Study do not have that accreditation so after two years of studying the Complainant could work in a crèche as QQI level 6 but she would not have it as an accredited course, there is no diploma awarded after two years.

The Complainant submits that she asked that this be explained to her, but she was unsuccessful.

The Complainant concluded that the Respondent knows the importance of its policies and procedures. For example, the Respondent’s disciplinary procedure is well-established and effective (the whole process was finalised within four weeks). In the other examples, the Respondent failed to follow them and choose freely what to apply and how to apply it. This practice is confusing for the students, and it damages the reputation of the Respondent. It is impossible to navigate through a system that does not value basic human rights. To date, the Complainant had not been invited to any meeting to resolve the conflict that arose, the messages that she got from the academic staff were confusing and conflicted.

Summary of direct evidence and cross-examination of the Complainant

With regards to the alleged discrimination on the grounds of her gender, the Complainant said that there was a male, she was not sure who he was and in which department, who got the advanced entry. The Complainant did not know how. She did not know the male in question.

With regards to the alleged discrimination on the grounds of her family status, the Complainant said that in the first year she asked to be allocated close to her family home due to her child being in school in Dundalk. She asked for a placement around the corner from her home, in her estate. She said that one of her classmates who was a female in her 20s with no children got a crèche in town. The Complainant said that her placement was not as accessible and had to drive there.

Regarding the alleged discrimination on the ground of her age, the Complainant stated that she is a mature student, there is certain knowledge she has but she was asked to do the same subjects etc. as the rest of her classmates who were 19-23 years old.  The Complainant said that the Respondent treated her the same as all the students but she wanted more respect. The Complainant said that she waited 6 weeks for her form, it could be because of her age. She could not understand why she did not get a response and her classmates did.

With regard to the allegation of discrimination in the context of training, the Complainant said that she and some 5-6 classmates had some training but they were not allowed to give their opinion, they were forced to practice basic stuff like basic practitioners. She said that her accreditation was stripped off when she started the first year.

In relation to the allegation that the Respondent discriminated against her in “other”, the Complainant said that she submitted all her documents regarding Garda vetting in 2021. The Garda vetting office told her that she did not deliver a “paper.” The Complainant said that she thought it could be because of her age. She said that all other students got it and they were younger.

She said that the Respondent did not follow its procedures regarding the exemptions. She said that she had nobody to compare with but she did not get an academic supervisor to build portfolio.

The Respondent chose not to cross-examine the Complainant’s evidence.

At the adjudication hearing, the Complainant applied for extension of the prescribed time limits. She said that the reason for the delay was that she received the Ombudsman’s reply in or around April 2023. She was thinking whether it was a good decision or not. She did not want to make an emotional decision, she had to think about it.

The Complainant has alleged that the Respondent discriminated against her in relation to her programme of study on the BA (Hons) in Early Childhood Studies which is a full time third level programme in the Institute.

The Respondent refutes this claim in its entirety.

Background to the issue

The Complainant is a registered full-time student with the Respondent on the third level programme of BA (Hons) in Early Childhood Studies. She registered in September 2021 as a first-year student on this programme of study. Prior to registration in June 2021, the Complainant contacted the Head of Department of Nursing, Midwifery and Early Years Dr Myles Hackett, regarding Advanced Entry into year 3 of the programme. He responded on 14 June 2021 stating that the Complainant’s qualifications did not meet the criteria for entry to year 3. He also stated that he was unable to consider any application for year 2 as there were no available places. The Complainant registered as a first-year student on the programme.

On registration, the Complainant would have received a presentation from the Placement Office which was also available on the student MOODLE forum — on the programme and the placement modules. Slide 18 states that there is no payment for placement. A follow up session with first years was arranged by the Placement Office regarding placement. Slide 11 states very clearly that there is no payment for placement.

The induction session at Slide 8 also refers to Garda vetting and the requirements for an international police clearance letter. All students on this programme of study must be Garda vetted by the Respondent as placements with children is part of the programme. The Respondent’s Garda Vetting Policy (in situ at that time) states at Section 4 d. in relation to students who resided outside Ireland:

·        ‘Students who have lived outside Ireland/Northern Ireland from the age of 16 for a sustained period (6 months) must complete a Police Vetting process for this period and provide evidence of this to the Placement Office/Head of Department. Students will be advised to contact the Embassy of the respective country and follow the Police Vetting process accordingly.

·        The use of a Sworn Affidavit may be accepted for those students in exceptional circumstance who are unable to provide police vetting for their previous countries of residence. (See Appendix 8). The decision to accept the use of this process will be made by the Department Vetting Committee.

·        In relation to Placement students, this vetting process will be repeated in the student's 3rd year of study, if the student is required to attend placement in the third and/or subsequent years of study.’

The Respondent cannot accept any completed Garda Vetting Disclosure Forms from any other body and must vet all own students and staff. This is completed online through the Vetting Bureau. This was completed by the Complainant and a Garda Vetting Disclosure was issued to the Respondent on 27 October 2021. However, the Vetting Bureau can only disclose information in relation to an applicant’s residence in Ireland and Northern Ireland. As a consequence, this does not complete the process for students who lived outside of Ireland for longer than 6 months. As stated above, these students are required to furnish the Respondent with a statement from either their Embassy or their police service - in English- that they have been vetted by them and any disclosures are disclosed to the Respondent. The Respondent does not provide the translation service for this and applicants have to provide the Respondent with the necessary copies in English. The Complainant has made reference in her Complaint form to the Vetting Office disclosing her details to a translation service. This is incorrect as the Respondent does not use translation services for vetting issues. Due to the delay in the Respondent receiving the necessary documentation from the Serbian Embassy from the Complainant, her vetting was not completed February 2022.

The Complainant applied for module exemptions in October 2021. There was a delay in the response from the Head of Department as the Respondent had to go fully remote for all classes due to the COVID-19 lockdowns. Following further emails including that from the Complainant of 14 November 2021, the Head of Department responded on 30 November 2021 informing her that she was not eligible for module exemptions based on her QQAI Level 6 qualifications. This was a follow on to email of 14 June 2021 where the Complainant was informed that there were no Advanced Entry places to Year 2 available. The Head also informed the Complainant that she could apply for exemptions through the Institute Recognition of Prior Experiential Learning (RPEL).

On 10 January 2022, the Complainant applied for module exemption under the RPEL policy which the Head of Department acknowledged. The application was assessed by two academic staff (1 who was external to the Institute) which also included an interview with the Complainant. The application under RPEL was denied by the assessors. The Complainant appealed this decision on 13 March 2022 to the Vice President for Academic Affairs and Registar. Following further assessment with the external assessor the appeal was not upheld.

A separate disciplinary issue arose in March 2021 which was dealt with under the Institute's Student Code of Conduct. This matter was dealt with in accordance with the policy. The matter eventually had to be referred to the Disciplinary Committee for consideration by the Head of Department on 22 June 2022. As the final decision of this Committee was not issued until 21 September 2022, the Complainant was not allowed access to her student account until the matter was fully resolved. This is in accordance with Institute policy.

The Complainant submitted a further RPEL application on 7 October 2022 for exemption from two modules. This was assessed by two academic staff members and exemption was granted in the case of 1 module on 25 January 2023 — The Young Child with Additional Needs. The Complainant appealed this decision to the Vice President for Academic Affairs and Registrar (VPAAR) on 6 February 2023. This appeal was assessed and not upheld. The Complainant as informed by email from the VPAAR dated  23 February 2023.

The Complainant is currently a third-year student on her programme.

Respondent's arguments

The Respondent totally refutes the various allegations made by the Complainant. The various applications for advanced entry and RPEL exemptions were all considered in accordance with the various policies and communicated directly to the Complainant. This included external review of the decisions were necessary. The programme of study that the Complainant applied and was placed on is a QQAI Level 8. The learning outcomes, etc. for this are significantly different to a QQAI Level 6 programme and therefore simple module comparisons is not possible without understanding fully the module descriptors and outcomes.

The Respondent has always accommodated the Complainant's requests in relation to placement due to her family circumstances by allocating placements close to her home. The Complainant in her complaint form refers to an issue in 2023 while on placement that she raised regarding the placement site. The academic diary does refer to issues in relation to staffing but there is no reference to a child protection issue in the diary. The Respondent will always report and deal with issues raised under the Children First Act to the relevant authorities but the student also has a duty to report any breaches under this Act.

The Respondent cannot accept any completed Garda vetting disclosure forms from any other body and must vet all its own students and staff. The Respondent will also not comment on how other bodies conduct their vetting process. All vetting is completed online through the Vetting Bureau. This was completed by the Complainant and a Garda Vetting Disclosure was issued to the Respondent on 27 October 2021. However, as stated above, the Vetting Bureau can only disclose information in relation to an applicant’s residence in Ireland and Northern Ireland. As a consequence, this does not complete the process for students who lived outside of Ireland for longer than 6 months. These are required to furnish the Institute with a statement from either their Embassy or their police service - in English - that they have been vetted by them and any disclosures are disclosed to the Respondent. The Respondent does not provide the translation service for this and applicants have to provide the Respondent with the necessary copies in English. The Complainant has made reference in her Complaint Form to the Vetting Office disclosing her details to a translation service. This is incorrect as the Respondent does not use translation services for vetting issues. It is the student's responsibility to provide a copy of their home countries police service declaration in relation to vetting translated in English to the Respondent. Due to the delay in the Respondent receiving the necessary documentation from the Serbian Embassy from the Complainant, her vetting was not completed until February 2022. The Respondent was seeking a copy of the Certificate of Good Conduct. The Complainant was unable to provide this to the Respondent.

All students, including the Complainant, on this programme were informed that there is no payment for placement. The Placement Office presentations on registration, restated this very clearly. Non-payment for placement is common across the third level sector and all Prospectuses would state this also.

The Respondent also totally refutes the allegation of unauthorised sharing of personal data with a private company without consent. Students on registration, consent to data sharing which indicates who the Respondent shares data with i.e., HEA, etc. No data is shared with any other third party unless consented to by the student. In the case of Garda vetting, the Respondent does not use third parties for translation. It is the student’s responsibility to provide all documents translated to English to the Respondent for vetting purposes.

The Complainant also states that she "was treated equally as my classmates, but I do not want to be treated equally as a 20-year-old". The Respondent must treat all students on a programme equally as not doing so will lead to various accusations against the Respondent. Consideration will be given to mature students with family commitments in relation to placement sites as was the case for the Complainant.

Without prejudice to the above, the Respondent categorically denies that discrimination has occurred under the grounds cited or any other ground and the Complainant has not been treated less favourably.

The Respondent contends that it has never discriminated against the Complainant under any aspect of the Act.

At the adjudication hearing, the Respondent emphasised that all students are treated the same, regardless of their age, gender, etc. Once a student entered year 1, they are year one regardless of age, experience or training,

The Respondent submitted that it tries to allocate placements in locations as close as possible to the students’ homes. The Complainant was always placed in town. She was once placed some 5-6 miles outside town, she emailed and a change of location was accommodated.

The Respondent submitted that once the issue with Garda vetting was resolved, the Complainant placement was arranged.

The Respondent did not object to the Complainant’s application to extend the time limits.

Summary of direct evidence and cross-examination of Dr Hackett, Head of Department

With regards to the advanced entry, Dr Hackett said that in 2021 there were 25 places and 27 students so there was no place to accommodate the Complainant’s advanced entry. She was placed on year one and was treated the same as any other student.

Dr Hackett said that the Respondent tries to take family circumstances into account. Placement office liaise with students in that regard. If a student has difficulty with accessing the placement or cannot take a placement, a new placement is sought. However, identifying and securing a new placement could be difficult.

Regarding the exemptions, Dr Hackett said that a RPEL officer was appointed to deal with the Complainant’s application. Dr Hackett said that there was a national project regarding he matter and new policy for the Respondent was published in February 2022. He said that the Complainant applied for exemptions in 2021 and was refused. She applied again in 2002 under the new policy. A RPEL officer was appointed whom the students can contact. At the time, the Respondent had no supervisor in place. The Complainant got one exemption. In both years, the Complainant appealed the decision and they were reviewed.

With regards to the placement, Dr Hackett said that in 2023 the Complainant was placed in the crèche in her estate. He was not sure whether there was availability in the previous year to do so.

In cross-examination, Dr Hackett confirmed that the Complainant commenced her studies with the Respondent in September 2021. She applied for exemptions for academic year 2021/2022 in October 2021 and January 2022. In October 2022, the Complainant applied for exemptions for the academic year 2022/2023. There were no exemptions application in the second semester.

Dr Hackett said that in the academic year 2022/2023, the Complainant was place some 25km from home, she declined and was accommodated with a placement closer to her home.

The Complainant referred her claim to the Director General of the WRC on 4 September 2023 pursuant to the Employment Equality Act, 1998 as amended. The Complainant stated in her complaint form that she held a position of a Special Needs Assistant and was paid fortnightly. She alleged that she was discriminated against by reason of her gender, family status, age, and that the Respondent discriminated against her in the context of training and “other”.

The Respondent rejects the claim. Furthermore, the Respondent raised a preliminary matter of incorrect legislation the Complainant pursued her claim under. The Respondent submitted that the Complainant has never been an employee of the Respondent. The Complainant is a student in the Respondent Institute and her claim, if any, should be properly brought under the Equal Status Act, 2000.

While the Respondent was represented at the adjudication hearing, I was cognisant of the fact that the Complainant represented herself. At the adjudication hearing, I explained to the parties the features and distinctions between the two pieces of legislation, the Employment Equality Act, 1998 and the Equal Status Act, 2000.

I explored whether  Section 12 of the Employment Equality Act was applicable in the case.

12. Vocational training

(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.

The parties were given an opportunity to comment on the matter. Neither party put forward any arguments to suggest that the BA (Hons) In Early Childhood Studies was vocational training. I note that in her email of 6 October 2022 to Dr Hackett, the Complainant when addressing her inability to practice at a certain placement location stated that she needed to “prioritise my parent’s and carer’s duties above my interest and hobbies”.

I note that the course encompasses the studying of the physical, cognitive, social, and emotional development of children from birth to early childhood. On the successful completion of the course, a graduate could embark on a career of an early childhood specialists in variety of care and education settings from nurseries and pre-schools to health authorities, government departments, local authorities and charities.

In Commissioner of the Garda Siochána v Singh Oberoi[2014] E.L.R. 17. it was held that:

‘The correct reading section 12 two of the Employment Equality Act requires that for vocational training to be within the meaning of that section, such training must be considered as being exclusively concerned with training for such an occupational activity.’

Feeney J. emphasised that the requirement contained in subs. (2) that, for the vocational training of a Garda Reserve to be covered by the section, such training must be “exclusively” concerned with training for the carrying on of an “occupational activity”. The Garda Reserve, in his opinion, was not such an activity.

Also, in Kelly v UCD DEC-S2005-006 it was held that a Masters in Social Science degree course was outside the definition of vocational training even though in that case the degree involved 50% academic work 50% practical work. It was held that the degree ‘was not exclusively concerned with perfecting the knowledge or technical capacity to carry out an occupational activity’.

While some parts of the definition may apply to the programme (e.g. it might involve ‘perfection of knowledge’) it must be read as a continuous whole. All of the components of the definition must be met.

The course, in my view, does not meet the definition of vocational training within section 12 of the Act as it does not provide the ‘knowledge or technical capacity for the carrying on of an occupational activity’ and is not ‘exclusively concerned with training for such activity’.

I find that the Complainant lacks locus standi to pursue her claim under the Employment Equality Acts.

At the adjudication hearing, the Complainant sought, in the event that it was found that the Employment Equality Acts was not applicable in her case, to change her pleadings from that she initiated on 4 September 2023 pursuant to the Employment Equality Act 1998 to that of the Equal Status Act 2000. The Respondent had no objections to the change. I noted that the WRC complaint form is not a statutory form. However, I reserved my position and explained to the parties that I would consider the matter further and that my written decision would address it.

As noted above, the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces.

I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where at paragraph 6.2 McGovern J held;-

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this judgment at paragraph 6.3 that this can only be done so long as "the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I also note the dicta of MacMenamin J. in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated at paragraph 6.5:- 

‘It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

‘It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.’

In Clare County Council v Director of Equality Tribunal [2011] IEHC 303, Hedigan J noted that “allowances must be made for the fact that lay persons and representatives do not articulate complaints in the same way as professionally qualified advocates.”

However, I also note Mc Kechnie J in  Louth VEC and Equality Tribunal v Brannigan [2016] IESC 40 stating that the Tribunal cannot ‘freelance its inquiry‘:

‘35.  It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Kileen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.’

An equal status claim requires a number of essential steps. The law requires that, prior to seeking redress, the Equal Status Act is mentioned in the antecedent documents. Before a complaint is made to the WRC in regard to alleged discrimination or unlawful treatment, a complainant must first send a notification in writing to the respondent containing specific information concerning the alleged discrimination, in general within 2 months after the occurrence of the event in question. An official form, ES1 can be used but it is not mandatory. The notification must state the complainant’s intention to seek redress under the Act, if not satisfied by a reply received. The notification serves two purposes: firstly, it alerts the respondent at an early stage about the nature of the allegation and the fact that the complainant is considering lodging a claim against the respondent and, secondly, it affords the respondent the opportunity of communicating with the complainant directly with a view to resolving the issue without recourse to the WRC. If a complainant has not received a reply from the respondent within one month, or if they are not satisfied with a reply received, they can then make a complaint to the WRC.

In this case, it is apparent that the Complainant had not served the required notification regarding the nature of the allegations on the Respondent prior to referring her claim to the WRC. The reference to the Act was omitted in the documents furnished. I am thus not satisfied that the Respondent was properly on notice of the claim.

There was nothing put forward to suggest that there were exceptional circumstances in this case for the Complainant to be successful in an application to disapply the above requirement.

Consequently, even if the Complainant’s application to amend the complaint form was granted, her claim under the Equal Status Act would have to fail at the first hurdle. The Complainant does not appear to have a stateable basis for a claim under the Equal Status Act and rather attempts to use it as a back door to bring her claim.

I, therefore, find that I do not have jurisdiction to investigate this complaint under the Equal Status Act.

I declare this complaint to be not well founded.

Discrimination – student – locus standi