Equal Status Act
Cases General
de Burca v. Attorney General
[1976] I.R. 38
O’Higgins C.J. S.C.
“ The plaintiffs are women and citizens of Ireland. In August, 1971, both were arrested and charged with offences under s. 38 of the Offences Against the Person Act, 1861. Having pleaded not guilty in the District Court and having elected to be tried by jury. on the 21st December, 1971, both plaintiffs were sent forward for trial to the Circuit Criminal Court. While awaiting trial, the plaintiffs commenced in the High Court this action in which they call into question the manner in which, under existing procedures, a jury for their trial would be convened and selected. They allege that the Juries Act, 1927, is inconsistent with and repugnant to the Constitution on various grounds which are set forth in detail in their statement of claim.
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The plaintiffs’ main submission before the trial judge, and in this Court, was to the effect that the Act of 1927 was inconsistent with the provisions59 of Article 40 of the Constitution because it provided for a property qualification60 for jury service and exempted all women from service and, further, that the operation of such discrimination and restriction on service would deprive the plaintiffs of a trial by a jury freely selected at random from amongst all citizens as is guaranteed by Article 38, s. 5, of the Constitution.
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Article 40 permits the State to have regard in its laws to differences of capacity, physical and moral, and of social function. It does not seem incongruous or inappropriate for the State, under this Article, to temper or cushion obligations generally imposed in so far as they affect women. In particular, one would expect this to be done under a Constitution which expressly recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved: see s. 2 of Article 41. Where, therefore, as in the case of jury service, the State imposes on all citizens an obligation to serve, the discharge of which necessarily takes the citizen concerned away from his occupation and his home, special provisions must obviously be made in respect of women. In my view. such special provision is permissible under the second sentence of s. 1 of Article 40 and is almost mandatory under s. 2 of Article 41. Such special provision could be made by putting all women citizens of the prescribed ages on the jury lists, and by providing that each of them must serve on being duly called unless she applies to have her name removed. In the Act of 1927 special provision has been made by providing that no woman citizen shall appear on the jury list unless she applies for inclusion. In either case there is a recognition of the woman’s right to serve, but there is also a recognition that for many women jury service could be a severe burden and handicap. The State. therefore, while recognising and safeguarding the right, permits each woman to decide for herself, in accordance with her own circumstances and special responsibilities, whether service on a jury is a right she ought to exercise or a burden she ought to undertake. I cannot see how this can be regarded as an invidious discrimination. In my view, it is not invidious, unjust, or unfair having regard to the Constitution as a whole. The important feature of such special provision s that the decision is left to the woman herself, and the right to serve is preserved for her.
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The operation of such a qualification means, in effect, that the vast majority of male citizens in each jury district are excluded from jury service. If service be regarded as a right, then this means the exclusion of many thousands of citizens merely because they do not possess a particular type of property. On the other hand, if service be regarded as a duty, these provisions mean that the obligation to discharge this duty is confined to a particular section of citizens not because they are property owners but because they have a particular interest in a particular type of property. Without question, this is not holding all citizens as human persons to be equal before the law, such as would be the case with an age discrimination, generally applied. I cannot see that this discrimination can be excused or condoned by the second sentence of s. 1 of Article 40. This is not a question of having due regard to the differences of capacity, physical or moral, or of social functions, because it is based on a particular type of property qualification. Therefore, it appears to me that the inclusion in s. 3 of the Act of 1927 of a minimum rating qualification is not consistent with the provisions of Article 40, s. 1, of the Constitution.
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For these reasons, I would allow this appeal, and I would decide that the plaintiffs are entitled to a declaration that the Juries Act, 1927, to the extent that it provides that a minimum rating qualification is necessary to make a citizen qualified and liable to serve as a juror, is inconsistent with the Constitution and, therefore, is of no force or effect.
Walsh J.
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Section 1 of Article 40 of the Constitution provides that “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” The scope and meaning of this provision has already been considered by this Court: see The State (Nicolaou) v. An Bord Uchtala 72; The State (Hartley)v. The Governor of Mountjoy Prison (21st December, 1967); Quinn’s Supermarket v. The Attorney General 73; O’Brien v. The Manufacturing Engineering Co. Ltd. 74 and O’Brien v. Keogh. 75 Briefly stated, the effect of these cases is that Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances but it forbids invidious or arbitrary discrimination. It imports the Aristotelian concept that justice demands that we treat equals equally and unequals unequally.
The property qualification in the Act of 1927 has been impugned as being inconsistent with the provisions of Article 40. It is true that for a long time before the foundation of the State, and since then, jury service was based upon a property qualification. So also was the franchise in other periods. Up to comparatively recent times, the franchise in local-government elections in this State was based upon a property qualification. The fact of the existence of property qualifications in such circumstances, now or in the past, is not a valid argument to rebut a claim of inconsistency with the provisions of Article 40 of the Constitution. The property qualification undoubtedly discriminates between those citizens who have the qualification and those who have not and does so solely upon the basis of the amount of the poor-law valuation of property in a particular district. This property qualification could not conceivably be said to refer to the physical or moral capacity of a prospective juror. Can it seriously be suggested that a person who is not the rated occupier of any property, or who is not the rated occupier of property of a certain value, is less intelligent or less honest or less impartial than one who is so rated? The answer can only be in the negative. Can such a discrimination be based on social function? Just as a man’s intelligence and honesty is not directly or at all proportionate to the poor-law valuation of his house or lands, which seems to be the underlying assumption of the property qualification, so it cannot be said that such a qualification marks him out as having a social function which makes him more fitted for jury service than anotherif. indeed, it does in any way constitute a social function within the meaning of Article 40, s. 1, of the Constitution.
If a case could be made for having a property qualification, it could not reasonably be confined to one particular type of property. It would be just as rational to suggest that jury service should be confined to the owners of motor cars exceeding a certain horse-power. or motor cars of more than a certain value. This particular type of property qualification totally ignores the realities of wealth. A man may be a most highly-qualified person for jury service and may be a very wealthy man and yet he may not be the rated occupier of any property. On the other hand, the rated occupier of property may be illiterate and poverty stricken; he may even be a person of unsound mind. For the reasons I have stated, I am of opinion that such discrimination as is created by the distinction between the rated occupier of property of a certain value and everybody else is one that is inconsistent with and violates Article 40, s. 1, of the Constitution and, therefore, is a distinction which could not be validly the subject of legislation by the Oireachtas. That being so, it must follow that any legislation to that effect in force at the date of the coming into operation of the Constitution was necessarily inconsistent with it and was not carried over by Article 50 of the Constitution. I am of opinion that the plaintiffs are entitled on this ground to a declaration that the provisions of the Juries Act, 1927, that import the property qualification complained of are no longer part of the law of the State and have not been part of the law of the State since the coming into force of the Constitution.
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Within the terms of Article 40, s. 1, of the Constitution, the reference to social function, as well as the reference to physical and moral capacity, is applicable to both sexes. The evidence in this case indicates that a very small number of those women who are eligible for jury service have volunteered for jury service, or have succeeded in serving when they volunteered. Even assuming that the vast majority of women does not wish to serve on juries, in itself that is not a good ground for legislative discrimination in their favour. From one viewpoint, jury service may be regarded as a privilege but from another an exemption from jury service may be regarded as a privilegejust as liberty to avoid any obligation or duty which falls on other people may be regarded as a privilege. The question is whether the “privilege” is of a type which can be validly conferred by statute. There can be little doubt that the Oireachtas could validly enact statutory provisions which could have due regard, within the provisions of Article 40, to differences of capacity both physical and moral and of social function in so far as jury service is concerned. For example, it could provide that all mothers with young children could be exempt from jury service. On virtually the same considerations, it could provide that all widowers, husbands with invalid wives, and husbands deserted by their wives would be entitled to a similar exemption if they were looking after their young children. It might also provide exemptions for the proprietors of one-man businesses who have no assistance, whether the proprietors be men or women. It could provide that certain occupations, such as a general practitioner in the medical profession (whether man or woman), be exempt because of the importance of the social function fulfilled by persons of such occupation.
However, the provision made in the Act of 1927, is undisguisedly discriminatory on the ground of sex only. It would not be competent for the Oireachtas to legislate on the basis that women, by reason only of their sex, are physically or morally incapable of serving and acting as jurors. The statutory provision does not seek to make any distinction between the different functions that women may fulfil and it does not seek to justify the discrimination on the basis of any social function. It simply lumps together half of the members of the adult population, most of whom have only one thing in common, namely, their sex. In my view, it is not open to the State to discriminate in its enactments between the persons who are subject to its laws solely upon the ground of the sex of those persons. If a reference is to be made to the sex of a person, then the purpose of the law that makes such a discrimination should be to deal with some physical or moral capacity or social function that is related exclusively or very largely to that sex only.
Part II of the first schedule of the Act of 1927, which describes the people who are exempted but entitled to serve on a jury on application. does so in respect of eleven categories. Ten of these categories are referable solely to the occupation or profession of the persons comprised in those categories. While I am not offering any view on the validity of any or all of those exemptions, at least it can be said of them that they are all referable to a social function. The eleventh category in Part II, and the sole exception to the vocational or functional nature of the exemption, is comprised in the first reference which has the single word “Women.” To be of either sex, without more, is not per se to have a social function within the meaning of Article 40 of the Constitution. To be an architect or a doctor, for example, is to have a social function. but the function does not depend upon the sex of the person exercising the profession. Clearly some social functions must necessarily depend upon sex, such as motherhood or fatherhood. In the proper context, due recognition may also be given by the law to the fact that certain social functions are more usually performed by one sex rather than by the other. The essential test in each such case is the function and not the sex of the functionary.
For these reasons I am of opinion that the discrimination contained in the Act of 1927 in favour or against women depending on one’s point of view is not consistent with the Constitution and was not carried over as part of the law following the coming into force of the Constitution.”
Article 26 and the Employment Equality Bill 1996, In Re
[1997] IESC 6; [1997] 2 IR
Supreme Court
“1. This is the decision of the Supreme Court on the Reference to it by the President of the Employment Equality Bill, 1996 (hereinafter referred to as the Bill) pronounced pursuant to Article 26, Section 2, sub-s 1 of the Constitution of Ireland.
The Reference
By order given under her hand and seal on the 3 April 1997, the President, Mary Robinson, after consultation with the Council of State, referred, in pursuance of the provisions of Article 26 of the Constitution, the Bill to the Supreme Court for a decision on the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.
The long title of the Bill states that it is:-
“An Act to make further provision for the promotion of equality between employed persons; to make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies; to make further provision in connection with Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and the Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; to make further provision with respect to harassment in employment and in the workplace; to change the name and constitution of the employment equality agency; to repeal The Anti-Discrimination (Pay) Act, 1974 and to amend the Employment Equality Act, 1977; and to provide for related matters.”
As is apparent therefrom the purpose of the Bill is to make further provision for the promotion of equality between employed persons, the prohibition of discrimination between persons, to deal with harassment in employment and in the workplace and to provide for the implementation of the said Council Directives. It is a long and detailed Bill containing seventy four sections and impacting on the thirty three Statutes referred to in the Bill.
Practical Problems posed by the Reference
THE AGE GROUND
Under the heading “personal rights”, Article 40.1 of the Constitution provides that —
“all citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
The nature of the guarantee provided in this Article was explained as follows by Walsh J, speaking for the majority of this court, in Quinns Supermarket v Attorney General [1972] IR 1 at p 13.
“The provisions of Article 40, s 1, of the Constitution were discussed in the decision of this court in the State (Nicolaou) v An Bord Uachtala [1966] IR 567. As was there decided, this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequality grounded upon an assumption, or indeed a belief, that some individual or individual or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.”
The enactment by the Oireachtas of a measure which discriminates between groups of persons in the community is, accordingly, not of itself a violation of the guarantee of equality contained in Article 40.1: see the observations of Finlay CJ giving the judgment of this court in DPP v Quilligan (No 3) [1993] 2 IR 305 at p 321. The Article itself expressly allows for the recognition in legislation of differences of capacity, physical and moral, and of social function.
Article 40.3 provides that:
“(1) The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
(2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
It has been held in several cases in the High Court and in this Court that, among the unenumerated personal rights guaranteed by this article, is the right to work and the right to earn a livelihood. (See Murtagh Properties v Cleary [1972] IR 330; Murphy v Stewart [1973] IR 97.) It is also clear that certain rights associated with these rights, such as the right to a pension, gratuity or other emolument or the right to the advantages of a subsisting contract of employment are property rights which the State is obliged to protect, so far as practicable, from unjust attack: see the decision of this Court in Cox v Ireland [1992] 2 IR 503.
These rights are not absolute rights: the State in its laws may impose restrictions on their exercise where that is required by the exigencies of the common good. (See the observations of Finlay CJ in Cox v Ireland at p 522).
It will be clear from the foregoing summary of the relevant constitutional provisions that the enactment by the Oireachtas of legislation such as that now under consideration intended to promote equality between employed persons necessitates the balancing by the legislature of different constitutional values, specifically, the guarantee of equality and the protection of the citizen’s right to work and earn a livelihood and of his or her property rights. That difficult exercise is peculiarly within the province of the Oireachtas, but as was made clear by the judgment of this Court in Tuohy v Courtney [1994] 3 IR 1 at p 47:-
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Article 40.1, as has been frequently pointed out, does not require the State to treat all citizens equally in all circumstances. Even in the absence of the qualification contained in the second sentence, to interpret the Article in that manner would defeat its objectives. In the present context, it would mean that the State could not legislate so as to prevent the exploitation of young people in the work place or, at the other end of the spectrum, to make special provision in the social welfare code for the elderly. The wide ranging nature of the qualification which follows the general guarantee of equality before the law puts beyond doubt the legitimacy of measures which place individuals in different categories for the purposes of the relevant legislation. In particular, classifications based on age cannot be regarded as, of themselves, constitutionally invalid. They must, however, be capable of justification on the grounds set out by Barrington J in Brennan v AG [1983] ILRM 449 as follows:-
“The classification must be for a legislative purpose . . . it must be relevant to that purpose, and . . . each class must be treated fairly.”
The provisions of the Bill now under consideration have, of course, as their objective the elimination, so far as practicable, of discrimination on the ground of age in employment. It is urged on behalf of the Attorney General that, since the Bill thus affords statutory protection against discrimination on the ground of age which is not otherwise available, it necessarily follows that the qualifying provisions, which are impugned as being themselves discriminatory, do not in fact encroach on any existing rights of the citizen.
In support of that proposition, it was suggested that the requirements in Article 40.1 that all citizens be held “equal before the law” was essentially a prohibition against unjustifiable discrimination in legislation. It followed, it was said, that a Bill which, far from introducing any form of discrimination was expressly designed to prohibit such, could not be said to violate Article 40.1, because (as was argued by counsel assigned by the court) its qualifications were themselves seen to be impermissibly discriminatory.
The Court is satisfied that this submission goes too far. The guarantee of “equality before the law” is in its terms not confined to the State in its legislative role. It is unnecessary, in the context of the present case, to consider to what extent, if any, the provisions of the Article may be applicable in the area of private law. It is sufficient to say that the Article, in common with the other Articles of the Constitution which are concerned with fundamental rights, does not confer a right on any person which, in the absence of the Constitution he would not in any event enjoy as a human being. As Walsh J said, speaking for this court in The State (Nicolaou) v An Bord Uchtala, Article 40.1 is:
“An acknowledgement of the human equality of all citizens and that such equality will be recognised in the laws of the State.”
The forms of discrimination which are, presumptively at least, prescribed by Article 40.1 are not particularised: manifestly, they would extend to classifications based on sex, race, language, religious or political opinions.
Discrimination based on age would not seem, at first sight, so clearly within the ambit of Article 40.1. It is noteworthy, in this context, that the Supreme Court of the United States in Massachusetts Board of Retirement Et Al v Murgia [427 US 307] declined to treat a classification based on age as “suspect” within the terms of its then jurisprudence. However, the comments of Marshall J in the course of his dissenting opinion in that case are also of relevance to the present enquiry:
“Whether older workers constitute a “suspect” class or not, it cannot be disputed that they constitute a class subject to repeated and arbitrary discrimination in employment . . .
Of course, the court is quite right in suggesting that distinctions exist between the elderly and traditional suspect classes such as Negroes, and between the elderly and “quasi-suspect” classes such as women or illegitimates. The elderly are protected not only by certain anti-discrimination legislation, but by legislation that provides them with positive benefits not enjoyed by the public at large. Moreover, the elderly are not isolated in society, and discrimination against them is not pervasive but is centred primarily in employment. The advantage of a flexible equal protection standard, however, is that it can readily accommodate such variables. The elderly are undoubtedly discriminated against, and when legislation denies them an important benefit — employment — I conclude that to sustain the legislation appellants must show a reasonably substantial interest and a scheme reasonably closely tailored to achieving that interest . . .”
It will be seen that the test adopted by Marshall J in the closing paragraph is not in essence different from that adopted by Barrington J in Brennan v Attorney General.
The aged are thus entitled as human beings to protection against laws which discriminate against them, unless the differentiation is related to a legitimate objective and is not arbitrary or irrational. The young are also so entitled, although the need for protection may be less obvious and pressing in their case. There is no question but that the Bill under consideration in seeking to eliminate such discrimination from the work place so far as practicable is designed to meet an important objective which is enshrined in the Constitution itself.
In precisely the same manner, however, as the wide ranging constitutional guarantee of equality necessarily envisages the recognition by the State in many contexts of inequality, so too must legislation of the nature now under scrutiny. The law cannot require an airline company to employ a child or a nonagenarian as an airline pilot. The Bill attempts to meet this difficulty by the various provisions already referred to, which relieve employers from the obligation not to discriminate on grounds of age in a number of different circumstances. No criticism has been advanced in argument of those provisions since they clearly envisage that the employer will not be able to escape responsibility, unless on an objective assessment he or she can be regarded as coming within the exemption in question. It was, however, urged, that, where the exemptions are based on specific age thresholds, they are inescapably discriminatory and in breach of Article 40.1.
It may, of course, be argued that, in the case of s 6(3), the age limit could have been fixed at a higher age than 65 or a lower age than 18. Once, however, it was conceded that the protection against discrimination on the grounds of age cannot be unqualified, it becomes a matter for the Oireachtas to determine at what level the exemptions should begin to operate. Since the age limits chosen, of 18 and 65 respectively, reflect the thresholds at which a significant number of the population enter or leave the working place, their choice could not plausibly be characterised in the view of the court, as irrational or arbitrary.
The Bill, in seeking to ensure that its objective of reducing discrimination on the ground of age does not adversely affect measures intended to alleviate the problem of the long-term unemployed, has, as already noted, removed such measures from the ambit of the Bill where they are designed to facilitate the integration into employment of persons over the age of 50. No doubt in this instance the age limit chosen does not correspond to any recognised threshold. Where, however, as here, the Oireachtas was dealing with a specific problem in ensuring that its legislative goal of equality of employment did not unnecessarily frustrate another objective of eliminating or reducing long-term unemployment, it was entitled, as a matter of social policy, to choose between fixing the relevant age at what was an appropriate level or employing another and more flexible, but it may be a less practicable, yardstick, such as the length of time an individual is registered as being one of the long-term unemployed. While it is possible to argue that the Oireachtas has made the wrong choice, that cannot amount to a finding that the classification for which they have adopted is irrelevant to the objective intended to be achieved or unfair or irrational.
It might be, at first sight, more difficult to defend on constitutional grounds the wide-ranging exclusion from the Bill’s provisions of employment in the Defence Forces, the Garda Siochana or the Prison Service. Once, however, it is accepted that discrimination on the grounds of age falls into a different constitutional category from distinction on grounds such as sex or race, the decision of the Oireachtas not to apply the provisions of the Bill to a relatively narrowly defined class of employees in the public service whose duties are of a particular character becomes more understandable. It must be emphasised again at this point that a provision of this nature in this particular Bill does not have as its consequence a shielding from judicial scrutiny on constitutional grounds of legislation fixing age limits for any of the employments in question. The right of persons affected by such legislation to advance a challenge to compulsory retirement at a specified age without any testing to determine individual fitness for the post in question, such as was unsuccessfully advanced in the United States case of Murgia, remains. Given the distinctive requirements associated with these branches of the public service and the particular importance of ensuring a high level of physical and mental fitness, it can hardly be said, in the court’s view, that the decision of the Oireachtas to remove them from the am bit of this particular measure, whether correct or not, is unrelated to a permissible legislative objective or irrational or unfair.
There remains to be considered the submission that these provisions are an unfair and disproportionate interference with the rights of employers to earn their livelihood and with their property rights. The court is conscious of the difficulties which legislation of this nature creates for employers in the private sector. Thus clearly, the smaller the firm, the correspondingly more onerous will be the burden of this form of regulation. At the same time, it must also be recognised that, in the various provisions already referred to, the legislature has sought to ease the burden to the extent that it deemed practicable. Once it is accepted that the Oireachtas was entitled to enact measures intended to eliminate so far as practicable unjust discrimination in employment on the grounds of age, the manner in which it sought to balance the conflicting interests of the employees and potential employees on the one hand and employers on the other was a matter for them. Where, as here, the result, objectively viewed, cannot be regarded as arbitrary or irrational, they must be upheld as constitutionally valid.
The Court is satisfied that it has not been established that the provisions relating to the age ground are repugnant to the provisions of the Constitution.
THE RELIGION GROUND
The Sections of the Bill relevant to this issue viz Sections 12 and 37 have already been set forth in the course of this decision and it is unnecessary to repeat them.
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Relevant Constitutional Provisions
Article 40 s 1 of the Constitution provides as follows:-
“1. All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
Article 44 is entitled “Religion” and reads as follows:-
“1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
2. 1o Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
2o The State guarantees not to endow any religion.
3o The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
4o Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.
5o Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
6o The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”
Some of the provisions of Article 42 (dealing with education) may also be relevant to the present discussion. Article 42 provides, inter alia, as follows:-
“1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
3. 10 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2o The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation . . .”
Conclusions of Court on Religion Ground
It will be noted that while, in the preamble the “People of Eire” humbly acknowledge their obligations to our Divine Lord Jesus Christ, Article 44 imposes certain duties upon the “State”. These duties are more general and less specific than the obligations acknowledged by the People in the preamble. The duty of the State is to respect and honour religion though no specific religion is identified. The Constitution then goes on to guarantee freedom of conscience and free profession and practice of religion “subject to public order and morality” to every citizen.
It is clear from Article 42 that the State acknowledges that the primary and natural educator of the child is the family. The State accordingly guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. The State may, as guardian of the common good, require that children receive a certain minimum education, moral intellectual and social. The clear implication is that the religious education of the children is primarily a matter for the parents and parents are free to provide this education in their homes or in private schools or in schools recognised or established by the State. The State shall however endeavour to supplement and give reasonable aid to private and corperative educational initiative and, when the public good requires it, provide other educational facilities or institutions with due regard for the rights of parents especially in the matter of religious and moral formation. Legislation, however, providing State aid for schools, must not discriminate between schools under the management of different religious denominations and every religious denomination is to have the right to manage its own affairs and to maintain institutions for religious or charitable purposes.
It is quite clear therefore that the State is entitled to support denominational schools though it is forbidden to discriminate between schools under the management of different religious denominations. It is also clear that Articles 42 and 44 of the Constitution reflect the system of denominational education which in fact existed in Ireland at the date of the coming into operation of the Constitution.
This system does not involve the endowment of any religion. The endowment of a religion implies the selection of a favoured State religion for which permanent financial provision is made out of taxation or otherwise. This kind of endowment is outlawed by Article 44 s 2 subsection 2 of the Constitution. The Constitution does however expressly authorise State aid for schools but forbids the State to discriminate between the schools under the management of different religious denominations or to pass any legislation which would affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. The provision of such State aid across the board to schools maintained by the various religious denominations cannot be regarded as the endowment of any one religion.
Institutions for Religious or Charitable Purposes
Article 44 s 2 subsection 5 provides that every religious denomination is to have the right to maintain institutions for religious or charitable purposes. One can get a clearer picture of what is meant by “religious denomination” if one looks at two subsections of the Constitution which were deleted by the fifth amendment to the Constitution in 1972. Section 1 subsection 2 (now deleted) of Article 44 referred to the special position of the Holy Catholic Apostolic and Roman Church as Guardian of the faith professed by the great majority of the citizens. Subsection 3 (also deleted) went on to provide as follows:-
“The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.”
The term “religious denomination”, was therefore intended to be a generic term wide enough to cover the various churches, religious societies or religious congregations under whatever name they wished to describe themselves.
These various religious denominations may control religious, educational or medical institutions, whether directly or through a board of guardians or trustees and it appears to the Court that these are the religious educational and medical institutions referred to in subsection 1 of Section 37 of the Bill and that they are also governed by the phrase “institutions for religious or charitable purposes” referred to in Article 44 s 2 subsection 5 of the Constitution.
The Court rejects the submission that a private hospital could be a medical institution within the meaning of s 37 subsection 1 of the Bill without being an institution for charitable purposes referred to in Article 44 s 2 subsection 5 of the Constitution. The Court accepts the submission of Counsel for the Attorney General that the term “institutions for religious or charitable purposes” is at least broad enough to cover the four categories of legal charities adopted by Lord Macnaghten in Commissioners of Income Tax v Pemsel [1891] AC 531 and approved by the former Supreme Court in Barringtons Hospital the Commissioners of Valuation [1957] IR 299 and by Keane J in In re Worth Library [1995] 2 IR 301. At p 583 of the report Lord Macnaghten stated that:-
“How far then, it may be asked, does the popular meaning of the word “charity” correspond with its legal meaning? “Charity” in its legal sense comprises four principal divisions: Trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The Trusts last referred to are not less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly.”
Religious Discrimination
The central submission of Counsel assigned by the Court in relation to the religion ground is that Article 37 contravenes the guarantees of freedom of conscience and the free profession and practice of religion contained in Article 44 s 2 subsection (1) and the ban on imposing any disabilities or making any discrimination on the ground of religious profession, belief or status contained in Article 44 s 2 subsection (3). Alternatively, they maintain that the Oireachtas has failed to preserve a proper balance between the rights of members of the various religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. Consequently they allege the relevant provisions of the Bill, if enacted into law, would constitute an unjust and disproportionate attack on the rights of these other citizens.
This Court accepts that it is not generally permissible to make any discrimination, or even to make any distinction, between citizens on the grounds of religious profession, belief or status.
This Court has also had to accept that occasions may arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. This problem first arose in Quinn Supermarket Limited v Attorney General [1972] IR p 1 where the Court had to accept that certain distinctions should be made in favour of the Jewish congregations arising from the fact that the Jewish Sabbath fell on a Saturday and not on a Sunday. In the course of his judgment, delivering the majority opinion of this Court, Walsh J stated (at p 24 of the report) that:-
“Section 2, subsection (1) of Article 44 of the Constitution guarantees freedom of conscience and the free profession and practice of religion in terms which do not confine these to Christianity and Judaism. It appears to me, therefore, that the primary object and aim of Article 44, and in particular the provisions of section 2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person so practising religion or holding those beliefs to any disabilities on that account, or permit distinctions on the ground of religious profession, belief or status between persons in the State who are free to profess and practice their religion. If however, the implementation of the guarantee of free religion and the practice of religion requires that a distinction should be made to make possible for the persons professing or practising a particular religion their guaranteed right to do so, then such a distinction is not invalid having regard to the provisions of the Constitution. It would be completely contrary to the spirit and intendment of the provisions of Article 44 section 2, to permit the guarantee against discrimination on the grounds of religious profession or belief to be made the very means of restricting or preventing the free profession or practice of religion. The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.”
Walsh J returned to the same theme in Mulloy v the Minister for Education [1975] IR p 88 where he stated (at p 96 of the report) —
“As explained in the judgment given in this Court in Quinn Supermarket v the Attorney General [1972] LR p 1, it is not permissible to create differences between persons or bodies or to distinguish between them on the ground of religious profession, belief or status irrespective of whether the difference is to their benefit or to their disadvantage — save where it is necessary to do so for the implementation of the constitutional right to the full and free practice of religion.”
In McGrath and O’Ruairc v The Trustees of Maynooth College [1979] ILRM 166, Henchy J expressed similar views at p 187 of the report where he stated:-
“The constitutional provision invoked here (Article 44.2.30) must be construed in the terms of its purpose. In proscribing disabilities and discriminations at the hands of the State on the ground of religious profession belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to a sapping and debilitation of the freedom and independence given by the Constitution to the doctrinal and organisational requirements and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.”
It is interesting to note that the American Federal Supreme Court has had to face a similar problem. The American Civil Rights Act of 1964 outlawed religious discrimination in employment. But paragraph 702 of the Act exempted religious organisations from this prohibition. The Plaintiff in the case of the Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v Amos 4 83 US p 327 was a building engineer employed for some 16 years by the Mormon church to work in a gymnasium. He was dismissed because he failed to produce a certificate that he was a member of the Mormon church and eligible to attend its temples. The Court upheld the constitutionality of paragraph of 702 as not violating the guarantees of freedom of religion contained in the first amendment to the American constitution. The reasoning in the concurring judgment of Brennan J is relevant to the present discussion. At p 342 of the report he says:-
“For many individuals, religious activity derives meaning in large measure from participation in a large religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organisations religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organisations often furthers individual religious freedom as well.
The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on a subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital, that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.”
It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar — but only insofar — as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.
Proportionality
Section 37, subsections (1) and (2) and section 2 of the Bill are an exception to the general rule against discrimination on the religious ground set out in s 6. It is admittedly a balancing between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one’s livelihood on the other. Counsel assigned by the Court however submit that the Oireachtas has got the balance wrong in that section 37, in particular, unduly favours the right to free profession and practice of religion at the expense of the other rights named.
No serious criticism can however be advanced against section 37 subsection (2) which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. The attack has been directed more against subsection (1) which entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee “where it is reasonable to do so in order to maintain the religious ethos of the institution” or to take action “which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution”.
The use of the words “reasonable” and “reasonably necessary” implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis.
Counsel assigned by the Court point to the use of the word “ethos” in subsection (1) and submit that the religious institution or denomination will state in each case what its “ethos” is and that the test will in fact become subjective. It is true that “ethos” is a vague term and is nowhere defined in the Bill. Chambers English Dictionary gives, inter alia, the following meaning to the word “the distinctive habitual character and disposition of an individual group”. It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the Court and the Court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.
Section 12
This deals with vocational training and is justified in the same manner as section 37 subsection (1). It first outlaws discrimination and then for the purpose of ensuring the availability of nurses for hospitals and teachers for primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools provides that the prohibition of discrimination on the religion ground is not to apply in respect of:-
“(a) The nomination of persons for admission to the school of nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970, (section 76) (Adelaide and Meath Hospital, Dublin incorporating the National Childrens Hospital) Order 1996 or
(b) Places in a vocational training course specified in an order made under subsection (5).”
Subsection 5 provides that:-
“Where an educational or training body applies to the Minister for Health, in the case of hospitals, or to the Minister for Education, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health or the Minister for Education, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health or the Minister for Education, as the case may be, to meet the purposes set out in subsection (4).”
Again, and for the reasons already discussed in relation to Article 37 section 1, it appears to the Court that s 12 represents a reasonable balancing between the principle of equality before the law on the one hand and the principle of the free profession and practice of religion on the other hand.
For these reasons the Court rejects the challenge to the Bill based on the religion ground.
THE DISABILITY GROUND
The provisions of the Bill relevant to the consideration of this issue raised by Counsel assigned by the Court are Section 6(2)(g), Section 16 and Section 35.
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In considering these submissions, the court considers it necessary to set out in extenso the provisions of Article 43 of the Constitution. It provides that:
“1. 1o The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
2o The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
2. 1o The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
2o The State, accordingly, may as occasion requires, delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”
It has been clear since the decision of this court in Blake v Attorney General [1982] IR 117 that this Article prohibits the abolition of private property as an institution but at the same time permits, in particular circumstances, the regulation of the exercise of that right. It does not deal with the citizen’s right to a particular item of property: those items are, however, protected from unjust attack by the provisions of Article 40.3.1.
The Court is satisfied that the provisions under consideration constitute a delimitation of the exercise by employers of a right protected by that Article, ie the right to carry on a business and earn a livelihood. It is also satisfied that these limitations have been imposed by the Oireachtas with a view to reconciling the exercise of the rights in question with a specific aspect of the common good ie the promotion of equality in the workplace between the disabled and their more fortunate fellow citizens. The issue which the court has to resolve is as to whether the abridgement of those rights effected by these provisions constitutes an “unjust attack” on those rights in the case of individual employers, having regard to the manner in which it has been effected.
It is clear that, in determining whether the absence of any provision in the legislation under consideration for the payment of compensation constitutes such a “unjust attack”, the court may have regard to whether the restriction, in the form in which it was imposed, is consistent with the requirements of “social justice” within the meaning of Article 43.2.1.
In reading Article 43 of the Constitution it is important to stress the significance of the word “accordingly” which appears in Article 43 S 2 ss 2. It is because the rights of private property “ought” in civil society to be regulated by “the principles of social justice” that the State may, as occasion requires, delimit their exercise with a view to reconciling it with the “exigencies of the common good”. It is because such a delimitation, to be valid, must be not only reconcilable with the exigencies of the common good but also with the principles of social justice that it cannot be an unjust attack on a citizen’s private property pursuant to the provisions of Article 40 S 3 of the Constitution (see judgment of Walsh, J in Dreher v Irish Land Commission 1984 ILRM 94).
Needless to say what is or is not required by the principles of social justice or by the exigencies of the common good is primarily a matter for the Oireachtas and this Court will be slow to interfere with the decision of the Oireachtas in this area. But it is not exclusively a matter for the Oireachtas. Otherwise, as was pointed out in the Sinn Fein Funds case, Article 43 would appear, with Article 45, in the section of the Constitution devoted to the directive principles of social policy the application of which by the Oireachtas in the making of laws is withdrawn from the consideration of the Courts (see Buckley and Others v Attorney General and Others [1950] IR 67 at p 83).
The Bill has the totally laudable aim of making provision for such of our fellow citizens as are disabled. Clearly it is in accordance with the principles of social justice that society should do this. But, prima facie, it would also appear to be just that society should bear the cost of doing it. It is important to distinguish between the proposed legislation and legislation to protect the health and safety of workers. It is entirely proper that the State should insist that those who profit from an industrial process should manage it as safely, and with as little danger to health, as possible. The cost of doing the job safely and in a healthy manner is properly regarded as part of the industrialist’s costs of production. Likewise it is proper that he should pay if he pollutes the air the land or the rivers. It would be unjust if he were allowed to take the profits and let society carry the cost. Likewise it is just that the State, through its planning agencies, should insist that the public buildings and private buildings to which the general public are intended to have access for work or play should be designed in such a way as to be accessible by the disabled as well as by the able-bodied.
But the difficulty with the section now under discussion is that it attempts to transfer the cost of solving one of society’s problems on to a particular group. The difficulty the Court finds with the section is, not that it requires an employer to employ disabled people, but that it requires him to bear the cost of all special treatment or facilities which the disabled person may require to carry out the work unless the cost of the provision of such treatment or facilities would give rise to “undue hardship” to the employer.
There is no provision to exempt small firms or firms with a limited number of employees, from the provisions of the Bill. The wide definition of the term “disability” in the Bill means that it is impossible to estimate in advance what the likely cost to an employer would be. The Bill does provide that one of the matters to be taken into consideration in estimating whether employing the disabled person would cause undue hardship to the employer is “the financial circumstances of the employer” but this in turn implies that the employer would have to disclose his financial circumstances and the problems of his business to an outside party.
It therefore appears to the Court that the provisions of the Bill dealing with disability, despite their laudable intention, are repugnant to the Constitution for the reasons stated.
In view of what is said above it is not necessary for the Court to deal with the exemption of “employment” in the Defence Forces, the Garda Siochana or the Prison Service from the disability provisions of the Bill. The Court does however find it difficult to understand why the clerical or civilian members of these services should be exempt.
VICARIOUS LIABILITY
Re: Sections 14 and 15 of the Bill
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It is nowhere provided in the legislation that the actual perpetrator of an act of discrimination or victimisation is to be guilty of any offence. It is only a person who procures or attempts to procure another person to do something which constitutes discrimination or victimisation who can be guilty of an offence: s 14 Such a person must be proved in the ordinary way to have had mens rea ie an intention to commit the offence. It is strange and anomalous that the chief perpetrator of the act is guilty of nothing; it is only the person who procures or attempts to procure the deed who is to be arraigned. But just because a provision is strange or anomalous does not render it repugnant to the Constitution. It is, for example, only a civil wrong to trespass on another’s land but if there is a conspiracy to commit a trespass on another’s land that makes the conspirators guilty of a criminal offence. The Court concludes that s 14 is not repugnant to the Constitution.
Coming to s 15, the first enquiry that has to be made is whether it applies to criminal as well as to civil proceedings. It should be said that as regards the fixing of civil responsibility on an employer, s 15 is unexceptional and accords with well established principles of fixing vicarious responsibility on employers for the wrongs of their employees. Counsel for the Attorney General submitted that the section does apply to criminal proceedings and invited the Court to say that if that submission is wrong, the provision might be saved under the “double construction” rule. cf Kelly, The Irish Constitution, 3 Edition, p 458 et seq.
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However, what is sought to be done by this provision is that an employer, devoid of any guilty intent, is liable to be found guilty on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years, or both such fine and imprisonment, and to be tainted with guilt for offences which are far from being regulatory in character but are likely to attract a substantial measure of opprobrium. The social policy of making the Act more effective does not, in the opinion of this Court, justify the introduction of so radical a change to our criminal law. The change appears to the Court to be quite disproportionate to the mischief with which the section seeks to deal.
In the course of his speech in Sweet v Parsley (HL(E)) [1970] AC 132 at p 150, Lord Reid — the case dealt more with the concept of strict liability as opposed to vicarious liability, but what he had to say is equally pertinent to what the Court has to consider — referred to “the public scandal of convicting on a serious charge persons who are in no way blameworthy”. Of course, the English courts would have to recognise that if parliament decreed that a person should be found guilty in those circumstances, then the legislation might be upheld because parliament in the British system is said to be supreme.
Our situation, however, is totally different. We are governed by a Constitution with the separation of powers as its fulcrum and the two houses of the Oireachtas are precluded from enacting any legislation which is in any respect repugnant to the Constitution.
The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and, therefore, contrary to Article 38.1 of the Constitution and also repugnant to the provisions of Article 40.1 of the Constitution.
SECTION 16(4)
Section 16(4) provides that nothing in the legislation shall be construed as:-
“. . . requiring an employer to recruit, retain in employment or promote an individual if the individual is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.”
It is clear that the Bill provides that none of its provisions requires an employer to recruit, or promote an individual if the employee has a past criminal conviction for unlawful sexual behaviour or it is considered on the basis of reliable information that he engages in, or has a propensity to engage in unlawful sexual behaviour.
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Whether particular information is “reliable” or whether a person has such a “propensity to engage in” the conduct to which s 16(4) applies will, in the event of dispute, fall for resolution by the relevant tribunal or court and it may be taken as accepted that they will apply the well established standards of constitutional justice and fair procedures.
No doubt, the Houses of the Oireachtas conscious of the higher dangers of recidivism with regard to sexual crimes as well as the addictive character of certain sexual offences involving minors and so as to avoid a situation where persons convicted of such offences or with a clear propensity to engage in such behaviour could secure access to employment on an equal footing with other types of employees, provided by s 16(5) that:-
“Without prejudice to the generality of s 16(4) that sub-section applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable.”
The Court is of the view that it is concerned here with something that is clearly one of policy which the Houses of the Oireachtas are entitled to enact so as to afford employers a certain protection and this is justifiable on the grounds of prudence and safety. However, it should be observed that it is not every idle word that should be heeded by an employer. The employer in each case where a person’s suitability is called in question will need to make a proper value judgment having regard to all the circumstances; but if that judgment is exercised bona fide the employer should not be faulted just because it turns out to be wrong”.
Ngongban v Dublin Institute of Technology
File No: EE/2008/570
Date of issue: 19 July, 2011
Headnotes: Employment Equality Acts 1998- 2008 – sections 6&12 -race – vocational training – equal treatment – jurisdiction.
1. DISPUTE
This dispute involves a claim by Ms Gwendolin Mangwi Ngongban that she was discriminated against by Dublin Institute of Technology (“the respondent”) on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to sections 12 and 31 of those Acts when it applied the level of fees for non-EU students to her application for a Post Graduate course in the College in June, 2008. The respondent rejects the complainant’s assertions and notwithstanding this submits that the programme which she applied for does not constitute vocational training in terms of section 12 of the Acts and the complaint is not therefore validly before the Tribunal for investigation.
2. BACKGROUND
2.1 The complainant was born in Camaroon. In May, 2008 her application for a place on the respondent’s MSc. Course in Pharmaceutical Quality Assurance and Biotechnology (hereafter referred to as “the course”) was successful. The respondent applied the level of fees for non- EU nationals to her application – which was considerably higher than the fees applied to Irish or other EU citizens who were offered places on the course. The complainant states that she was granted an Irish passport in August, 2006 and the respondent therefore discriminated against her on grounds of race – colour, national and ethnic origins – by applying the non-EU national rate of fees to her. The respondent submits, in the first instance, that the course which the complainant applied for does not constitute vocational training in terms of section 12 of the Acts and the complaint is not validly before the Tribunal for investigation. Notwithstanding its position on this point, it (i) rejects the complainant’s assertion that it discriminated against her at all and (ii) submits that if the treatment of the complainant constitutes indirect discrimination of her in terms of section 31 of the Acts, that such treatment is objectively justified in terms of that provision.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 – 2008 to the Equality Tribunal on 25 August, 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned – Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 26 October, 2010 -the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 8 February, 2011. A small number of points arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until early March, 2011.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant rejects the respondent’s argument that the course she applied for does not constitute “vocational training” in terms of section 12 of the Acts. Counsel for the complainant submits that contrary to the approach adopted in Employment Equality Agency v Football Association of Ireland the Tribunal should adopt the most expansive interpretation of “vocational training” in terms of section 12 of the Employment Equality Acts, 1998-2008 so as to achieve the widest possible coverage of the statute. Counsel further submits that discrimination on grounds of racial origin in respect of access to vocational training is prohibited by Article 3 of the Race Directive. Counsel submits that a number of European Court of Justice (ECJ) judgements are relevant in support of the complainant’s arguments in this regard. The first of these is Gravier v City of Liege where the ECJ held that “any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training, whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education”.
3.2 The second such judgement is Blaizot v University of Liege where the ECJ held that “Neither the provisions of the Treaty, in particular Article 128, nor the objectives which those provisions seek to achieve … give any indication that the concept of vocational training is to be restricted so as to exclude all university education….” The Court further held that it was not necessary that the final academic examination “directly provides the required qualification for a particular profession, trade or employment”. University courses were also covered if they “provide specific training and skills, that is where a student needs the knowledge so acquired for the pursuit of a profession, trade or employment, even if no legislative or administrative provisions make the acquisition of that knowledge a prerequisite…”. “In general, university studies fulfil these criteria. The only exceptions are certain courses of study which, because of their particular nature, are intended for persons wishing to improve their general knowledge rather than to prepare themselves for an occupation.”. Counsel for the complainant adds that the principles established in both the Gravier and Blaizot judgements were affirmed by the ECJ in EU Commission v Republic of Austria.
3.3 The complainant states that she applied for a place on the respondent’s MSc. Course in Pharmaceutical Quality Assurance and Biotechnology and was offered a place on the course by letter dated 21 May, 2008. She adds that the Acceptance Form attached to this letter indicates that the tuition fees for the course were €11,000. The complainant states that when she queried this amount the respondent informed her it had applied its International Fee Policy to her and on the basis of the information furnished in her application she did not qualify for reduced fees under that policy as she was classified as a non-EU national. The complainant states that she was born in Cameroon and was granted Irish citizenship on 18 August, 2006. She adds that her passport indicates these facts and she submits therefore that her fees should have been assessed in the same manner as any other Irish or EU national. The complainant adds that prior to being granted Irish citizenship she had been resident in Ireland since 2001 – as an Asylum Seeker from 2001 and a Refugee from 2002. It is submitted that this constitutes direct discrimination of her on grounds of race contrary to the Acts.
3.4 The complainant further states that she qualified for reduced fees under Section C(ii) of the respondent’s International Fee Policy as she was resident in Ireland or another EU Member State as either an employee or a full time student in three of the five years prior to the commencement of the course. The complainant states that she furnished documentation in support of this but the respondent rejected her application. She adds that the respondent did not ask her for any further documentation and states that the reason given to her by the respondent was that she was unable to comply with the necessary tax requirements to demonstrate her residency. The complainant submits that this constitutes indirect discrimination of her contrary to the Acts. In this regard she seeks on the decisions of this Tribunal in Two Complainants v The Department of Education and Science and Tsurova v University of Dublin (Trinity College). It is further submitted on her behalf that the policy operated by the respondent cannot be objectively justified in terms of section 31(1) of the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertions that it discriminated against her on grounds of race contrary to the Acts. Notwithstanding this it submits, in the first instance, that the course which the complainant applied for – MSc. in Pharmaceutical Quality Assurance and Biotechnology – does not fall within the definition of “vocational training” provided at section 12 of the Employment Equality Acts, 1998-2008. The respondent submits that the course could not be considered “training” in terms of the Acts. It states that the course is at Level 9 of the National Framework of Qualifications and comprises two phases – the first of which involves attendance at lectures, assignments, industry visits and practical work (75% of which is academic) and the second phrase (for those students who receive an overall average mark of 50% of higher on Phase 1 of the course) involves the completion of an industry research project – the outcomes of which are contained in a 15,000-20,000 word dissertation. The respondent states that the student is required to spend approximately six months in an appropriate workplace environment in order to undertake a detailed study of a topic relevant to the industry, having at the outset submitted a comprehensive research proposal setting out the proposed outputs and research methodologies to a dedicated Supervisor. The respondent further states that the dissertation is subject to internal/external evaluation and ultimately ratification by the College Examination’s Board. It submits that the course is predominately academic in nature, involving a high level of professional learning and does not therefore fall within the definition of “vocational training” contained in the Acts. In this regard it seeks to rely on the decision of this Tribunal in Kelly v UCD.
4.2 The respondent further submits that the course is not “exclusively concerned with training for such an activity.” and argues that the inclusion of the word “exclusively” must be interpreted as meaning that the training involved will equip the person undertaking it with the knowledge or capacity for a specific profession or occupation, to the exclusion of all other professions/occupations. The respondent argues that the course at issue does not qualify the complainant for any particular profession or occupation. It adds that the successful completion of the course would be beneficial to the complainant in pursuing a wide gambit of career paths in the Pharmaceutical, Chemistry and Biochemistry industries and is not restricted to one particular strand of occupation. The respondent submits that the determination of the Labour Court in Employment Equality Agency v Football Association of Ireland in relevant to the instant case, in particular the Court’s comment that the word “exclusively” (in terms of the definition of vocational training contained in the Employment Equality Act, 1977 – which was at issue in that case) “is not a word which readily lends itself to a wide interpretation” and invites the Tribunal to take adopt a similar approach in the instant case.
4.3 The respondent states that higher education institutions are entitled to set their own fee rates. It adds that its Fees Policy is consistent with the Department of Education and Science (as it then was) Criteria for Determining Eligibility for the Free Fees Initiative and, in particular that an applicant must fulfil both a nationality and residency requirement. The respondent states that its policy distinguishes between EU nationals (including Irish nationals) and non-EU nationals. The respondent states that the complainant’s original application did not declare her nationality and in accordance with its standard practice her application was forwarded to the respondent’s international student office for processing. It states that the complainant was assessed under Section C of its Policy for Oversea Students which required her to satisfy the residency element of the criteria – that she was resident in an EU Member State for three of the previous five years prior to the commencement of the course in either full-time study or working. The respondent accepts that the complainant subsequently furnished it a copy of her Irish passport which satisfied the nationality component of the criteria. It adds that she was unable to provide documentary evidence showing that she was resident in Ireland or another EU Member State in three of the preceding five years and her application was unsuccessful. The respondent adds that certification of employment requires submission of a Form P.21 from the Revenue Commissioners (or similar organisation in other EU Member States) and suggests that this may be the tax requirements referred to by the complainant. The respondent states that these criteria apply to all applicants irrespective of nationality and submits that they do not therefore constitute direct discrimination of the complainant contrary to the Acts.
4.4 The respondent further submits that the operation of the Fee Policy does not constitute indirect discrimination of the complainant either. It adds, without prejudice to this position, that its process is objectively justified in terms of section 31 of the Employment Equality Acts, 1998-2008 and the test formulated by the ECJ in Bilka- Kaufhaus GmbH v. Weber Von Hartz. It states that the rationale underpinning the Department of Education and Science’s Free Fee Initiative for undergraduate programmes is that either the students themselves or their parents have contributed tax within the EU and have therefore directly or indirectly contributed to third level education over that period. Students from outside the EU have not made any such contribution and are therefore levied higher fees to cover the full economic cost of provision of the education programme. It adds that the same principle is applied to postgraduate courses and that this policy is objectively justified in those circumstances.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not (i) the course which the complainant applied for constitutes “vocational training” in terms of section 12 of the Employment Equality Acts, 1998-2008 and the complaint is therefore validly before this Tribunal for investigation, (ii) the respondent directly discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts in the manner with which it assessed the rate of fees applicable to her in order to pursue her chosen course in June, 2008 and (iii) the respondent indirectly discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 31 of those Acts in the manner with which it assessed the rate of fees applicable to her in order to pursue her chosen course in June, 2008. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
5.2 Section 12 of the Employment Equality Acts, 1998-2008 defines “vocational training” as follows –
“any system of instruction that 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 construed as exclusively concerned with training for such an activity.”
5.3 The complainant submits that this Tribunal should take an expansive view in interpreting what constitutes “vocational training” for the purposes of section 12 of the Acts and cites two ECJ judgements in support of this assertion. I note in the first instance that these judgements relate to issues in the Treaties concerning free movement of workers and not equality provision of those Treaties. It appears to me that in those circumstances I am not obliged to follow them although they may be of some assistance in reaching my decision. I further note that “vocational training” is not defined in any of the equality provisions of the Treaties or the associated Directives. The respondent submits that the course which the complainant applied for – MSc. in Pharmaceutical Quality Assurance and Biotechnology – does not fall within the definition of “vocational training” provided at section 12 of the Acts as (i) it is primarily academic in nature and (ii) it is not exclusively concerned with equipping a person with knowledge for a particular occupation. It adds that the course at issue does not qualify the complainant for any particular profession or occupation and that on successful completion of the course the complainant would be able to pursue a wide gambit of career paths in the Pharmaceutical, Chemistry and Biochemistry industries. It seeks to rely on the Decision of this Tribunal in Kelly v UCD and the determination of the Labour Court in Employment Equality Agency v Football Association of Ireland in this regard.
5.4 In the Blaizot judgement the ECJ held that the course at issue in that case – veterinary medicine – was vocational training and indeed stated that university courses could amount to vocational training. It is clear that certain university courses might conform to the definition of vocational training – medicine, law, accountancy – notwithstanding that further qualifications or accreditation are necessary before a person is permitted to practice in those areas. It is also clear that qualifications in these areas of study permit the student to ultimately pursue a specific occupation. Moreover, it is clear that such university courses are highly academic in nature and I am satisfied therefore that the academic component of a particular course cannot be definitive in deciding whether or not a particular course amounts to vocational training in terms of the Acts.
5.5 Article 4 of Council Directive 76/207/EEC prohibited discrimination on grounds of gender as regards access to vocational training. This obligation was transposed into Irish legislation by section 6 of the Employment Equality Act, 1977. The definition of vocational training contained in that section is identical to that at section 12 of the Employment Equality Acts, 1998-2008, which transposes, inter alia, the Race Directive, which provides a similar prohibition as regards access to vocational training on grounds of race. In the absence of any definition of vocational training in either Directive it appears that each Member State has the discretion to define vocational training for the purposes of national legislation. The definition of vocational training at section 12 of the Acts contains the words “exclusively concerned”. It is clear that the inclusion of this phrase results in a narrower interpretation of vocational training to that suggested in the ECJ cases cited by the complainant. In Employment Equality Agency v Football Association of Ireland the Labour Court (in dealing with a complainant under the Employment Equality Act, 1977) commented that the phrase “exclusively” did not “readily lend itself to a wide interpretation” and I would concur with that view. I further concur with the Court’s view that if an expansive interpretation was to be placed on the definition of vocational training that the term would lose its ordinary meaning. I am also mindful of the fact that at the time the Labour Court reached its determination the ECJ had already delivered the two judgements cited by the complainant. Finally, I note that the complainant could have sought redress under the Equal Status Acts, 2000-2008 which prohibits, inter alia, discrimination as regards access and participation in courses in educational establishments and failed, or chose not to, do so.
5.6 The respondent also submits that the inclusion of the word “exclusively” at section 12 of the Acts must be interpreted as meaning that the training involved will equip the person undertaking it with the knowledge or capacity for a specific profession or occupation, to the exclusion of all other professions/occupations and I concur with such an interpretation. The respondent states that the course at issue does not qualify the complainant for any particular profession or occupation. It adds that the successful completion of the course would be beneficial to the complainant in pursuing a wide gambit of career paths in the Pharmaceutical, Chemistry and Biochemistry industries and is not restricted to one particular strand of occupation. I have examined the relevant extract from the respondent’s website which was submitted as part of my investigation and this document states that graduates of the course will be equipped to take up positions as quality professionals and managers in the pharmaceutical and related industries. The structure of the course (also submitted in the course of my investigation) comprises twelve taught modules of twenty hours covering a wide range of topics related to the subject and a six month industry based research project in an appropriate workplace environment in order to undertake a detailed study of a topic relevant to the industry. I have given careful consideration to these factors and I am satisfied, on balance, that the respondent is correct in its assertion that a graduate from the course is qualified to pursue employment across a wide range of employments in the Pharmaceutical, Chemistry and Biochemistry industries and that the course is not restricted to equipping a person with the knowledge or capacity for a specific profession or occupation.
5.7 In light of my comments in the preceding paragraph I find that the course at issue in this case – MSc. in Pharmaceutical Quality Assurance and Biotechnology – does not constitute vocational training in terms of section 12 of the Employment Equality Acts, 1998-2008 and I have no jurisdiction to investigate the complaint.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that the course at issue in this case – MSc. in Pharmaceutical Quality Assurance and Biotechnology – does not constitute vocational training in terms of section 12 of the Employment Equality Acts, 1998-2008 and I have no jurisdiction to investigate the substantive aspects of the complaint.
_______________________________________
Vivian Jackson
Equality Officer
19 July, 2011
Egan v Young Fine Gael
(represented by Kevin O’ Higgins, Solicitor)
File Ref: ES/2007/71
Date of Issue: 5 January 2011
Keywords: Equal Status Acts 2000-2008 – Disposal of goods and provision of services, Section 3(2)(f), age ground, prima facie case, Section 5(2)(h)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 10 July 2007 under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 23 September 2010 my investigation commenced when the complaint was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 13 October 2010 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Mr. Egan (hereafter “the complainant”) that he was discriminated against by Young Fine Gael (hereafter “the respondent”) on the grounds of age in terms of Section 3(2)(f) of the Equal Status Acts, 2000-2008 and contrary to section 5 of those Acts by its refusal to allow him access to join membership of the Young Fine Gael party.
2. Summary of the Complainant’s Case
2.1 The complainant states that in or around January, 2007 there was a leadership heave against Mr. Enda Kenny, the leader of the Fine Gael party. The complainant was listening to a ‘Morning Ireland’ programme wherein there was a discussion about this issue with Mr. Damien English, TD who represented the Meath constituency where the complainant is also a constituent member in that area. The complainant states that there was a heave against Mr. Enda Kenny and while there had not been an election declared, the discussions were around a new leader for Fine Gael. The complainant further states that Mr. John Deasy was backing Mr. Simon Coveney for the role of leader. The complainant contends that Mr. English was asked who he would vote for and on at least three separate occasions, he stated on each occasion that that he would be voting for the younger man. It was put to him by the broadcaster of the programme that this comment could be viewed as ageist, however, according to the complainant he restated his mantra of ‘he would always vote for the younger man who would have fresher ideas’. On listening to the broadcast, the complainant stated that he felt old and worthless and was very annoyed with what he heard. The complainant states that at this time, Mr. English was around 28/29 years of age and could possibly be the TD in Meath representing constituents for the next 30 years and the complainant was very concerned about this prospect given what he had heard on the ‘Morning Ireland’ programme.
2.2 The complainant states that because he was so outraged at what he heard, he wrote to Mr. Damien English and Mr. Enda Kenny about his concerns. After the third letter issuing to Mr. Kenny by the complainant and with no reply forthcoming, he attended a public meeting in order to speak to Mr. Kenny. He advised Mr. Kenny that he had written to him on a number of occasions but received no reply. Mr. Kenny stated that it was not like him not to reply to correspondence and would check out the position on his return to his office. The complainant sent a third letter to Mr. English but received no reply. At this stage, Mr. English was re-selected following a general election as local TD for the Meath constituency and the complainant felt very annoyed by the alleged ageist comments by Mr. English and the fact he was his local public representative. The complainant states that due to the fact that neither Mr. English nor Mr. Kenny would reply to his correspondence or engage in dialogue with him, he felt strongly about applying to join Young Fine Gael to change the system from within in a democratic way. He applied for membership of Young Fine Gael in or around March/April 2007 and states that his application and fee were accepted. He received a phone call from Ms. C, national youth officer with Young Fine Gael on 20 April 2007 stating that he was not eligible for membership because he was 20 years too old. Ms. C stated that the constitution and rules laid down by Young Fine Gael would not allow him access to membership as he was born in 1956 and the cut off date for joining at that time was 1976. Up to this point, he was of the understanding that he was a member of Young Fine Gael and had passed the selection procedure, he had been sent texts regarding party business, he was requested to go out and canvass for members and he was sent information regarding various events which were taking place. He states that due to the foregoing, he had assumed that he was a member until he received the phone call from Ms. C. The complainant took issue with what Ms. C had stated and wrote to her in this regard but he received no reply.
2.3 The complainant states that he wanted to join Young Fine Gael in order to effect change. He wanted to join to make a point. He felt old and worthless after the comments made by Mr. English on the ‘Morning Ireland’ programme. He was very annoyed that he received no replies to his correspondence from Mr. English and Mr. Kenny. He states that ”all he wanted was someone to talk to him regarding his concerns but instead he felt they were laughing at him and taught he was funny”. He states that ”he wanted to get in at the nursery stage in order to effect real change”. He contends that he was discriminated against on the grounds of age by the Young Fine Gael party in not been allowed to join the party.
3. Summary of the Respondent’s Case
3.1 The respondent’s representative states that, in the first instance, the respondent is incorrectly and unfairly cited, in that, the complainant named Ms. C as the respondent. He further states that under section 22 of the Equal Status Act, this complaint should have been dismissed on the grounds that it is was made in bad faith and is misconceived, frivolous and vexatious. The respondent contends that Young Fine Gael does not provide a service as defined in the equal status legislation, in that, it does not provide facilities for banking, entertainment, cultural activities or transport and travel. It further states that it is not a service or facility provided by a club and is not a professional or trade service. The respondent maintains that the Tribunal has no jurisdictional grounds in this matter.
3.2 The respondent states that the Young Fine Gael party was established in 1977. It was established as a forum for young people to engage together for political discourse, to speak freely. He further states that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds. He contends that the parent party can be stifling for younger people. He further asserts that most political parties have their own youth wing, including for example, Ogra Fianna Fail, Ogra Sinn Fein and young Labour. The respondent states that there is nothing unusual in this and that Young Fine Gael’s constitution expressly restricts its membership to persons under the age of thirty one. The respondent’s representative provided the Tribunal with a copy of the rules and constitution where it states that membership is restricted to persons 30 years of age and under. The respondent quoted the Preamble of its constitution;
“Young Fine Gael, the young United Irelanders is an Irish Nationalist Youth Movement that pledges allegiance and fidelity to the Irish Republic and derives its inspiration and endeavour from this bedrock. Young Fine Gael is an autonomous yet integral part of the Fine Gael party. It seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael.”
3.3 The respondent states that the parent party has been helpful to Young Fine Gael, enabling it to play an important role in the main party. Its role is recognised in the constitution of the parent party. The respondent submits that there are circa 4000 members in Young Fine Gael and around 35,000 members in the parent party. The respondent states that in order to apply for membership, one can call headquarters and request an application form, through a branch or complete an application form on-line. Membership is for 1 year and to renew membership, a person contacts the local branch and pays the fee and is re-affiliated. The respondent states that the complainant submitted an application form for membership of Young Fine Gael on 30 March, 2007. On 19 April, 2007 Ms. C received the application form and presumed there was a mistake. She contacted the complainant by telephone and queried his date of birth. She states that she would not have used the term 20 years too old but instead advised him of the age limits as laid down in the constitution and rules of the Young Fine Gael party. She states that she advised him that he was ineligible to join Young Fine Gael on age grounds but advised him that he could join the parent party. She states that she does not recall any mention of Mr. Damien English or Mr. Enda Kenny during this conversation. She further states that the complainant stated that he was familiar with the age requirement to join but still wanted to join the Young Fine Gael party. She restated that she could only offer him membership of the Fine Gael party and ended the conversation.
3.4 The respondent states that when a member attains the age of 31, they cannot renew membership of Young Fine Gael and subsequently graduate for membership of the parent party. The respondent further contends that generally when persons reach their mid 20’s, they migrate to the main party and some persons have dual membership of Young Fine Gael and the parent party. The respondent re-iterated that the age limit is in place so that the peer group have freedom of expression, can speak freely and openly. It may be more inspirational and radical than the elder party. It states that if it allowed older members to join, it may dampen down the discussion and the debate that takes place. The respondent states that there are no members 31 years of age or over in the Young Fine Gael party.
3.5 The respondent states that the complainant had a grievance with his local public representative, Mr. Damien English and was very annoyed and angry regarding the way he perceives that he was treated and alleged remarks made on the ‘Morning Ireland’ programme. It submits that this anger was not about joining Young Fine Gael but more about a grievance with his local representative and the fact that Mr. English and Mr. Kenny would not enter into dialogue with the complainant. The respondent asserts that the complainant had seen the Fine Gael website and was well aware of the age criteria in order to attain membership of the Young Fine Gael party. The respondent states that the complainant seeking to join the Young Fine Gael party was akin to an 18 year old wanting to join Age Action Ireland or an older persons bridge society, he stated that it was perverse and reiterated the point that the complainant’s main grievance was with his local public representative, Mr. English and Mr. Kenny and their non-engagement with him. The respondent further states that the issue is not about the complainant seeking to join the Young Fine Gael party but more about seeking to embarrass and show up the Fine Gael party.
3.6 The respondent also argues section 5(2)(h) of the equal status legislation in support of its case, i.e. “differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests”
In this regard, the respondent re-iterated that the principal purpose of Young Fine Gael is to provide a forum for young people to express their views and be more inspirational and radical than the elder party. It also quotes the preamble of its constitution where it states ‘Young Fine Gael seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael’. It also made the argument that if it allowed older persons to join, it could lead to a dampening down of the discussion and debate that takes place and may be stifling for the younger members.
The respondent also refers to the High Court and Supreme Court cases in relation to the Equality Authority v Partmarnock Golf Club [2005] IEHC 235 and [2009] IESC 73 enabling positive discrimination and this type of restriction where there are bona fide grounds. The respondent argues that it is entitled to rely on this exemption under the legislation.
4. Conclusions of Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against on the age ground contrary to the Equal Status Acts. In reaching my decision, I have taken into account all the written submissions, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
3. — (1) 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) (in this Act referred to as the ”discriminatory grounds)”
Section 38A (1) provides that the burden of proof is:
” 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.”
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.2 In the Equal Status Acts under Section 2, “service” is defined as a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –
(a) access to and use of any place
(b) facilities for –
(i) banking, insurance, grants, loans, credit or financing
(ii) entertainment, recreation or refreshment
(iii) cultural activities, or
(iv) transport or travel
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service
In examining the definition of service in the Act, it is very broad and includes a service or facility which is available to the public generally or a section of the public. I am of the view that the youth wing of a political party can be defined as a service to a certain section of the public and therefore it constitutes a service within the meaning of section 2 of the Equal Status Acts.
4.3 The respondent has argued that Young Fine Gael is incorrectly and unfairly cited in that Ms. C who is the national youth officer has been named as the respondent in the complaint form ES.3 instead of Young Fine Gael. I have noted this point, however, the complainant has given the correct address of Young Fine Gael in the address box of the form. Given the High Court judgment in the case of County Louth Vocational Education Committee v Equality Tribunal and Pearse Brannigan (Notice Party)[2009] IEH370, I note that McGovern J. stated at paragraph 6.2 “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, 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…remains the same.” I am satisfied that the ES3 form is an outline document and the complainant has given the correct address of the Young Fine Gael office in the form. I am further satisfied that this complaint is valid and admissible and that I have jurisdiction to hear the complaint. Accordingly, I do not accept the argument put forward by the respondent in this regard.
4.4 The respondent further argues that under section 22 of the Equal Status Act, this complaint should have been dismissed on the grounds that it is was made in bad faith and is misconceived, frivolous and vexatious. In examining section 22 of the Equal Status Acts, I am satisfied that the claim could not be dismissed as misconceived, vexatious and frivolous. A claim is misconceived if it is incorrectly based in law. I take cognisance of the Supreme Court case, Farley v Ireland, [1997] IESC 60 which referred to frivolous and vexatious and in the course of the judgement stated: “so far as the legality of the matter is concerned, frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that as far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendants to have to take steps to defend something which cannot succeed and the laws calls that vexatious.”
The complainant’s claim is not misconceived as it is directly related to his age and the refusal to accept him as a member. In addition, refusal of membership of a political party could not be regarded as trivial. I do not accept the argument put forward by the respondent in this regard.
4.5 The complainant gave evidence at the hearing in relation to the ‘Morning Ireland’ programme and the reasons he felt so aggrieved by what he perceives was said on that programme and following same, the non-engagement in dialogue by both Mr. English and Mr. Kenny with him. He states that this is the reason he wanted to make a point and join Young Fine Gael at ‘the nursery level in order to change attitudes and effect real change from within’. When I questioned the complainant regarding whether he was aware of the age restriction (i.e. between the ages of 15 and 30) prior to applying to join the Young Fine Gael party, he stated that he was not sure and could not exactly remember but as the questioning continued, he stated that on a 60/40 percentage basis, he would have assumed at the time that he was aware that there was an age restriction in applying to join the party. The complainant also gave evidence in relation to Ms. C whom he spoke to when she contacted him querying his date of birth. He states that she spoke to him in a rude and offhand manner and advised him that he was 20 years too late to join the party. Ms. C rejects this allegation and states that she did query his date of birth and highlighted the age limit as laid down by the constitution and rules of the party. She further states that she advised him that he could join the parent party but states that she does not recall any mention of Mr. Damien English or Mr. Enda Kenny with regard to not replying to correspondence or non engagement in dialogue with him. While there is a conflict of evidence regarding this point, on hearing Ms. C’s testimony, I find her to be a credible witness and find it plausible to accept her evidence in this regard. Also, given the complainant’s evidence and the variation therein, in that, he firstly stated that he was unaware of the age restriction to apply to join the party but subsequently stated that on a 60/40 percentage basis he assumed at the time he was aware that an age restriction did apply. Taking the totality of evidence into account, I am satisfied that the complainant was aware of the age restriction at the material time based on the testimony he gave at the hearing and the fact he quoted a number of paragraphs from the website and appeared to be knowledgeable about the activities, social events, calendar etc. of Young Fine Gael. I am also satisfied that the complainant was offered the option of applying to join membership of the parent party by Ms. C but declined this offer on the basis that he wanted to get in ‘at the nursery level’ to use his own words ‘to change attitudes and to effect change from within’.
4.6 The respondent states that Young Fine Gael was established as a forum for young people to engage together for political discourse, to speak freely. It further stated that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds. It contends that the parent party can be stifling for younger people. It further asserts that most political parties have their own youth wing, including for example, Ogra Fianna Fail, Ogra Sinn Fein and young Labour. The respondent states that there is nothing unusual in this and that Young Fine Gael’s constitution expressly restricts its membership to persons 30 years of age and under. In this regard, the respondent has argued Section 5(2)(h) of the Equal Status Acts in support of their case that- ” differences in the treatment of persons in a category or persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,”
The respondent re-iterated that the principal purpose of Young Fine Gael is to provide a forum for young people to express their views and be more inspirational and radical than the elder party. It also quotes the preamble of its constitution where it states ‘Young Fine Gael seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael’. It also made the argument that if it allowed older persons to join, it could lead to a dampening down of the discussion and debate that takes place and may be stifling for the younger members.
The respondent cites the decisions of the High Court and the Supreme Court in relation to the Equality Authority v Portmarnock Golf Club in support of its case. The respondent argues that allowing a political party to have a specific section for those 30 years of age and under is a positive action measure and Young Fine Gael is entitled to have this type of restriction on the basis that Young Fine Gael’s principal purpose is to promote, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests and that this exemption is allowed under the legislation.
4.7 For completeness purposes, I questioned the respondent in relation to their procedure with regard to members of Young Fine Gael upon reaching the age of 31 and details of the age breakdown of members with names redacted. The respondent states that their membership database is not programmed to output this type of sensitive information. The respondent further states that while the information is captured when a member affiliates for the first time, the system is not configured to output reports of this nature. The respondent submits that their database will alert the user if they try to update a person who has reached the age of 31 by flagging that the person is no longer eligible for membership of Young Fine Gael and state that this rule is strictly enforced. The respondent also states that in addition to the flagging on the database, individual branch secretaries indicate to those seeking to renew membership that they cannot do so upon reaching the age of 31. The respondent re-iterates that there are no members 31 years of age or over in the Young Fine Gael party. It also has submitted documentation to the Tribunal by the General Secretary of Young Fine Gael stating that having examined their records and trawled through its database, the organisation is satisfied that no one over the age of 31 was a member of Young Fine Gael in 2007. I am satisfied on the basis of the information provided at the hearing and the documentation submitted to the Tribunal thereafter that there were no members over 31 years of age in the Young Fine Gael party in 2007.
4.8 Taking all the evidence into consideration, I am satisfied that Young Fine Gael is entitled to apply an age restriction where there are bona fide grounds for doing so, as outlined above at paragraph 4.6. The respondent operates from their rules and constitution, in that, in order to gain membership of Young Fine Gael, persons must be between the ages of 15 and 30. I accept the information put forward by the respondent, in that, Young Fine Gael was established as a forum for young people to engage together for political discourse, to speak freely, that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds and that the parent party can be stifling for younger people. I also note that many political parties have their own youth wing where the same type of age requirements apply. While I take on board the hurt and annoyance of the complainant in relation to what he perceives was said by Mr. English and others on the ‘Morning Ireland’ programme and the subsequent alleged non- engagement in dialogue by members of the Fine Gael party with the complainant; the issue for decision in this claim is whether the complainant was discriminated against on the grounds of age. I have carefully examined the evidence presented by the complainant in the instant case and find that he has failed to establish a prima facie case of discrimination in relation to access to a service on grounds of age contrary to the Acts. I am satisfied that the respondent is entitled to rely on the exemption laid down in Section 5(2)(h) of the equal status legislation.
5. Decision
5.1 For the foregoing reasons, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in terms of Sections 3(1)(a), 3(2)(f), and contrary to Section 5 of the Equal Status Acts. Accordingly, I find in favour of the respondent in this matter.
_________________
Valerie Murtagh
Equality Officer
5 January, 2011
DEC-S2009-013 – Full Case Report
Equal Status Acts, 2000-2008
Decision DEC-S2009-013
Hendrick v National Learning Network t/a Roslyn Park College
File ref: ES/2004/0133
Date of Issue:27th February 2009
TABLE OF CONTENTS
Section
Summary of Decision
1. Delegation under the Equal Status Acts, 2000 to 2008
2. Summary of claim
3. Background to the case
4. Summary of the complainant’s case
5. Summary of the respondent’s case – Jurisdiction issues
6. Summary of the respondent’s case – Substantive issues
7. Conclusions of the Equality Officer – Jurisdiction issues
8. Conclusions of the Equality Officer – Substantive issues
9. Decision
Page
2
4
4
4
5
6
7
10
13
18
Summary of Decision
Equal Status Acts 2000 – 2008
Decision DEC-S2009-013
Ms. Erika Hendrick (deceased)
(represented by Ms. Aisling Flynn and Ms. Madge O’Callaghan, Ballyfermot Advocacy service on behalf of the Estate of the late Ms. Erika Hendrick)
-v-
National Learning Network t/a Roslyn Park College
(represented by Mr. Paul Marren, of Martin E. Marren Solicitors)
Dispute
This dispute concerns a complaint by Ms. Erika Hendrick (deceased) that she was discriminated against by the respondent on the Disability ground in terms of Sections 3(1)(a), 3(2)(g) and 4(1), contrary to Section 7(2) of the Equal Status Acts, 2000 to 2004. The complainant, Ms. Hendrick, died following the referral of this complaint to the Tribunal.
Issue of Jurisdiction
The respondent raised a number of issues regarding the jurisdiction of the Tribunal to investigate this complaint. The Equality Officer made the following findings in relation to these issues of jurisdiction, namely that:
· The present complaint under the Equal Status Acts has survived the death of the complainant, Ms. Hendrick and that her parents, on behalf of her estate, are entitled to continue to pursue the complaint.
· The complaint could proceed to hearing and that the Tribunal has the jurisdiction to investigate and hear the substantive allegations of discrimination made by the complainant in the present case.
Complainant’s case
The complainant, a wheelchair user, was a student at Roslyn Park College between 2002 and 2004. The complainant claims that during her time at the College she was discriminated against by the respondent on the disability grounds as she was not provided with the opportunities to access the particular skills specific courses of her choice. She also maintains that the respondent failed to provide her with special measures and facilities in order to accommodate her needs during that time.
Respondent’s case
The respondent stated that it provides educational training courses for people with disabilities and it claims that it did not discriminate against the complainant during her time at the College. It claims that the complainant was given an opportunity to access the courses she expressed an interest in pursuing and that it provided the necessary supports and structure to facilitate her.
Decision
The Equality Officer found that a prima facie case of discrimination had not been established by the complainant on the disability grounds in terms of sections 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts, 2000 to 2008. Accordingly, the Equality Officer found in favour of the respondent in the matter.
Equal Status Acts 2000 – 2008
Decision DEC-S2009-013
Ms. Erika Hendrick (deceased)
(represented by Ms. Aisling Flynn and Ms. Madge O’Callaghan, Ballyfermot Advocacy service on behalf of the Estate of the late Ms. Erika Hendrick)
-v-
National Learning Network t/a Roslyn Park College
(represented by Mr. Paul Marren, of Martin E. Marren Solicitors)
Key words
Equal Status Acts 2000 to 2008 – Direct discrimination, section 3(1)(a) – Disability ground, section 3(2)(g) – Reasonable accommodation, section 4(1) – Educational establishments, section 7(2).
1. Delegation under the Equal Status Acts, 2000 to 2008
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004 on the 1st June 2004. On the 13th June, 2008 in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts 2000 to 2008, the Director delegated the case to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 3rd December, 2008.
2. Summaryof claim
2.1 This claim concerns a complaint by Ms. Erika Hendrick (now deceased since the complaint was referred to the Tribunal) that she was discriminated against by the respondent on the disability ground in terms of section 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts 2000 to 2004.
3. Background to the case
3.1 The complainant, Ms. Erika Hendrick, was a student at Roslyn Park College between September 2002 and April 2004. Roslyn Park College is a training centre for people with disabilities and is part of the National Learning Network (NLN), which is the training division of the Rehab Group[1]. All the students attending courses with the National Learning Network have a disability or multiple disabilities. The majority of the courses are funded by FAS and their purpose is to assist people with a disability with a view to employment or to further education.
3.2 Students attending Roslyn Park College are required to take an aptitude type assessment called Course Samples, prior to acceptance onto skill specific courses in the College. These assessments are called Course Samples. They are primarily designed to assess the students’ aptitude and suitability for a course by allowing them to test themselves against a sample of the course content.
3.3 Prior to Ms. Hendrick’s attendance at Roslyn Park College she studied at the NLN Swords Centre for two years, where she successfully completed a European Computer Driving Licence (ECDL) course. Also, after her time at Roslyn Park College she applied for and was accepted onto a Business Administration course with NLN Phibsboro in July 2004 where she studied until her untimely passing in September 2005. The case is being pursued by the complainant’s parents on behalf of their daughter’s estate.
4. Summary of Complainant’s Case
4.1 The complainant, Ms. Hendrick, suffered fromAtaxia Telangiectasia, which is a rare debilitating condition that affects, inter alia, the person’s mobility and motor responses; as a consequence Ms. Hendrick was a wheelchair user. The complainant has stated in her written submissions, that she was discriminated against by the respondent between October 2003 and 20th March 2004 on the disability ground contrary to Section 7 of the Equal Status Acts 2000 – 2004 in terms of Section 3(1)(a), 3(2)(g) and Section 4(1) of the Acts.
4.2 The complainant started in Roslyn Park College at foundation level, in September 2002, with a view to moving into one of the skills specific courses. She maintains that she applied for, and was initially offered a position on to a Digital Photography Course; however, the position failed to materialise and she was in effect refused access to the course. She also stated that she was refused entry on to an IT & Computer Maintenance Course on the basis that the College assumed that she was “too slow, inaccurate and unable to meet course deadlines”. She also claims that she attempted a course sample for a Business Administration course and never received any feedback on this test.
4.3 The complainant claims that the respondent failed to explore alternative arrangements with her, such as looking at the possibility of modifying equipment, for example, which would help facilitate her gaining access onto the skills specific courses of her choice. She maintained that the College assumed that she would not benefit from assistive technology or other forms of support, and accordingly, instead of providing assistance to her, she was actively discouraged by the respondent from attempting course samples. She claimed that the College made no effort to take into account her particular individual learning needs and did not provide the adequate resources and supports to facilitate her in successfully completing the course samples, which in turn, would have allowed her access onto the skills specific courses.
4.4 The argument was made that the College assessment criteria of course sampling discriminated against the complainant and generally any disabled person with mobility difficulties as the tests in some specific courses required a certain level of manual dexterity. The complainant claimed that the respondent failed to provide her with reasonable accommodation by not providing the appropriate aids such as the aid of a personal assistant in the course sampling tests which would have benefited her with parts of the test that required higher levels of mobility.
4.5 Finally, the complainant maintains that the respondent asked her to leave the College without any guidance and without any written notification after claiming that she did not meet their criteria.
5. Summary of the respondent’s case – Jurisdiction issues
5.1 The respondent raised a number of issues, both in its written submission and at the hearing regarding the substantive issue and the jurisdiction of the Tribunal to investigate the complaint which can be summarised as follows:
· The respondent submitted that there is a legal impediment preventing this matter proceeding to full investigation and hearing, in that the complaint of Ms. Hendrick has not survived her death by reason of section 7 of the Civil Liability Act 1961. It submitted that the ‘complainant’ is specifically defined by the Equal Status Acts and as the legislation does not make provision for the survival of a complaint upon their death, the case cannot proceed and the Tribunal has no jurisdiction to hear and consider same.
· The respondent submitted that there is an impediment in the taking of direct evidence from the complainant’s side, as the complainant is unable to provide direct oral evidence to the Tribunal. Also, the respondent is placed at a considerable disadvantage as the complainant’s written submissions and other evidence arising during the course of the hearing cannot be tested as part of the hearing process, therefore preventing a fair hearing.
· The respondent submitted that there is an issue in relation to the determination and the nature of any redress that the Tribunal can make in the circumstances of finding in favour of the complainant.
6. Summary of the respondent’s case – Substantive issues
6.1 The respondent stated that the College provides educational and vocational training courses for people with disabilities and that the whole ethos of the College is one of mutual co-operation with students so as to successfully help them meet their training needs. The courses are provided to assist people with disabilities with a view to future employment or to further education. The College maintains that they operate an adult educational model where the students take personal responsibility for their own educational paths and identify their requirements and the necessary supports for progression in the College. It is the responsibility of each student to identify their needs and to make them known at the initial entrance interview, so to allow for a joint effort between the student and college to address any specific requirements.
6.2 The respondent uses a course sampling methodology to assess student’s suitability for a preferred course choice. It said that not all colleges in the National Learning Network used the same assessment methodology at the time; however, it maintains that it is recognised as a good practice model, where more and more colleges are now using it for student assessment. The respondent claims that course sampling gives the students the opportunity to experience practical aspects of the course before they go on to actually take the course itself. Also, it gives the course tutors a practical assessment of the candidates’ capabilities at an early stage.
6.3 The respondent maintains that at the initial interview the complainant was informed that acceptance into the College at the foundation level was not in itself an offer on to any skill specific course, and that she would have to complete a course sample to get into the skills specific course of her choice. The respondent claims that the complainant never identified any specific requirements or highlighted any additional supports or assistance that she would or may require in her educational path. The respondent was aware of the complainant’s recent attendance and success at a sister college in the National Learning Network and therefore she was familiar with an adult college environment, particularly as she was known to some of the College staff who had worked with her in NLN Swords and recognised her as a very confident, determined and independent person.
6.4 The respondent maintains that the College tutors would often discuss the various course options and choices available to students at the foundation level. It claims that it too discussed the complainant’s options with her and that each and every course sample requested by the complainant was made available for her to take. It claims that it did not actively discourage the complainant from taking various courses and that all courses were discussed with the complainant as per normal with all students.
6.5 The respondent stated that every year it receives a higher number of applications than there are places available. It was unable to provide exact details of the number of applicants for the period but it states that it receives in the region of 1000 plus applications per year where 500 to 600 hundred people would then be interviewed for some 250 to 280 college places. The respondent stated that the Digital Photography Course is one of the most popular courses in the College and it attracts somewhere between 100 to 150 applications per year whereas, only 20 (circa) applicants would pass the course sample. The respondent maintains that one third (circa) of all applicants that take the course sample in the IT Maintenance & Computer course would fail the assessment. The entry standard for this course is set high, as this particular course is a FETAC[2] level 6 graded course, whereas most of the other courses offered by the college are FETAC level 5, therefore the standard required is very high.
6.6 The respondent maintains that the complainant was given an opportunity to take the three course samples that she had identified and requested. It claims that;
· In relation to the Digital photography course, that the assessment concentrated on the various skills required for the course including the inherent creativity of the students. The complainant failed the course sample and it was the professional opinion of the course tutor that the complainant did not have the overall skills-set to successfully take on the course and no additional assistance, including the help of a Personal Assistant would be of benefit to her in this situation.
· In relation to the IT and Computer Maintenance course, the course sample was divided into three parts, including a test of the students manual dexterity to work with the physical computer hardware, inter alia, the physical lifting and moving of computers and computer components. The complainant was facilitated to take part in the “ability to use a PC” test, however was not successful in the requirements here. It was the course tutors professional opinion that based on all the presenting factors, including her performance in the course sample, and following an interview with the complainant, that she would have difficulty with the course. He also felt that there was no additional assistance that he could prescribe to facilitate her, including the use of a personal assistant, as the practical parts of the course were an integral part of the whole course learning experience.
· In relation to the course sample in the Business Studies (administration) course, the respondent produced a copy of a letter from the College’s Business Studies Department dated the 9th April 2004 addressed to the complainant informing her that she was unsuccessful in her attempt at the course sample. The letter also offered some additional help and information on other courses available and invited the complainant to contact the department if she wished.
6.7 The respondent refused to accept that it made no effort to help the complainant or that it failed to provide reasonable accommodation. It referred to the following points,
· The respondent maintains that it was they who identified specific IT equipment and aids that might be of assistance in the development of the complainant’s IT skills. These items were provided for the complainant to practice to help develop her computer skills.
· It claims that it sought to modify the Digital Photography course to allow the complainant work on one/two modules of the course, that were of interest to her, in an attempt to provide her with an opportunity to work on and develop those skills.
· It claims that it allowed the complainant stay in the College over the maximum time allocated for the student. It extended the period of time to allow her explore further educational options with the assistance of the tutors at the foundation level.
· It claims that it is an adult learning College, where it tends to carry out business directly with the students. However, the College on her request agreed to meet with the complainant’s parents on two occasions in an effort to assist the complainant.
· It also maintains that the final months of the complainant’s time at the College was spent helping her to prepare for leaving the College. She had been informed that her time in the College was coming to an end and it assisted her to explore other educational options that might better suit her skill-set.
7. Conclusions of the Equality Officer in relation to the issue of jurisdiction following the death of the complainant
7.1 I will first consider the jurisdictional issues raised by the respondent because, if I find in favour of the respondent on these issues, I am therefore precluded from considering the substantive complaint. The respondent has submitted that the present complaint has not survived the death of the complainant, and therefore, the Tribunal does not have jurisdiction to investigate and hear the complaint. In considering this issue, I have taken cognisance of a recently published decision of this Tribunal in DEC-S2009-0004 – Hegarty (deceased) -v- Area Development Management Ltdwhere the Equality Officer had to decide whether a complaint brought under the Equal Status Acts 2000 – 2008 is governed by the provisions of the Civil Liability Act 1961, in circumstances where the complainant has died before the investigation has been completed.
7.2 In considering this issue, the Equality Officer considered a UK decision, Harris –v- Lewisham & Guy’s Mental Hospital Health NHS Trust [2000] 3 ALL ER 769, in which the Court of Appeal in England overturned the Employment Appeal Tribunal’s ruling that a race discrimination claim taken under the Race Relations Act, 1976 does not survive the death of the Applicant. In this judgment the Court of Appeal had occasion to refer to the English equivalent of section 7 of the Civil Liability Act, 1961, namely section 1(1) of the Law Reform (Miscellaneous Provisions) Act, 1934. The Equality Officer, having considered the case, was satisfied that an action or complaint of discrimination brought under the provisions of the Equal Status Acts constitutes a ‘cause of action’ on behalf of the complainant within the meaning of section 7 of the Civil Liability Act, 1961. The Equality Officer noted the comments of Mummery LJ. in the Harris[3] case at paragraph 7 where it was held that, “There is no provision in the 1976 Act precluding a complaint of the kind made by Mrs. Andrews from being a cause of action or from devolving on her estate. The NHS Trust relied on section 53(1) which restricts proceedings for breach of the 1976 Act to those provided by the Act. That subsection does not exclude or disapply the provisions of the 1934 Act […] The death of Mrs. Andrews does not mean that they have ceased to be proceedings under the 1976 Act. Mrs. Harris, as personal representative, is entitled to continue the subsisting proceedings under that Act as a result of the vesting in the estate of the cause of action under that Act.”
7.3 The Equality Officer concluded that “Having regard to the foregoing, I am satisfied that there is no provision in the Equal Status Acts that precludes a complaint of the kind made by [the complainant] from being a cause of action or from devolving on his estate. Furthermore, I am satisfied that the death of [the complainant] does not mean that his complaint of unlawful discrimination ceased to be proceedings under the Equal Status Acts. In the circumstances, I find that the present complaint under the Equal Status Acts has survived the death of the complainant, […] and I am satisfied that Mrs. Hegarty is entitled to continue to pursue the complaint in her capacity as the Executrix of his Estate. Accordingly, I find that the Tribunal does have jurisdiction to investigate and hear the present complaint.” I have taken the abovementioned decision into consideration and I note that the issues raised are identical to those that are presented before me for consideration. Having considered the decision, I agree with the conclusions of the Equality Officer in the Hegarty (deceased) -v- Area Development Management Ltd case and as the issues are identical to the case before me for consideration, I am satisfied they also apply in this case. Accordingly, I find that the complaint survives the death of the complainant, Ms. Hendrick, for that of her estate and that the Tribunal does have jurisdiction to proceed with the investigation and hearing.
7.4 I will now deal the respondent’s claim that the passing of the complainant has presented a difficulty for the respondent receiving a fair hearing, as the complainant is not present to provide direct evidence to the Tribunal. I am satisfied that it has long been established that a Tribunal may deviate from the rules of evidence applicable to that of a court of law as part of its investigation, and it may act in an informal basis when circumstance impose upon it to proceed in that way. I refer to Kiely v The Minister for Social Welfare (No. 2) [1977] I.R. 276 were at 281 Henchy J. stated that “Tribunals exercising quasi judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like –but they may not act in such a way as to imperil a fair hearing or a fair result”, and also in Goodman v Hamilton [1992] 2 IR 542: Costello J. stated at 565: “There is no rule of law which requires a tribunal of inquiry to apply the rules of evidence applicable to a court of law. The acceptance of evidence and the weight to be given to it is a matter for the Tribunal. But it is subject to the requirements of fair procedures …………”. Although I agree that the absence of the complainant to provide direct evidence added to the difficulty with the presentation of evidence and the testing of evidence thereafter. I am satisfied that it did not place the respondent’s case in any particular disadvantage as compared to the complainant’s case. Accordingly, I am satisfied that the process was not compromised to the effect that the absence of the complainant resulted in an unbalanced and unfair hearing, which could be conceived as to place the respondent at unfair disadvantage.
7.5 I will now consider the jurisdictional issues raised by the respondent in relation to the nature of any redress that the Tribunal can make in the circumstance of finding in favour of the complainant. At paragraph 7.3 above, I have found that having considered Sections 6 and 7 of the Civil Liability Act 1961, that the complaint survives the death of the complainant for the benefit of the estate. However, I note that Section 7(2) states that:
“Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness”(emphasis added)
Accordingly, I am satisfied that under Section 7(2) that the damages recoverable exclude exemplary damages including damages for any pain, suffering or a reduction in quality of life and happiness of the person for the benefit of that persons estate.
Section 27 of the Equal Status Acts 2000 to 2008 provides for the type of redress that the Director may provide following a decision in favour of the complainant. Section 27(1) states that:
“Subject to this section, the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the prohibited conduct concerned; or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
Accordingly, I note that the provisions of Section 27(1) may include, but are not limited, to damages as set out in Section 7(2) of the Civil Liability Act. Accordingly, I find that the Tribunal does have jurisdiction to proceed with the investigation and hearing in the present case as there is an option to order different types of redress, should I find in favour of the complainant.
8. Conclusions of the Equality Officer in relation to the substantive issues
8.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
8.2 Therefore, the question that I must decide upon is whether the respondent discriminated against the complainant on the disability ground within the meaning of Section 3(1)(a) and 3(2)(g) of the Equal Status Acts 2000- 2004. I must also consider whether the respondent failed to provide the complainant special measures and facilities to accommodate her needs in as a person with a disability within the meaning of Section 4(1) of the Acts.
Discriminatory Treatment
8.3 I am satisfied that the respondent is a College that provides educational courses for people with disabilities with a primary view of leading them to employment or, at least, to further education. It was presented to me at the hearing and I accept that the College has a limited budget and receives far more applications for courses than there are positions available. I note that it uses an aptitude type assessment to determine an applicant’s suitability for access onto the limited course positions. I am satisfied that the complainant had a meeting with the College when she started and there was no guarantee made to her that acceptance into the College at foundation level would automatically lead to acceptance on to a specific course. Therefore, I conclude that the complainant would have understood that she would have to be assessed for suitability into any of the skill specific courses and that there was no certainty of a place.
8.4 I am satisfied that the College’s Foundation level allows new students to become familiar with the College surroundings and it also gives the students and tutors time to discuss the various choices that are available and the various skills-set required. Having regard to the evidence adduced at the hearing I am satisfied that this is a consultative process. I am satisfied that the complainant outlined three different courses in which she was interested in pursuing, and I have not been presented with any evidence to show that she was actively discouraged from taking the course samples of her choice. I have been presented with evidence that the complainant was given an opportunity to attempt course samples in these subjects. I am satisfied that she did not perform well on these tests and consequently she was not offered a position in those courses as a result of her performance.
8.5 I am satisfied that the complainant was not subjected to less favourable treatment than another person in similar circumstances on the grounds of her disability in terms of the manner in which the responded treated her while she was a student at the College. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Section 3(1)(a) and Section 3(2)(g) of the Equal Status Acts 2000 – 2004.
Reasonable Accommodation
8.6 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Acts states as follows:
“4.- (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
8.7 I note from the evidence presented that the respondent places the onus on the students to identify any additional requirements or supports they may need to succeed in the College. I am satisfied from the evidence adduced that the complainant was very independent and well capable of dealing with the College by herself. I was presented with her educational record and I conclude that she was familiar with the requirements for an adult college environment. I am satisfied from the evidence presented that the complainant failed to identify any additional assistance or requirements at the initial interview that would aid her in her education path through the College and I have not been presented with any evidence from which I could conclude that during her time at the College she subsequently identified and requested additional supports that would be of assistance to her. However, I am satisfied that while she was attending the College, at the Foundation level, the respondent’s staff proposed and provided her with assistive equipment with a view to improving her Information Technology skills and therefore, enhancing her chances in progression onto a skills specific course.
8.8 I am satisfied that the complainant was primarily interested in the Digital Photography Course and her failure to secure a place on this course appears to have been quite frustrating for her and I accept this may have resulted in some difficulty and a strain on her relationship with the respondent. I note from this point onward an obvious erosion of the communication lines and understanding between the parties. The evidence from the complainant suggests she was accepted onto and then subsequently refused access to the Digital Photography Course whereas, the respondent has produced evidence that she failed the course sample. The evidence adduced at the hearing suggest that the College attempted to offer her a modified version of the course if, and when, the course tutor could facilitate her, while in the interim, she worked on some basic elements of the course with the foundation level tutor. I am satisfied from the evidence adduced that acceptance onto this course is very difficult, as it receives far more applications than there are places. I note from the evidence adduced that the course tutor also uses the course sample to adjudge a student’s inherent creative talents. I am satisfied from the evidence presented to me at the hearing that the course tutor’s opinion was that the complainant did not possess the inherent skills for the course and that no level of additional support or assistance would have made a difference in this case.
8.9 I am satisfied that the complainant was given an opportunity to attempt a modified course sample in relation to her computer skills for the IT Computer & Maintenance course. I note she was not asked to perform the physical part of the test, including the movement and assembling of computer hardware. I am mindful that the course is graded at FETAC level 6 and a high proportion of students who have tried the course sample do not pass it. However, I note that she performed poorly in her computer skills assessment and it was the course tutors professional opinion, (of some 10 years working with people with disabilities on this course), that the complainant would have difficulties completing the course. It was presented to me that this decision was taken following a consideration of the complainant’s suitability for the course including a discussion that the course tutor had with the complainant about her course choice and finally her performance in the course sample. Again I am mindful that the course received many more applications than there are places available. I am satisfied that the course tutor’s decision not to offer the complainant a place on to the course was based on a number of factors following his professional assessment of what is the required level needed to take the course.
8.10 I am satisfied that the complainant was given an opportunity to attempt the Business Studies (administration) course sample. I note that the course sample was taken shortly before the complainant left the College and from the evidence presented I note the complainant performed poorly in the course sample attempted. I also note that the complainant’s upset in relation to this course related to the respondent’s failure to give any feedback on her performance on the course sample. However, the respondent produced a copy of a letter from the College’s Business Studies Department dated the 9th April 2004, addressed to the complainant, informing her that she was unsuccessful in her attempt at the course sample. I also note that this letter also offered some additional help and information, which is consistent with the internal tutor’s report of the complainant’s performance in the course sample that was presented as evidence. I note that the College later refer to this letter in another correspondence to the complainant, dated 16 May 2004, where it stated that a copy of the letter and the results of the course sample were enclosed. Accordingly, I am satisfied that the College did attempt to contact the complainant and inform her of her performance in the course sample taken.
Final conclusions
8.11 Based on the evidence presented, I am satisfied that acceptance onto a skill specific course was not guaranteed when the complainant joined the College at the foundation level. I am satisfied that the complainant was aware that acceptance onto one of the courses requires discussions with the tutors and successfully taking an aptitude type assessment based on the relevant course material, all of which in turn are taken into account for the overall determination of who is offered the limited places available. I am satisfied that the complainant was aware of these requirements. I am also satisfied that she was given an opportunity to attempt three course samples of her choice, in which she did not perform sufficiently well to merit acceptance onto those courses. I am satisfied that the respondent attempted to provide support and assistance to the complainant during her time in Roslyn Park College. I am also satisfied that she was aware that her time in the College was limited and that other options outside of the College were being explored with her foundation level tutor in her last few months in the College.
8.12 Having regard to the foregoing I therefore find, for the aforementioned reasons, that the respondent did not fail in its obligations to do all that is reasonable to accommodate the needs of the complainant as a person with a disability in accordance with the provisions of Section 4 of the Acts.
9. Decision
9.1 I find that a prima facie case of discrimination has not been established by the complainants on the disability ground in terms of sections 3(1)(a) and 3(2)(g), and section 4(1) of the Equal Status Acts 2000 – 2004 and, accordingly, I find in favour of the respondent in the matter.
James Kelly
Equality Officer
27th February 2009
[1]The Rehab Group is an independent not-for-profit organisation working for social and economic inclusion among people with disabilities and other who are marginalised in society.
[2]FETAC is the Further Education and Training Awards Council, a statutory body with responsibility for standards in further education awards.
Equal Status Acts 2000 to 2004
Decision No. DEC-S2007-058
McCall v Area Development Management Ltd.
Introduction
1. The complainant referred a case under the Equal Status Act 2000 to the Director of Equality Investigations on 11 March, 2004. In accordance with the due delegation to me by the Director of her powers under the Equal Status Acts 2000 to 2004, I investigated the case. I received written material from both parties including a detailed submission and a list of authorities relied upon from the respondent’s legal representatives. A hearing took place on 8 November 2006.
Subject matter of the case
2. The complainant alleges that the respondent discriminated against him on the grounds of age and disability. (In the statutory notification sent by him to the respondent, he also alleges victimisation but this is not included in his complaint form.) This arose from the application form for the Taxi Hardship Payments Scheme (“the Scheme”) which the respondent sent to the complainant. The purpose of this Scheme was to alleviate the hardship experienced by some taxi drivers resulting from the liberalisation of the taxi industry. Payments under the Scheme were available to six categories of person as recommended in the Report of the Taxi Hardship Panel which was submitted to the Minister for Transport in September 2002. Two of these categories related to persons over the age of 50 and a third to persons with a disability.
Matters for consideration and conclusions
Discrimination on the age ground
3. One of the complaints at issue here is of discrimination on the ground of age in that payments were made to taxi drivers over the age of 50 on 31 December 2002 which were not available to those under that age. At the hearing, the complainant disclosed that he was born on 1 April 1952. He was, therefore, within the age category which would benefit from the Scheme and cannot claim that he was discriminated against on the age ground. This is separate from the issue of whether or not the different treatment of persons on the age ground under the Scheme was unlawful under the Equal Status Act. The point is that section 21 of the Act provides that a person who claims that prohibited conduct has been directed against him or her may seek redress by referring the case to the Director i.e. the person themselves must be the subject of the alleged discrimination and, otherwise, they have no standing to take proceedings under the Act. According to the respondent’s submission and evidence given on their behalf at the hearing, there was flexibility in regard to the age limit if the person was at least 49 but this criterion was not publicised. The complainant argued at the hearing that, had he known this, he would have pursued his application. However, this does not give him a claim of discrimination on the age ground as he was within the age group which was eligible for payment from the Scheme.
Jurisdiction of the Tribunal and related matters
4. The respondent made a submission to the effect that the Scheme and actions taken pursuant to it were outside the scope of the Equal Status Act and that the Tribunal had no jurisdiction to investigate the complaint. I must first consider this because, if valid, I cannot further investigate this claim.
5. The respondent states that the Scheme was introduced on foot of a Government decision and that the executive exercising its inherent power in the allocation of public funds to meet a case of hardship being suffered by a class of citizens is not amenable to action under the Equal Status Act. If the Tribunal had any such jurisdiction, it would have been clearly identified in the Act. The power of the executive is a constitutional one and the courts do not interfere with it save in circumstances of patent unconstitutionality. The respondent’s legal representative cited the case of Boland v An Taoiseach [1974] IR 338.
6. As I understand it, the respondent’s submission in this respect relates solely to the Government acting as such and not to individual Ministers. Indeed, it seems clear that the Act is intended to cover the actions of Ministers and this is supported by the fact that section 4(5) provides that the relevant provision is without prejudice to certain functions of the Minister for Education and Science while sections 7(5) and 14(1)(aa) (in both cases inserted by the Equality Act 2004) exempt certain activities of Ministers.
7. Related to the point about the executive authority is a further argument advanced by the respondent that the prohibition on discrimination in the provision of services applies to persons and not to the Government. Section 2 of the Act provides that “person” includes “an organisation, public body or other entity”. The respondent states that such words are wholly inapt to include the Government exercising its executive role under the Constitution.
8. Dealing with the latter point first, it appears to me that the definition of “person” referred to above is deliberately broad and does encompass the Government.
9. For the reasons set out in the following paragraphs, I also disagree with the respondent’s submission that the act of the Government in deciding on the terms of this Scheme is outside the scope of the Equal Status Act.
10. In the Boland case, the High Court and the Supreme Court, on appeal, refused to interfere with the actions of the Government in subscribing to the Sunningdale communiqué. At issue was a clause of the communiqué concerning the status of Northern Ireland in which the Irish and UK Governments set out their respective positions side by side. The Chief Justice, in his judgment, stated that the Courts have no power to supervise or interfere with the exercise by the Government of its executive functions unless there was a clear disregard by the Government of the powers and duties conferred on it by the Constitution. He emphasised, however, that the clause in question did not reflect an agreement by the Government with the UK Government but rather its own policy on the de facto position of Northern Ireland. I do not think that this judgment or the judgments of the other members of the Supreme Court in the case are authority for the proposition that the Government, in exercising their executive functions, are effectively above the law.
11. In this context, the remarks of Costello J in The State (Sheehan) v The Government of Ireland [1987] IR 550 are relevant. He was granting an application for an order of mandamus requiring the Government to make an order commencing section 60 of the Civil Liability Act 1961. Referring to the Boland case, he said it
… had nothing to do with the performance of statutory duties. The Government carries out many different functions, some conferred on it by statute, some not. Ministers are not above the law, neither are Ministers acting collectively as a Government. And if a statute imposes a duty on the Government it cannot claim immunity from the court’s jurisdiction on the ground that in performing the duty it is carrying out an “executive function”.
He granted the order of mandamus on the basis that the Government were required to commence section 60 within a reasonable time after the date specified by the commencement provision. This was overturned on appeal to the Supreme Court on the ground that the commencement provision had been wrongly construed by the trial judge and that its proper meaning was that the Government’s discretion in commencing section 60 was not limited as to time or otherwise. However, it is notable that counsel for the respondent, in opening the appeal in the Supreme Court, said that he would not be proceeding with certain grounds of appeal including the contention that the granting of the relief sought constituted an interference with the executive function.
12. The facts here resemble those in Sheehan in that they can be said to concern a statutory duty, in this case not to discriminate, and the dicta of Costello J are relevant because they show that the Government are subject to statute law as well as to the Constitution.
13. The Constitution does not state precisely what the extent of executive power is. In Kelly: The Irish Constitution, 4th edition at para. 5.1.22, it is suggested that there is a distinction between the executive power of the State, which is exercisable by or on the authority of the Government, and executive power in the State, which is not necessarily so exercisable but capable of being exercised also by other bodies or persons authorised by law. Can it be said that the putting in place of this Scheme is an exercise of the executive power which is exclusive to the Government? A similar ex-gratia scheme was the pre-1995 Civil Legal Aid Scheme in that its function was also to provide assistance of a particular type to people who were judged according to the scheme to need it. If this was exclusively a function of the Government, it would not be open to intervention by the legislature or the courts (unless presumably in the circumstances described by the Chief Justice in the Boland case). Yet this is what subsequently happened when the non-statutory scheme was replaced by statutory regulation under the Civil Legal Aid Act 1995.
14. The view, put forward by the respondent, that a jurisdiction for the Tribunal over actions of the Government would have to be identified clearly in the Equal Status Act also appears to be mistaken. In fact, I believe that the opposite may be the case and that any non-application of or exemption from the prohibitions in the Act would have to be provided for. In the case of Howard v Commissioners of Public Works in Ireland [1993] ILRM, where the issue was whether an arm of the executive was bound by the Planning Acts, Denham J said in the Supreme Court
The concept of equality, allied to the doctrine of the separation of powers, and to the absence of any specific provision in the Constitution to give the executive a special position in relation to the legislature, convinces me that the executive has no special position. Thus, in legislating in accordance with the Constitution, the Oireachtas legislates for all, and that includes the executive.
15. The respondent makes a further point in connection with the proposition that the Tribunal does not have jurisdiction in this matter, namely, that Area Development Management Ltd. (“ADM”) cannot be held liable under the Act as it was doing no more than administering a scheme in accordance with criteria established by the Executive. If it acted in any way other than that mandated by the Scheme, it would be acting unlawfully. ADM was not capable of being held to have acted unlawfully by following a scheme which it was required to implement.
16. Having held that the fact that a scheme is introduced pursuant to a Government decision does not mean it is outside the scope of the Act, I do not accept that the body charged with implementing such a scheme cannot be held to be in breach of the Act. At the hearing, counsel for the respondent referred to them as delegates or administrators of a Government scheme. As such, I believe that they were agents of the Government (or perhaps of the Minister for Transport who is the member of the Government with primary responsibility in the matter) in implementing the Scheme. The complainant has identified ADM as the respondent and, accordingly, it is their actions which must be investigated. Section 42(2) of the Act provides that 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 the Act be treated as done also by that other person. This means that one can proceed against the agent, the principal or both in such a situation and, in the present case, the complainant has chosen to proceed against ADM alone.
Alleged failure of complainant to engage with the application process
17. The respondent argued that, regardless of any question of age or disability, the complainant failed to engage with the process being administered by ADM in that he failed to furnish all the information sought in the application form (i.e. his age, proper proof of income, the category under which he was applying and full taxi licence details) and, consequently, his complaint should be dismissed without further inquiry.
18. The complainant lodged his complaint with the Tribunal on 11 March 2004 at which stage his application under the Scheme was ongoing. In fact, his file was not closed until November 2004 after numerous requests by the respondent for information of the kind referred to above had not been complied with. However, the complaint, as such, is not about his eventual rejection under the Scheme as that came later but rather that the application form for the Scheme discriminated against him on the ground of age and disability. This was because persons over the age of 50 and with a disability could get assistance from the Scheme and others could not (unless they came within one of the remaining categories covered by the Scheme). I have already stated at paragraph 3 above why the claim on the age ground must fail. As regards disability, there is an additional aspect to the complaint which is set out in a letter of 13 May 2004 from the complainant to the Tribunal. This is the fact that persons with a disability taxi (of which the complainant is not one) were eligible for a payment from the Scheme. This is said by the complainant to be discrimination on the ground of disability.
19. So, the complainant’s failure to meet the requirements of the respondent in regard to the furnishing of information (some of which, incidentally, did not relate in any way to the discriminatory grounds under the Act) does not mean that his complaint can be rejected for that reason alone. Instead I must consider if the application form and guidelines sent to the complainant can be the basis for a complaint that could succeed under the Act.
20. I am of the view that, where an application form under a scheme or other material furnished by the administrators of a scheme makes a distinction on a discriminatory ground, a person who is excluded from the scheme by this but who would otherwise be eligible can complain under the Act without having to go through the application process and being rejected. Such a person is entitled to take the other party at their word, as expressed in the material furnished by them, that they do not qualify for the scheme in question and it would be utterly artificial to require them to press ahead with an application as a precondition for a complaint of discrimination. In this regard I would refer to a recent decision of the Tribunal under the Employment Equality Acts, DEC E2007 – 020, Ruddy v SDS (An Post), which concerned different treatment on the ground of age and in which the respondent submitted that, since the complainant did not formally apply for the scheme, he did not have a locus standi. The equality officer rejected this and said he was satisfied that, had the complainant submitted an application, it would have been rejected by the respondent on the basis of age. In the circumstances he considered it unreasonable to expect the complainant to have made a formal application for the scheme to maintain a locus standi.
Discrimination on the disability ground
21. I must now consider whether the difference in treatment on the disability ground under the Scheme constituted a breach of the Act.
22. Insofar as the complainant claims that the inclusion of wheelchair-accessible taxi licence holders as a category of beneficiaries under the Scheme constitutes discrimination on the ground of disability, I am satisfied that this is not so because such persons might or might not have a disability themselves. So, the discriminatory ground of disability, which is stated to be “that one is a person with a disability and the other either is not or is a person with a different disability” (section 3(2)(g)), does not apply.
23. The remaining element of the complainant’s claim is the contention that the fact that persons with a disability could get assistance under the Scheme and others, including himself, could not constitutes discrimination under the Act. The respondent argues that the disability ground only protects people with a disability and does not refer to the situation in which an able-bodied person is treated less favourably than a person with a disability. In support of this, the respondent refers to the prima facie test which has traditionally been used by equality officers in equal status cases and which has three elements the first of which is whether the complainant is covered by the discriminatory ground. I do not accept the respondent’s argument or that the aforementioned prima facie test supports it.
24. Firstly, section 3(2), which sets out the discriminatory grounds, either uses the formulation “the one ….. and the other” or refers to two persons being of different sexual orientation, religious belief etc. This does not support the view that the discriminatory grounds operate only in one direction. If the respondent is correct, are males without the protection afforded by the Act to females or Irish nationals less favoured than foreign nationals, to take just two examples? In fact, men have been successful in a number of claims under the equality legislation. The Long Title of the Act describes it as an Act to promote equality and prohibit types of discrimination, harassment and related behaviour. If the interpretation contended for by the respondent is correct, the other paragraphs of section 3(2) must be interpreted consistently with the respondent’s interpretation of the disability ground and inequality, rather than equality, would be at the core of the Act. If the Oireachtas intended that a person with a disability could claim if they were discriminated against, but that an able bodied person would not have a claim where the disabled received better treatment, the Act would have stated this and would not have used the wording contained in section 3(2).
25. I am further reinforced in this conclusion by the fact that a number of exemptions in the Act make sense only if the disability ground operates both ways. I would refer in particular to sections 6(5), and 16(1). Each of these provisions allows more favourable treatment of persons with a disability and would not be necessary if the respondent’s interpretation is correct.
26. The respondent contended that, even if their submission on the meaning of the disability ground was wrong, a number of exemptions in the Act would apply to the different treatment which the complainant faced. Insofar as the claim on the disability ground is concerned, these provisions are sections 5(2)(h) and (l) and 14, paragraph (b)(ii). At the hearing, counsel for the respondent described the Scheme as being four square within the latter provision and I will consider it first.
27. Paragraph (b)(ii) of section 14 provides that nothing in the Act shall be construed as prohibiting preferential treatment or the taking of positive measures which are bona fide intended to cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.
28. The justification for the preferential treatment of disabled persons under the Scheme is contained in the Report of the Taxi Hardship Panel. This states that taxi licencees who were invalided and incapable of driving for a living could, prior to November 2000, derive their primary income from renting their taxi licence. This was no longer possible because, since the liberalisation of the industry, anyone could get a taxi licence subject to meeting qualitative regulatory requirements. Consequently the income of these persons was now derived from Social Welfare Disability Allowance. The Panel were of the view that such persons were experiencing extreme personal financial hardship and recommended that, subject to certain conditions, they be given a payment of €13,000. This recommendation was substantially implemented in the Scheme.
29. The test contained in section 14, paragraph (b)(ii), requires that there be a bona fide intention to cater for the special needs of a category of persons who, because of their circumstances, may require assistance not required by persons who do not have those special needs. This test does not require me to decide whether the provisions for persons with a disability in the Scheme were reasonable or appropriate or excessively favourable as compared with the treatment of persons outside that category, merely that there was a bona fide intention to cater for the special needs of a category of persons who may require this assistance. I am satisfied that, in including the disability category in the Scheme, there was a bona fide intention to help disabled persons whose incomes were reduced when their taxi licences lost value following liberalisation and that this is not prohibited by the Equal Status Act.
30. In these circumstances, it is unnecessary for me to consider the other possible exemptions advanced by the respondent.
Other issues
31. The respondent made other arguments as to why this complaint should be dismissed. These were that: the Scheme did not involve the provision of a “service”; and any service inherent in the Scheme was not available to “the public generally” or a “section of the public”. They also made a submission as to the appropriate test in establishing a prima facie case. In the light of paragraph 29 above, it is not necessary to consider these issues.
Decision
32. For the reason given at paragraph 29, my decision is in favour of the respondent.
John Hurley
Equality Officer
Decision Number
DEC-S2012-010
Parties
Brennan v Area Development Management Limited –
Taxi Hardship Payments Scheme
now POBAL
Case refs: ES/2004/0205, 0215, 0223,
ES/2005/0021, 0031, 0035, 0037, 0041, 0059, 0068, 0206, 0231, 0244, 0531, 0675, 0689, and 0934
Issued: 21 March 2012
Keywords:
Equal Status Acts 2000 to 2004- Discrimination – Age – Provision of good and services – Jurisdiction – Circuit Court Appeal pursuant to section 22(1)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Messrs Derek Doran, Gerard O’Reilly, Anthony O’Rourke, David McGrath, Francis Rowan, James McGuire, Derek Brennan and others see appendix 1 (hereafter “the complainants”) referred claims to the Director of the Equality Tribunal under the Equal Status Acts on various dates between October 2004 and November 2005. I am satisfied that the respondent was notified of these complaints in accordance with the Acts. The Director, exercising her powers under the Acts then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 5 December 2008.
1.2. An oral hearing, which exceptionally dealt with a preliminary matter only, was held in Dublin on 26 July 2011. In the interest of efficient administration of justice – the jurisdictional matter applied to each case – the complainants were invited to a joint hearing dealing with the preliminary matter only.
2. Dispute
2.1. The dispute before this Tribunal concerns complaints of unlawful discrimination on the age ground. The complainants submitted that Area Development Management Limited now POBAL (“the respondent”) discriminated against them in the manner in which the taxi hardship scheme was administered. The substantive facts vary in relation to the individual complaints. This decision is concerned with whether this Tribunal has jurisdiction to proceed with its investigation into the above complaints.
3. Background to the complaints
3.1. The Taxi Hardschip Scheme was established in response to the liberalisation of the Taxi industry on 21 November 2000. The aim of the scheme was to address some difficulties which related to the new taxi regime for some existing taxi license holders.
3.2. A number of complainants referred claims to this Tribunal in late 2004 and throughout 2005. Each of these cases was taken on the age ground [some cases referred to other grounds also] and is concerned with the manner in which the complainant’s age was a contributing factor in the manner in which the respondent had excluded them from Taxi Hardship Payment Scheme.
3.3. A Circuit Court decision in Hoey v Area Development Management Limited DEC-S2008-010 issued on 31 January 2008. The decision was in favour of the complainant. The respondent exercised their right to an appeal pursuant to section 22(1). A decision to await the outcome of said appeal was taken. An attempt to schedule the remaining cases was taken in 2009 but a number of the complainants requested that the matter be put on hold while the appeal was pending.
3.4. Learned Judge Reynolds issued her judgment in the Circuit Court on the appeal on 14 April 2011. The judge found that the Tribunal erred in allowing Mr. Hoey’s complaint against the respondent to proceed. Her reasoning was that the respondent was merely administering the scheme in accordance with the criteria established by the Executive. The judge found that for the respondent to have done otherwise would have been ultra vires its powers and unlawful. Furthermore, she was of the view that the Tribunal had no jurisdiction to entertain Mr. Hoey’s complaint as by doing so the Tribunal was purporting to review a decision of Government, thus acting ultra vires of its powers conferred by the Equal Status Acts.
3.5. I wrote to each of the complainants informing them of the outcome of the appeal. A few complainants withdrew their cases but the reminder indicated that they now wished to have their cases heard in accordance with the Acts. A schedule for hearings was prepared in accordance with the Acts. The respondent objected to this approach arguing that it ought to be provided with an opportunity to address a preliminary matter applying to all the complaints in a more efficient manner. A decision to hold a preliminary hearing only with all the complainants in attendance was made.
4. Preliminary matter concerning jurisdiction
4.1. A late request for an adjournment was received on behalf of Mr. Brennan who had secured representation to deal with the preliminary matter from the Equality Authority. This preliminary authorisation referred to the fact that it was likely that the Authority would be granting Mr. Brennan legal representation in this matter. The respondent objected to this late request and indicated that travel arrangements had been made to have relevant people at the hearing. The adjournment request was denied as there were no exceptional circumstances justifying such a request.
4.2. A second adjournment request was made by way of ‘petition’ on behalf of the all of the complainants on the day. The petition claimed that the full extent of the matter was not known to the complainants and that additional time was required for the preparation of extensive submissions. Having considered the matter I declined this request as I was satisfied that the preliminary matter before this Tribunal was of such nature that the complainant’s reply to the respondent’s motion could be made after the complainant’s had fully heard the respondent’s position. The complainants were granted an exceptionally long reply period during which they could seek legal advice and representation in relation to the preliminary matter that they had now fully heard. I was satisfied that by allowing the respondent to begin its case I was ensuring that the large number of lay complainants would be in possession of the full legal argument before they prepared their replying submissions. I also noted that the parties had been on notice of the hearing for a period of 5 months and that a majority of the complainants were represented on the day by their various trade unions. I am satisfied that a copy of the Circuit Court’s approved decision was sent to all of the complainants on 25 May 2011.
4.3. On the day of the oral hearing I heard the respondent’s oral submission only and offered the complainants an opportunity to ask any clarifying questions. The respondent, who had requested for a stenographer to be present, provided transcripts of the hearing to the complainants’ representatives. Extensive periods of time to reply were granted to both parties on their request. A reply on behalf of Mr. Brennan was received on 28 October 2011. No other replies were supplied on behalf of the complainants. The respondent’s reply to Mr. Brennan’s submission was received on 29 February 2012.
4.4. The respondent submitted, inter alia, that the Circuit Court’s decision is binding on the Tribunal in circumstances where such a decision is a direct result of an appeal arising from the same statute and pertains to the same facts in relation to the issue of jurisdiction. It was submitted that this rationale applies equally to each complainant now before the Tribunal. It was submitted that the complaints ought to be dismissed in limine in reliance of the decision in the Hoey case. It was accepted that there is no binding decision on the binding nature of an appellant court’s finding on the court of original jurisdiction in Ireland but that the Employment Appeal Tribunal’s Coote v Granada Hospitality Ltd (no 2) [1999] ICR 942 is a decision of persuasive authority that cites: “the doctrine of precedent requires us to follow it [Court of Appeals decision]”. This was even in circumstances where the EAT disagreed with the Court of Appeal’s decision. The same rule of law only allows for a lower to court to depart from a precedent when it has been decided per incuriam.
4.5. It was also argued by the respondent that this Tribunal and indeed many of the complainants, who had elected to wait for the outcome of the appeal, had indicated by accepting such an approach that the outcome of the appeal would be determining factor in the decision whether to pursue the references.
4.6. It was submitted on behalf of Mr. Brennan that the Tribunal ought to exercise its jurisdiction under section 79 of the Employment Equality Act 1998 as amended by section 24 of the Civil Law (Miscellaneous Provisions) Act 2011 to refer questions of law to the High Court as no clarity is yet available in relation to the issues of law which arise in his claim.
4.7. Furthermore, the complainant submitted that he wished to proceed with his substantive case as he believes that Hoey was incorrectly decided in law. It was respectfully submitted that a remedy does exist under these Acts for the complainant. It was pointed out that the complainant was not a party to the proceedings in Hoey and therefore he did not enjoy a right to appeal.
4.8. No replies were received from any of the unions representing a number of the complainants.
4.9. The respondent replied to Mr. Brennan’s submission on 29 February 2012.
5. Conclusion of the equality officer
5.1. I find, having used everyday language to interpret the statute, that section 24 of the Civil Law (Miscellaneous Provisions) Act 2011 does not amend the Equal Status Acts. Therefore I have no jurisdiction to refer this matter to the High Court as a case stated or in any other way. The matter can only be referred to the High Court after an appeal to the Circuit Court has concluded, on a point of law only.
5.2. It is clear that the Equality Tribunal is a quasi-judicial body with original jurisdiction to hear complaints under the Equal Status Acts. The Circuit Court is the appellant court for investigations arising from that statute. While I am not in possession of a complete decision in the Hoey case, I am in possession of an approved decision that relates to the matter of jurisdiction only. I find that in the circumstances of these cases I must respect that court’s findings in relation to jurisdiction. It is a rule of law that inferior courts (including quasi-judicial bodies) obey precedents established by the appellate court for their jurisdiction. I find that in such circumstances I have no jurisdiction to go behind the Circuit Court judge’s decision. It is clear that as the current precedent stands this Tribunal has no jurisdiction to investigate any of the complaints relating to the administration of the Taxi Hardship Scheme. The complaints are misconceived in law. Therefore, I find that none of the complaints pertaining to the administration of that particular scheme can succeed in this Tribunal.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation into the preliminary matter only and issue the following decision:
6.2. I find that I have no jurisdiction to examine the administration of the Taxi Hardship scheme. Therefore I dismiss these complaints as misconceived under section 22.
6.3. In accordance with section 22(2) the complainant(s) may appeal against this decision in the Circuit Court on notice to the Director specifying the grounds of the appeal. Such an appeal must be lodged no later than 42 days after the date of dismissal.
____________
Tara Coogan
Equality Officer
21 March 2012
Farah v Commissioner Of Police For Metropolis
[1996] EWCA Civ 684 (1997) 9 Admin LR 601, [1997] 2 WLR 824, [1997] 1 All ER 289, [1996] EWCA Civ 684, [1998] QB 65 Hutchinson LJ
Having considered each of the arguments advanced by the defendant the judge felt unable to say that the Race Relations Act claim was unarguable and dismissed the application. I now consider the arguments as they have been presented before us on the appeal from the judge’s order.
I begin by referring to those provisions of the Race Relations Act 1976 (“the Act”) and the Police Act 1964 which are material. Part I of the Act defines discrimination and it is necessary to cite only section 1 (1) (a) which reads:
A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons….
Part II of the Act deals with discrimination in the employment field. Section 16 headed “Police” provides in subsection (1):
For the purposes of this Part, the holding of the office of constable shall be treated as employment –
(a) by the chief officer of police as respects any act done by him in relation to a constable or that office;
(b) by the police authority as respects any act done by them in relation to a constable or that office.
Part III of the Act deals with discrimination in other fields, and in that part is to found section 20, relating to discrimination in the provision of goods, facilities or services. Its material provisions are as follows:
(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person’s case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.
(2) The following are examples of the facilities and services mentioned in subsection (1) –
(a) access to and use of any place which members of the public are permitted to enter;
(b) accommodation in a hotel, boarding house or other similar establishment’
(c) facilities by way of banking or insurance or for grants, loans, credit or finance;
(d) facilities for education;
(e) facilities for entertainment, recreation or refreshment;
(f) facilities for transport or travel;
(g) the services of any profession or trade, or any local or other public authority.
In Part IV of the Act, dealing with other unlawful acts, is section 32, headed “Liability of employers and principals”; it provides:
(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.
(2) 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 be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him.
Part VI of the Act contains general exceptions from Parts II to IV (for example, by section 41 acts done under statutory authority and by section 42 acts safeguarding national security).
Part VIII of the Act relates to enforcement. Section 53 (1) reads:
Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this act.
Section 57, headed “Claims under Part III provides, as
material:
(1) A claim, by any person (“the claimant”) that another person (“the respondent”) –
(a) has committed an act of discrimination against the claimant which is unlawful by virtue of
Part III; or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the claimant,
may be made the subject of civil proceedings in like manner as any other claim in tort …..
Section 48 (1) of the Police Act 1964 provides as follows:
The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.
There are in my view two important issues which have to be determined in this case. The first is whether a police officer comes within section 20 of the Race Relations Act. The second is whether, if he does, the chief officer of police for the area in which he serves is answerable in law for any breaches of the Act which the police officer has committed. The first of these issues is obviously of fundamental and general importance; the second, while its resolution in the appellant’s favour might be fatal to the plaintiff’s claim under the Act in this case, is unlikely to preclude such claims being advanced in other cases. This is because, if we were to decide the first issue against the appellant and the second in his favour, any future plaintiff alleging racial discrimination against the police would join the officer or officers said to be the actual offenders. (It would not be possible for the present plaintiff to do that as the 6 months period within which proceedings are to be brought has long since expired – see section 68 (2) – unless she can persuade the court to consider the claim out of time under section 68 (6)). I ventured to suggest during the argument that such an outcome, while disposing of the claim in the instant case, would be for the Commissioner a Pyrrhic victory, and I remain of that view. The provisions of section 48 of the Police Act are, it seems to me, beneficial to both plaintiffs and the police, for reasons which are too obvious to need elaboration; and if the police are susceptible to a claim under the Act, it would be unfortunate if that, like other tortious claims, could not be brought against the Commissioner. However, such considerations are only of relevance if the first and crucial issue is decided against the appellant and if there is any room for doubt as to the interpretation of the statutory provisions bearing on the matter of the Commissioner’s vicarious liability. It is to the first of those questions that I now turn.
Mr. Seabrook invites us first to consider the scheme of the Act. He makes the following points:
(a) It is implicit in section 16 (1) (and indeed section 48 of the Police Act) that there is no relationship of employer/employee between the chief officer and constables. This is common ground – it is, as Mr. Nicol for the plaintiff concedes, well-established that police constables are office-holders not employees.
(b) Section 53, which is in specific and restrictive terms, prevents proceedings for breach of the provisions of the Act unless authorised by the Act itself. Section 57 provides the only authorization on which the plaintiff in this case can rely. The commissioner is not alleged to have personally committed any act of discrimination and can only be vicariously liable for the constables’ acts if they were acting as his agents with his authority – see section 32 (2): but, says Mr. Seabrook, section 32 has no application to the commissioner. The constables were not acting as agents or with the authority of the commissioner, but were exercising an original authority by virtue of their office. Section 48 does not avail the plaintiff because section 53 prohibits one from looking outside the provisions of the Race Relations Act.
Mr. Seabrook also submits that the constables themselves are not within the enforcement provisions of the Act. If, he says, those provisions do not extend to the commissioner, it is inconceivable that they should extend to the constables. He submits that the omission to make special provision, such as for example is made in relation to Part II of the Act by section 16 indicates that it was never intended that individual constables should be caught by section 20.
As a matter of construction, Mr. Seabrook submits, section 20 does not apply to police officers performing the duties of their office – they are not providing services. The acts alleged against them all entail the exercise of discretion and judgment. What they were engaged on, from the moment the 999 call was received, was the exercise of their powers of investigation, detection and the bringing of offenders to justice.
In this connection Mr. Seabrook referred us to a number of authorities. The first was R v Imm. App. Trib. Ex parte Kassam [1980] 1 WLR 1037. In that case a question arose as to whether a complaint of discrimination contrary to the Sex Discrimination Act 1975 was maintainable in respect of a provision of the Immigration Rules which required the wife or child of a male student who had been given leave of entry to study to be admitted for the period for which the husband had been authorized to enter but contained no corresponding provision in respect of the husband of a female student. Section 29 of that Act is in terms essentially similar to those of section 20 of the 1976 Act. It was held that the Secretary of State was not a person concerned with the provision of facilities to a section of the public. Stephenson LJ. said, at 1042:
I am of the opinion that the Secretary of State is not a person concerned with the provisions of facilities to a section of the public. Section 29 (1) and (2) repeat, mutatis mutandis, section 2 (1) and (2) of the Race Relations Act 1968 (now repealed and re-enacted in section 20 (1) and (2) of the Act of 1976) and so are not free from judicial interpretation. But read in their natural and ordinary meaning they are not aimed at, and do not hit, the Secretary of State concerned with giving leave to enter or remain in the exercise of his powers under the Immigration Act 1971. The kind of facilities with which the sections of the Acts of 1975 and 1976 are concerned is of the same order as goods and services, and though it may not always be easy to say whether a particular person (or body of persons) is a person concerned with the provision of any of those three things to the public or a section of the public and although a Minister of the Crown or a government department might be such a person (for instance, in former days the Postmaster General, as Sir David Cairns suggested in argument), I am clearly of the opinion that the Secretary of State in acting under the Immigration Act and Rules is not such a person, and he cannot be held to have unlawfully discriminated against the applicant by refusing to give him leave to remain here while his wife was a student, or by refusing to interpret or alter the immigration rule, paragraph 22 of H.C. 79, which is relevant to this appeal. He is operating in a field outside the fields in which Parliament has forbidden sex discrimination.
Ackner LJ. agreeing, said at 1043:
In my judgment, when the Secretary of State is exercising his discretion in relation to powers granted to him by the Immigration Act 1971, he is not providing a facility within the meaning of section 29 of the Act. The word “facilities” in that section is flanked on one side by the word “goods” and on the other by the word “services”. This suggests to my mind that the word “facilities” is not to be given a wholly unrestricted meaning but must be limited or confined to facilities that are akin to goods or services. Section 29 (2) provides examples of the facilities and services mentioned in section 29 (1). These examples support the view which I have expressed above.
Ex parte Kassam was distinguished in Savjani v IRC [1981] 1 QB 458, a case which gave rise to the question whether the Inland Revenue were concerned with the provision of services under section 20 of the 1976 Act. This court held that they were and in the course of his judgment Lord Denning MR said at 466:
I would only mention Reg. v Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 WLR 1037, which was before another division of this court. In that case discrimination was alleged against the immigration authorities. The court held that, in dealing with people coming in under the immigration rules, the immigration authorities were not providing “services” within the meaning of the Act. This case is very different. The revenue are providing “services” in regard to relief from tax or repayment of tax. Those services come within the provisions of the Act. If there is discrimination in the carrying out of those services, it is unlawful.
Templeman LJ. said at 466:
The Race Relations Act 1976 undoubtedly poses and is continually posing a large number of administrative difficulties both for the Crown and for large organisations; and in the present instance the Inland Revenue are to be treated with sympathy rather than criticism. Undoubtedly their task has been made more difficult by the Act if it applies to them. On the other hand, the Act was brought in to remedy very great evil. It is expressed in very wide terms, and I should be very slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act. Nevertheless, of course, one must look at the Act and construe its provisions.
A little later he said at 467:
As Mr. Moses on behalf of the revenue submitted, the board and the inspector are performing duties – those duties laid upon them by the Act which I have mentioned – but, in my judgment, it does not necessarily follow that the board and the inspector are not voluntarily, or in order to carry out their duty, also performing services for the taxpayer. The duty is to collect the right amount of revenue; but, in my judgment, there is a service to the taxpayer provided by the board and the inspector by the provision, dissemination and implementation of regulations which will enable the taxpayer to know that he is entitled to a deduction or a repayment, which will entitle him to know how he is to satisfy the inspector or the board if he is so entitled, and which will enable him to obtain the actual deduction or repayment which Parliament said he is to have. For present purposes, in my judgment, the inspector and the board provide the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof.
At 468 he said:
On behalf of the revenue Mr. Moses submitted that the Race Relations Act 1976 does not apply to the Inland Revenue at all, but he naturally and wisely recoiled from the suggestion that the inspector of taxes might decline to interview a taxpayer if the taxpayer were coloured. He makes forcibly the submission that, when the board decides for sensible reasons that a higher standard of proof is required from taxpayers who come from the Indian sub-continent, the board are not providing a service to that taxpayer; they are carrying out their duty to the Crown. As I have already indicated, it does not seem to be that the two concepts are mutually exclusive. The board and the inspectors perform their duty and carry out a service and, in my judgment, it is a service within the meaning of section 20 of the Race Relations Act 1976.
Both these cases were considered by the House of Lords in In re Amin [1983] 2 AC 818 where an issue was whether the grant of special vouchers under the special voucher scheme introduced by paragraph 38 of HC 79 came within section 29 of the 1975 Act. It was held that by the majority that it did not. The contention that Ex parte Kassam was wrongly decided was rejected by the majority. In the course of his speech Lord Fraser said, at 834:
My Lords, I accept that the examples in section 29 (2) are not exhaustive, but they are, in my opinion, useful pointers to aid in the construction of subsection (1). Section 29 as a whole seems to me to apply to the direct provision of facilities or services, and not to the mere grant of permission to use facilities. That is in accordance with the words of subsection (1) and it is reinforced by some of the examples in subsection (2)…. Example (g) seems to me to be contemplating things such as medical services, or library facilities, which can be directly provided by local or other public authorities. So in Savjani, Templeman LJ. took the view that the Inland Revenue performed two separate functions – first a duty of collecting revenue and secondly a service of providing taxpayers with information. He said at page 467:
[and Lord Fraser quotes the second of the passages I have cited from the judgment of Templeman LJ, save for the last sentence].
In so far as that passage states the ground of the Court of Appeal’s decision in that case I agree with it. If Lord Denning M.R., at pages 465-466, intended to base his decision on wider grounds, I would respectfully disagree with him. In the present case the entry clearance officer in Bombay was in my opinion not providing a service for would-be immigrants; rather he was performing his duty of controlling them.
Counsel for the appellant sought to draw support for his contention from section 85 (1) of the Act of 1975 which provides:
“This Act applies – (a) to an act done by or for purposes of a Minister of the Crown or government department, or (b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office, as it applies to an act done by a private person”.
That section puts an act done on behalf of the Crown on a par with an act done by a private person, and it does not in terms restrict the comparison to an act of the same kind done by a private person. But in my opinion it applies only to acts done on behalf of the Crown which are of a kind similar to acts that might be done by a private person. It does not mean that the Act is to apply to any act of any kind done on behalf of the Crown by a person holding statutory office. There must be acts (which include deliberate omissions – see section 82 (1)), done in the course of formulating or carrying out government policy, which are quite different in kind from any act that would ever be done by a private person, and to which the Act does not apply.
Mr. Seabrook places particular reliance on Lord Fraser’s concluding words in this citation. However, he was there dealing with an argument that section 85 of the 1975 Act (the equivalent of section 75 of the 1976 Act) provided support for the argument based on section 29 (section 20). I shall consider in a moment what is the significance of section 75 of the Race Relations Act but before doing so I should say that in my view the most important feature of Lord Fraser’s speech in the context of the present case is his approval of the passage in Templeman LJ’s judgment in Savjani.
Section 75 of the Act is headed “Application to the Crown etc” and its material provisions are as follows.
(1) This Act applies –
(a) to an act done by or for purposes of a Minister of the Crown or government department; or
(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,
as it applies to an act done by a private person.
(2) Parts II and IV apply to –
(a) service for purposes of a Minister of the Crown or government department, other than service of a person holding a statutory office; or
(b) service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body; or
(c) service in the armed forces,
as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service.
(3) Subsections (1) and (2) have effect subject to section 16.
Mr. Seabrook relies on the passage from Lord Fraser’s speech cited above as authority that the relevant act must be similar to an act done by a private person – and certainly that is what Lord Fraser says, though it might be argued that his observations are obiter. Mr. Nicol, while not accepting that what Lord Fraser said is applicable to the present case, argues that the assistance and protection that the plaintiff sought from the police were similar to acts which might have been performed by a private person – for example a security firm – and that accordingly Lord Fraser’s test is satisfied in this case.
Mr. Nicol also submits that it is arguable that section 75 applies to police constables since theirs is a service on behalf of the Crown for the purposes of a person holding statutory office or of a statutory body, and that section 32 (included in Part IV to which section 75 (2) refers) applies to constables’ service as it applies to employment by a private person and as if reference to contracts of employment included reference to their terms of service. Acknowledging that this is, as he puts it, “a somewhat strained construction”, Mr. Nicol points out that unless the police are within section 75 (2) (and, he might have added, section 75 (1)) section 75 (3) makes no sense. Mr. Seabrook’s response to this is that Part III of the Act is not referred to in section 75 (2). Mr. Nicol in turn suggests that the explanation for this omission is that Part III of the Act is not concerned with employment.
These arguments are not easy to resolve, and the statutory provisions are by no means clear. However my conclusion is that it is arguable that the limited service for which the plaintiff looked to the police comes within Lord Fraser’s test. As to Mr. Nicol’s second submission, I agree that it is strained and I consider that the most that can be said is that section 75 (3) shows that section 75 (1) and (2) might easily apply to the police, not that they do so apply.
Mr. Seabrook, in further support of his contention that it is plain that section 20 has no application to a police officer performing his duties, advanced a powerful argument based on considerations of public policy. He submitted that the law has consistently recognized the need to protect those involved in the investigation, preparation for and giving of evidence in criminal and civil proceedings from susceptibility to actions for damages because of the danger that this would impede or inhibit the effectiveness of legal process. It is, he suggested, unthinkable that Parliament would, incidentally as it were, have infringed such well established interests. In support of this submission he referred us to a number of authorities, including Marrinan v Vibart [1963] 1 QB 234 and 529 (a case which reaffirmed the absolute immunity of a witness from any form of civil action in respect of his evidence in judicial proceedings and any acts done in the preparation of that evidence); Hill v Chief Constable of West Yorkshire [1989] AC 53 (where it was held that there was no general duty of care owed by the police to individual members of the public in respect of the detention and apprehension of criminals); Calveley v Chief Constable of Merseyside [1989] AC 1228, (where it was held that officers investigating allegations against other police officers owed no duty of care to the subjects of the investigation on the grounds, inter alia, that it would be contrary to public policy to recognize such a duty); and Alexandrou v Oxford [1993] 4 All ER 328 (where it was held that it would not be in the public interest to impose on the police a duty of care towards the shopkeeper where they had attended as a result of but (it was said) negligently investigated a burglar alarm call). These and other cases to which Mr. Seabrook referred us do, of course, exemplify a well established strand of public policy, the reasons for which are readily understandable. As Lord Bridge said in Calveley (page 1238):
Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, if would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitallyimportant public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.
Mr. Seabrook, however, readily conceded that it was open to Parliament to legislate in a manner which impinged upon such public policy immunity. The value of these authorities, concerned as they are with whether in given circumstances a common law duty of care should be held to exist, lies in the assistance they may afford in interpreting statutory provisions the effect of which is ambiguous or otherwise unclear. They certainly do not preclude the acceptance of the plaintiff’s contentions, if the words of the statute are clear.
The same may be said of Mr. Seabrook’s submission based on what I will call inconvenience, expense and difficulty. He points to the provisions of Part VII of the 1976 Act relating to the administration of questionnaires, to the need for extensive discovery, to the necessity for the judge in the County Court to sit with assessors and related matters. I do not find it necessary to make specific reference to the relevant provisions, since I accept Mr. Nicol’s submission that such considerations cannot be decisive of the question whether on its proper construction the Act applies to some aspects of police activities. For the same reason I do not propose to rehearse Mr. Nicol’s submissions in support of his contention that the problems are much less formidable than the appellant suggests they are. This case turns not on such considerations but upon the proper construction of the Act in the light of the directly relevant authorities.
In my view Mr. Nicol is correct when he argues that, prima facie, section 20 is wide enough to apply to at least some of the acts undertaken by police officers in the performance of the duties of their office. The crucial words – to be interpreted of course in the light of the examples given, but not on the basis that the examples are definitive of the circumstances to which the section can apply – are
…any person concerned with the provision (for payment or not) of …. services to the public.
I accept Mr. Nicol’s contention that these words are entirely apt to cover those parts of a police officer’s duties involving assistance to or protection of members of the public. Mr. Nicol emphasised that it is in regard to that aspect of the officers’ duties that the claim in the present case is advanced – it is not suggested that pursuing and arresting or charging alleged criminals is the provision of a service. What is said is that the service sought by the plaintiff was that of protection and that she did not, because of her race, obtain the protection that others would have been afforded. It seems to me that that is no less the provision of a service than is the giving of directions or other information to a member of the public who seeks them.
Turning to the examples in subsection (2) I find nothing expressly or impliedly to exclude police officers; and in my view they can properly be regarded as falling within subparagraph (g) – “the services of any profession or trade, or any local or other public authority”.
Furthermore, I find in the case of Savjani support for the conclusion that the police, in some aspects of their activities, fall within the Act. The passage in Templeman LJ’s judgment approved in Amin shows that there is no reason why a person performing a public duty may not also be providing a service, and strongly supports the plaintiff’s arguments. The first paragraph of his judgment helpfully states and contrasts some of the conflicting policy considerations and emphasises the necessity, notwithstanding those matters, to construe the Act. The last of the paragraphs I have cited from his judgment could easily be adapted to pose an example in as stark terms but concerning a member of the public and police officers.
Finally, I do not find in the other provisions of the Act relied upon by Mr. Seabrook anything to indicate that the prima facie clear words of section 20 should not apply to police officers. In my view Mr. Nicol is correct to contend that section 16 certainly does not have that effect, since it is explicable on the simple basis that, since police officers are not employed but hold their office under the Crown, some such provision was necessary if they were to be afforded the protection of Part II, concerned as it is with discrimination in the employment field. I am, moreover, impressed by Mr. Nicol’s argument that of more significance is the fact that, whereas Part V of the Act contains specified exceptions to its provisions, some of which are clearly based on public policy grounds, there is no such specific exception of the police.
Taking the view I do on construction, I do not consider that there is any basis for entertaining Mr. Seabrook’s policy arguments. I would observe, however, that (as the judgment of Templeman LJ. recognizes) there are in any event powerful arguments on each side of the public policy issue and I do not find the spectre of claims of racial discrimination against the police, with the inconvenience and expense that that may involve, to be more disturbing than the prospect that a member of the public who, seeking assistance in dire need, has been the subject of racial discrimination, should be without remedy.
The question that remains to be considered is whether, under the provisions of sections 53 and 57 of the Act, such a claim can prima facie be advanced by an individual plaintiff against the police officers allegedly guilty of discrimination (it will be recalled that I am not here considering the question of vicarious liability which arises in this case by reason of the fact that only the Commissioner has been made a defendant). This depends on whether a claim of discrimination by a member of the public against a police officer falls within section 57 (1). In my view it plainly does, for reasons too obvious to require further discussion.
Before turning to the issue of vicarious liability I wish to say that in this case I am doubtful, as judges have been in many others involving striking out, of the wisdom of deciding questions of the sort we have been asked to determine at this stage, before the facts have been established. Mr. Nicol referred us to Lonrho v Tebbit [1991] 4 All ER 973 where Sir Nicholas Browne-Wilkinson VC emphasised the virtues of deciding difficult questions of law in a new and developing field on the basis of the true facts once they are ascertained. It is true that the racial discrimination claim in the present case would probably, if allowed to proceed, increase the cost and difficulty of the hearing or hearings. Against that, however, are the considerations (i) that its determination now, on the basis of assumed and rather generally pleaded facts which have not even been the subject of a request for particulars, would not dispose entirely of the claim even if the decision were adverse to the plaintiff; and (ii) that it might turn out, when the facts were investigated, that no basis for this contentious claim existed. It would in my view have been better for the difficult questions to which this application and appeal give rise to be decided in the light of established facts rather than on the basis of the assumed truth of the pleaded facts.
The judge found the issue of vicarious liability the most difficult of those he had to decide, and I agree that it raises difficult problems.
If one begins with section 48 of the Police Act, and considers it apart altogether from the restrictive provisions of the 1976 Act or any provisions of that Act which might be invoked as establishing vicarious liability on the part of the Commissioner, the position is plain beyond argument – the Commissioner is answerable for the actions of the officers. This is because –
(1) Section 48 expressly provides that the chief officer of police is liable for torts committed by constables under his direction and control in the performance or purported performance of their duties as though they were committed by his servants in the course of their employment; and that he shall be treated for all purposes as a joint tortfeasor.
(2) An act of racial discrimination within section 20 is a statutory tort. If there were any doubt as to that it would be dispelled by the concluding words of section 57 (1) “… in like manner as any other claim in tort”.
It follows that, if the appellant’s argument that the Commissioner is not vicariously liable in respect of this claim is to succeed it must be on the basis
(1) that there is in the 1976 Act some provision which precludes the plaintiff’s relying on section 48 of the Police Act; and
(2) that there is not in the 1976 Act any other provision which, on the assumed facts of this case, justifies a claim based on vicarious liability of the Commissioner.
There is no doubt that the words of section 53 (1) are prima facie very restrictive.
If the prohibition is considered in isolation from the introductory qualification, it is that –
…. no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by reason of a provision of this Act.
Is this a prohibition affecting both types of claim and identity of parties, or only the former? If seems to me inescapable that as a matter of strict construction it applies to both. It would have been perfectly possible to frame the prohibition in terms which did not have that effect (for example by saying “… no proceedings … shall be brought in respect of an act etc”).
I cannot accept Mr. Nicol’s contention that the section is not expressed in clear language.
If (relying on the introductory words to section 53) one turns to section 57 (1) there is in my view support for this construction. That subsection draws a distinction between the respondent who has himself committed an act of discrimination and someone who by virtue of sections 32 or 33 is to be treated as having committed such an act. If the section 53 prohibition were one which did not operate to exclude claims against persons vicariously liable for the acts of the respondent, the reference to section 32 and 33 would be unnecessary. Thus, to take an example removed from the facts of this case, it is in my view plain that a claim cannot be brought by virtue of section 57 against an employer in respect of his servant’s discriminatory act save in reliance on section 32 (1) (or 33). Ordinary vicarious liability apart from the Act does not suffice; it is only to the extent that the Act permits vicarious liability claims that they can be maintained.
Part of Mr. Nicol’s argument involved the assertion that it cannot have been the intention of Parliament to exclude the normal adjectival or parasitic operation of associated legislation such as the Police Act: so he seeks to draw a distinction between ordinary vicarious liability – i.e. that arising simply as an incident of relationship or authority conferred – and vicarious lability imposed (as in section 48) by statute. The Police Act was, he says, part of the legislative background against which the 1976 Act was passed. In advancing this argument he places particular emphasis on the concluding words of section 48 of the Police Act.
…. and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.
However, since the term joint tortfeasor embraces the agent who commits a tort on behalf of his principal and the employer liable in respect of his employee’s torts, I cannot accept that there is any valid distinction in scope between the common law relationship of principal and agent and this statutory relationship.
A further variation of the argument is that section 48 characterises the imposed relationship in terms not of principal and agent but of master and servant, and it is in terms of that assumed relationship that they are for all purposes to be treated as joint tortfeasors. Accordingly, says Mr. Nicol, there is, by virtue of the deemed relationship a basis for saying that the Commissioner falls within section 32 (1). The difficulty about this is that the Commissioner and the police officer are not employer and employee, since deeming or treating persons as being in a relationship is, so far from clothing them with that relationship, rather an acknowledgment that they are not in that relationship. They do not therefore fall within section 32 (1).
Then Mr. Nicol submits that the relationship is in any event one of agency and that section 32 (2) applies. He points to the fact that by virtue of section 4 of the Metropolitan Police Act 1829 the Commissioner has the direction and control of the force for his area (compare the equivalent provisions in section 5 (1) of the Police Act 1964). He also relies on case law which recognizes that a chief officer commands the officers of his force. This is common ground.
However, Mr. Seabrook, contesting the notion that a constable is to be regarded as the agent of the chief officer of police, relies on the decision in Fisher v Oldham Corporation [1930] 2 KB 364. The question at issue is that case was whether the police appointed by the watch committee, in effecting an unlawful arrest, were acting as the servants or agents of the corporation so as to render it liable to an action for false imprisonment. It was held that they were not, and in the course of his judgment McCardie J. said at 371:
Prima facie …. a police constable is not the servant of the borough. He is a servant of the State, a ministerial officer of the central power, though subject in some respects to local supervision and local regulation.
Later he cited with approval a passage from the judgment of the High Court of Australia in Enever v The King [1906] 3 Commonwealth L.R. 969 in which Griffith CJ said at 975, 977:
At common law the office of constable or peace officer was regarded as a public office, and the holder of it as being, in some sense, a servant of the Crown.
Now, the powers of a constable, qua peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself….. A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application.
McCardie J. concluded his judgment thus at 377:
The police, in effecting that arrest and detention, were not acting as the servants or agents of the defendants. They were fulfilling their duties as public servants and officers of the Crown sworn to “preserve the peace by day and by night, to prevent robberies and other felonies and misdemeanours and to apprehend offenders against the peace”. If the local authorities are to be liable in such a case as this for the acts of the police with respect to felons and misdemeanours, then it would indeed be a serious matter and it would entitle them to demand that they ought to secure a full measure of control over the arrest and prosecution of all offenders. To give any such control would, in my view, involve a grave and most dangerous constitutional change. For the reasons given, there must be judgment for the defendant.
This case is commonly relied upon for the proposition that no relationship of principal and agent exists. However, Mr. Nicol referred us to a passage in a text book entitled Civil Actions Against the Police by Richard Clayton and Hugh Tomlinson which, at page 39, argues as follows:
It is submitted, however, that police officers must now be regarded as agents of their chief officer. The contrary dicta in Fisher v Oldham are, strictly, obiter as the case was directly concerned only with the relationship of master and servant. In any event, the position has now, arguably, been altered by the effect of section 5 of the Police Act 1964 which places a police force under the direction and control of the chief constable. Such direction and control suggests a subordination of the original authority of individual constables to that of the chief constable. This contention is supported by the case of Hawkins v Bepey in which it was held that a police officer instituting a prosecution was, in effect, doing so “on behalf of” his chief constable.
Hawkins v Bepey [1980] 1 WLR 419, however, was a case of express authority, where a police officer had under instructions issued by the chief constable laid information on behalf of the police force. On his death a question arose as to whether the proceedings had lapsed. The court held that the real prosecutor was the chief constable or the force under his direction and control and that the proceedings had not lapsed. Bearing in mind the rather special facts and the fact that Watkins J. in his judgment expressly held that the officer, in carrying out the instructions of the chief constable whose orders he had to obey, was acting in a representative capacity, I do not consider that this decision is in conflict with Fisher’s case.
In my view there is no valid ground for contending that the officers in the instant case were acting as the agents of the Commissioner.
As some of the observations I have already made must have shown, I should like to be able to hold that there exists here the necessary vicarious liability to entitle the plaintiff to maintain against the Commissioner the action for racial discrimination which, on the basis of the facts pleaded in the Particulars of Claim, and for present purposes assumed to be true, I have accepted that she would have been entitled to pursue against the officers themselves. But however the argument is put, I can find no valid ground for holding that such a claim is maintainable against the Commissioner. On this part of the case, moreover, it cannot be and is not suggested that further elucidation of the facts might disclose circumstances (such as existed in Bepey) establishing express authorization.
Accordingly, while holding that a claim for racial discrimination under section 20 is, in certain circumstances, maintainable against the police, I would allow this appeal on the second ground because the claim against the Commissioner is defeated by the prohibition in section 53. That part of the claim must accordingly, in my view be struck out. I should add that, had I taken a different view on the vicarious liability point, I should nevertheless have favoured striking our the concluding sentence of the passage I have quoted from paragraph 12 (iv) of the Particulars of Claim, which in my view clearly goes beyond anything that could fall within section 20. Moreover it also overlaps an existing claim in the action.
DEC-S2010-053-Full Case Report
Equal Status Acts
2000 to 2008
EQUALITY OFFICER’S DECISION
NO: DEC-S2010-053
PARTIES
A patient v a Health Service Provider and a Hospital
File reference: ES/2008/0222 and ES/2009/0005
Date of issue: 1 December 2010
File reference: ES//2008/0222 and ES/2009/0005 – DEC-S2010-053
Equal Status Acts 2000 to 2008 – Discrimination, section 3(1) – gender ground, section 3(2)(a) – service provision 5(1) – Other non-discriminatory activities, section 16(2)(a)
1. Dispute
1.1. This dispute concerns a complaint by a Patient (hereafter “the complainant”) that she was subjected to discriminatory treatment contrary to the Equal Status Acts by a Health Service Provider and a Hospital (hereafter “the respondent”). It was submitted that the discrimination has been on-going since the complainant’s hospitalisation in the latter part of 2000. The complaints have been made on the gender ground.
2. Delegation
2.1. The complainant referred two complaints under the Equal Status Acts to the Director of the Equality Tribunal. The first complaint named the hospital as the respondent on 08 December 2008. The second claim, against the service provider, was received on 16 January 2009. In accordance with her powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- an Equality Officer – on 13 April 2010 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 1 July 2010. Due to the complainant’s disability, it was agreed between the parties that further written submissions – relating to law – would be submitted in writing to the investigation. The reply period for this exchange closed on 8 September 2010. This decision has been anonymised with the consent of the parties.
3. Preliminary issue
3.1 A preliminary issue was raised at the end of the hearing. It was submitted by the respondent that the facility and the nature of the service that the complainant’s complaint referred to is not within this Tribunal’s jurisdiction because the respondent is not a provider of goods and services within the meaning of the Acts in that it is not available to the public generally or a section of the public. The respondent relied on the Oxford English Dictionary where ‘service’ is defined as “capable of being used; at one’s disposal”. It was submitted that the accommodation provided for the complainant is part of involuntary detention under the Criminal Justice (Insanity) Act 2006 and that the word “available” implies a voluntary availing of in the ordinary meaning of available. The respondent submitted Donovan v Donnellan (DEC-S2001-011) as an authority in the matter.
3.2. Service, according to section 2 of the Acts, means a “service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes —
(a) access to and the use of any place,
(b) facilities for —
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service,
but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies.”
3.3. The complainant, in reply, submitted that paragraphs (a), (b) and (c) are non-exhaustive. The key part of the definition is that a service is ‘a service or facility of any nature which is available to the public generally or a section of the public’. It was submitted that the facility is an approved centre pursuant of the provisions of the Mental Health Act, 2001. Section 62 of that Act defines a centre as: ‘hospital or in-patient facility for the care and treatment of persons suffering from mental illness or a mental disorder under the clinical direction of a consultant psychiatrist’. This clearly means that the hospital is a provider of services. It was also pointed out that the hospital’s own Mission Statement places an emphasis on its role as ‘a service provider’ and refers to patients as ‘service users’. Furthermore, the hospital is funded by public money.
3.4 Furthermore, it was submitted that a perception that the provision of care towards the mentally ill persons is not a provision of a service is in itself discriminatory of the mentally ill as against other persons who avail of other services of the State. Such treatment could not be legitimately justified and it was submitted that such treatment constitutes unlawful discrimination and contravenes with Articles 8 and 14 of the European Convention of Human Rights (ECHR) and is therefore in breach of section 3 of the European Convention of Human Rights Act, 2003.
3.5. Whilst it was accepted by the parties that it is the case that only persons suffering a particular degree of illness are admitted to the hospital it does not alter the fact that a service is provided to those persons. Furthermore, the complainant submitted, the fact is that the hospital provides services to only persons who are admitted there pursuant of the Mental Health Act, 2001 and Criminal (Law Insanity) Act, 2003 and is therefore ‘available to a section of the public’.
4. Case for the complainant
4.1. The complainant is a female resident in a hospital. Her condition is covered by the Criminal Law (Insanity) Act 2006, the Mental Health Act, 2001 and the Equal Status Acts 2000 to 2008. The Tribunal had sight of number of medical reports to confirm same. Her complaint relates to the fact that she, as a female, received and continues to receive less favourable treatment than male patients staying in the hospital. She submitted a number of services, not relating to her personal clinical care but specific to the facilities available in the hospital, discriminated against her as a woman. It was submitted that the hospital only contains one female unit that caters for widely differing needs in relation to clinical care and in terms of risk and security status. In contrast, male patients are able to avail of a number of therapeutic units with differing security levels. The complainant also submitted that male residents are able to avail of an external hostel while no such facility is available to women. Further complaints about security measures such as freedom to move around the facility and the use of family facilities were referred to.
4.2. The complainant submitted that in her opinion her rehabilitation is being hampered and delayed by the fact that she cannot move to another unit that could provide her with increasing levels of self-responsibility and liberty in a similar manner as the male patients can. The complainant referred to the Report of the Inspector of Mental Health Services (2008) that stated that due to the current limitations of the hospital, it has not been possible to provide different levels of secure care for female patients.
4.3. It was submitted that integrated facilities were not the best possible service for women with the complainant’s condition. In any regard, the service available for the complainant is less favourable because of her female gender than that provided to male patient’s in the hospital.
5. Case for the respondents
5.1. The respondent submitted that the correct respondent is the Health Service Provider, not the hospital.
5.2. It was submitted that. in addition to the preliminary issue, the claim was not properly before the Tribunal as the treatment complaint of related to matters of clinical judgment in accordance with section 16(2).
5.3. The respondent relied on the Tribunal decision Mr X v Health Service Executive (DEC-S2008-112) where the equality officer accepted in the circumstances of that case that the respondent’s inability to secure a psychologist was an administrative issue due to financial constraints or inadequate staffing resources and did not thus constitute discrimination. It was submitted that the same statement applied to this case.
5.4 The respondents refuted that the complainant was not availing of all possible treatment options that are relevant to her condition. A catalogue of interventions was provided to the investigation.
5.5. It was submitted that the security arrangements were in place to protect the complainant and other patients staying in the facility. Such arrangements were in place to protect the complainants and the other patients.
5.6. It was denied that the treatment of the complainant was in any way discriminatory of the mentally ill as opposed to others who avail of the health services and that such treatment is in contravention of Articles 8 or 14 of the ECHR.
6. Conclusion of the equality officer
6.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. It must be noted that while the complainant is a person with a disability, this complaint is on the gender ground only.
6.2 Preliminary issues
6.2.1. It was accepted that the named Health Service Provider is the correct respondent in the circumstances of this case.
6.2.2. It is well established in law that the provision of health services are within this Tribunal’s jurisdiction. I do not therefore accept that mental health services, regardless of their nature, are not a service within the meaning of the Acts. Much has been made of the fact that the hospital is one that detains persons pursuant to statutory provisions providing for their in-patient treatment. None of the statutory provisions referred to provide a defence in accordance with section 14 of the Acts. That is, there is no statutory provision that explicitly provides for the differences of treatment of men and women. I am satisfied that the hospital is a service provider to persons, both female and male, who suffer from a specific type of mental disorder.
6.2.3. Furthermore, the detention aspect is clearly an integral part of the treatment and cannot in any meaningful way be separated from it. To do so, I find, would be to ascribe an element of the patients’ treatment to retribution rather than rehabilitation and such approach would be against law and public policy. It is clear that the persons availing of the service are doing so because they require specific treatment and health care. I am also satisfied that this case can be distinguished from the Donovan decision in that I do not accept that the hospital is anything other than a hospital. It is the very services that the hospital provides that have dictated its nature.
6.2.4. It is clear that the service is one that is available to a section of the public. I find that pursuant of the literal and purposive meaning of the Acts, all health service providers have a duty of non-discrimination. It is irrelevant whether the availing of such service is voluntary or involuntary. It could indeed be argued that a majority of persons availing of health services would choose, given the opportunity, not to be in need of such services.
6.3. Discriminatory treatment
6.3.1. The Tribunal heard that the hospital’s patient ratio is approximately 10% female and 90% male. This is because of the nature of the hospital and the differing way that mental health disorders affect women and men. It was submitted that while females and males suffer from mental health problems in equal number, it is more usual for men to be affected by disorders that bring them to this particular hospital. It is clear from the facts that the rationale for the number of male/female units in the hospital is a policy decision arising from the gender breakdown. Having heard the evidence, regardless of the foregoing, it has however been impossible to adduce any evidence that the complainant has been treated any less favourably as a result of the above policy decision. I note that reports, submitted to the investigation, clearly show progress in the complainant’s case. While the evidence presented to the investigation has shown that there has been difference of treatment between men and women, such treatment has not been shown to be less favourable. While I note that the complainant would prefer to be housed in a unit that does not deal with admissions, no expert evidence on clinical judgment to support her argument was provided. In contrast, the Tribunal was presented with compelling expert evidence on behalf of the respondent that indicated that the complainant is and has been receiving the best possible medical care available to her. In such circumstances, where no rebuttal to this expert opinion has been forthcoming, it is impossible for this Tribunal to adduce any evidence of less favourable treatment. Therefore, I have taken cognisance of section 16(2)(a), and am satisfied that any treatment that the complainant has received has been in accordance with treatment associated with clinical judgment.
6.3.2. It was also accepted that no external hostel facility was available to the complainant because of her gender. Such a facility exists only for the hospital’s male patients. I note that a report from a named authority documented the complainant’s rehabilitation (dated 28 June 2007) and acknowledged the lack of step down facilities and the isolation that the one unit posed as a concern. The report identified the benefits of a lower security environment. It was also noted that such ambitions would pose a number of practical difficulties to the respondent. In contrast, I note in the circumstances of this complaint, the complainant had been released to avail of accompanied and unaccompanied home visits instead of a stay in a hostel as well as a day facility that she has been attending twice weekly. Such visits have been deemed to be more suitable for her by her treating psychiatrist. It was submitted in direct evidence that such visits are, in her clinical judgment, more beneficial to the complainant than a stay in an external hostel. In such circumstances, I am satisfied that such different treatment does not constitute less favourable treatment of the complainant.
6.3.3. I accept that the matter of access to her children is not in the control of the respondent. However, I note that provisions for same have been made in accordance of a Court Order.
6.3.4. While I have no hesitation in acknowledging that the respondent’s staff would most likely welcome better facilities and more resources for all of its patients, regardless of gender, I am satisfied that in the circumstances of this case, the complainant has not been treated in a manner that can be described as less favourable. The concerns raised by as report from a named authority, whilst noted by this Tribunal, were not supported by original evidence and could not be given any further weight. This Tribunal may only consider cases brought to it by individual complainants and must consider them pertaining to specific facts relating to the complainant’s experience. What must be shown for such discriminatory treatment to be established, on the balance of probabilities, is that such treatment is less favourable to the complainant. Therefore, it must be noted that in certain circumstances, difference of treatment is justifiable in law because the treatment, while different, is not de facto less favourable.
6.3.5. I am satisfied that the security arrangements are done in accordance with clinical judgment based on the welfare of all the patients. I have not heard sufficient evidence to accept that male patients had or have more freedom than the female patients. Even if the complainant herself may be of the view that she is in a position to avail of lesser security, as a woman, I find that the security measures are in place in a manner that is objectively justified and the manner in which such aim has been achieved reasonable to the hospital environment.
6.4.5. Finally, it must be noted that this Tribunal has no jurisdiction in relation to section 3 of the Human Rights Act, 2003.
7. Decision
7.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the gender ground in terms of Sections 3(1) and 3(2)(a). This has been successfully rebutted by the respondent in reliance of section 16(2) of the Acts. Accordingly, the complainant’s case fails.
_________________
Tara Coogan
Equality Officer
1 December 2010
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-056
A Mother v A School
and
The Department of Education and Skills
[Represented by Mr Conor Dignam B.L. instructed by the Chief State Solicitor]
File Ref: ES/2010/073, 075
Date of Issue: 7 December 2010
Keywords: Equal Status – Membership of Traveller community, Admission to educational establishment – indirect discrimination – Whether appeals under section 29 of the Education Act 1998 subject to Equal Status Acts – Whether preferential treatment in admission of siblings of current or former pupils or children of former pupils indirectly discriminatory – Burden of proof – Equal Status Acts 2000 to 2008 ss.3 (1) (c), 3 (2) (i), 3 (3A), 5, 7, 14(b), 34 – Education Act 1998 s. 29.
1. This complaint was referred to the Director of the Equality Tribunal on 22 July 2010 under the Equal Status Acts, 2000-2008 (hereinafter “the Acts”). On 13 October 2010 I, Niall McCutcheon, Director of the Equality Tribunal decided to take responsibility myself for the investigation, hearing and the issue of a decision, and the exercise of all my other powers and functions under the Employment Equality Acts 1998 – 2008 and the Acts, in relation to this case. The same day, for the purpose of enabling me to exercise my functions under Part III of the Acts, in accordance with section 34 of the Acts, I wrote to all the parties seeking information which, in my opinion, was relevant. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 9 November 2010 and all parties were in attendance. Further information sought at the hearing was received by me on 10 November 2010.
2. Dispute
This dispute concerns a claim by the complainant, A Mother on behalf of her son (hereinafter “the complainant”) that he was discriminated against by A School (hereinafter “the High School”) on the Traveller community ground in terms of section 3(2)(i) of the Acts by being refused admission as a student to the School, contrary to section 7 (2) (a) of the Acts. The complainant also claims that the Department of Education and Skills (hereinafter “the Department”) discriminated against him by not upholding an appeal under section 29 of the Education Act 1998 against the decision of the High School.
3. The facts
The School is a Roman Catholic Voluntary secondary school for boys only under the trusteeship of the Christian Brothers.
The complainant is a member of the Traveller community as are his mother and father. He is Roman Catholic as are his parents. He attended a local primary school, a feeder school to the School. He is the eldest of seven children, three boys and four girls. The complainant applied for admission to the School in November 2009, on or prior to the closing date. The number of applications greatly exceeded the number of places available.
The Admissions Policy of the School (dated November 2009) sets out the following Enrolment Policy that applies when places are oversubscribed:
“First Round
The school will examine all applications received on or prior to the closing date in the first round review to determine which applicants have maximum eligibility in accordance with the school’s selection criteria mentioned in this policy and the mission statement and the ethos of the school.
“Second Round
All or any remaining places not allocated in the First Round shall be allocated in accordance with the Lottery Procedure mentioned below.
“Rationale
The rationale of the admissions policy is to fairly and transparently allocate the available places in accordance with the mission statement, the guidelines and recommendations of the Patron and the Department of Education and Skills (DES) where arising, and the selection criteria and lottery referred to below.
“The School’s goals generally
The primary goal of the School is to fulfill its mission statement in accordance with the law, Patron or DES guidelines and the resources currently available to it. The Admissions Policy is intended to reflect that primary goal and in this context the school aims to:
– Provide a fair system of enrolment for boys
– Make reasonable provision and accommodation for students, including students with a disability and special educational needs in accordance with relevant legislation, with due regard to the efficient use of resources provided by the DES.
– Allow for full participation by all students, subject to resources being available and allowing for Health and Safety implications
– Transparently allocate those limited places in accordance with its Mission Statement and the Selection Criteria mentioned below.
“The School’s Goals on dealing with Admissions
When dealing with Admissions where there are a limited number of places, the School seeks to fulfil the above goals in the following manner, namely to allocate the number of places available:
– firstly on the basis of its Mission as a Roman Catholic school;
– Secondly on the basis of supporting the family ethos within education by providing education services for the children of families who already have, or have recently had, a brother of the applicant attend the School for his post primary education;
– And thirdly to make reasonable provision and accommodation for boys within its own locality or demographic area, including students with disability and special educational needs, in accordance with the resources provided by the DES and otherwise available to it.
“Selection Criteria
First Round criteria:
In the first round the School shall firstly select from all of the applications submitted that have maximum eligibility in accordance with the following criteria:
The application is made on behalf of a boy:
– whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school;
The School may also allocate some places to take account of:
– families who have located to Clonmel through work
– the urban/rural balance on a proportional basis in the context of the allowed number of applicants
– exceptional circumstances
– students (living in the catchment area) who are diagnosed with ASD (Autistic Spectrum Disorder).
Second Round
With respect to all or any remaining places not allocated in the First Round the School shall run a Lottery to determine the order in which same shall be filled.
Because the School can only provide a limited number of places for boys, in the event of one or more appeals, a corresponding number of places from the lottery cannot be confirmed pending determination of the relevant Appeal(s), starting with the last place to be filled by the lottery and proceeding accordingly.”
The complainant applied on or prior to the closing date in November 2009 for admission to the School in autumn 2010. The complainant met two of the three First Round Selection criteria , namely:
– whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school;
The criterion he did not meet was as follows:
– who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School.
The complainant therefore did not have maximum eligibility under the First Round criteria. His application was placed in a Lottery along with those who, like him, applied in time but did not have maximum eligibility, as well as four other applicants who applied late but had maximum eligibility. The complainant was not successful in the lottery. He was placed on a waiting list. As of the date of the hearing he is fourth on the waiting list. One of the boys ahead of him on the waiting list applied late but was entered into the Second Round lottery.
Three boys were awarded places in the First Round under the “exceptional circumstances” rule because of loss of a parent or ill-health. No places were awarded in the First Round under the other exceptional criteria, namely
– families who have located to Clonmel through work
– the urban/rural balance on a proportional basis in the context of the allowed number of applicants
– students (living in the catchment area) who are diagnosed with ASD (Autistic Spectrum Disorder).
90 places were awarded in the First Round. 84 names were entered into the Second Round Lottery for 47 places.
The complainant appealed the refusal internally and was unsuccessful. The complainant subsequently appealed to the Secretary General of the Department of Education and Skills under section 29 of the Education Act 1998 who referred the matter to an Appeals Committee. The Appeals Committee heard the appeal on 23 April 2010. It decided not to uphold the appeal for the following reason:
“The Board of Management of the School were fair and reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the places available.”
The Appeals Committee made a Recommendation as follows:
“The Appeals Committee are of the view that the clause in the Admissions Policy relating to “exceptional circumstances” merits review by the Board of Management of the School in order to make it more inclusive.”
The Appeals Committee also added the following comment:
“The Appeals Committee noted that in dealing with late applications the Board of Management did not strictly adhere to its policy. This did not materially affect the outcome.”
4. Summary of complainant’s case against the School.
The complainant argues that the only criterion he did not meet was having a brother who attended or is in attendance at the School, or being the child of a past pupil, or having close family ties with the School. He is the eldest child in his family. Therefore he could not have a sibling who attended the school. The complainant’s father never progressed to second level education. He therefore could not have a parent who attended the school. As a member of the Traveller community, his father (and the rest of his extended family) is statistically much less likely to have attended second level education than the settled population. This criterion of having a family member who attended the school therefore disproportionately affects members of the Traveller community and amounts to indirect discrimination. The School failed to take this into account under the “exceptional circumstances” clause in their Admissions Policy.
The complainant claims that empirical evidence suggests that historically Travellers have suffered “extreme educational deprivation” specifically at second level education. The Report of the Travelling People Review Body 1983 estimated that only half of Traveller children of school going age attended school and very few remained after reaching the age of 12 years. The Report stated that only 10 per cent of Travellers who finish primary school continue to attend school and most of these drop out after one or two years.
This contrasts with the experience of the rest of the population at that time. In 1982, 66.4 per cent of all children who entered second level education completed their secondary schooling. These data correspond with the approximate time period in which the complainant’s father and other family members would have been of a school going age which proves as a further example that members of the Traveller community were statistically less likely to attend second level education.
The Department of Education and Science Guidelines on Traveller Education in second Level Schools 2002 has categorically stated that “school policies should facilitate Traveller enrolment” and has acknowledged that “some schools enrolment policies at second level have not been designed with Travellers in mind and can therefore indirectly act as a barrier to access.” The 2002 Census indicated that 2 per cent of all Travellers who entered second level education completed the senior cycle compared to 23 per cent completion by the general population. To combat this injustice the Department stated that “enrolment policies must therefore take into account the particular needs and lifestyles of Traveller families”. However the attitude and actions of the School are in flagrant breach of the Department’s guidelines. According to the School’s reply [to the complainant] of 29th July 2010 “the fact that a person is a member of the Travelling community is not considered an exceptional circumstance by the Board of Management”. In the complainant’s view, the School has failed in its duty to take into account “all guidelines, regulations and programmes currently made available by the DES” as required by its own admissions policy.
5. Summary of Complainant’s case against the Department.
The Department failed to find against the School at the appeal stage. The Department further failed to ensure that its own guidelines (referred to above) were adhered to during the course of the appeal hearing.
6. Summary of the High School’s Case
The School denied any claims of discrimination, direct or indirect.
The complainant referred his complaint to the Department under a section 29 appeal and the Appeals Committee determined that the Admissions Policy was fair and had been applied correctly.
The complainant was not treated less favourably on the Traveller community ground. He was treated in the same manner as all other applicants to the school. At all times during this process the school treated the complainant in a fair and appropriate manner and in accordance with its policy. The complainant has failed to establish a prima facie case of discrimination in that he has not produced evidence that the treatment he received was less favourable than the treatment someone who is not a member of the Traveller community would have received in similar circumstances.
On the question of indirect discrimination, the High School responded to the allegation that the criterion of having to have a family member who attended the school disproportionately affects members of the Traveller community because Travellers are statistically less likely to have attended secondary school as follows:
The criterion applied is not that a family member has attended second level education but that a family member is attending or has attended the School. This is a standard criterion in admission policies. It is entirely justifiable that the school should have a procedure to follow in cases of oversubscription.
The school has an excellent record of working with students who are members of the Traveller community. There were 5 members of the Traveller community enrolled in the school in 2010. All Travellers who applied for admission in both 2007 and 2008 were accepted. No Travellers applied in 2009. The complainant is the only Traveller to have been unsuccessful in his application to date.
The complainant has argued that the “exceptional circumstances” clause in the school’s admission policy should have been applied to him by reason of his membership of the Traveller community. The School states that the application of this clause was fully explained to all parents i.e. that it applied only in narrowly defined circumstances where an applicant had lost a parent or suffered from ill-health. The complainant therefore was fully aware of its narrow scope. This is evidenced by the fact that on his application form the complainant made no request in this regard.
7. Summary of Department’s case.
The Department contends that it does not own, govern or control the School. The Department cannot direct the School as to its enrolment policy. The claim against the Department is misconceived as the Department is an inappropriate respondent. The matters complained of fall outside the scope of the Equal Status Acts. The Department and more particularly the section 29 Appeals Committee are not “education establishments” within the meaning of section 7 of the Acts. The Department contends that section 7 is the only provision of the Acts which governs discrimination in the education sphere. Therefore the Department and the section 29 Committee fall outside the scope of the Acts. Even if it was contended that the Department was subject to section 5 of the Acts as a service provider, the activities of adjudicative bodies are not “services” within the meaning of the Acts. Even if it was considered that adjudicative bodies were subject, in principle, to the Acts, the section 29 Appeals Committee is limited in the scope of the review it can carry out. The Oireachtas did not intend to grant the Minister for Education and Skills an entitlement, through the section 29 Appeals Committee, to give directions to schools as to how they accept pupils. The jurisdiction of the section 29 Appeals Committee, as interpreted by the Court , is limited to, in effect, a judicial review type role of determining whether the board of management correctly and lawfully applied its enrolment policy, having regard to the facts of the case at the date of board’s decision.
8. Preliminary Issue
I address first the question, does the claim of discrimination made against the Department fall within the jurisdiction of the Equality Tribunal? The complainant claimed that the Department discriminated against him when it failed to find against the School at the appeal stage and that the Department further failed to ensure that its own guidelines were adhered to during the course of the appeal hearing. There is no dispute that the decision of the School not to admit the complainant is subject to the Equal Status Acts. The question is, is the Secretary General of the Department and/or the section 29 Committee, in carrying out their statutory appellate functions subject to the Equal Status Act? If the Secretary General or the section 29 Appeals Committee had discretionary power to substitute for the decision of the School their own decision on the merits of an individual application or had discretionary power to amend the terms of the enrolment policy, they would be taking decisions in relation to the admission or the terms or conditions of admission of a person as a student to an educational establishment. In such a case they might be subject to the Equal Status Act. It is clear, however, from the legal authorities opened to me, that the Secretary General and a section 29 Appeals Committee do not have power to carry out a merits-based review of a decision to refuse an application. Ms Justice Irvine found that
“the powers of the appeals committee under section 29, in the opinion of this Court, was one intended to be confined to a right to review the lawfulness and/or reasonableness of a board’s decision to refuse enrolment.”
Therefore the Department, in exercising its powers under section 29 of the Education Act 1998 cannot substitute its own view on the merits of an individual application for the decision of the school. Neither can it strike down or amend the enrolment policy of a school. It can only quash a decision in relation to the admission or the terms or conditions of admission of a person as a student to an educational establishment if the decision is unlawful or unreasonable. Therefore, in reviewing the decision of the School the Department and the section 29 Committee are concerned not with the decision but with the decision making process. They are not acting as an educational establishment within the meaning of section 7 of the Equal status Act in this instance. Neither are they providing a good or service within the meaning of section 5 of the Equal Status Act in this instance. I find therefore that I have no jurisdiction to consider the claim of the complainant that the Department discriminated against him by not upholding his section 29 appeal. As regards the claim that the Department failed to ensure that its own guidelines (regarding access for Travellers) were adhered to during the course of the appeal hearing, the Acts (at section 14 (b)) certainly permit an educational establishment or a service provider to give preferential treatment or to take positive measures to promote equality of opportunity for persons, such as Travellers, who are disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons. However the Acts do not put an obligation on educational establishments or service providers to do so. Therefore I have no jurisdiction to consider that element of the claim against the Department.
9. Indirect Discrimination:
Indirect discrimination is defined in section 3 (1) (c) of the Acts as:-
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) [i.e. covered by one of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
Section 3 (3A) of the Acts provides that in any proceedings statistics are admissible for the purpose of determining whether indirect discrimination has occurred.
The complainant claims that the following criterion in the enrolment policy of the High School indirectly discriminates against him:
“who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School.”
It is for the complainant to prove, on the balance of probabilities, that this criterion puts a Traveller at a particular disadvantage compared with non-Travellers. If he succeeds in this, the burden of proof shifts to the High School to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. Under section 3 (3A) of the Acts, the complainant can use statistical data as an evidential tool to prove a particular disadvantage and so shift the burden of proof. It is possible to establish a case where statistics are inadequate or non-existent, if the complainant can prove that a provision is intrinsically liable to affect his group [in this case Travellers] more that others and there is a consequent risk that it will place his group at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of Travellers. It is sufficient that it is liable to have such an effect.
Once the complainant has proved that the criterion puts a Traveller at a particular disadvantage, it is for the High School to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The High School must prove each element of the defence [objective justification, legitimate aim, appropriateness and necessity]. To permit a criterion which puts a group at a particular disadvantage to be maintained is a derogation from the principle of equal treatment. According to settled case-law, in determining the scope of any derogation from an individual right such as that of equal treatment, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued.
There are four sub-criteria to the impugned criterion. They are:
1. Has a brother who attended the School in the past, or
2. Has a brother who is currently in attendance in the School, or
3. Is the child of a past pupil, or
4. Has close family ties with the School.
The 4th element above is understood to mean only that the applicant is the child of a current member of staff. No one was admitted to the School on this basis in the current year. It is not relevant therefore to this case.
The School informed me that of the 90 boys given offers of places after the first round, 33 were brothers of boys currently in the school, 16 were brothers of former pupils without a brother currently in the school and 36 were the sons of former pupils who did not have a brother currently in the school.
10. Siblings of existing and former pupils.
The complainant, as the eldest son, claims that he is put at a particular disadvantage in that he cannot by definition benefit from the priority given to siblings of current or former pupils. While this is true, his disadvantage arises from his being an eldest son and not from his being a Traveller as such. The complainant further argues that giving priority to brothers puts Travellers at a particular disadvantage in that, due to historic low participation by Travellers in secondary education, an older Traveller sibling is much less likely than a non-Traveller to have attended or completed secondary school. Census figures show that 66 per cent of Travellers over 15 years old who had completed full-time education had not progressed beyond primary school. The equivalent figure for the general population is 21 per cent.
In 1988, according to the Department’s figures, fewer than 100 Travellers were enrolled in post-primary schools. The corresponding figures for 1999 were 961, 2003: 1,714 and 2008: 2,874. It is clear therefore that Traveller enrolment in post-primary schools has risen in the last decade from a very low base. The complainant has also emphasised that the retention rates for Travellers in post-primary schools is significantly lower than for the general population. He argues therefore that the likelihood of a Traveller having an elder brother who is or was enrolled at the High School is significantly lower than for a non-Traveller.
Against this, however, it must be noted that Traveller family size is on average double that of the general population. According to the 2006 Census, the average number of children in Traveller households with children is 4.2 compared to 2.0 among the general population. The chances of a Traveller boy having a male sibling are therefore much greater than that of a non-Traveller boy. Priority for siblings can therefore favour Travellers. It is argued that giving priority to siblings of former pupils would particularly disadvantage Travellers in that the rise in Traveller participation in post-primary education is very recent. The older the brother the less likely he is to have attended secondary school. On the other hand, given the very high drop-out rates of Travellers in post-primary schools, particularly in the senior cycle, priority for brothers of former pupils (as opposed to brothers of existing pupils) would favour Travellers whose brother dropped out early.
On the balance of probabilities I cannot conclude that giving priority to brothers of either existing or former pupils in enrolment is intrinsically liable to put Travellers at a particular disadvantage compared with non-Travellers.
11. Sons of former pupils.
The complainant argues that giving priority to the sons of former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers since Travellers of the complainant’s father’s generation (those who would have been of post-primary school going age in the 1980’s) were most unlikely to have attended post-primary school. Figures supplied by the Department show that less than 100 Travellers in the entire country in 1988 were enrolled in post-primary schools. Therefore the chances that a Traveller of the complainant’s father’s generation was in fact at post-primary school is extremely remote. The School argue that the criterion applied is not that a family member has attended second level education but that a family member is attending or has attended the School. The School produced no evidence that any Travellers attended the school during the 1980’s. The School in oral evidence explained that prior to 20 years ago (before 1990) entrance to the School was determined by competitive written examination. This would certainly have acted as a serious barrier to Travellers securing admission since the academic standard achieved by Travellers in primary schools at that time was on average very low.
The operation of this policy of giving priority to the sons of former pupils therefore appears to disadvantage Travellers more than non-Travellers. It is necessary to establish whether or not the complainant was put at a particular disadvantage. Under the enrolment policy, once a child applied on time, was a Roman Catholic and attended a designated feeder school, the child needed to met one of the three following sub-criteria to be offered a place:-
1. Has a brother who attended the School in the past, or
2. Has a brother who is currently in attendance in the School, or
3. Is the child of a past pupil.
All children of past pupils who applied in time and who did not meet the sibling criteria were successful, 36 in all. The chances of an applicant like the complainant who did not meet any of these criteria being successful in the second round was 55 per cent, that is, he was one of 84 applicants in a lottery for 47 places. If the third sub-criterion (being a child of a past pupil) was not a priority, then those places awarded to the sons of past pupils who did not meet the sibling criteria (36 in all) would have been added to the number to be allocated by lottery under round two. That would have increased the complainant’s chances in the second round to 70 per cent., that is he would have been one of 120 applicants in the second round lottery for 83 places. Therefore, I conclude on the balance of probabilities that the policy of giving priority to children of past pupils puts the complainant as a member of the Traveller community at a particular disadvantage compared with non-Travellers.
The question I must now consider is this: has the School proved that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The goal or aim of the criterion, according to the published Admissions Policy is:-
On the basis of supporting the family ethos within education by providing education services for the children of families who already have, or have recently had, a brother of the applicant attend the School for his post primary education.
This may justify giving priority to siblings but does not, on its face, state an aim which requires as a means to achieving that aim giving priority to the children of former pupils. In oral evidence the School stated that it had as its aim the strengthening of family loyalty to the school, by rewarding those fathers who supported the school by assisting in various ways. I accept that strengthening bonds between the parents, as primary educators of a child and the school is a legitimate aim. However, I do not consider that giving a blanket priority in admission to children is appropriate (i.e. proportionate) or necessary, for the following reasons:
1. The priority applies to the children of all past pupils, irrespective of the actual level of current engagement of the father with the school. In many cases therefore, the means would not achieve the aim.
2. There are other ways of achieving this aim which would not disadvantage children whose fathers did not attend the school, such as organising a past pupils’ union, by the activities of a parents’ association etc.
3. The impact on Travellers is disproportionate to the benefit of the policy.
I find therefore that the School has not proved that the priority given to the children of former pupils is appropriate and necessary.
12. Conclusions
I find that I don’t have jurisdiction to consider the complaint of discrimination against the Department of Education and Skills.
I find that the complainant has not proved that the priority given to siblings of current or former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers.
I find that the complainant has proved that the priority given to the sons of former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers and that the School has not proved that this criterion is objectively justified by a legitimate aim and is appropriate and necessary.
13. Redress
In general the appropriate redress is to put the complainant in the position he would have been in but for the discrimination. If the school did not give priority to the sons of former pupils, the chances of the complainant succeeding in the second round lottery would have been significantly greater. It is impossible to re-run the lottery under revised criteria. In the circumstances I order:
1. That the School immediately offer a place to the complainant.
2. That the School review its Admissions Policy to ensure that it does not indirectly discriminate against pupils on any of the grounds covered by section 3 (2) of the Equal Status Act. This is without prejudice to its status as a Roman Catholic voluntary secondary school for boys only.
Niall McCutcheon
Director
7 December 2010
DEC-S2010-002 – Full Case Report
Equal Status Acts 2000 – 2008
Equality Officer Decision
DEC-S2010-002
A Couple v The Intercountry Adoption Services
Date of Issue 7 January 2010
Key words
Equal Status Acts – Direct discrimination, section 3(1)(a) – Disability ground, section 3(2)(g) and section 4 – Application for a Declaration of Eligibility and Suitability to Adopt – Victimisation , section 3(2)(j)
1 Delegation under the Equal Status Acts
The complainants referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004. On the 25 July 2006, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008 on which date my investigation commenced.
As proceedings were still ongoing before the Adoption Board in 2007 and 2008, the Tribunal acceded to requests during this period from the complainants to defer the equality hearing pending the outcome of those proceedings. As required by 25(1) and as part of my investigation, the case eventually proceeded to hearing on 29 October 2009.
2 Dispute
This dispute concerns a claim by the complainants that they were discriminated against on the disability ground by the Intercountry Adoption Services (ICAS) when negative recommendations were made to the Adoption Board with regard to their application for a Declaration of Eligibility and Suitability to Adopt. The complainants maintain that the manner in which the female applicant’s medical condition was assessed by the ICAS constituted less favourable treatment, contrary to the provisions of the Equal Status Acts.
The complainants also claim that they suffered victimisation at the hands of the ICAS. They claim that, having sent a formal notification to the respondents to the effect that an equality complaint was being considered and having submitted FOI requests in relation to their case, that the respondents purposely and deliberately delayed their case further.
The respondents deny the allegations that the couple were discriminated against and victimised and state that their application was considered and decided upon in accordance with standard procedures laid down for assessment of such cases.
3 Summary of Hearing
3.1 The Hearing of this complaint was held on 29 October 2009. The Hearing was attended by the complainants, the respondents and the respondents’ representative. At the Hearing, both parties provided evidence with regard to the background to the complaint and there was general agreement between the parties that the facts of the case were as follows:
· In 1998, the couple applied to the ICAS for approval to adopt a child. Their application was successful, resulting in the Adoption Board issuing a Declaration of Eligibility and Suitability to Adopt in October 2000.
· At that time, the female applicant suffered from rheumatoid arthritis and consequent kidney amyloidosis but, having submitted reports from her consultants, she was deemed sufficiently fit to adopt and care for a child.
· In November 2001, the couple adopted an 11 month old boy from the Ukraine. The child is now 9 years old and the couple say that they have had no problem in looking after him
· In 2001, the Department of Health and Children introduced stricter criteria for adoptions. The new Standardised Framework identified five standards that had to be met before a Declaration could be granted. The standard with regard to an applicant’s health status required that there was a reasonable expectation that they would continue to enjoy good health and be able to fulfill their duties to the child over its period of growing up.
· In November 2002, the couple applied again to be assessed for a further adoption and the assessment proper commenced in May 2003.
· By that point, the ICAS had engaged a dedicated Medical Advisor, Mr Paul Gueret to assess the health status of prospective adoptive parents. Dr Gueret was described as an expert in the field of life expectancy and in estimating morbidity and mortality.
· In the couple’s case, Dr Gueret sought fresh reports from their consultants and conducted a literature search on the internet on the mortality and morbidity experience associated with the female applicant’s condition. In January 2004, he concluded that a worldwide poor prognosis for someone with her condition meant that he was obliged to issue a negative recommendation to the ICAS with regard to her suitability to adopt.
· Regardless of whatever conclusion they arrive at, the ICAS is still required to submit applications to the Adoption Board for decision. In light of Dr Gueret’s views in this case and on the advice of the Board’s own Medical Advisor, the Adoption Board decided in May 2004 that the application should not proceed any further.
· The applicant couple then decided to appeal their case and submitted several updated positive reports from their principal consultant to the ICAS and the Adoption Board between May and November 2004.
· In 2005, the Adoption Board agreed to hear the appeal and first met separately with Dr Gueret and then the applicant couple. The appeal was eventually heard on 13 September 2005 but the couple were not invited to attend.
· The couple also state that at no time in this prolonged process were they ever given the opportunity to meet directly with Dr Gueret.
· Having considered the Appeal and having acquired their own medical reports on the female applicant’s condition, the Adoption Board wrote to the ICAS on 19 September 2005 stating:
“The Board considered this case at its meeting on the 13th September 2005. The Board decided that the applicants should be assessed further.”
· The case was then referred back to the ICAS who decided to seek fresh updated reports from the consultants and doctors who had previously been involved. The couple state that all of the fresh reports submitted pointed towards a positive prognosis from the complainant’s perspective. These were all received by 13 December 2005, at which point the file was referred back to Dr Gueret for further assessment.
· In April 2006, Dr Gueret again decided to issue a negative recommendation in the couple’s case on medical grounds.
· The couple state that they were never given access to Dr Gueret’s medical reports despite having asked for them on several occasions. It was only when they applied under FOI that they were eventually given his reports in July 2006.
4 Conclusions of the Equality Officer
4.1 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
In refuting the allegation of discrimination, the respondents refer to section 14 of the Equal Status Acts which provides that:
Nothing in this Act shall be construed as prohibiting the taking of any action that is required by or under any enactment or order of a court
In relying on this Section, the respondent submits that its actions in this matter are required under Sections 3(1) and 3(2) of the Child Care Act 1991 where:
Section 3(1) states “It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection”, and
Section 3(2) states “In the performance of this function, a health board shall …. regard the welfare of the child as the first and paramount consideration”.
In considering the claim that the respondent’s actions constituted an action that is required under
Sections 3(1) and 3(2) of the Child Care Act 1991 and is, therefore, not prohibited by the Equal Status Acts, I consider that this constitutes an attempt to place an over-reliance on very general provisions contained in the Child Care Act in order to circumvent the anti-discrimination provisions intended under Section 14 of the Equal Status Acts. Accordingly, I find that I cannot accept this argument.
The respondent also claims that they are required to assess suitability for adoption in accordance with Section 13 of the Adoption Act 1952 which states
” (1) The Board shall not make an adoption order unless satisfied that the applicant is of good moral character, has sufficient means to support the child and is a suitable person to have parental rights and duties in respect of the child.
(2) Where the applicants are a married couple, the Board shall satisfy itself as to the moral character and suitability of each of them. “
In considering the claim that the respondent was acting as required under the provisions of Section 13 of the Adoption Act 1952, and is therefore exempted under Section 14 of the Equal Status Acts, I find that this again constitutes an attempt to place an over-reliance on very general provisions contained in Section 13 of the Adoption Act 1952. The complaint before me revolves around the manner in which the complainants’ suitability to adopt was assessed and this is an action that is not specifically prescribed in the Adoption Act 1952.
4.2 In the case before me, the female applicant claims that she was discriminated against by the Intercountry Adoption Services on the grounds of her disability when she and her husband received a negative recommendation from the ICAS with regard to their suitability to adopt.
Section 3(2)(g) of the Equal Status Acts describes the disability ground as follows:
that one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”)
Section 4 of the Equal Status Acts provides that:
(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
4.3 In this particular case, in contending that they were treated less favourably than the manner in which a female applicant with a different disability would have been treated, the complainants are essentially introducing a hypothetical comparator into the equation. In support of their case, the complainants point to Dr Gueret’s own admission that he was not an expert in the field of rheumatoid arthritis or renal amyloidosis (the female applicants medical condition) and his failure to get a “peer review” of her case from another qualified medical consultant.
4.4 In considering whether the female applicant in this case suffered discrimination, I have noted the following:
· Dr Gueret, on his own admission, is not an expert on rheumatoid arthritis or renal amyloidosis. Dr Gueret is a recognised specialist in occupational medicine.
· Dr Gueret has stated that his decision on renal amyloidosis was primarily influenced by internet research
· Dr Gueret never personally met or contacted the applicant couple
· Dr Gueret, it would appear, never spoke directly to any of the medical consultants who had provided documentary evidence supporting the couple’s application, to discuss the specific nature of the female applicant’s medical condition
· The applicant couple were not provided with copies of Dr Gueret’s medical assessments to assist them in their appeals (these documents were only released under FOI in 2006)
· The respondents state that their file on the matter was with the Adoption Board from 2 April 2004 until its return on 4 October 2005. During this time, updated reports from Prof Bresnihan were sent to Dr Gueret and the ICAS but it is unclear whether they were eventually associated with the case file.
· When the case eventually went before the Adoption Board in September 2005, the respondents state that Dr Gueret met the Adoption Board and gave evidence where he explained his findings.
· On 13 September 2005, the Board, having considered Dr Gueret’s evidence and having sought and obtained the opinions of other medical specialists, decided not to make a final decision but instead decided that “the applicants should be assessed further”. This decision was communicated to the parties by letter dated 19 September 2005.
· The ICAS, on being told by the Adoption Board “that the applicants should be assessed further”, gave no apparent consideration to engaging a different medical expert but referred the matter straight back to Dr Gueret .
· When the case was referred back to Dr Gueret for further assessment in late 2005, it would appear that he was not given access to the advice and reports obtained by the Adoption Board. This is substantiated by Dr Gueret himself in a letter dated 13 May 2009 in which he says:
“The problem that caused me most concern when I reviewed the file in 2004-2006 was her renal function. It was mild-moderately impaired. Review of the scientific literature at the time suggested that survival studies from this disease (secondary renal amyloid) were not good. I am now aware that some of the studies I quoted at the time were called into question by other advisors to the adoption board. I did not have sight of these objections nor was I informed of the basis on which these objections were made. Indeed, I was not informed of the basis for any contra-argument, which I would have welcomed.”
4.5 In considering the case before me, I find that I have a grave concern over the manner in which the ICAS dealt with the case following the Adoption Board’s decision of 13 September 2005. I consider, from the evidence provided, that it is clear that the Adoption Board had reservations about Dr Gueret’s recommendation based on their own discussions with him and on the opinions they had received from other specialists and their own Medical Adviser.
However, when the matter was referred back to the ICAS, the file was simply returned to Dr Gueret for further assessment without, it would now appear, the benefit of access to the Adoption Board’s own medical reports and advice.
4.6 Under the provisions of the Equal Status Acts, discrimination is deemed to have occurred where a person with a disability is treated less favourably than a person with a different disability. As I have not been provided with any detailed information as to how the ICAS has treated other specific applicants with different disabilities, for the sake of completeness, I consider that it is worthwhile at this point to introduce a hypothetical comparator to assist in fully evaluating the circumstances of this case.
4.7 The Equal Status Acts provide for the use of a hypothetical comparator in Section 3(1)(a) where it states that discrimination shall be taken to occur “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation.”
4.8 In this particular case, I consider that it is appropriate and beneficial to draw a hypothetical comparison between the treatment afforded the female applicant in this case (with rheumatoid arthritis and renal amyloidosis) and an applicant with a different disability .
If the female applicant had presented with a condition on which Dr Gueret was an expert, I consider that Dr Gueret would have been the ideal choice to assess her case from start to finish. However, while Dr Gueret is undoubtedly a consultant of high repute and eminently capable of assessing patients with a wide range of disabilities and conditions, on his own admission, he is not an expert in the fields of rheumatoid arthritis and renal amyloidosis.
Yet the ICAS does not appear to have taken this fact into account when arranging for the reassessment requested by the Adoption Board. Accordingly, I consider that the ICAS’s decision to refer the matter back to Dr Gueret, instead of to a specialist in rheumatoid arthritis and renal amyloidosis, constituted discrimination in that it resulted in the female applicant, as a person with a disability, receiving less favourable treatment than a “a person with a different disability” would have received contrary to Section 3(1)(a) and Section 3(2)(g) of the Equal Status Acts.
4.9 As stated above, in light of the Adoption Board’s recommendation in this case, I consider that the onus was on the ICAS to source a separate independent opinion of the female applicant’s condition from a specialist or specialists in the fields of rheumatoid arthritis and renal amyloidosis and I find that its failure to do so also constituted “a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities” contrary to the provisions of Section 4 of the Equal Status Acts
With regard to the allegation of victimisation, I have deliberated at length on the evidence before me and find that, while there were delays in the process, that their is insufficient evidence to support the claim that these delays constituted a deliberate attempt to victimise the complainants.
5 Decision
5.1 I consider that the ICAS, in referring the matter back to Dr Gueret rather than engaging a specialist in the fields of rheumatoid arthritis and renal amyloidosis to review her case, treated the female complainant less favourably than they would have treated a female applicant who had presented with a different disability.
Accordingly, I find that the ICAS discriminated against the female complainant and also failed to provide her with reasonable accommodation, contrary to the provisions of Section 3(2)(g) and Section 4 of the Equal Status Acts.
5.2 As the principal objective of the complainants in this case would appear to be the advancement of their adoption application, I do not consider that monetary compensation is appropriate in this instance.
Instead, I order that the ICAS engage a different independent Medical Advisor with expertise in the medical conditions affecting the female complainant to completely reappraise the couples application from a medical perspective with a view to making a fresh recommendation to the Adoption Board . In order to expedite this process, I would suggest that all other measurements of the couple’s suitability to adopt should be deemed to have been already met and they should not be asked to submit any further updated non-medical documentation unless deemed to be absolutely essential.
The engagement of a Medical Adviser should be done in consultation with the complainants and the Adoption Board and the final choice should be of an individual with whom the complainants are happy to engage.
All parties are asked to engage actively and positively in this process with a view to having a final recommendation before the Adoption Board in good time to allow for a final decision to be made by 30 June 2010.]
Brian O’Byrne
Equality Officer
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-056
A Mother v A School
and
The Department of Education and Skills
[Represented by Mr Conor Dignam B.L. instructed by the Chief State Solicitor]
File Ref: ES/2010/073, 075
Date of Issue: 7 December 2010
Keywords: Equal Status – Membership of Traveller community, Admission to educational establishment – indirect discrimination – Whether appeals under section 29 of the Education Act 1998 subject to Equal Status Acts – Whether preferential treatment in admission of siblings of current or former pupils or children of former pupils indirectly discriminatory – Burden of proof – Equal Status Acts 2000 to 2008 ss.3 (1) (c), 3 (2) (i), 3 (3A), 5, 7, 14(b), 34 – Education Act 1998 s. 29.
1. This complaint was referred to the Director of the Equality Tribunal on 22 July 2010 under the Equal Status Acts, 2000-2008 (hereinafter “the Acts”). On 13 October 2010 I, Niall McCutcheon, Director of the Equality Tribunal decided to take responsibility myself for the investigation, hearing and the issue of a decision, and the exercise of all my other powers and functions under the Employment Equality Acts 1998 – 2008 and the Acts, in relation to this case. The same day, for the purpose of enabling me to exercise my functions under Part III of the Acts, in accordance with section 34 of the Acts, I wrote to all the parties seeking information which, in my opinion, was relevant. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 9 November 2010 and all parties were in attendance. Further information sought at the hearing was received by me on 10 November 2010.
2. Dispute
This dispute concerns a claim by the complainant, A Mother on behalf of her son (hereinafter “the complainant”) that he was discriminated against by A School (hereinafter “the High School”) on the Traveller community ground in terms of section 3(2)(i) of the Acts by being refused admission as a student to the School, contrary to section 7 (2) (a) of the Acts. The complainant also claims that the Department of Education and Skills (hereinafter “the Department”) discriminated against him by not upholding an appeal under section 29 of the Education Act 1998 against the decision of the High School.
3. The facts
The School is a Roman Catholic Voluntary secondary school for boys only under the trusteeship of the Christian Brothers.
The complainant is a member of the Traveller community as are his mother and father. He is Roman Catholic as are his parents. He attended a local primary school, a feeder school to the School. He is the eldest of seven children, three boys and four girls. The complainant applied for admission to the School in November 2009, on or prior to the closing date. The number of applications greatly exceeded the number of places available.
The Admissions Policy of the School (dated November 2009) sets out the following Enrolment Policy that applies when places are oversubscribed:
“First Round
The school will examine all applications received on or prior to the closing date in the first round review to determine which applicants have maximum eligibility in accordance with the school’s selection criteria mentioned in this policy and the mission statement and the ethos of the school.
“Second Round
All or any remaining places not allocated in the First Round shall be allocated in accordance with the Lottery Procedure mentioned below.
“Rationale
The rationale of the admissions policy is to fairly and transparently allocate the available places in accordance with the mission statement, the guidelines and recommendations of the Patron and the Department of Education and Skills (DES) where arising, and the selection criteria and lottery referred to below.
“The School’s goals generally
The primary goal of the School is to fulfill its mission statement in accordance with the law, Patron or DES guidelines and the resources currently available to it. The Admissions Policy is intended to reflect that primary goal and in this context the school aims to:
– Provide a fair system of enrolment for boys
– Make reasonable provision and accommodation for students, including students with a disability and special educational needs in accordance with relevant legislation, with due regard to the efficient use of resources provided by the DES.
– Allow for full participation by all students, subject to resources being available and allowing for Health and Safety implications
– Transparently allocate those limited places in accordance with its Mission Statement and the Selection Criteria mentioned below.
“The School’s Goals on dealing with Admissions
When dealing with Admissions where there are a limited number of places, the School seeks to fulfil the above goals in the following manner, namely to allocate the number of places available:
– firstly on the basis of its Mission as a Roman Catholic school;
– Secondly on the basis of supporting the family ethos within education by providing education services for the children of families who already have, or have recently had, a brother of the applicant attend the School for his post primary education;
– And thirdly to make reasonable provision and accommodation for boys within its own locality or demographic area, including students with disability and special educational needs, in accordance with the resources provided by the DES and otherwise available to it.
“Selection Criteria
First Round criteria:
In the first round the School shall firstly select from all of the applications submitted that have maximum eligibility in accordance with the following criteria:
The application is made on behalf of a boy:
– whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school;
The School may also allocate some places to take account of:
– families who have located to Clonmel through work
– the urban/rural balance on a proportional basis in the context of the allowed number of applicants
– exceptional circumstances
– students (living in the catchment area) who are diagnosed with ASD (Autistic Spectrum Disorder).
Second Round
With respect to all or any remaining places not allocated in the First Round the School shall run a Lottery to determine the order in which same shall be filled.
Because the School can only provide a limited number of places for boys, in the event of one or more appeals, a corresponding number of places from the lottery cannot be confirmed pending determination of the relevant Appeal(s), starting with the last place to be filled by the lottery and proceeding accordingly.”
The complainant applied on or prior to the closing date in November 2009 for admission to the School in autumn 2010. The complainant met two of the three First Round Selection criteria , namely:
– whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school;
The criterion he did not meet was as follows:
– who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School.
The complainant therefore did not have maximum eligibility under the First Round criteria. His application was placed in a Lottery along with those who, like him, applied in time but did not have maximum eligibility, as well as four other applicants who applied late but had maximum eligibility. The complainant was not successful in the lottery. He was placed on a waiting list. As of the date of the hearing he is fourth on the waiting list. One of the boys ahead of him on the waiting list applied late but was entered into the Second Round lottery.
Three boys were awarded places in the First Round under the “exceptional circumstances” rule because of loss of a parent or ill-health. No places were awarded in the First Round under the other exceptional criteria, namely
– families who have located to Clonmel through work
– the urban/rural balance on a proportional basis in the context of the allowed number of applicants
– students (living in the catchment area) who are diagnosed with ASD (Autistic Spectrum Disorder).
90 places were awarded in the First Round. 84 names were entered into the Second Round Lottery for 47 places.
The complainant appealed the refusal internally and was unsuccessful. The complainant subsequently appealed to the Secretary General of the Department of Education and Skills under section 29 of the Education Act 1998 who referred the matter to an Appeals Committee. The Appeals Committee heard the appeal on 23 April 2010. It decided not to uphold the appeal for the following reason:
“The Board of Management of the School were fair and reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the places available.”
The Appeals Committee made a Recommendation as follows:
“The Appeals Committee are of the view that the clause in the Admissions Policy relating to “exceptional circumstances” merits review by the Board of Management of the School in order to make it more inclusive.”
The Appeals Committee also added the following comment:
“The Appeals Committee noted that in dealing with late applications the Board of Management did not strictly adhere to its policy. This did not materially affect the outcome.”
4. Summary of complainant’s case against the School.
The complainant argues that the only criterion he did not meet was having a brother who attended or is in attendance at the School, or being the child of a past pupil, or having close family ties with the School. He is the eldest child in his family. Therefore he could not have a sibling who attended the school. The complainant’s father never progressed to second level education. He therefore could not have a parent who attended the school. As a member of the Traveller community, his father (and the rest of his extended family) is statistically much less likely to have attended second level education than the settled population. This criterion of having a family member who attended the school therefore disproportionately affects members of the Traveller community and amounts to indirect discrimination. The School failed to take this into account under the “exceptional circumstances” clause in their Admissions Policy.
The complainant claims that empirical evidence suggests that historically Travellers have suffered “extreme educational deprivation” specifically at second level education. The Report of the Travelling People Review Body 1983 estimated that only half of Traveller children of school going age attended school and very few remained after reaching the age of 12 years. The Report stated that only 10 per cent of Travellers who finish primary school continue to attend school and most of these drop out after one or two years.
This contrasts with the experience of the rest of the population at that time. In 1982, 66.4 per cent of all children who entered second level education completed their secondary schooling. These data correspond with the approximate time period in which the complainant’s father and other family members would have been of a school going age which proves as a further example that members of the Traveller community were statistically less likely to attend second level education.
The Department of Education and Science Guidelines on Traveller Education in second Level Schools 2002 has categorically stated that “school policies should facilitate Traveller enrolment” and has acknowledged that “some schools enrolment policies at second level have not been designed with Travellers in mind and can therefore indirectly act as a barrier to access.” The 2002 Census indicated that 2 per cent of all Travellers who entered second level education completed the senior cycle compared to 23 per cent completion by the general population. To combat this injustice the Department stated that “enrolment policies must therefore take into account the particular needs and lifestyles of Traveller families”. However the attitude and actions of the School are in flagrant breach of the Department’s guidelines. According to the School’s reply [to the complainant] of 29th July 2010 “the fact that a person is a member of the Travelling community is not considered an exceptional circumstance by the Board of Management”. In the complainant’s view, the School has failed in its duty to take into account “all guidelines, regulations and programmes currently made available by the DES” as required by its own admissions policy.
5. Summary of Complainant’s case against the Department.
The Department failed to find against the School at the appeal stage. The Department further failed to ensure that its own guidelines (referred to above) were adhered to during the course of the appeal hearing.
6. Summary of the High School’s Case
The School denied any claims of discrimination, direct or indirect.
The complainant referred his complaint to the Department under a section 29 appeal and the Appeals Committee determined that the Admissions Policy was fair and had been applied correctly.
The complainant was not treated less favourably on the Traveller community ground. He was treated in the same manner as all other applicants to the school. At all times during this process the school treated the complainant in a fair and appropriate manner and in accordance with its policy. The complainant has failed to establish a prima facie case of discrimination in that he has not produced evidence that the treatment he received was less favourable than the treatment someone who is not a member of the Traveller community would have received in similar circumstances.
On the question of indirect discrimination, the High School responded to the allegation that the criterion of having to have a family member who attended the school disproportionately affects members of the Traveller community because Travellers are statistically less likely to have attended secondary school as follows:
The criterion applied is not that a family member has attended second level education but that a family member is attending or has attended the School. This is a standard criterion in admission policies. It is entirely justifiable that the school should have a procedure to follow in cases of oversubscription.
The school has an excellent record of working with students who are members of the Traveller community. There were 5 members of the Traveller community enrolled in the school in 2010. All Travellers who applied for admission in both 2007 and 2008 were accepted. No Travellers applied in 2009. The complainant is the only Traveller to have been unsuccessful in his application to date.
The complainant has argued that the “exceptional circumstances” clause in the school’s admission policy should have been applied to him by reason of his membership of the Traveller community. The School states that the application of this clause was fully explained to all parents i.e. that it applied only in narrowly defined circumstances where an applicant had lost a parent or suffered from ill-health. The complainant therefore was fully aware of its narrow scope. This is evidenced by the fact that on his application form the complainant made no request in this regard.
7. Summary of Department’s case.
The Department contends that it does not own, govern or control the School. The Department cannot direct the School as to its enrolment policy. The claim against the Department is misconceived as the Department is an inappropriate respondent. The matters complained of fall outside the scope of the Equal Status Acts. The Department and more particularly the section 29 Appeals Committee are not “education establishments” within the meaning of section 7 of the Acts. The Department contends that section 7 is the only provision of the Acts which governs discrimination in the education sphere. Therefore the Department and the section 29 Committee fall outside the scope of the Acts. Even if it was contended that the Department was subject to section 5 of the Acts as a service provider, the activities of adjudicative bodies are not “services” within the meaning of the Acts. Even if it was considered that adjudicative bodies were subject, in principle, to the Acts, the section 29 Appeals Committee is limited in the scope of the review it can carry out. The Oireachtas did not intend to grant the Minister for Education and Skills an entitlement, through the section 29 Appeals Committee, to give directions to schools as to how they accept pupils. The jurisdiction of the section 29 Appeals Committee, as interpreted by the Court , is limited to, in effect, a judicial review type role of determining whether the board of management correctly and lawfully applied its enrolment policy, having regard to the facts of the case at the date of board’s decision.
8. Preliminary Issue
I address first the question, does the claim of discrimination made against the Department fall within the jurisdiction of the Equality Tribunal? The complainant claimed that the Department discriminated against him when it failed to find against the School at the appeal stage and that the Department further failed to ensure that its own guidelines were adhered to during the course of the appeal hearing. There is no dispute that the decision of the School not to admit the complainant is subject to the Equal Status Acts. The question is, is the Secretary General of the Department and/or the section 29 Committee, in carrying out their statutory appellate functions subject to the Equal Status Act? If the Secretary General or the section 29 Appeals Committee had discretionary power to substitute for the decision of the School their own decision on the merits of an individual application or had discretionary power to amend the terms of the enrolment policy, they would be taking decisions in relation to the admission or the terms or conditions of admission of a person as a student to an educational establishment. In such a case they might be subject to the Equal Status Act. It is clear, however, from the legal authorities opened to me, that the Secretary General and a section 29 Appeals Committee do not have power to carry out a merits-based review of a decision to refuse an application. Ms Justice Irvine found that
“the powers of the appeals committee under section 29, in the opinion of this Court, was one intended to be confined to a right to review the lawfulness and/or reasonableness of a board’s decision to refuse enrolment.”
Therefore the Department, in exercising its powers under section 29 of the Education Act 1998 cannot substitute its own view on the merits of an individual application for the decision of the school. Neither can it strike down or amend the enrolment policy of a school. It can only quash a decision in relation to the admission or the terms or conditions of admission of a person as a student to an educational establishment if the decision is unlawful or unreasonable. Therefore, in reviewing the decision of the School the Department and the section 29 Committee are concerned not with the decision but with the decision making process. They are not acting as an educational establishment within the meaning of section 7 of the Equal status Act in this instance. Neither are they providing a good or service within the meaning of section 5 of the Equal Status Act in this instance. I find therefore that I have no jurisdiction to consider the claim of the complainant that the Department discriminated against him by not upholding his section 29 appeal. As regards the claim that the Department failed to ensure that its own guidelines (regarding access for Travellers) were adhered to during the course of the appeal hearing, the Acts (at section 14 (b)) certainly permit an educational establishment or a service provider to give preferential treatment or to take positive measures to promote equality of opportunity for persons, such as Travellers, who are disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons. However the Acts do not put an obligation on educational establishments or service providers to do so. Therefore I have no jurisdiction to consider that element of the claim against the Department.
9. Indirect Discrimination:
Indirect discrimination is defined in section 3 (1) (c) of the Acts as:-
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) [i.e. covered by one of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
Section 3 (3A) of the Acts provides that in any proceedings statistics are admissible for the purpose of determining whether indirect discrimination has occurred.
The complainant claims that the following criterion in the enrolment policy of the High School indirectly discriminates against him:
“who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School.”
It is for the complainant to prove, on the balance of probabilities, that this criterion puts a Traveller at a particular disadvantage compared with non-Travellers. If he succeeds in this, the burden of proof shifts to the High School to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. Under section 3 (3A) of the Acts, the complainant can use statistical data as an evidential tool to prove a particular disadvantage and so shift the burden of proof. It is possible to establish a case where statistics are inadequate or non-existent, if the complainant can prove that a provision is intrinsically liable to affect his group [in this case Travellers] more that others and there is a consequent risk that it will place his group at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of Travellers. It is sufficient that it is liable to have such an effect.
Once the complainant has proved that the criterion puts a Traveller at a particular disadvantage, it is for the High School to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The High School must prove each element of the defence [objective justification, legitimate aim, appropriateness and necessity]. To permit a criterion which puts a group at a particular disadvantage to be maintained is a derogation from the principle of equal treatment. According to settled case-law, in determining the scope of any derogation from an individual right such as that of equal treatment, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued.
There are four sub-criteria to the impugned criterion. They are:
1. Has a brother who attended the School in the past, or
2. Has a brother who is currently in attendance in the School, or
3. Is the child of a past pupil, or
4. Has close family ties with the School.
The 4th element above is understood to mean only that the applicant is the child of a current member of staff. No one was admitted to the School on this basis in the current year. It is not relevant therefore to this case.
The School informed me that of the 90 boys given offers of places after the first round, 33 were brothers of boys currently in the school, 16 were brothers of former pupils without a brother currently in the school and 36 were the sons of former pupils who did not have a brother currently in the school.
10. Siblings of existing and former pupils.
The complainant, as the eldest son, claims that he is put at a particular disadvantage in that he cannot by definition benefit from the priority given to siblings of current or former pupils. While this is true, his disadvantage arises from his being an eldest son and not from his being a Traveller as such. The complainant further argues that giving priority to brothers puts Travellers at a particular disadvantage in that, due to historic low participation by Travellers in secondary education, an older Traveller sibling is much less likely than a non-Traveller to have attended or completed secondary school. Census figures show that 66 per cent of Travellers over 15 years old who had completed full-time education had not progressed beyond primary school. The equivalent figure for the general population is 21 per cent.
In 1988, according to the Department’s figures, fewer than 100 Travellers were enrolled in post-primary schools. The corresponding figures for 1999 were 961, 2003: 1,714 and 2008: 2,874. It is clear therefore that Traveller enrolment in post-primary schools has risen in the last decade from a very low base. The complainant has also emphasised that the retention rates for Travellers in post-primary schools is significantly lower than for the general population. He argues therefore that the likelihood of a Traveller having an elder brother who is or was enrolled at the High School is significantly lower than for a non-Traveller.
Against this, however, it must be noted that Traveller family size is on average double that of the general population. According to the 2006 Census, the average number of children in Traveller households with children is 4.2 compared to 2.0 among the general population. The chances of a Traveller boy having a male sibling are therefore much greater than that of a non-Traveller boy. Priority for siblings can therefore favour Travellers. It is argued that giving priority to siblings of former pupils would particularly disadvantage Travellers in that the rise in Traveller participation in post-primary education is very recent. The older the brother the less likely he is to have attended secondary school. On the other hand, given the very high drop-out rates of Travellers in post-primary schools, particularly in the senior cycle, priority for brothers of former pupils (as opposed to brothers of existing pupils) would favour Travellers whose brother dropped out early.
On the balance of probabilities I cannot conclude that giving priority to brothers of either existing or former pupils in enrolment is intrinsically liable to put Travellers at a particular disadvantage compared with non-Travellers.
11. Sons of former pupils.
The complainant argues that giving priority to the sons of former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers since Travellers of the complainant’s father’s generation (those who would have been of post-primary school going age in the 1980’s) were most unlikely to have attended post-primary school. Figures supplied by the Department show that less than 100 Travellers in the entire country in 1988 were enrolled in post-primary schools. Therefore the chances that a Traveller of the complainant’s father’s generation was in fact at post-primary school is extremely remote. The School argue that the criterion applied is not that a family member has attended second level education but that a family member is attending or has attended the School. The School produced no evidence that any Travellers attended the school during the 1980’s. The School in oral evidence explained that prior to 20 years ago (before 1990) entrance to the School was determined by competitive written examination. This would certainly have acted as a serious barrier to Travellers securing admission since the academic standard achieved by Travellers in primary schools at that time was on average very low.
The operation of this policy of giving priority to the sons of former pupils therefore appears to disadvantage Travellers more than non-Travellers. It is necessary to establish whether or not the complainant was put at a particular disadvantage. Under the enrolment policy, once a child applied on time, was a Roman Catholic and attended a designated feeder school, the child needed to met one of the three following sub-criteria to be offered a place:-
1. Has a brother who attended the School in the past, or
2. Has a brother who is currently in attendance in the School, or
3. Is the child of a past pupil.
All children of past pupils who applied in time and who did not meet the sibling criteria were successful, 36 in all. The chances of an applicant like the complainant who did not meet any of these criteria being successful in the second round was 55 per cent, that is, he was one of 84 applicants in a lottery for 47 places. If the third sub-criterion (being a child of a past pupil) was not a priority, then those places awarded to the sons of past pupils who did not meet the sibling criteria (36 in all) would have been added to the number to be allocated by lottery under round two. That would have increased the complainant’s chances in the second round to 70 per cent., that is he would have been one of 120 applicants in the second round lottery for 83 places. Therefore, I conclude on the balance of probabilities that the policy of giving priority to children of past pupils puts the complainant as a member of the Traveller community at a particular disadvantage compared with non-Travellers.
The question I must now consider is this: has the School proved that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The goal or aim of the criterion, according to the published Admissions Policy is:-
On the basis of supporting the family ethos within education by providing education services for the children of families who already have, or have recently had, a brother of the applicant attend the School for his post primary education.
This may justify giving priority to siblings but does not, on its face, state an aim which requires as a means to achieving that aim giving priority to the children of former pupils. In oral evidence the School stated that it had as its aim the strengthening of family loyalty to the school, by rewarding those fathers who supported the school by assisting in various ways. I accept that strengthening bonds between the parents, as primary educators of a child and the school is a legitimate aim. However, I do not consider that giving a blanket priority in admission to children is appropriate (i.e. proportionate) or necessary, for the following reasons:
1. The priority applies to the children of all past pupils, irrespective of the actual level of current engagement of the father with the school. In many cases therefore, the means would not achieve the aim.
2. There are other ways of achieving this aim which would not disadvantage children whose fathers did not attend the school, such as organising a past pupils’ union, by the activities of a parents’ association etc.
3. The impact on Travellers is disproportionate to the benefit of the policy.
I find therefore that the School has not proved that the priority given to the children of former pupils is appropriate and necessary.
12. Conclusions
I find that I don’t have jurisdiction to consider the complaint of discrimination against the Department of Education and Skills.
I find that the complainant has not proved that the priority given to siblings of current or former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers.
I find that the complainant has proved that the priority given to the sons of former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers and that the School has not proved that this criterion is objectively justified by a legitimate aim and is appropriate and necessary.
13. Redress
In general the appropriate redress is to put the complainant in the position he would have been in but for the discrimination. If the school did not give priority to the sons of former pupils, the chances of the complainant succeeding in the second round lottery would have been significantly greater. It is impossible to re-run the lottery under revised criteria. In the circumstances I order:
1. That the School immediately offer a place to the complainant.
2. That the School review its Admissions Policy to ensure that it does not indirectly discriminate against pupils on any of the grounds covered by section 3 (2) of the Equal Status Act. This is without prejudice to its status as a Roman Catholic voluntary secondary school for boys only.
Cases Multiple Grounds
DEC-S2008-053 – Full Case Report
Equal Status Acts, 2000 to 2008
Equality Officer Decision DEC-S2008-053
Talbot v Casino Cinemas Limited t/a Killarney Cineplex Cinema
(represented by Mr. Liam Ryan, Solicitor,
Sheehan Ryan & Co., Solicitors
Keywords
Equal Status Acts, 2000-2008 – Section 3(1)(a) – Direct discrimination, Section 3(1)(a) – Gender Ground, Section 3(2)(a) – Family Status Ground, Section 3(2)(c) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 18th January, 2006 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision under Section 25 of the Acts and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008. The hearing of the case took place in Killarney on 5th August, 2008.
1. Dispute
1.1 This dispute concerns a complaint by Ms. Marie Flanagan Talbot that she was discriminated against by the respondent on the Gender and Family Status grounds in terms of Sections 3(1)(a), 3(2)(a) and 3(2)(c) of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to Section 5(1) of those Acts.
2. Summary of the Complainant’s Case
2.1 Whilst taking a family holiday in Killarney, Co. Kerry, the complainant and her husband decided to take their three children, then aged 6 years, 4 years and seven months to see a children’s film at the respondent’s cinema on 21st July, 2005. While her husband was elsewhere, the complainant queued with her children and on arrival at the box office requested a family ticket. The complainant was informed by the respondent’s manager, Mr. Thomas Cooper, who was serving at the box office, that children under the age of two years were not permitted entry into the cinema. The complainant was very surprised by this, in particular, because she had not experienced any problems in bringing her baby into her local cinema. When the complainant asked the respondent for an explanation, he replied that he had received numerous complaints from customers about babies in the cinema. When queried further on this, the respondent referred to breastfeeding and did not specify any other complaints. The complainant was offended and annoyed by the respondent’s response as she was a mother who breastfed, although her baby was just about weaned at that point in time. Having no other choice in the matter, the complainant purchased three tickets for the film for her husband and two older children as she did not want to disappoint them.
2.2 The complainant’s husband arrived on the premises shortly thereafter and the complainant informed him about what had just happened. The complainant’s husband immediately approached the box office and requested to speak with the manager and Mr. Cooper informed him that he was in fact the manager. The complainant’s husband sought an explanation why his wife had been refused entrance to the cinema with their baby and Mr. Cooper stated that there were several reasons but the only one he was willing to discuss was breastfeeding. He told the complainant’s husband that it was the policy of the cinema not to admit children under the age of two years and he indicated that the policy was in writing and clearly visible above the ticket booth. The complainant’s husband asked Mr. Cooper for his name but he declined to divulge this information at that particular juncture. The complainant’s husband requested and was granted a refund of the tickets that his wife had purchased and he informed the respondent that he would be taking the matter further. The complainant and her family then left the premises, however the older children were upset because they could not see the film. The complainant’s husband denied that he was threatening or aggressive in his demeanour towards the respondent or that he had directed an expletive towards him on leaving the premises.
2.3 The complainant submitted that she is a parent, whose seven month old child was in her charge on the date that she sought and was refused access to the respondent’s cinema and she therefore submitted that the family status ground is applicable to her. The complainant claims that another person not accompanied by a child i.e. a person with no family status would not have experienced any difficulty accessing the cinema and therefore, it is submitted that the complainant was treated less favourably than such a person. The complainant further submits that as only a woman can breastfeed, the gender ground applies in the present case and she claims that it was assumed by the respondent that because she was accompanied by a young baby, that she was breastfeeding. The complainant claims that a person of the male gender would have been treated more favourably, as no such assumption would have been made and she contends that it would not have been indicated to such a person that the cinema had received complaints about breastfeeding as a justification for refusing access.
3. Summary of the Respondent’s Case
3.1 The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of her gender or family status. On the occasion in question the complainant approached the box office in the respondent’s cinema and sought to purchase a family ticket. A family ticket in the respondent’s cinema permits entry either for one adult and three children or two adults and two children. The complainant informed the respondent that her husband would be along shortly and in keeping with normal procedure the respondent asked her how many adults and how many children’s tickets that she required. The complainant indicated that she was seeking tickets for two adults, two children and a baby who would sit on her lap. Upon hearing that the complainant wished to admit a baby who would sit on her lap, the respondent informed her that it was the policy of the cinema not to admit children under the age of two years. When asked for an explanation by the complainant, the respondent indicated that this policy had been adopted for health and safety reasons. The respondent sought to explain to the complainant that there had been complaints by customers about babies in the audience and proceeded to give some examples of these complaints which included incessant crying to complaints about unattended toddlers and breastfeeding in the cinema. The respondent stated that the complainant took offence to his reference to breastfeeding and she indicated that she herself was in fact breastfeeding. The respondent claims that he apologised sincerely for any offence caused and he submitted that the complainant was not denied entry to the cinema, in the first instance, or because of the fact that she was breastfeeding. The respondent claims that it was the complainant’s baby who was denied access to the cinema. The respondent also claims that the complainant accepted his apology for the inconvenience caused and that she purchased tickets for one adult and two children before moving into the foyer with her children.
3.2 The respondent noticed the complainant speaking with a man in the foyer about five minutes later and this man, who transpired to be the complainant’s husband, subsequently proceeded to approach him in the box office. The complainant’s husband was extremely aggressive and threatening in his demeanour, putting his face within close proximity of the respondent, and he demanded to know if the respondent had a problem with his wife breastfeeding. The respondent made it categorically clear that he did not have any such problem and he proceeded to outline the cinema’s policy and the reasons underpinning same. The complainant’s husband demanded to speak to the manager and the respondent informed him that he was the only manager on the premises. At this point the complainant’s husband became louder and more aggressive in his demeanour and questioned the legality of the cinema’s admittance policy and demanded information regarding the respondent’s personal details and who owned the cinema. The respondent refused to provide this information to the complainant’s husband as a result of his aggressive demeanour and behaviour. The complainant’s husband demanded a refund of the ticket that his wife had purchased which was duly granted to him. He threatened not to let the matter rest and upon leaving the premises he uttered an expletive in the respondent’s direction.
3.3 The respondent denies that it discriminated against the complainant on the grounds of her gender and claims that she was not denied access to the cinema herself. The respondent also claims that if the complainant’s husband or some other male, who was in loco parentis to her child, approached it looking for tickets to access the cinema then the baby in question would not have been allowed into the cinema. The respondent submitted that it is perfectly entitled to adopt a policy in relation to the entry of patrons who are under the age of 18 years onto its premises and in this particular case the policy is primarily guided by health and safety requirements and for the convenience and enjoyment of patrons. The respondent argued that a cinema is a venue which has many hidden dangers for the patron and given the darkened environment there is an increased danger that a child would get their finger caught in the seats, wander around in the dark etc. The respondent submitted that it is obliged to strike a balance between health and safety requirements, the comfort of its customers and the requirements of the Equal Status Acts. It argues that it has struck a reasonable balance in its policy of not allowing children under the age of two years into the cinema.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. I will now proceed to examine the complaint on each of the grounds claimed.
Gender Ground
4.2 In the present case, the complainant attended the respondent’s cinema with her three children, one of whom was seven months old at the time, and she claims that she was refused entry to the cinema on the basis of the respondent’s stated policy of refusing admittance to children under the age of two years. The complainant submitted that when she sought an explanation regarding the reasons for the implementation of this policy the respondent referred exclusively to customer complaints about breastfeeding in the cinema. The complainant contends that the respondent immediately made an assumption she was breastfeeding when she presented at the box office with her seven month old child. She submits that a person of the male gender would have been treated more favourably, as no such assumption would have been made, and it would not have been indicated to such a person that the cinema had received complaints about breastfeeding as a justification for refusing access. The respondent accepts that it was the policy of the cinema not to permit entry to children under the age of two years, however it submitted that this policy was implemented primarily in the interests of health and safety requirements and for the convenience and enjoyment of patrons. The respondent claims that when the complainant sought an explanation regarding the policy it was clearly and politely explained to her that the policy had been implemented for health and safety reasons and for the convenience and enjoyment of patrons. The respondent claims that he proceeded to explain to the complainant that there had been customer complaints about infants in the audience, and by way of example, he indicated that customers had made complaints about incessant crying, unattended toddlers and breastfeeding in the cinema. However, the respondent totally denies that he made any assumption that the complainant was breastfeeding or that she was denied entry to the cinema on the basis that she was breastfeeding. The respondent also claims that he made it patently clear to the complainant’s husband that he did not have a problem with his wife breastfeeding on the premises.
4.3 In considering this issue, I note that there is a clear conflict in the evidence of the parties regarding the reasons that were given to the complainant and her husband for the implementation of the respondent’s policy to refuse admittance to the cinema of children under the age of two years. The complainant, on the one hand, claims that the only reason provided by the respondent was that customer complaints had been made about breastfeeding whereas the respondent, on the other hand, claims that he only referred to the issue of breastfeeding by way of providing examples to the complainant regarding the nature of the complaints that he had received from customers about infants in the audience. Having regard to the evidence adduced, I have found the evidence of the respondent regarding this issue to be more compelling, and on the balance of probabilities, a more accurate account of the discussions that transpired on this date. Whilst I accept that Mr. Cooper made reference to the issue of breastfeeding during the course of his conversation with the complainant at the box office, I am satisfied that this reference was proffered purely as a means of providing an example to the complainant of the type of customer complaints that had been received about infants in the audience.
4.4 I am also satisfied that the issue of breastfeeding was not used or advanced by the respondent as a reason to refuse the complainant entry to the cinema. In this regard, I have noted the respondent’s evidence that he immediately apologised to the complainant upon noticing that she appeared to have taken offence to his reference to breastfeeding. Based on the evidence presented, I am satisfied that the respondent did not operate any discriminatory practices against mothers that wished to breastfeed on its premises. I have found the evidence of Mr. Cooper regarding the reasons for the implementation of the respondent’s policy to be very credible and having regard to the evidence adduced, I accept that the policy not to permit entry to children under the age of two years was implemented for health and safety reasons and for the convenience and enjoyment of patrons. I am satisfied that this policy was not implemented for the purpose of prohibiting a mother from breastfeeding on the premises. In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in the present case.
Family Status
4.5 The complainant has claimed that the respondent’s policy of refusing admittance to children under the age of two years to its premises is discriminatory on the family status ground. Therefore, the question that I must decide in the present case is whether the complainant was discriminated against on the family status ground as a result of the respondent’s decision to refuse entry to her seven month old child on the date in question. I note that the respondent has argued that it was the complainant’s seven month old child, and not the complainant herself, that was refused entry to the cinema, and accordingly, it submitted that the complainant was not discriminated against on the family status ground. The complainant submitted that the respondent’s contention that it does not constitute discrimination to refuse a baby entrance to the cinema, so long as it does not refuse the parent or person in loco parentis access, is a total misinterpretation of the family status ground, which it claims relates to the person not as an individual in isolation, but the person acting as a parent. The complainant submitted that the fact she was treated less favourably than a person not accompanied by a child is sufficient to raise a prima facie case of discrimination on the family status ground.
4.6 In considering this issue, I note that there have been a number of previous decisions by Equality Officers on the family status ground which have addressed the issue of a refusal of service to a parent or a person in loco parentis on the basis that they were accompanied by a child at the time of the alleged incident of discrimination[1]. In particular, I have noted the Maughan case, where the Equality Officer found that “having a blanket ban on under 18 year olds being in pubs with their parents is a discriminatory policy against parents of under 18 year olds on the family status ground under the Equal Status Act, 2000. I am satisfied that the complainant was treated less favourably by the respondent and that the respondent directly discriminated against him on the basis of his family status”. I am satisfied that the circumstances in the present case are similar to the Maughan case from the point of view that the parent was refused access to a service as a result of the respondent’s policy not to permit service to a child under a certain age limit. In the present case, it is not disputed that the complainant was in the company of her seven month old child at the time of the alleged incident of discrimination and I am satisfied that by virtue of the respondent’s policy to refuse admittance to children under the age of two years, that she was also effectively refused admittance to the cinema on the date in question. In the circumstances, I am satisfied that the complainant’s family status was the reason that she was refused entry to the cinema. I therefore find that the complainant was treated less favourably than a person who did not have family status or a person with family status who was accompanied by a child who was over the age of two years and who sought to gain admittance to the respondent’s cinema on this occasion. Accordingly, I find that the complainant has established a prima facie case of discrimination of the family status ground.
Respondent’s Rebuttal
4.7 In order to decide whether the respondent has rebutted the inference of discrimination, I must decide whether or not the implementation of the policy to exclude children under the age of two years from the cinema (referred to hereinafter as the “policy”) amounted to an act of discrimination against the complainant in the present case on the grounds of her family status. The respondent has relied upon a number of arguments in rebuttal of the allegation of discrimination, namely:
· The policy was implemented for health and safety reasons and for the convenience and enjoyment of other patrons.
· The implementation of the policy is covered by the exemptions provided for in Sections 3(3)(a) and 5(2)(i) of the Equal Status Acts.
Health and safety issues and customer convenience and enjoyment
4.8 The respondent submitted that a cinema is a venue that has many hidden dangers for the patron and given the darkened environment there is an increased danger that a child would get their finger caught on the seats, wander around unattended in the darkness etc. The respondent also submitted that it has received complaints from patrons regarding infants in the audience, such as “incessant crying” and there have been occasions where the parent or person in charge of a child has refused to remove it from the cinema when requested to do so. The respondent claims that it can cater for an audience of up to 300 patrons at any single showing of a film and that it is, therefore, obliged to take into consideration the health and safety requirements and enjoyment of all patrons that are in attendance. The respondent submitted that it is required to strike a balance between health and safety requirements and the requirements of the Equal Status legislation and in this regard, it claims that it has struck a reasonable balance in terms of its policy of not allowing children under the age of two years into the cinema.
4.9 I note that the respondent did not adduce any evidence regarding any specific legislative requirements that prohibit the proprietor of a cinema from admitting children under the age of two years to their premises. The respondent, did however, refer to the provisions of Section 12 of the Safety, Health and Welfare at Work Act, 2005 which states:
“Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare”
The respondent argued that it is obliged under this legislation to take all reasonable steps that it considers necessary in order to protect the health and safety of patrons that attend its premises and it therefore relied upon these provisions in support of its policy. I have noted these provisions and the respondent’s arguments in this regard, and I fully accept that an employer has a duty of care to its customers and/or patrons whilst they avail of its services and that an employer is obliged to take all reasonable measures to protect their health and safety. In the present case, it would appear that the respondent has deemed it necessary to implement a blanket ban on the admittance of all children under the age of two years in order to comply with its obligations in this regard. However, I cannot accept that this legislation directly or indirectly permits the respondent to impose a blanket ban on the admittance of children under the age of two years to its cinema in order to facilitate compliance with its obligations in this regard, especially in circumstances where the child is under the direct supervision of a parent or person in loco parentis.
4.10 In considering this issue further, I note that the complainant was accompanied by her three children, including her seven month old child, when she sought to gain admittance to the matinee showing of the children’s film “Madagascar”. Given the nature of this film and the fact that it was being screened in the afternoon, it is highly likely that there would have been a substantial number of children in attendance in the audience. I am of the view that there would be a reasonable expectation and acceptance by patrons that attend any children’s film such as this that there will be a certain level of noise and distraction generated throughout the showing given the inevitable presence of a large number of children in the audience. I am also of the view that a seven month old child, who would have been seated on its mother’s lap for the duration of the film, would be very unlikely to present any risks or difficulties to the proprietor of a cinema in terms of its health and safety obligations. It could also be reasonably argued that a child over the age of two years is equally, or even more likely, to present a health and safety risk or to interfere with the enjoyment of other patrons than a child who is under the age of two years. The respondent would appear to have arbitrarily selected the age limit of two years of age in terms of its admission policy and it does not appear to have taken cognisance of any of these factors when deciding to implement a blanket ban on the admittance of children under the age of two years to its cinema. I fully accept that cinema owners are entitled, and indeed obliged, to take cognisance of the certification of a particular film in terms of deciding upon the age profile of patrons that are admitted to its premises. However, I cannot accept that it is necessary for a cinema owner to impose a blanket ban on the admittance of children under the age of two years, when accompanied by a parent or adult, to an afternoon screening of a children’s film in order to comply with health and safety requirements or to facilitate the enjoyment of other patrons.
4.11 I have also considered this issue in the context of the defence that is available to a service provider, such as the respondent, in section 15(1) of the Acts which suggest that a service provider, having the appropriate experience and responsibility is entitled to refuse service to someone whom that person considers may pose a substantial risk of criminal or disorderly conduct. There is a high threshold of proof attaching to this defence and in order for the respondent to invoke it in the present case, it would be necessary to demonstrate that there was a substantial risk of criminal or disorderly conduct if the complainant and/or her seven month old child were admitted to the cinema on the date in question. I note that this was the first occasion that the complainant had attended the respondent’s cinema and therefore, the respondent had no previous basis for believing that either the complainant or her child would engage in disorderly conduct. I am also of the view that this defence can only be invoked by a service provider on an individual case by case basis and therefore, it cannot be used by the respondent as a justification for the imposition of a blanket ban on the admittance of all children under the age of two years because it had previously received a number of complaints about babies crying in the audience. In the circumstances, I am satisfied that the respondent cannot rely upon this defence in the present case.
4.12 I have noted the respondent’s evidence that it has reviewed the policy since the present complaint was referred to the Equality Tribunal (although the policy still remains in place) and I accept that the respondent has considered a number of other initiatives as an alternative to the blanket ban on the admission of children under the age of two years in order to comply with its obligations under the equality legislation. In this regard, I note that the respondent has put new measures in place such as the introduction of additional staff members in order to supervise children that attend the cinema. I am of the view that there is an onus, and indeed an obligation, on the respondent to ensure that adequate numbers of staff are employed in order to facilitate the effective supervision of children and/or adults who attend its cinema as patrons. I also note that the respondent’s existing admissions policy contains a number of other provisions which address the health and safety and enjoyment of patrons that attend the cinema, namely:
Should the behaviour of a patron be deemed unacceptable that person may be requested to leave the premises, and
Any request by a staff member of a patron in the interests of safety and comfort must be respected.
I am satisfied that the aforementioned conditions of the respondent’s admissions policy together with the provision of adequate staff numbers in order to supervise patrons provides it with an appropriate means to deal with patrons who are presenting a risk in terms of health and safety issues and/or who are interfering with the enjoyment of other patrons. I am of the view that the implementation and enforcement of such measures by the respondent, rather than the imposition of a blanket ban on the admission of children under the age of two years, would constitute a more reasonable policy in terms of its obligation to facilitate the health and safety and enjoyment of patrons. Having regard to the foregoing, I find that the respondent cannot rely upon health and safety issues and the enjoyment/convenience of other patrons as a justification of its policy which has the effect of subjecting a parent or person in loco parentis of a child under the age of two years to less favourable treatment on the grounds of their family status. I therefore find that the respondent has failed to rebut the allegation of discrimination and that the complainant was discriminated against by the respondent on the family status ground in this case.
Sections 3(3)(a) and 5(2)(i) of the Equal Status Acts, 2000 to 2004
4.13 The respondent submitted that its policy to refuse admission to children under the age of two years to its cinema is covered by the exemptions that are provided for in sections 3(3)(a) and 5(2)(i) of the Acts. In considering this issue, I note that the provisions of section 3(3)(a) refer specifically to discrimination on the age ground and that the provisions of section 5(2)(i) refer specifically to discrimination on the gender, age, disability and race grounds. In the present case, I have found that the complainant, by virtue of her association with her seven month old child, has been subjected to discrimination by the respondent on the family status ground as a result of the respondent’s policy not to admit her child entry to the cinema. Having regard to the foregoing, I am satisfied that the provisions of sections 3(3)(a) and 5(2)(i) are not relevant to the circumstances of this case and I therefore find that the respondent cannot rely upon these provisions as a defence in the present case.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that a prima facie case of discrimination has been established by the complainant on the Family Status ground in terms of sections 3(1) and 3(2)(c) of those Acts and I also find that the respondent has failed to rebut the allegation of discrimination.
5.2 In accordance with section 27(a) of the Acts, I award the complainant the sum of €750 in compensation for the upset and humiliation experienced. I also order, in accordance with Section 27(1)(b) of the Act, that the respondent review its admissions policy and that it discontinue the practice of refusing admission to children under the age of two years to its premises with immediate effect. I further order that that the respondent arranges for comprehensive training of all members of staff in the terms and application of the Equal Status Acts, 2000 to 2008, with such training to have commenced within three months from the date of this Decision.
Enda Murphy
Equality Officer
11th September, 2008
[1]DEC-S2001-020 -John Maughan –v- The Glimmerman Ltd., DEC-S2003-109-10 – Travers and Maunsell –v- The Ball Alley House and DEC-S2003-056 – Paola Shanahan –v- One Pico Restaurant
DEC-S2008-097 – Full Case Report
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2008-097
O’Donoghue v NorthTipperary CountyCouncil
File Ref: ES/2005/0309
Date of Issue: 11th November, 2008
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 20th September, 2005 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 16th October, 2008.
1. Dispute
1.1 This dispute concerns a claim by the complainant, Ms. Ann O’Donoghue that she was discriminated against by the respondent on the grounds of her membership of the Traveller community and by association on the disability ground in terms of Sections 3(1)(a), 3(1)(b), 3(2)(g) and 3(2)(i) of the Equal Status Acts, 2000 to 2004 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008.
2. Summary of the Complainant’s Case
2.1 The complainant claims that the respondent has discriminated against her on the grounds of her membership of the Traveller community and on the disability ground on the basis of its refusal to grant her planning permission to build a house. The complainant’s son has cerebral palsy and is fully wheelchair bound and she submitted an application for planning permission to the respondent on 4th November, 2004 in order to build a two story house which was designed for the purpose of catering for his requirements as a person with a disability. The complainant stated that a number of local residents submitted an objection to the planned development on 29th November, 2004 on the grounds that the proposed entrance was too near a dangerous bend. However, the complainant claims that this objection was motivated on the basis of her Traveller identity as her husband had been seen on the site by one of the named objectors with his horses and a number of friends only a number of days prior to the objection being made. Subsequent to the submission of this objection, one of the respondent’s planners came out to inspect the site. The complainant telephoned the respondent a few days before a decision was due on the application in order to ascertain if a decision had been made at which point she was informed that the site notice was too low.
2.2 The complainant subsequently wrote to the respondent on 6th January, 2005 applying for an extension of three months to further consider her application for planning. Following the difficulties posed by the site notice being too low, both the complainant and her husband, sought to arrange a meeting with the respondent’s Senior Planner in order to discuss this issue and the requirements of her son as a person with a disability in terms of the planning application, however their requests for a meeting were not facilitated. The complainant received a letter from the respondent on 4th April, 2005 refusing her application for planning permission. The complainant submitted that the three reasons which were outlined in the notification of refusal were not valid and she claims that the respondent granted planning permission around that time for a two story house on a site that was in close proximity to her proposed development. The complainant claims that the reason her planning application was refused was because of her membership of the Traveller community. The complainant also claims that she was discriminated against by association on the disability ground on the basis that the respondent failed to provide special measures or facilities in order to accommodate the needs of her son as a person with a disability when it refused to grant the application for planning permission for the house which was designed to cater for his needs.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it has discriminated against the complainant on the grounds of her membership of the Traveller community or on the disability ground in terms of the manner in which her application for planning permission was processed. The complainant’s application for planning permission was received on 4th November, 2004 and the respondent submitted that it was processed in compliance with the Planning and Development Acts, 2000 to 2002 (and relevant Regulations) and also in accordance with the normal procedures and practices that were in place at that time. The respondent claims that the decision to refuse the application was based on the policies as contained in the County Development Plan 1998 (i.e. the Plan applicable at the date of receipt of the complainant’s application) and national guidelines as issued by the Department of the Environment, Heritage and Local Government.
3.2 The respondent accepts that an objection to the applicant’s planning application was submitted by a number of local residents; however it submitted that this objection did not make any reference to the complainant’s membership of the Traveller community and that the respondent was obliged to accept the objection as it was a valid objection which was made in accordance with the relevant planning regulations. The respondent submitted that the Planner dealing with the application refused to meet local residents who made this objection during the processing of the file in order to avoid being prejudiced in their favour and they were advised that all submissions had to be made in writing in the interests of openness and transparency. The respondent stated that it does not have any record of either the complainant or her husband seeking to meet with the Senior Planner in order to discuss the planning application, however, it claims that there is no obligation on any Planner to meet applicants during the processing of an application. The respondent claims that the decision to refuse the complainant’s application for planning permission was made on 4th April, 2005 and it submitted that the three reasons which were outlined in the refusal were based on the policies contained in the County Development Plan 1998 and in accordance with national Guidelines.
3.3 The respondent submitted that it had absolutely no difficulties or issues with the internal design of the house which was drafted to meet the requirements of the complainant’s son as a person with a disability. The respondent stated that the reason to refuse planning permission was not in any way attributable to the features of the house which were incorporated to accommodate his requirements as a person with a disability and it therefore denied the refusal of the application was in any way discriminatory on the basis of the complainant’s son’s disability. The respondent stated that the complainant did not avail of her right to appeal to the decision to refuse planning permission to An Bord Pleanala despite being advised of this course of action if she was unhappy with the decision of the Planning Authority.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this matter, I have taken into account all of the evidence both, written and oral, made to me by the parties to the case. I will now proceed to examine the complaint on each the grounds claimed.
Traveller community ground
4.2 I am satisfied that the complainant is a member of the Traveller community and that the specific treatment complained of actually occurred i.e. that the complainant’s application for planning permission was refused by the respondent. In order to establish a prima facie case of discrimination on the Traveller community ground the complainant must show that the reason this application was refused was because she was a member of the Traveller community and not because of any other reason. I note that the complainant disputes the validity of the reasons that were outlined in the respondent’s notification to refuse planning permission and she claims that the reason her application was refused was because of her membership of the Traveller community. I also note that the complainant, in support of this contention, has made reference to an objection by a number of local residents against her planning application, which she alleges was motivated on the basis of her Traveller identity. The complainant claims that this objection was taken into consideration by the respondent and was a factor in its decision to refuse the application for planning permission.
4.3 In considering this issue, I am satisfied that the complainant’s application for planning permission was processed by the respondent in accordance with its normal practice and procedures and in compliance with its obligations under the Planning and Development Acts, 2000 to 2002 (and relevant Regulations). I accept that an objection to the application for planning was submitted by a number of local residents, however it is clear that this objection related to concerns regarding the proposed entrance to the planned development and that it was not grounded on the basis of the complainant’s status as a member of the Traveller community. Furthermore, I am satisfied that this was a valid objection under the applicable Planning and Development Regulations and that the respondent was therefore obliged to deem it admissible as part of the overall planning process. Having regard to the totality of the evidence, I am satisfied that the complainant has not adduced any evidence to show that the decision by the respondent to refuse her application for planning permission was in any way attributable to her membership of the Traveller Community. In the circumstances, I therefore, find that the complainant has not established that she was treated less favourably than a non-Traveller would have been treated in a similar situation in terms of the manner in which her application for planning permission was processed by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground.
Disability ground
4.4 The complainant’s son has a disability and is wheelchair bound and the complainant submitted that the two story house which was the subject of the application for planning permission was designed for the purpose of catering for his needs as a person with a disability. The complainant claims that the respondent has discriminated against her on the disability ground on the basis that it has failed to take her son’s disability into consideration and has thereby failed to provide reasonable accommodation in respect of his needs when it refused to grant the application for planning permission. In considering this issue, I accept that the complainant’s son is a person with a disability and that the plans for the house were designed to cater for his needs as a person with a disability. However, I have also noted the respondent’s uncontested evidence that it had no issue with the internal design of the house which was drafted to meet the needs of her son and that the decision to refuse planning permission was not attributable to the features of the house that were incorporated into the plans in order to accommodate his needs as a person with a disability. I have also taken into consideration the respondent’s evidence that it was not obliged under the applicable Planning and Development legislation to take into consideration an applicant’s disability as a factor when assessing a planning application. Having regard to the evidence adduced, I am satisfied that the complainant was not treated any less favourably by the respondent in terms of the manner in which her application for planning permission was processed on the basis of her association with her son as a person with a disability.
4.5 I also note that the complainant has alleged that the respondent failed to provide reasonable accommodation in respect of her son’s requirements as a person with a disability. In the case of disability in considering whether discrimination occurred, consideration must be made to the issue of the provision of reasonable accommodation to a disabled person in accordance with the provisions of Section 4 of the Equal Status Acts. In the present case, I am satisfied that the reasons for the refusal to grant the complainant’s application for planning permission were not in any way attributable to her son’s disability or the features that had been incorporated into the design of the house to cater for his needs as a person with a disability. I therefore find that the respondent did not fail in its obligations in accordance with the provisions of Section 4 of the Equal Status Acts.
5. Decision
5.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the Traveller community and disability grounds in terms of sections 3(1), 3(2)(g), 3(2)(i) and 4(1) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in the matter.
Enda Murphy
Equality Officer
11th November, 2008
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2011-010
Tesinsky v Bank of Ireland
File Ref: ES/2009/119
Date of Issue: 3 March 2011
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 26th November 2010 my investigation commenced, when the case was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing of the matter was held on 1 February 2011 and both parties were in attendance. Following the hearing, there were a number of exchanges of documents between the parties and this process was concluded on 24th February 2011.
1. Dispute
This dispute concerns a claim by the complainant, Mr Tesinsky (“the complainant”) that he was discriminated against by the Bank of Ireland (hereafter “the respondent” or “the bank”) on the grounds of race, in terms of Section 3(2)(h) of the Equal Status Acts, 2000-2008 in being refused a service, which is generally available to the public contrary to Section 6(1) of the Equal Status Acts, 2000-2008.
Summary of the Complainant’s Case
2.1 The complainant is Slovakian. He has been a customer of the respondent since 2005. In 2009, he applied for a personal loan from the respondent via their online system. He had briefly discussed the matter with a customer service agent at a city centre branch of the Bank of Ireland and he had noted during this conversation that the interest rates would be more favourable if he applied online rather than at a branch. Therefore in June 2009, he applied via the respondent’s website for a loan of €65,000 over 3 years in order to buy bonds. He intended to pay back the loan with the profit from the bond and/or his savings. When he did not receive a response from the bank within the next couple of weeks, he contacted them by phone. He was told that his application had been denied and a letter should have issued to him to this effect. The letter was issued to him following the call and this letter stated that the loan was declined on the basis of the information supplied. The letter invited the complainant to send in any additional information to support his application. He was also invited to make a future loan application if his circumstances changed.
2.2 The complainant responded by letter to advise the bank that he had qualified as a professional accountant since he moved to Ireland, that he was employed as a credit analyst and that he had intended to apply for a loan range of 20,000 to 65,000, but that the online form only allowed him to choose a specific amount. This letter was entitled “An appeal against the decision on the personal loan application” and sent to the Customer Service Unit. The “appeal” was turned down and the complainant was informed by letter.
2.3 Following the above, the complainant sent a complaint to the Customer Care Unit, complaining that 1) he had to ask for the original decline letter, whereas it should have been sent to him 2) the reasons given for refusing the loan were vague and in his opinion there was no good reason for the refusal 3) he should have been given the name of the person who was dealing with his application so that he could talk to them. The respondent Customer Care Unit responded by letter apologising for the frustration experienced and suggesting that he visit his local branch to discuss the loan in person and in more detail with a financial advisor. They also provided the details of the Financial Ombudsman, in the event that he was dissatisfied with this response.
2.4 The complainant responded by letter to say that his local branch was not convenient and in any case he was more knowledgeable than the bank’s financial advisors. He reiterated that his credit standing was very strong and provided his mobile number again so that they could call him for details. The respondent replied to this letter and re-stated their position, again offering the details of the Financial Ombudsman.
2.5 The complainant claims that if he had been an Irish customer, he would not have been treated in this way by the bank. He claims that if he had been an Irish customer, they would not have forgotten to send him the first letter and they would have given him a proper name and contact number to talk to someone at the bank. He claims that if he had been an Irish customer, they would have investigated the details of his bank history to understand more deeply the variances in his salary. If they had done this, they would have realised his credit rating was better than they had initially thought. He also claims that he had in fact an excellent credit rating, with savings in excess of the amount he sought to borrow and therefore if he was Irish they would have given him the loan. He submits that they thought that because he is a foreigner, he would not know his rights.
2.6 In later submissions, the complainant also claimed that the bank’s credit policy itself is discriminatory. He claims that the bank’s assumption about the minimum level of net discretionary spend (ie: customer’s income – (loan repayment + fixed outgoings such as rent)) is too high. He claims that this level of discretionary income may be required by an Irish person, but he would not require such a high discretionary monthly spend and he could choose to live more frugally.
Summary of the Respondent’s Case
3.1 The respondent submits that customers may request loans of up to €65,000 through their online application process. Notwithstanding the maximum amount, the website is generally used for much smaller personal loans. Generally customers who want larger loan facilities or who wish to borrow for investment purposes, would speak to a financial advisor in person. The bank submits that less than 2% of online applicants in 2009 sought the maximum amount.
3.2 The bank submitted that their process for loan applications (of the amount sought by the complainant) would be to send them to their underwriting department. The underwriters then assess the application against specific criteria and make a decision to approve or deny the loan. This decision is reviewed by an underwriting manager (for loans of this size). The underwriter would then update the status (approved/denied) in their system and an automatic letter would be generated and sent to the customer. The respondent submitted in evidence the actual screenshot of the complainant’s application, showing that the application was denied and some notes made by the underwriter. They accept the complainant’s contention that he did not receive the letter which was automatically generated and they submitted that it may not have been posted, as a result of human error.
3.3 The respondent submit that they deliberately do not send a detailed letter to applicants describing why a loan is denied. This is for reasons of commercial sensitivity – they do not want their underwriting criteria known to their competitors. They submitted the letter in evidence to the Tribunal and stated that this is a standard letter automatically generated by their IT system and sent to all unsuccessful applicants, regardless of nationality.
3.4 With respect to the “appeal” process, the respondent stated it is not an appeal, but rather an invitation to provide more information which is relevant to the loan application. The submitted that Mr Tesinsky’s follow-up letter was treated in the same way as all others – ie: his letter was sent again by customer service to the underwriting team to re-assess and the outcome of the re-assessment was communicated by letter from the customer service team to the complainant. They provided a screenshot from their underwriting system in evidence of this step. In response to the complainant’s claim that someone should have called him to discuss the matter further, the respondent was very adamant that they do not allow their underwriters to contact customers. The underwriting team are specifically required to remain objective and make their determination based strictly on the information provided on the application form and their own validation of this information. The bank specifically refutes the complainant’s allegation that they would have made additional inquiries of an Irish person, which it did not make of the complainant.
3.5 The respondent described the underwriting criteria to the Tribunal; however it cannot be detailed here for commercial reasons. It may be said however that their most important criteria in determining the outcome of a loan application, is the borrower’s ability to repay. This is judged by determining the borrower’s net permanent income and then deducting his regular outgoings such as rent, as well as deducting the proposed loan repayments. After these deductions are made, the bank require that a specific minimum amount is remaining. In the present case, they submitted that, based on the information provided, the complainant’s net disposable income was only 78% of this minimum requirement. On this basis they submitted that there was no way they would give him a loan, all the more so because he was seeking the loan for a speculative purpose. (They further submit that this figure is based on the higher salary figure provided by the complainant on his application form. (They pointed out that the actual salary payment which they could see being paid into the complainant’s bank account was €500 less than this, which put him even further away from the minimum amount required). The bank stated that it is their policy to base their credit decisions on permanent and guaranteed income only, and not on variable or fluctuating income such as bonus payments.
3.6 The respondent stated that it cannot be said that they were trying to take advantage of the complainant’s status as a non Irish national to deny him his rights, because they offered him the details of the Financial Ombudsman on two occasions. They also stated that the complainant is clearly a valued customer of theirs, as he is a holder of a gold credit card.
Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 The complainant has claimed that he was treated badly when he was not offered a loan by the bank and also in their treatment of him as a customer. Both parties have submitted evidence to show that they are in agreement as to the sequence of events and the interraction between them. The disagreement arises in terms of the complainant’s perception of how he was treated and his understanding of the loan refusal. The respondent has explained their reason for not offering a loan to the complainant and shown evidence of this to the Tribunal. I accept that their refusal was based exclusively on their underwriting criteria, which was based primarily on the complainant’s capacity to repay the loan, which in turn was based on the information provided by the complainant. The complainant insists that the respondent should have contacted him and should have made a greater effort to find out more about his financial background (for example the details of his savings which could have guaranteed security on the loan) before they refused him. The respondent on the other hand states that it was entirely the responsibility of the complainant to make any relevant information available to them during the application process and he did not do this. During the oral hearing, the respondent’s Head of Mortgage and Consumer Credit described in detail how the underwriters rely upon the application form and the significance they attach to the information provided by the applicant. Based on this oral evidence of this witness, I accept the respondent’s contention that it was the complainant’s responsibility to proactively make his best possible application to the bank.
4.3 I do not dispute that the complainant might in reality have had a good background to support his loan application to the bank. However as noted above, I have accepted the bank’s contention that it was entirely his responsibility to make his full case available through the webform, and if that was not possible due to the limitations of the form itself, then he should have made his application in person, by visiting a branch office as invited. It is clear that the online process is by its nature, less personal than visiting a branch office.
4.4 The complainant has also argued that the criteria set out in the underwriting criteria were discriminatory towards him, on the basis that he does not drink, smoke, eat out, drive or take as many holidays as an Irish person would. Therefore he would be able to live on a lower discretionary income. Essentially this is an argument of indirect discrimination, which requires evidence in order to establish a prima facie case. On this occasion, there is no evidence whatsoever that foreign nationals are less likely to take part in any of the above activities. Therefore no case of indirect discrimination has been made out and the respondent does not have to defend their underwriting criteria. (The complainant also gave details of his personal consumption preferences, which are irrelevant as they could not have been known to the bank during the underwriting process, even in the very unlikely event that the bank chose to consider them, instead of applying their standard rules).
4.5 In summary the main thrust of the complainant’s case is that he was not treated in a personal way by the bank. They sent him standard decline letters and they did not call him to flesh out the details on his web application form. The bank has demonstrated that they followed their standard procedures in handling the application (notwithstanding the mislaid letter), the “appeal” and in all of their correspondence with the complainant. Therefore these complaints are based around the complainant’s expectations of customer service for online applications, and his frustration with what he considered to be a lack of personal attention to his situation. They do not relate in any way, either directly or indirectly, to the ground under the Equal Status Acts.
4.6 Therefore even taking the complainant’s case at its height, I find that the complainant has failed to make any connection whatsoever between his nationality and the conduct of the respondent. I find that he has failed to shift the burden of proof to the respondent and therefore I find it unnecessary to examine the respondent’s defence in any further detail.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the Respondent.
Elaine Cassidy,
Equality Officer
3 March 2011
DEC-S2011-041
Lindberg v Press Photographer’s Association of Ireland
File Ref: ES/2009/081
Date of Issue: 5 October 2011
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 15 July 2009 under the Equal Status Acts, 2000-2011. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 26th November 2010 my investigation commenced, when the case was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing of the matter was held on 15 June 2011 and both parties were in attendance. Following the hearing, the complainant, who was unrepresented, requested the opportunity to make an additional written submission and a deadline of 1 July 2011 was given for further submissions by either party.
1. Dispute
This dispute concerns a claim by the complainant, Ms Lindberg (“the complainant”) that she was discriminated against by the Press Photographer’s Association of Ireland (hereafter “the respondent”) on the grounds of race and gender in terms of Section 3(2) (a) and 3(2)(h) of the Equal Status Acts, 2000-2008 in being refused a service, which is generally available to the public contrary to Section 6(1) of the Equal Status Acts, 2000-2011.
Summary of the Complainant’s Case
2.1 The complainant is an American woman, who has been working in Ireland as a press photographer since 2001. At that time, she was working part-time; however in 2004 she submitted that she started working full-time as a press photographer and since then she has been published in all the national newspapers.
2.2 In 2007 the complainant decided to join the respondent organisation, whose goal is to promote press photography. She completed an application form, direct debit form and provided the two nomination letters required. A few months later she met a committee member and asked him how her application was coming along. He asked her to send some photos to his email address. She sent 14 photos to him that day. About 3 months later, she met this committee member again and he asked her if she had received her membership money back. She had not been accepted to the respondent association. She was told that she had only submitted 3 photos and this did not convince the committee that she was a full-time press photographer, which was necessary in order to ensure a successful application. It was suggested that she should have submitted a portfolio. The complainant submitted at the hearing, that in practice no-one sends a portfolio and she further rejected the respondent’s later assertion that she did not have enough by-lines. The complainant submitted that she gets bylined for a small percentage of her photos and this is normal. She submitted that no-one else gets bylined for every picture and it is not evidence at all of whether or not she was working full-time in press photography. She stated that, in addition to the 14 pictures, she did provide a list of all the national newspapers who she had worked for, despite being unasked.
2.3 At that time of the complainant’s rejection, 20 applications were made and of these, 3 were rejected. The complainant submitted that she was extremely disappointed and made her feelings known to the committee member, in what she intended as a personal email. The email however was sent around to the whole committee and she later received an email from the (now former) president, saying that the tone of her email indicated that it was obviously not an association which she wanted to be part of.
2.4 The following year, in October, the complainant made another application to join the respondent organisation. In December that year, she was at an event and another photographer advised her that she should have heard back from the respondent by that stage. In January she sent emails to the Secretary and the Treasurer of the respondent association to check whether they had received her application, as she had not heard anything for three months. When she did not get a reply, she decided to speak to the respondent President at his workplace. She went to see him in January and she found that he was very annoyed that she had contacted him directly. She apologised and asked about her application. He told her that it was denied. She had brought extra information with her and demonstrated to him that she had been published 521 times in the previous year in national newspapers alone. This excluded all the work she had done for regional newspapers and internal newsletters. She asked to show him her accounts, to demonstrate that 100% of her income came from press photography, but he declined. He told her that the association had the right not to accept someone if they so chose. She thanked him for his time and left. At the end of May, 7 months after her application was made, she received a rejection letter and the return of her bank draft.
2.5 The following year, 2009, the complainant submitted that she was declined membership without even applying.
2.6 Based on the events which occurred, the complainant concluded that despite the respondent’s claim to have a long list of criteria for membership; in practice the only criterion actually used was whether or not she was known to the members of the committee. She further submitted that the respondent compounded this by their failure to give her a chance to prove her credentials. As a result of being judged in this way, she was automatically put at a disadvantage by being non-Irish.
2.7 The complainant submitted that the respondent organisation is the only organisation in Ireland for her industry. The respondent runs an important awards ceremony once per year and only members are eligible to win an award. She submitted that these are prestigious awards and have a significant influence on the winner’s career. She submitted that both the title and the prize money are highly desirable. She submitted that she is very much the outsider, being both female and non-Irish. She submitted that most female photographers work for magazines, so when she goes on shoots, she is often the only woman there, which makes it difficult for her to get involved in the banter and general camaraderie going on. This contributes to her not being well known in the industry.
2.8 The complainant submitted that the two applications she made form part of a chain of events, because the reason she was rejected the second time related to events and correspondence around her first rejection, particularly the email she sent to a committee member (see para 2.3).
Summary of the Respondent’s Case
3.1 The respondent submitted that the first application made by the complainant is out of time, as the decision on that application was dated 26 September 2007 and there is no connection to her second rejection letter (which was in time) which could link the events together to create a chain of events.
3.2 The respondent submitted that it is an association of press photographers founded about 30 years ago. One of the principle objectives of the association is to promote press photography nationally and internationally and their main activity to achieve this goal is to hold annual photographic awards. The respondent also organises occasional social outings for its members.
3.3 The respondent contends that it does not discriminate against applicants for membership on the basis of gender, nationality or any other grounds. At the time of the complainant’s first application, it had 247 members, of whom 19 were female and approximately 8 were non-national. At the time of her second application it had 241 members, of whom, 20 were female and approximately 9 non-national. No members fell into the category of female non-nationals, a fact which the respondent attributes to the low number of such people in the industry overall. The respondent submitted that the complainant is trying to paint a picture of nepotism and the sidelining of women; however this is not true in their view. The respondent submitted that there had been a female president on one occasion in the past and a female chair of the judging panel for the annual awards. Regarding the question of nationality, the Respondent submitted that membership is not confined to individuals of Irish nationality; in fact they do not ask applicants for details of their nationality when applying, as it is not considered relevant.
3.4 The Respondent submitted that it has in place a number of criteria which must be met by an applicant in order to be accepted into its membership; the applicant must have had at least two years full-time work as a freelance photographer or be employed by an established newspaper or agency. The applicant must be proposed by two paid-up members of two years standing and must also derive at least 85% of their earnings from press photography. The respondent submitted that the claimant failed to meet the established criteria and that was the sole reason why her application was refused.
3.5 The respondent submitted that it is insufficient for the complainant to point to an apparent unfairness in the application procedures. It referred to the Equality Officer decision of MacMahon v UCC (ES/2005/056) and quoted the following passage, in support of its argument that the claimant had failed to establish a nexus between her complaint and her grounds:
“In all the circumstances of the present complaint, it is not enough for the complaint to establish unfairness in the procedures, or to prove that he was treated unfairly, if he cannot show that he was treated less favourably because of his gender.”
The respondent also referred to the Labour Court’s decision in Rescon Ltd v Scanlan (085/2008), wherein it was held that ” a mere difference in gender and a difference in treatment…could never in itself provide sufficient evidential basis upon which to raise a presumption of discrimination.”
3.6 Regarding the 2009 application, the respondent submitted that the complainant is incorrect about her 2009 application being denied and that she is basing this assertion on the fact that their year does not run on a calendar year basis – hence the 2008 application is called 2008/2009.
3.7 Witness for the respondent – a former President of the association
The witness was holding the position of president at the time of the complainant’s first application. He submitted that when the committee members reviewed the complainant’s first application, most members did not know her. They asked for more pictures, but only received 4, so they decided that she did not fulfill the criteria.
The witness’s memory of the complainant’s second application was similar to the first one. The Secretary was asked for further information, but they didn’t receive any more information. The witness submitted that he did ask his own picture editor in Cork about her and was told that she was not a regular contributor to that newspaper. He submitted that although he knew her through work, he did not know whether she was a “bona fide press photographer”. The witness also said that the complainant contacted him at his workplace and he preferred to keep his volunteer role separate from his work. Therefore he told her to stop contacting him.
3.8 Witness for the respondent – a former Secretary of the Association
The Secretary stated that membership was decided by way of a vote. The complainant was unsuccessful because the committee did not know her. He accepted that the complainant may have sent 14 pictures, but thought there might have been a technical issue, which resulted in him not receiving most of them.
3.9 Witness for the respondent – a former President of the Association
The witness was President at the time of the complainant’s second application. He recalled that the committee thought that nothing had changed since her previous application and therefore they rejected her application. He submitted that they had used the same process for 25 years and it had worked fine. There was never a need to seek evidence of whether the person was working full-time in the industry or not.
This witness was contacted by the complainant at his office in January 2009, as she wanted to give him more information about her work. He was annoyed that she had used a personal contact to get in touch with him and felt it was inappropriate. Her attempts to demonstrate her financial accounts and the volume of her work as a press photographer were not of interest to him because they had already rejected her application.
Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 Preliminary Issue
The respondent has argued that the first application made by the complaint is out of time, as the decision on that application was dated 26 September 2007 and the complaint was referred on 15 July 2009. However it is well established law, that where the events complained of are sufficiently connected, it may be possible to regard them as a chain of events. In such a situation, the time limit for the referral begins on the most recent date of alleged discrimination, which in this case was 28 May 2009, the date of the second rejection of the complainant’s application. The referral to the Tribunal was made on 15 July 2009, which was inside the 6 month time limit.
I note that the decisions to reject the complainant’s two applications were taken by committees made up primarily of the same members on both occasions. I also note that the events surrounding the first application played a clear role in the second decision to reject the complainant’s application. Therefore I find that the two events are sufficiently connected to establish a chain of events and thus put the first application within the time limits.
4.3 Prima facie case
The complainant applied on two occasions to join the respondent association, on the basis of her interest and work in the area of press photography. The respondent has stated that the complainant was not working full-time as a press photographer and this is the essential criterion in order to join the association. However the complainant has offered the respondent a large volume of documentary evidence, including her annual accounts and detailed lists of the dates and papers in which she has been published. She has stated without contradiction that she had 521 pictures published in national newspapers alone, in the year she was rejected by the respondent association. As her evidence was specific, credible and not contradicted by the respondent, I accept that she works full-time in press photography as a career. Therefore the complainant has established a prima facie case on the grounds of gender and race, on the basis that, despite her obvious qualifications, she has been denied membership of this association. It therefore falls to the respondent to rebut the claim.
4.4 Respondent’s rebuttal
4.4.1 The respondent has given evidence showing that although they have female members and they have non-national members, they do not currently have any female non-national members. They submitted that this is because of the low numbers of both of those categories working in the profession itself. I accept that in a case like this when the numbers are small, statistics may well be unreliable, and therefore I have not given extensive weight to the fact that there are no members in the combined category.
4.4.2 There was much dispute between the complainant and the respondent in terms of the specific details of the applications processes and the many conversations which went on between the complainant and the respondent committee members. Overall I found the evidence of the complainant considerably more credible, as it was backed-up by extensive documentary evidence. For example, although the respondent said they did not receive them, the complainant was able to show the date and details of the emails she sent with all her photos. On another occasion, the respondent also said that they could not verify whether two particular pictures belonging to the complainant had been published, despite the fact that they were given the photos together with the dates and names of the national newspapers in which they appeared. Additionally the complainant’s evidence at the oral hearing was specific and precise, in contrast to the somewhat vague recollections of all the witnesses for the respondent.
4.4.3 First Application
It appears on the face of it that the respondent application procedure is less than satisfactory. However a less-than-perfect application process does not automatically mean that it is discriminatory. In a case such as this, where the complainant has already made out a prima facie case, it would be up to the respondent to show that their procedures were robust and non-discriminatory. In such circumstances they may be able to show there is no link between the complainant’s grounds and the impugned decision. However that has not happened in this case. I note that the application form is very basic and could not possibly be used to judge anyone’s application. It appears to be a formality and not a genuine part of the decision-making process. The respondent members have said that they make their decision based on whether or not they know the applicant, and that this approach has served them well in the past. Their argument is that “everyone knows everyone” in the industry and therefore they have a good sense of who is genuinely working full-time in the industry. The complainant has stated that she does not socialise with the members and that is the reason they do not know her. (Indeed there is something of a circular argument here – if the complainant is not permitted to join the association, then the members will not get to know her. But they will not let her join because they do not know her. ) The fact the committee’s primary criterion in practice is to see if the person is known to them, is potentially discriminatory towards newly-arrived non-nationals, who are less likely to be known. They could have overcome this potentially discriminatory criterion by asking for more information from the candidate. The respondent said that they did, but I found the complainant’s version of events more credible. I find that they made no genuine effort to establish whether the complainant fulfilled the criteria or not.
If the respondent was prepared to be open to allowing “outsiders” into their organisation, they would design an application form which allowed the potential applicant to fully present him/herself and provide all the details required. A thorough application procedure would remove the need for the applicant to be personally known to the committee.
Overall, taking into account the fact that the respondent application form (at the material time) did not cover the supposed criteria for entry, the fact that they failed to show an application of the criteria in any other way, and the fact that they did not wish to see any proof of the complainant’s status as a full-time photographer, I find it is fair to assume that the selection criteria were not used in practice except as a reason given after a rejection decision was already made. In fact the (now former) president himself told the complainant that they didn’t have to let anyone in if they didn’t want to. On balance therefore I find that the process used in the complainant’s first application was discriminatory towards her on the grounds of her nationality.
4.4.4 Second Application
It is clear that the complainant and the respondent exchanged words after her first rejection and I find that this had an impact on her subsequent application. Although it took seven months to receive the rejection letter, it was clear from the discussion 4 months earlier between the complainant and the (now former) President, that the decision was made within a much shorter timeframe. It was also clear that the respondent was not prepared to seek additional information about the complainant. Although there was some suggestion from the witnesses that attempts had been made to gain further information, this was successfully rebutted by the complainant at the oral hearing. The complainant also stated, (without contradiction) that the (now former) president himself told her that they didn’t have to let anyone in if they didn’t want to. I found that the respondent committee members developed a personal dislike for the complainant, based partly on her persistence in following up on her application and trying to send them information to substantiate her application. In considering this case I am guided by the Labour Court decision in the case of Ely Property Group Ltd and Zena Boyle Determination No. EDA0920 where the Labour Court was considering prima facie evidence in a gender discrimination case and stated:
“In considering the primary facts relied upon by a Complainant the Court is not seeking prima facie evidence that the discriminatory ground relied upon was the only or the dominant reason for the impugned treatment. In Wong v Igen Ltd and others [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. That decision was made having regard to the wording of Article 2 of Directive 2000/78/EC which provides that there shall be no discrimination “whatsoever” on any of the grounds proscribed by that Directive. This Court has consistently adopted the reasoning in that case.”
The Labour Court in this case further stated:
“Furthermore the evidence can point to either conscious or subconscious discrimination. As was pointed out by Neill L.J. in King v Great Britain China Centre [1992] I.C.R. 516, in a case involving racial discrimination: –
It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’ (my emphasis)
The views expressed by Neil L.J. were echoed by Lord Nicholls of Birkenhead in Nagarajan v London Regional Transport [1999] IRLR as follows: –
I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.
While both judgments were given in cases in which racial discrimination was at issue there is nothing in principal or in logic to prevent their application to a case in which the gender ground is relied upon. There will be many cases in which the primary facts point to the possibility that an employer, consciously or subconsciously, treated a woman as he did because he believed that she did not fit in (my emphasis) or that she was unsuited to the job because she is a woman. In such cases an inference of discrimination arises and it is for the Respondent to prove the contrary.
I find that this reasoning of the Labour Court is relevant to the case in hand. I believe that in the present case, the respondent members held (and perhaps still hold) the view that complainant simply “does not fit in”. They have provided no cogent reason for rejecting both of the complainant’s applications and so the remaining explanation is the discriminatory one. I find the combination of the complainant’s circumstances in this case is significant. She is both female and non-national and is attempting to join an association, whose membership is predominantly Irish male. While this is not discriminatory per se and in fact it is more likely that it simply reflects the industry itself, it means in practice that the complainant is automatically outside the group in certain ways. The complainant does not fit into the respondent association because the combination of her race and gender automatically put her into a very small minority. If she was prepared to overcome this categorisation by acting more like one of the group, it is possible that they may not have denied her entry. However the complainant has her own communication style which conflicts with that of the committee members and she takes no part in the social interaction of this group, which further reinforces her outsider status. The wording of the Directives on the grounds of both Race and Gender state very clearly that there shall be “no discrimination whatsoever”. This means if any element of discrimination is made out, the complainant must be successful. In the present case I note that the complainant is clearly working full-time as a press photographer. I note that she offered sufficient information to the respondent to allow them to establish this fact, if they chose to. The respondent’s defence has been that their sole criterion for refusing her was the fact that she was not a full-time press photographer. I do not find this credible. Therefore considering all of the circumstances surrounding the applications, I find that the complainant has established sufficient evidence to show that her race had at least an indirect impact on her first application because the respondents did not attempt to seek information outside their immediate circle. In the second application, I find that the totality of circumstances, which includes her race and gender, again put her into the category of “outsider” and this had an impact on the second decision to deny her membership.
4.4.5 The complainant considers her exclusion from the respondent association to be a serious matter, and contends that this is not just a social club. It is the only association relevant to her profession and her exclusion from it impacts on her career.
4.4.6 However it must also be noted that the respondent association is a voluntary organisation and the committee members are undertaking it in their own time. As a result, they stated that they don’t hold meetings very frequently, and they have very little time for paperwork. Overall they conceded that they were not very organised. Their argument, (which I accept), is that it would be unreasonable to expect the same procedural standards which might be expected from an employer for example. Nonetheless the law clearly prohibits discrimination against service users and this prohibition is unconditional. I note that it would not have placed an undue burden on the respondent members, even as unpaid volunteers, to simply give consideration to the additional material which was supplied by the complainant to show her status as a full-time press photographer. By doing this they could have genuinely established whether or not she had the credentials for membership.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the Complainant and order that the respondent offer the complainant membership of the Press Photographer’s Association of Ireland, within 60 days of this decision. I also award her €1,000 for upset and humiliation suffered as a result of the discrimination.
5.2 I further order that the respondent put into effect an Equality Policy within 6 months of the date of this decision and I recommend that the respondent make their admission policy more open and transparent for future applicants.
Elaine Cassidy,
Equality Officer
5 October 2011