Racial Discrimination
Employment Equality Act
Part II S.6 to S.12 Part IV
REVISED
Updated to 7 March 2016
…..
Discrimination: General Provisions
Introductory
Discrimination for the purposes of this Act.
6.—F14[(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person—
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
(b) that they are of different F15[civil status] (in this Act referred to as “the F15[civil status] ground”),
(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
(i) that one is a member of the F16[Traveller] community and the other is not (in this Act referred to as “the F16[Traveller] community ground”).
F17[(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.]
F14[(3) (a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.
(b) Notwithstanding subsection (1) and section 37(2), an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.
F18[(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—
(i) it is objectively and reasonably justified by a legitimate aim, and
(ii) the means of achieving that aim are appropriate and necessary.]
(d) Subsection (1)(b) of section 2 (exclusions) of the Unfair Dismissals Act 1977 is amended by deleting ‘or who on that date was a person to whom by reason of his age the Redundancy Payments Acts 1967 to 1973, did not apply’ and inserting ‘or who on that date had not attained the age of 16 years’.]
Annotations:
Amendments:
F14
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 4(a) and (c), commenced on enactment.
F15
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 102(3), S.I. No. 648 of 2010.
F16
Substituted (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (b), S.I. No. 351 of 2000.
F17
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 4(b), commenced on enactment.
F18
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 4, S.I. No. 610 of 2015.
Like work.
7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1) as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).
(3) In any case where—
(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and
(b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),
then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator.
Annotations:
Modifications (not altering text):
C9
Application of section restricted (5.12.2011) by Protection of Employees (Temporary Agency Work) Act 2012 (13/2012), s. 9, commenced as per s. 1(2).
Restriction of certain enactments.
9.—The following provisions shall, in so far only as they are inconsistent with this Act, not apply to an agency worker to whom this Act applies:
(a) sections 7 and 8 of the Employment Equality Act 1998; and
…
Discrimination in Specific Areas
Discrimination by employers etc.
8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.
(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.
(4) A person who is an employer shall not, in relation to employees or employment—
(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.
(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be F19[offered,]
(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not F19[materially different, or]
F20[(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.]
(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—
(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.
Annotations:
Amendments:
F19
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 5(a) and (b), S.I. No. 610 of 2015.
F20
Inserted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 5(c), S.I. No. 610 of 2015.
Modifications (not altering text):
C10
Application of section restricted (5.12.2011) by Protection of Employees (Temporary Agency Work) Act 2012 (13/2012), s. 9, commenced as per s. 1(2).
Restriction of certain enactments.
9.—The following provisions shall, in so far only as they are inconsistent with this Act, not apply to an agency worker to whom this Act applies:
(a) sections 7 and 8 of the Employment Equality Act 1998; and
…
Editorial Notes:
E9
Power granted to Irish Human Rights and Equality Authority to serve an equality and human rights compliance notice on persons who have contravened or are contravening subs. (4) (1.11.2014) by Irish Human Rights and Equality Commission Act 2014 (25/2014), s. 36(1)(b), S.I. No. 449 of 2014.
Provisions in certain agreements and orders.
9.—(1) In a case where—
(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and
(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person’s contract of employment,
then, subject to subsection (4), that provision shall be null and void.
(2) If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to (e) of section 8(1) then, subject to subsection (4), that provision shall be null and void.
(3) This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:
(a) collective agreements;
(b) employment regulation orders, within the meaning of Part IV of the Industrial Relations Act, 1946; and
(c) registered employment agreements, within the meaning of Part III of that Act.
(4) In the case of a provision which—
(a) is contained in an agreement or order made before the coming into operation of this section, and
(b) is discriminatory on a ground other than the gender ground,
subsection (1) or, as the case may be, subsection (2) shall not apply until the first anniversary of the date on which this section comes into operation; and, accordingly, until that date, the equal remuneration term or equality clause in a person’s contract of employment shall not override any such provision of an agreement or order which relates to that person.
Advertising.
10.—(1) A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an intention.
F21[(2) For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which—
(a) connotes or refers to an individual of one sex or an individual having a characteristic mentioned in any of the discriminatory grounds (other than the gender ground), or
(b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by the members of one sex or individuals having such a characteristic,
then, unless the advertisement indicates a contrary intention, the advertisement shall be taken as indicating an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.]
(3) Nothing in this section relates to an advertisement which, or to the extent to which it, specifies a requirement, restriction or other matter which relates to employment and which it would not be unlawful for the employer in question to impose, having regard to any other provision of this Part or of Part III or Part IV.
(4) A person who, with a view to securing publication or display of an advertisement in contravention of subsection (1), makes a statement knowing it to be false shall, upon such publication or display, be guilty of an offence.
(5) Without prejudice to subsection (4), if an advertisement is published or displayed and it appears to the High Court or the Circuit Court, on the motion of the Authority, that there are grounds for believing that publication or display of the advertisement may be in contravention of subsection (1), the court may grant an injunction preventing the appointment of any person to any post to which the advertisement relates until—
(a) the decision of the F22[Director General of the Workplace Relations Commission] on a contemporaneous reference under section 85 of the publication or display of the advertisement, or
(b) the court otherwise orders,
and, for the purpose of this subsection, a reference under section 85 shall be regarded as contemporaneous with a motion if it is made on the same day as the motion or not more than 14 days earlier or later.
(6) The jurisdiction conferred on the Circuit Court by subsection (5) shall be exercised by the judge for the time being assigned to the circuit where the person by whom the advertisement was published or displayed (or caused to be published or displayed) ordinarily resides or carries on any profession, business or occupation.
Annotations:
Amendments:
F21
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 5, commenced on enactment.
F22
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Editorial Notes:
E10
Power granted to Irish Human Rights and Equality Commission to serve an equality and human rights compliance notice on persons who have contravened or are contravening subs. (1) (1.11.2014) by Irish Human Rights and Equality Commission Act 2014 (25/2014), s. 36(1)(b), S.I. No. 449 of 2014.
Employment agencies.
11.—(1) Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person—
(a) who seeks the services of the agency to obtain employment with another person, or
(b) who seeks from the agency guidance as to a career or any other service (including training) related to the employment of that person.
(2) Subsection (1) does not apply to the extent that the employment in question is such that an employer could lawfully refuse to offer it to the person concerned.
(3) An employment agency shall not be under any liability under this section if it proves—
(a) that it acted in reliance on a statement made to it by the employer concerned to the effect that, by reason of the operation of subsection (2), its action would not be unlawful, and
(b) that it was reasonable for it to rely on the statement.
(4) An employer who, with a view to obtaining the services of an employment agency, knowingly makes such a statement as is referred to in subsection (3) (a) which is false or misleading in a material respect shall be guilty of an offence.
(5) Nothing in this Act shall make it unlawful for an employment agency to provide services exclusively for persons with disabilities or any class or description of such persons.
Annotations:
Modifications (not altering text):
C11
Application of section restricted (17.07.2014) by Social Welfare Consolidation Act 2005 (26/2005), s. 359B(4), as inserted by Social Welfare and Pensions Act 2014 (16/2014), s. 18(2), commenced on enactment.
[Discrimination on grounds of age in relation to employment schemes and other schemes and programmes
359B. —
…
(4) Section 11 of the Employment Equality Act 1998 shall not apply in relation to the performance by the Minister of his or her functions under this section.]
Vocational training.
12.—(1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—
(a) in the terms on which any such course or related facility is offered,
(b) by refusing or omitting to afford access to any such course or F23[facility,]
(c) in the manner in which any such course or facility is F23[provided, or]
F24[(d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.]
(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.
(3) F25[…]
(4) For the purposes of ensuring the availability of nurses to hospitals and teachers to 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, the prohibition of discrimination in subsection (1), in so far as it relates to discrimination on the religion ground, shall not 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 Children’s Hospital) Order, 1996, or
(b) places in a vocational training course specified in an order made under subsection (5).
(5) Where an educational or training body applies to the Minister for Health and Children, in the case of hospitals, or to the Minister for Education and Science, 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 and Children or the Minister for Education and Science, 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 and Children or the Minister for Education and Science, as the case may be, to meet the purposes set out in subsection (4).
(6) Without prejudice to section 3(1), an order under subsection (5) may be revoked by a further order made by the Minister for Health and Children or the Minister for Education and Science, as the case may be, with the like consent; but any such revocation order shall contain transitional provisions safeguarding any person who took advantage of the effect of the order when it was in force.
(7) F26[Without prejudice to section 3 of the Refugee Act, 1996, nothing in subsection (1)] shall make unlawful discrimination on the age ground or the ground of race in respect of any course of vocational training offered by F26[an educational] or training body where—
(a) it provides different treatment in relation to—
F27[(i) the fees for admission or attendance at any such course by persons who are citizens of Ireland, nationals of another Member State, nationals of the Swiss Confederation or nationals of a member state of the European Economic Area and persons who are not, or]
(ii) the allocation of places on any such course to those citizens or nationals, or
(b) it offers assistance to particular categories of persons by way of sponsorships, scholarships, bursaries or other awards, which assistance is reasonably justifiable, having regard to traditional or historical F26[considerations, or]
F28[(c) in the case of a university or other third-level institution, it provides different treatment in the allocation of places on any such course to mature students (within the meaning of the Local Authorities (Higher Education Grants) Acts, 1968 to 1992).]
F29[(8) In this section, ‘member state of the European Economic Area’ means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by all subsequent amendments to that Agreement.]
Annotations:
Amendments:
F23
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 6(a)(i) and (ii), S.I. No. 610 of 2015.
F24
Inserted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 6(a)(iii), S.I. No. 610 of 2015.
F25
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 6, commenced on enactment.
F26
Substituted (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (c)(i), S.I. No. 351 of 2000.
F27
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 6(b), S.I. No. 610 of 2015.
F28
Inserted (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (c)(iii), S.I. No. 351 of 2000.
F29
Inserted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 6(c), S.I. No. 610 of 2015.
Editorial Notes:
E11
Power pursuant to section exercised (17.07.2013) by Employment Equality Acts 1998 to 2011 (section 12) (Church of Ireland College of Education) Order 2013 (S.I. No. 288 of 2013).
E12
Previous affecting provision: power pursuant to section exercised (2.07.2008) by Employment Equality Act, 1998 (Section 12) (Church of Ireland College of Education) Order 2008 (S.I. No. 251 of 2008); expired at end of academic year 2012/2013.
E13
Previous affecting provision: power pursuant to section exercised (15.07.2003) by Employment Equality Act 1998 (section 12) (Church of Ireland College of Education) Order 2003 (S.I. No. 319 of 2003); expired at end of academic year 2007/2008.
E14
Previous affecting provision: power pursuant to section exercised (30.06.2000) by Employment Equality Act, 1998 (Section 12) (Church of Ireland College of Education) Order 2000 (S.I. No. 216 of 2000); expired at end of academic year 2002/2003.
PART IV
Specific Provisions as to Equality Between Other Categories of Persons
The comparators.
28.—(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:
(a) in relation to the F51[civil status] ground, C and D have different F51[civil status];
(b) in relation to the family status ground, C has family status and D does not, or vice versa;
(c) in relation to the sexual orientation ground, C and D are of different sexual orientations;
(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;
(e) in relation to the age ground, C and D are of different ages;
(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;
(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;
(h) in relation to the F52[Traveller] community ground, C is a member of the F52[Traveller] community and D is not, or vice versa.
(2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately.
(3) Any reference in this Act to persons having the same relevant characteristic as C (or as D) shall be construed by reference to the discriminatory ground in relation to which the reference applies or, as the case may be, in relation to each of the discriminatory grounds (other than the gender ground) separately, so that—
(a) in relation to the F51[civil status] ground, the relevant characteristic is having the same F51[civil status] as C (or, as the case may be, as D), and
(b) in relation to the family status ground, the relevant characteristic is having the same, or the same lack of, family status as C (or, as the case may be, as D),
and so on for each of the other discriminatory grounds.
Annotations:
Amendments:
F51
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 102(3), S.I. No. 648 of 2010.
F52
Substituted (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (d), S.I. No. 351 of 2000.
Entitlement to equal remuneration.
29.—(1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.
(3) For the purposes of this Part, where D’s employer is an associated employer of C’s employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.
F53[(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.]
(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.
Annotations:
Amendments:
F53
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 19, commenced on enactment.
Equality clause relating to non-gender issues.
30.—(1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause, they shall be taken to include one.
(2) A non-discriminatory equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if—
(a) C is employed in circumstances where the work done by C is not materially different from that done by D in the same employment, and
(b) at any time C’s contract of employment would (but for the non-discriminatory equality clause)—
(i) contain a term which is or becomes less favourable to C than a term of a similar kind in D’s contract of employment, or
(ii) not include a term corresponding to a term in D’s contract of employment which benefits D,
then the terms of C’s contract of employment shall be treated as modified so that the term in question is not less favourable to C or, as the case may be, so that they include a similar term benefiting C.
(3) A non-discriminatory equality clause shall not operate in relation to a difference between C’s contract of employment and D’s contract of employment if the employer proves that the difference is genuinely based on grounds which are not among those specified in paragraphs (a) to (h) of section 28(1).
(4) Without prejudice to the generality of section 8(1), where a person offers C employment on certain terms and, were C to accept the offer on those terms, the non-discriminatory equality clause in C’s contract of employment would have the effect of modifying the terms in either of the ways specified in subsection (2), the making of the offer shall be taken to amount to discrimination against C in relation to C’s conditions of employment on whichever of the discriminatory grounds is (or are) relevant to the difference (or differences) between C and D.
Indirect discrimination.
31.—F54[(1) Subsections (1) and (1A) (inserted by section 13 of the Equality Act 2004) of section 22 apply, in relation to C and D as they apply in relation to A and B, with the modification that the reference in subsection (1) to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.]
(2) F55[…]
(3) Subsection (1) shall apply with the necessary modifications in relation to—
(a) the provision of any such services of an employment agency as are referred to in paragraphs (a) and (b) of section 11(1),
(b) participation in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1).
(4) Subsection (3) of section 8 applies for the purposes of subsection (1) and, in so far as it relates to an employer, subsection (5) as it applies for the purposes of subsections (4) to (8) of that section.
(5) If a provision is such that, apart from this subsection, an employer or regulatory body would be regarded—
(a) by virtue of subsection (1)F56[…], as discriminating against an individual on the F57[civil status] ground or the family status ground, and
(b) by virtue of section 22, also as discriminating against the same individual on the gender ground,
the employer or regulatory body shall not be regarded as discriminating against that individual by virtue of subsection (1)F56[…].
Annotations:
Amendments:
F54
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 20(a), commenced on enactment.
F55
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 20(a), commenced on enactment.
F56
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 20(b), commenced on enactment.
F57
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 102(3), S.I. No. 648 of 2010.
Harassment in the workplace etc.
32.—F58[…]
Annotations:
Amendments:
F58
Repealed (18.07.2004) by Equality Act 2004 (24/2004), s. 21, commenced on enactment.
Positive action permitted.
F59[33.—Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures—
(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground),
(b) to protect the health or safety at work of persons with a disability, or
(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.]
Annotations:
Amendments:
F59
Substituted (18.072004) by Equality Act 2004 (24/2004), s. 22, commenced on enactment.
Modifications (not altering text):
Editorial Notes:
E20
Previous affecting provision: word “traveller” in subs. (1)(c) capitalised (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (e), S.I. No. 351 of 2000; superseded as per F-note above.
Savings and exceptions related to the family, age or disability.
34.—(1) In relation to the discriminatory grounds specified in paragraphs (a) to (h) of section 28(1), nothing in this Part or Part II shall make it unlawful for an employer to provide—
(a) a benefit to an employee in respect of events related to members of the employee’s family or any description of those members,
(b) a benefit to or in respect of a person as a member of an employee’s family,
(c) a benefit to an employee on or by reference to an event occasioning a change in the F60[civil status] of the employee, or
(d) to an employee who has family status a benefit intended directly to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility as mentioned in paragraphs (a) and (b) of the definition of “family status” in section 2(1).
(2) In subsection (1)“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to an employee include—
(a) a person seeking or using any service provided by the employment agency,
(b) a person participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and
(c) a person who is a member of the regulatory body.
F61[(3) In an occupational benefits scheme it shall not constitute discrimination on the age ground for an employer—
(a) to fix ages for admission to such a scheme or for entitlement to benefits under it,
(b) to fix different such ages for all employees or a category of employees,
(c) to use, in the context of such a scheme, age criteria in actuarial calculations, or
(d) to provide different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age,
provided that that does not constitute discrimination on the gender ground.]
F62[(3A) In subsection (3)—
‘occupational benefits scheme’ includes any scheme (whether statutory or non-statutory) providing for benefits to employees or any category of employees on their becoming ill, incapacitated or redundant but does not include any occupational pension scheme providing for pensions, gratuities or other allowances payable on retirement or death;
‘severance payment’ means a sum paid voluntarily by an employer to an employee otherwise than as pay when the employee leaves the employment.]
F63[(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if—
(a) it is objectively and reasonably justified by a legitimate aim, and
(b) the means of achieving that aim are appropriate and necessary.]
(5) Without prejudice to the generality of subsection (3), it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for recruitment which takes account of—
(a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and
(b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.
(6) Where immediately before the relevant day, arrangements are in force in any employment for age-related remuneration, it shall be a sufficient compliance with this Part and Part II if those arrangements are brought to an end within the period of 3 years beginning on the relevant day.
(7) It shall not constitute discrimination on the age ground for an employer to provide for different persons—
(a) different rates of remuneration, or
(b) different terms and conditions of employment,
if the difference is based on their relative seniority (or length of service) in a particular post or employment.
F62[(7A) Nothing in this Act invalidates any term in a collective agreement, whenever made, to the effect that in particular circumstances, where length of service would otherwise be regarded as equal, seniority in a particular post or employment may be determined by reference to the relative ages of employees on their entry to that post or employment.]
(8) In this section “the relevant day” means the day appointed for the coming into operation of section 29.
Annotations:
Amendments:
F60
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 102(3), S.I. No. 648 of 2010.
F61
Substituted (18.07.2004) by Equality Act 2004 (24/2004) s. 23(a), commenced on enactment.
F62
Inserted (18.07.2004) by Equality Act 2004 (24/2004) s. 23(a) and (b), commenced on enactment.
F63
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 10, S.I. No. 610 of 2015.
Special provisions related to persons with disabilities.
35.—F64[(1) Nothing in this Part or Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which could reasonably be expected to be done, during that period by an employee without the disability.]
(2) Nothing in this Part or Part II shall make it unlawful for an employer or any other person to provide, for a person with a disability, special treatment or facilities where the provision of that treatment or those facilities—
(a) enables or assists that person to undertake vocational training, to take part in a selection process or to work, or
(b) provides that person with a training or working environment suited to the disability, or
(c) otherwise assists that person in relation to vocational training or work.
(3) Where, by virtue of subsection (1) or (2), D, as a person with a disability, receives a particular rate of remuneration or, as the case may be, special treatment or facilities, C, as a person without a disability, or with a different disability, shall not be entitled under this Act to that rate of remuneration, that treatment or those facilities.
F65[(4) References in this section to a particular rate of remuneration are to a rate of remuneration which is not below the minimum rate to which the employee concerned is entitled under the National Minimum Wage Act 2000.]
Annotations:
Amendments:
F64
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 24(a), commenced on enactment.
F65
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 24(b), commenced on enactment.
Imposition of certain requirements to be lawful.
36.—(1) Nothing in this Part or Part II shall make unlawful the application of any provision (whether in the nature of a requirement, practice or otherwise) such as is mentioned in subsection (2) with respect to—
(a) holding office under, or in the service of, the State (including the Garda Síochána and the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, or
(b) officers or servants of a local authority, for the purposes of the Local Government Act, 1941, a harbour authority F66[or a health board or a member of staff of an education and training board].
(2) The provisions referred to in subsection (1) are those relating to all or any of the following:
(a) residence;
(b) citizenship;
(c) proficiency in the Irish language.
(3) Nothing in this Part or Part II shall make unlawful the application of any provision (whether in the nature of a requirement, practice or otherwise) in relation to proficiency in the Irish language with respect to teachers in primary and post-primary schools.
(4) Nothing in this Part or Part II shall make it unlawful to require, in relation to a particular post—
(a) the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State for posts of that description, or
(b) the production and evaluation of information about any qualification other than such a specified qualification.
(5) Nothing in this Part or Part II shall make it unlawful for a body controlling the entry to, or carrying on of, a profession, vocation or occupation to require a person carrying on or wishing to enter that profession, vocation or occupation to hold a specified educational, technical or other qualification which is appropriate in the circumstances.
(6) Nothing in this section shall render lawful discrimination on the gender ground.
Annotations:
Amendments:
F66
Substituted (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 72 and sch. 6 item 25, S.I. No. 211 of 2013.
Exclusion of discrimination on particular grounds in certain employments.
37.—(1) F67[Subject to subsections (1A) and (1B), a religious, educational or medical institution] which is 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 shall not be taken to discriminate against a person for the purposes of this Part or Part II if—
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.
F68[(1A) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas more favourable treatment on the religion ground referred to in paragraph (a) of that subsection shall be taken to be discrimination unless—
(a) that treatment does not constitute discrimination on any of the other discriminatory grounds, and
(b) by reason of the nature of the institution’s activities or the context in which the activities are being carried out, the religion or belief of the employee or prospective employee constitutes a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos.]
F68[(1B) Where an educational or medical institution referred to subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, action of the type referred to in paragraph (b) of that subsection shall be taken to be discrimination unless by reason of the nature of the employment concerned or the context in which it is carried out—
(a) the action is objectively justified by the institution’s aim of preventing the undermining of the religious ethos of the institution, and
(b) the means of achieving that aim are appropriate and necessary.]
F68[(1C) An action referred to in subsection (1B) shall not be objectively justified in accordance with paragraph (a) of that subsection, or appropriate and necessary in accordance with paragraph (b) of that subsection, unless the action of the institution is—
(a) rationally and strictly related to the institution’s religious ethos,
(b) a response to conduct of the employee or prospective employee undermining the religious ethos of the institution rather than a response to that employee’s, or prospective employee’s, gender, civil status, family status, sexual orientation, age, disability, race or membership of the Traveller community, and
(c) proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to—
(i) any other action the employer may take in the circumstances,
(ii) the consequences of that action for that employee or prospective employee,
(iii) the employee’s or prospective employee’s right to privacy, and
(iv) the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.]
F69[(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—
(a) the characteristic constitutes a genuine and determining occupational requirement, and
(b) the objective is legitimate and the requirement proportionate.
(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.
(4) If—
(a) the Minister is of opinion that the age profile of members of the Garda Síochána, prison service or any emergency service is such that its operational capacity is or is likely to be adversely affected, and
(b) he or she by order so declares,
the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order.
(5) In relation to discrimination on the age ground or disability ground, nothing in this Part or Part II applies in relation to employment in the Defence Forces.
(6) In subsection (4)(a) the reference to the Minister, in relation to an emergency service, is a reference to the Minister of the Government with official functions in regard to that service.]
Annotations:
Amendments:
F67
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 11(a), S.I. No. 610 of 2015.
F68
Inserted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 11(a), S.I. No. 610 of 2015.
F69
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 25, commenced on enactment.
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.
Cases
King v The Great Britain-China Centre
[1991] EWCA Civ 16 [1992] ICR 516
NEILL LJ
“This is an appeal by Miss Karen Lily King from the order of the Employment Appeal Tribunal dated 5th February 1990 allowing an appeal by The Great Britain-China Centre (“the Centre”) from the decision of an industrial tribunal dated 25th August 1988 whereby the industrial tribunal held by a majority that the Centre had unlawfully discriminated against Miss King on the ground of her race. The case for Miss King, who is Chinese, was that she had been the subject of direct racial discrimination contrary to section l(l)(a) and section 4(l)(a) of the Race Relations Act 1976 in that when she had applied for the post of deputy Director of the Centre she had not been placed on the short list of applicants for the post.
……
It was accepted on behalf of Miss King that the burden of proving racial discrimination lay on her. This was the legal burden of proof. But it was submitted that the majority of the industrial tribunal were correct in concluding that in the light of the proved facts the evidential burden of disproving discrimination shifted to the Centre. Counsel relied on the following facts and matters which, it was argued, the majority found to be proved:
(a) that Miss King was well qualified but had failed even to be short-listed;
(b) that those short-listed were all white whereas Miss King was ethnic Chinese;
(c) that the Centre had never had an ethnic Chinese employee;
(d) that the non-discriminatory grounds for short-listing which had been put forward by the Centre did not stand scrutiny; and
(e) that the inference of discrimination which the majority were prepared to draw from the evidence was not displaced by the explanations that had been given on behalf of the Centre but was indeed in part confirmed by these explanations.
It was submitted that where the evidence establishes that a complainant has been treated less favourably than others of a different race the industrial tribunal will be entitled to infer that the racial difference was the ground for the less favourable treatment unless the evidence taken as a whole affords a credible alternative explanation. In these circumstances, it was said, the majority were correct in law in their approach to the case. Though they had not concerned themselves in terms with any questions about a shifting burden of proof they in effect found that Miss King had proved her case because the Centre had not discharged the evidential burden which the facts imposed on them. The Centre had not provided a satisfactory explanation for what looked at first sight as a case of unlawful discrimination.
On behalf of the Centre, on the other hand, it was submitted that the Employment Appeal Tribunal were correct in holding that the industrial tribunal had fallen into error. The burden of proving unlawful discrimination rested throughout on the complainant. All the previous authorities on racial discrimination showed that the question of the employer’s explanation only became relevant when the primary facts pointed to unlawful discrimination. In these cases the successful complainants were able to demonstrate that the persons appointed were less well qualified than they were. One could not draw an inference of unlawful discrimination where the primary facts were neutral.
The authorities
In the course of the hearing the court was referred to a number of authorities. It will be convenient to consider them in chronological order. I propose to start with Khanna v. Ministry of Defence [1981] ICR 653, where the applicant, who had been born in India, had made twenty-two unsuccessful applications for promotion. On the last occasion he brought proceedings alleging unlawful racial discrimination and relying on the fact that the person selected had less experience than he had. The judgment of the Employment Appeal Tribunal was delivered by Browne-Wilkinson J. At p.658 the President suggested that in future industrial tribunals mighft find it easier to forget about the rather nebulous concept of the “shift in the evidential burden”. A little later he continued:
“In this case the industrial tribunal would, we suspect, have found the case rather more straightforward if, looking at all the evidence as a whole, they had simply decided whether the complaint had been established. No useful purpose is served by stopping to reach a conclusion on half the evidence. The right course in this case was for the industrial tribunal to take into account the fact that direct evidence of discrimination is seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will means the complaint succeeds: …. Those propositions are, we think, most easily understood if concepts of shifting evidential burdens are avoided.
So, in this case, the industrial tribunal has drawn the inference of possible discrimination from the fact that there was no obvious reason why the applicant should not have got the job: ….
To decide that there has been discrimination in the face of sworn evidence that there was no such discrimination is unpalatable: equally, racial discrimination does undoubtedly exist, and it is highly improbable that a person who has discriminated is going to admit the fact, quite possibly even to himself. The judicial function, however unpalatable, is to resolve such conflicts by a decision if possible.”
Later the same year in Chattopadhyay v. Headmaster of Holloway School [1982] ICR 132 the Employment Appeal Tribunal considered the case of an Indian teacher who had applied unsuccessfully for the post of head of history at Holloway School. At p.137 Browne-Wilkinson J. referred to the rather special nature of proceedings involving allegations of discrimination contrary to the 1976 Act and continued:
“As has been pointed out many times, a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the respondent. All that the applicant can do is to point to certain facts which, if unexplained, are consistent with his having been treated less favourably than others on racial grounds. In the majority of cases it is only the respondents and their witnesses who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent, motivations. It is for this reason that the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation.”
The decision in Khanna (supra) was commented upon in two later cases in the Court of Appeal. In Morris v. London Iron and Steel Co Ltd. [1987] ICR 855 May LJ said that he did not find the case of Khanna “an easy or satisfactory one” (863E) or “entirely satisfactory” (864A). He reiterated that the burden of proof lay on the complainant to make out a case of unlawful discrimination.
A year later in North West Thames Regional Health Authority v. Noone [1988] ICR 813 May LJ at p.822 repeated his comment that he did not find the decision in Khanna “altogether satisfactory”. He then continued as follows:
“In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. ,; It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an adequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds.”
This is an important passage and it is to be noted that it was set out in full in paragraph 8 of the industrial tribunal’s Reasons in the instant case. But it is also relevant to observe:
(a) that in Noone (supra) at p.831 Balcombe LJ referred with apparent approval to the passages in the judgments of Browne-Wilkinson J in Khanna and Chattopadhyay which
I have already set out; and
(b) that in West Midlands Transport v. Singh [1988] ICR 614 Balcombe LJ, delivering the judgment of the Court of Appeal in a case involving an application for discovery, cited at p.618 the same passage in Browne-Wilkinson’s J judgment in Chattopadhyay in support of the proposition that “cases based on racial, or sexual, discrimination have a number of special features”.
In the course of the argument we were referred to other recent cases including Barking and Dagenham Council v. Camara [1988] ICR 865; Baker v. Cornwall County Council [1990] ICR 452 and the valuable judgment of Wood J in the Employment Appeal Tribunal in British Gas Plc v. Sharma [1991] ICR 19.
From these several authorities it is possible, I think, to extract the following principles and guidance:
(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) 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 “he or she would not have fitted in”.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal- These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the 1976 Act from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone,
“almost common sense”.
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.
I return to the facts of the present case. Miss King is an ethnic Chinese. So were four other of the thirty candidates. Eight candidates were called for interview. None of these eight candidates was an ethnic Chinese. The majority of the tribunal were satisfied that Miss King’s paper qualifications fulfilled the requirements set out in the advertisement and in the job specification, and that she had been treated less favourably than the candidates called for interview, particularly candidates 5 and 7. The majority were also impressed by the fact that no ethnic Chinese had ever been employed by the Centre.
In these circumstances the tribunal were clearly entitled to look to the Centre for an explanation of the fact that Miss King was not even called for an interview. The majority, however, found the explanation unsatisfactory and were also dissatisfied with the reply to the questionnaire. They therefore concluded that Miss King had made out her case.
It is not now said that the conclusion of the majority was perverse. But it is submitted that they misdirected themselves, the submission being based on the language used in the Reasons and in particular in the underlined passages. I have considered this submission with great care and I have taken account of the fact that the submission was accepted by the President of the Employment Appeal Tribunal and by two very experienced lay members of that Tribunal. In the end I am quite satisfied that reading the relevant parts of the Reasons as a whole the majority’s decision was not flawed by an error of law. They clearly had in mind that it was for Miss King to make out her case: see the reference to Noone in paragraph 8 of the Reasons. They were entitled to look to the Centre for an explanation of the fact that Miss King was not selected for interview. They were not satisfied with the explanation and they were entitled to say so. It was therefore legitimate for them to draw on inference that the discrimination was on racial grounds. This process of reasoning did not involve a reversal of the burden of proof but merely a proper balancing of the factors which could be placed in the scales for and against a finding of unlawful discrimination.
I would therefore allow the appeal and restore the order of the industrial tribunal”
Strathclyde Regional Council v. Zafar
[1997] UKHL 54 [1998] ICR 120, [1997] WLR 1659
HOUSE OF LORDS LORD BROWNE-WILKINSON
“ Claims brought under the Act of 1976 and the Sex Discrimination Act 1975 present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them. Over the years since 1975 the courts have sought to give guidance to Industrial Tribunals as to how inferences of fact can properly be drawn in this context. The best guidance is that given by Neill L.J. in King [1991] IRLR 513 at 518. After reviewing the relevant authorities, he said this:
“From these several authorities it is possible, I think, to extract the following principles and guidance:
(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would 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.’
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in Noone, ‘almost common sense.’
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”
In my judgment that is the guidance which should in future be applied in these cases. In particular, certain remarks of mine in the Employment Appeal Tribunal in Khanna v. Ministry of Defence [1981] I.R.L.R. 331 and Chattopadhyay (supra) to the effect that such inference “should” be drawn put the matter too high, are inconsistent with later Court of Appeal authority and should not be followed.
For these reasons which are the same as those of the Second Division I would dismiss this appeal.”
Gina Davis V Dunnes Stores DEC-S2005/022
“1. Dispute
1.1 This dispute concerns a claim by Gina Davis that on 27 September 2002, she was treated in a discriminatory manner by a member of the respondent’s staff, contrary to Sections 5 and 3(2) (e) and (h) of the Equal Status Acts 2000-2004 . The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Acts 1998-2004 and under the Equal Status Acts 2000-2004, the Director then delegated the case to me, Dolores Kavanagh, 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 Act.
2. Summary of Complainants’ Case
2.1 The complainant is an Irish national and a practicing Muslim. On the date in question she states that she was treated in a discriminatory manner by a shop assistant because she, the complainant, was wearing a distinctive head-scarf and Islamic dress (described by the complainant as a long black coat).
3. Summary of Respondent’s Case
3.1 The respondent denies that discrimination occurred and states that the shop assistant treated the complainant in a manner consistent with the way in which all other customers are treated and with store policy in relation to use of the store’s fitting room facilities i.e that only four items are allowed per customer and customers are not allowed to bring certain items into the fitting rooms with them e.g. panties.
4 Background
4.1 Complainant
The complainant states that she accompanied her mother, who was not wearing Islamic attire or a head-scarf, to the respondent store on the date in question to do some shopping. They selected some items of clothing and approached the fitting rooms. The complainant’s mother was slightly ahead of her as they neared the entrance to the fitting rooms. The fitting room assistant was talking on the phone as they approached. The complainant’s mother held some items out in clear view of the attendant and proceeded into the fitting rooms.
The complainant was pregnant at the time and was pushing a buggy in front of her. She made to follow her mother into the fitting rooms and states that the attendant addressed her in a rude fashion and told her to stand back and place any items which she was not going to try on on a nearby chair. The complainant did as the attendant requested and then held out the items which she intended trying on for the attendant to see. A queue of people seeking to use the fitting rooms had begun to form behind the complainant. The complainant states that the attendant then started to rummage through the items which she was holding out and asked the complainant whether she had any panties in through the items. The complainant protested at this and the attendant then stated that she was going to fetch security.
The complainant was extremely upset by the manner in which she was treated in such a public place and was shocked to hear that the attendant was going to fetch security when she had done nothing wrong. Her mother had not been treated in this manner and the only difference between them as far as the complainant could see was the manner in which they were dressed. The complainant feels that she was treated less favourably than her mother on the grounds of race and religion. It is the complainant’s contention that the manner in which she was dressed led the attendant to conclude that she was of another race or nationality, as well as a Muslim.
4.2 Respondent
The respondent states that the attendant referred to by the complainant is a senior and very experienced and respected member of staff who has always been polite and helpful in her duties and to customers.
On the date and at the time in question the attendant was occupied on the phone when the complainant approached. The attendant was assisting another customer by checking the availability of a particular item in other stores in the chain.
The attendant saw a “dark figure with a buggy in front”, the complainant, approach. The attendant asked the complainant to hold on a minute as she had to check her through. The attendant could not clearly see how many items the complainant had as they were partially wrapped over the customer’s arm. The complainant asked why she was being checked through in this manner as her mother had not been checked through in the same way. The attendant terminated her phone call in order to deal with the complainant. The complainant then accused the attendant of being racist. The attendant asked the complainant whether her mother had gone through to the fitting rooms and the complainant confirmed that she had. The complainant then called out to her mother and a lady came out of one of the fitting rooms.
The complainant then stated “Mom, she is a racist, she did not check you through but she is checking me through. The attendant asked the complainant’s mother to confirm that she had checked her through in the normal way and she did so. The complainant’s mother asked the complainant to calm down that the attendant “was only doing her job, she did check me through”.
The complainant repeated that the attendant was racist. The attendant was shocked at this and stated that she was going to fetch security as she was not going to deal with this. The attendant saw a colleague passing nearby and asked her to get somebody from security. A member of the security staff and a manager arrived and the manager took the attendant away out of the situation. The security officer spoke with the complainant and her mother and calmed the complainant down.
The complainant subsequently wrote to the store manager about the incident. The drapery manager wrote to the complainant indicating that she would like to speak further with the complainant about what had happened and inviting the complainant to contact her. The complainant declined to do so in a further letter. The store manager then wrote to the complainant refuting the complainant’s allegations and indicating that it was the complainant who was discourteous to the attendant.
At the Hearing of this complaint the respondent submitted a written statement from the security officer who attended at the fitting rooms on the day in question. The complainant confirmed that the statement was an accurate account of what occurred after the security officer arrived at the fitting rooms on the day in question. The statement indicates that the security officer calmed the complainant down and invited the complainant and her mother to have a cup of tea in the store’s restaurant. The statement also indicates that the security officer vouched for the fitting room attendant to the complainant and that the complainant’s mother agreed with the security officer that the attendant was “ a lovely person” and had been very helpful to her “on numerous occasions.”
The statement also indicates that the complainant’s mother asked the complainant, who was pregnant at the time, to calm down and that she, the complainant was “probably a bit touchy in your condition”.
5. Prima Facie Case
Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a ) Applicability of a discriminatory ground (e.g. the race or religion ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainants was less
favourable than the treatment someone, not covered by that ground, would have received in the same, or similar circumstances.
5.2 If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the complainant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case – Complainant
6.1 Religion Ground
The complainant is a Muslim and this is not disputed by the respondent. This fulfils (a) at 5.1 above. It is common case that the complainant was asked by the fitting room attendant to wait until she checked her through. This fulfils (b) at 5.1 above. In relation to key element (c) above the complainant has indicated that she was pushing a child’s buggy and had more than the permitted number of items in her possession as she approached the fitting rooms. While it is clear that two of the items, i.e two pairs of baby tights, were not to be tried on by the complainant, the fact remains that she had additional items which her mother did not have. The attendant asked her to place the items on a nearby chair and proceeded to check the remaining items. While the method of checking these items is in dispute, it is clear from all of the evidence provided that the Islamic dress worn by the complainant, while distinctive, was not the only difference between her and her mother. The additional items and/or the fact that the complainant was pushing a buggy towards the fitting rooms are all matters which might have drawn the attendant’s attention in that, while the complainant states that she did not have the items to be tried on by her wrapped over her arm but was holding them in plain sight, it is difficult to accept that this was so when the complainant would have been controlling the buggy and holding the items at the same time.
I am further struck by the fact that the complainant compares what she sees as the difference in treatment received by her and her mother alone to arrive at the conclusion that discrimination occurred. Evidence was presented to the effect that the complainant’s mother is familiar with the fitting room attendant from visits to the store on “numerous occasions”. The complainant gave no indication that she was familiar with the attendant. It is possible that the attendant was simply more familiar with the complainant’s mother and was therefore less methodical in checking her through than she was with the complainant. In short, the method in which the complainant was checked through could be the norm while the manner in which her mother was checked through is the exception, and is not based on any discriminatory motive. The complainant did not out forward any other comparators from which to draw her conclusions.
In light of the evidence presented I am not satisfied, on balance, that the complainant has established that the treatment which she received was less favourable than the treatment which somebody with a different religion or no religion would have been treated in the same or similar circumstances. The complainant has failed to satisfy key element (c) at 5.1 above and has therefore failed to establish a prima facie case of discrimination on the religion ground.
6.2 Race Ground
The complainant is an Irish national, as is the fitting room attendant. The complainant contends that the attendant imputed a different race/nationality to her by dint of the complainant’s attire, something which the complainant states she has previously experienced, and which is not difficult to accept as something that might occur. The respondent disputes the complainant’s assertion in this regard.
The complainant is basing her assertion in this regard on previous experience and has provided no evidence to show that that is what happened on this occasion. Even if I were to accept that the fitting room attendant had imputed another race/nationality to the complainant and that the complainant was covered by the race ground in accordance with 5(a) above, and I am not satisfied that that is the case, the complainant would have to further show that she was treated in a specific manner and that this treatment was less favourable than that which someone not covered by the ground would be receive in the same or similar circumstances. In the instant case the complainant cites her mother as the direct comparator and states that she was treated in a less favourable manner than her mother on the basis that the attendant imputed that she was of another race/nationality by dint of her attire. For the reasons set out at 6.1 above, I am not satisfied, on balance, that this was the case, i.e the complainant’s attire was not the only thing that differentiated her from her mother at the time in question.
I am not satisfied, on balance, that the complainant, by dint of her attire, was identified by the fitting room attendant as being of another race or nationality. I am not satisfied that the treatment of the complainant by the fitting room attendant was such that it was less favourable than the treatment received by the complainant’s mother on the race ground as there were differences other than the attire of the complainant and her mother which could have given rise to the complainant having been stopped by the fitting room attendant. The complainant has failed to fulfil (a) or (c) at 5(1) above and has therefore failed to establish a prima facie case of discrimination on the race ground.”
Gina Davis V Dunnes Stores
DEC-S2005/022
“1. Dispute
1.1 This dispute concerns a claim by Gina Davis that on 27 September 2002, she was treated in a discriminatory manner by a member of the respondent’s staff, contrary to Sections 5 and 3(2) (e) and (h) of the Equal Status Acts 2000-2004 . The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Acts 1998-2004 and under the Equal Status Acts 2000-2004, the Director then delegated the case to me, Dolores Kavanagh, 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 Act.
2. Summary of Complainants’ Case
2.1 The complainant is an Irish national and a practicing Muslim. On the date in question she states that she was treated in a discriminatory manner by a shop assistant because she, the complainant, was wearing a distinctive head-scarf and Islamic dress (described by the complainant as a long black coat).
3. Summary of Respondent’s Case
3.1 The respondent denies that discrimination occurred and states that the shop assistant treated the complainant in a manner consistent with the way in which all other customers are treated and with store policy in relation to use of the store’s fitting room facilities i.e that only four items are allowed per customer and customers are not allowed to bring certain items into the fitting rooms with them e.g. panties.
4 Background
4.1 Complainant
The complainant states that she accompanied her mother, who was not wearing Islamic attire or a head-scarf, to the respondent store on the date in question to do some shopping. They selected some items of clothing and approached the fitting rooms. The complainant’s mother was slightly ahead of her as they neared the entrance to the fitting rooms. The fitting room assistant was talking on the phone as they approached. The complainant’s mother held some items out in clear view of the attendant and proceeded into the fitting rooms.
The complainant was pregnant at the time and was pushing a buggy in front of her. She made to follow her mother into the fitting rooms and states that the attendant addressed her in a rude fashion and told her to stand back and place any items which she was not going to try on on a nearby chair. The complainant did as the attendant requested and then held out the items which she intended trying on for the attendant to see. A queue of people seeking to use the fitting rooms had begun to form behind the complainant. The complainant states that the attendant then started to rummage through the items which she was holding out and asked the complainant whether she had any panties in through the items. The complainant protested at this and the attendant then stated that she was going to fetch security.
The complainant was extremely upset by the manner in which she was treated in such a public place and was shocked to hear that the attendant was going to fetch security when she had done nothing wrong. Her mother had not been treated in this manner and the only difference between them as far as the complainant could see was the manner in which they were dressed. The complainant feels that she was treated less favourably than her mother on the grounds of race and religion. It is the complainant’s contention that the manner in which she was dressed led the attendant to conclude that she was of another race or nationality, as well as a Muslim.
4.2 Respondent
The respondent states that the attendant referred to by the complainant is a senior and very experienced and respected member of staff who has always been polite and helpful in her duties and to customers.
On the date and at the time in question the attendant was occupied on the phone when the complainant approached. The attendant was assisting another customer by checking the availability of a particular item in other stores in the chain.
The attendant saw a “dark figure with a buggy in front”, the complainant, approach. The attendant asked the complainant to hold on a minute as she had to check her through. The attendant could not clearly see how many items the complainant had as they were partially wrapped over the customer’s arm. The complainant asked why she was being checked through in this manner as her mother had not been checked through in the same way. The attendant terminated her phone call in order to deal with the complainant. The complainant then accused the attendant of being racist. The attendant asked the complainant whether her mother had gone through to the fitting rooms and the complainant confirmed that she had. The complainant then called out to her mother and a lady came out of one of the fitting rooms.
The complainant then stated “Mom, she is a racist, she did not check you through but she is checking me through. The attendant asked the complainant’s mother to confirm that she had checked her through in the normal way and she did so. The complainant’s mother asked the complainant to calm down that the attendant “was only doing her job, she did check me through”.
The complainant repeated that the attendant was racist. The attendant was shocked at this and stated that she was going to fetch security as she was not going to deal with this. The attendant saw a colleague passing nearby and asked her to get somebody from security. A member of the security staff and a manager arrived and the manager took the attendant away out of the situation. The security officer spoke with the complainant and her mother and calmed the complainant down.
The complainant subsequently wrote to the store manager about the incident. The drapery manager wrote to the complainant indicating that she would like to speak further with the complainant about what had happened and inviting the complainant to contact her. The complainant declined to do so in a further letter. The store manager then wrote to the complainant refuting the complainant’s allegations and indicating that it was the complainant who was discourteous to the attendant.
At the Hearing of this complaint the respondent submitted a written statement from the security officer who attended at the fitting rooms on the day in question. The complainant confirmed that the statement was an accurate account of what occurred after the security officer arrived at the fitting rooms on the day in question. The statement indicates that the security officer calmed the complainant down and invited the complainant and her mother to have a cup of tea in the store’s restaurant. The statement also indicates that the security officer vouched for the fitting room attendant to the complainant and that the complainant’s mother agreed with the security officer that the attendant was “ a lovely person” and had been very helpful to her “on numerous occasions.”
The statement also indicates that the complainant’s mother asked the complainant, who was pregnant at the time, to calm down and that she, the complainant was “probably a bit touchy in your condition”.
5. Prima Facie Case
Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a ) Applicability of a discriminatory ground (e.g. the race or religion ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainants was less
favourable than the treatment someone, not covered by that ground, would have received in the same, or similar circumstances.
5.2 If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the complainant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case – Complainant
6.1 Religion Ground
The complainant is a Muslim and this is not disputed by the respondent. This fulfils (a) at 5.1 above. It is common case that the complainant was asked by the fitting room attendant to wait until she checked her through. This fulfils (b) at 5.1 above. In relation to key element (c) above the complainant has indicated that she was pushing a child’s buggy and had more than the permitted number of items in her possession as she approached the fitting rooms. While it is clear that two of the items, i.e two pairs of baby tights, were not to be tried on by the complainant, the fact remains that she had additional items which her mother did not have. The attendant asked her to place the items on a nearby chair and proceeded to check the remaining items. While the method of checking these items is in dispute, it is clear from all of the evidence provided that the Islamic dress worn by the complainant, while distinctive, was not the only difference between her and her mother. The additional items and/or the fact that the complainant was pushing a buggy towards the fitting rooms are all matters which might have drawn the attendant’s attention in that, while the complainant states that she did not have the items to be tried on by her wrapped over her arm but was holding them in plain sight, it is difficult to accept that this was so when the complainant would have been controlling the buggy and holding the items at the same time.
I am further struck by the fact that the complainant compares what she sees as the difference in treatment received by her and her mother alone to arrive at the conclusion that discrimination occurred. Evidence was presented to the effect that the complainant’s mother is familiar with the fitting room attendant from visits to the store on “numerous occasions”. The complainant gave no indication that she was familiar with the attendant. It is possible that the attendant was simply more familiar with the complainant’s mother and was therefore less methodical in checking her through than she was with the complainant. In short, the method in which the complainant was checked through could be the norm while the manner in which her mother was checked through is the exception, and is not based on any discriminatory motive. The complainant did not out forward any other comparators from which to draw her conclusions.
In light of the evidence presented I am not satisfied, on balance, that the complainant has established that the treatment which she received was less favourable than the treatment which somebody with a different religion or no religion would have been treated in the same or similar circumstances. The complainant has failed to satisfy key element (c) at 5.1 above and has therefore failed to establish a prima facie case of discrimination on the religion ground.
6.2 Race Ground
The complainant is an Irish national, as is the fitting room attendant. The complainant contends that the attendant imputed a different race/nationality to her by dint of the complainant’s attire, something which the complainant states she has previously experienced, and which is not difficult to accept as something that might occur. The respondent disputes the complainant’s assertion in this regard.
The complainant is basing her assertion in this regard on previous experience and has provided no evidence to show that that is what happened on this occasion. Even if I were to accept that the fitting room attendant had imputed another race/nationality to the complainant and that the complainant was covered by the race ground in accordance with 5(a) above, and I am not satisfied that that is the case, the complainant would have to further show that she was treated in a specific manner and that this treatment was less favourable than that which someone not covered by the ground would be receive in the same or similar circumstances. In the instant case the complainant cites her mother as the direct comparator and states that she was treated in a less favourable manner than her mother on the basis that the attendant imputed that she was of another race/nationality by dint of her attire. For the reasons set out at 6.1 above, I am not satisfied, on balance, that this was the case, i.e the complainant’s attire was not the only thing that differentiated her from her mother at the time in question.
I am not satisfied, on balance, that the complainant, by dint of her attire, was identified by the fitting room attendant as being of another race or nationality. I am not satisfied that the treatment of the complainant by the fitting room attendant was such that it was less favourable than the treatment received by the complainant’s mother on the race ground as there were differences other than the attire of the complainant and her mother which could have given rise to the complainant having been stopped by the fitting room attendant. The complainant has failed to fulfil (a) or (c) at 5(1) above and has therefore failed to establish a prima facie case of discrimination on the race ground.”
MW v Waterford Institute of Technology
DEC-E2003-022
“1. DISPUTE
The dispute concerns a complaint that Waterford Institute of Technology (WIT) discriminated against Ms Kathleen MW on the grounds of her race contrary to the provisions of the Employment Equality Act, 1998 in the conduct of a competition to appoint a Lecturer at the college.
2. BACKGROUND
2.1 The complainant is an American citizen and is employed as an Assistant Lecturer at WIT. The WIT held a competition in December, 2001 to fill vacancies at Lecturer level. The complainant applied for one of the positions but was unsuccessful. It is her contention that the reason she failed to secure the position was that she is an American citizen.
2.2 The TUI on behalf of the complainant referred a complaint to the Director of Equality Investigations on 9th May, 2002. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, an Equality Officer, on 17th May, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a hearing of the complaint was held on 19th February, 2003.
……..
4.7 Referring to the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20011 and the High Court in Davis v Dublin Institute of Technology2 the respondent states that the complainant has failed to establish prima facie evidence from which a presumption of discrimination could be made. In Davis, the High Court concluded that the Labour Court had not erred in law in finding that the complainant had failed to demonstrate any significant difference between her professional and academic qualifications and those of the successful appointee and that the existence of a gender difference between the candidates, did not of itself require the Labour Court to look for any further explanation from the respondent with regard to the appointment.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the basis of her nationality in terms of Section 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 It is now the established practice of Equality Officers, in relation to the burden of proof in non-gender discrimination complaints under the 1998 Act, to follow the traditional approach of Equality Officers and of the Labour Court in relation to the gender and marital status grounds, of shifting the burden of proof when the complainant has established a prima facie case. This is essentially the same practice as that subsequently applied by the European Court of Justice (in gender cases only) and set out in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001) as referred to by the respondent. In this regard see paragraphs 4.7 to 4.9 of Equality Officer’s decision DEC-E-2002-46 in McCormick and Dublin Port Company. It is for the complainant in the first instance to establish as fact one or more of the assertions on which the complaint is based and having thus established a prima facie case of discrimination, the burden of proof rests with the respondent to demonstrate that discrimination did not take place.
5.3 The substantive case put forward by the complainant is that she was better qualified for the disputed position than the appointee and that the reason why she was not appointed was that she is an American citizen. The complainant refers to her treatment at interview and remarks made to her during the interview which she contends amounted to discriminatory treatment on the race ground and refers to other incidents on the college campus involving students which she believes are supportive of her contention that the college authorities tolerate race based denigration of staff.
5.4 I will firstly consider the question of the complainant’s standing vis a vis the appointee in terms of her qualifications and experience. In order for the burden of proof in this respect to shift to the respondent it is necessary for the complainant to demonstrate a significant difference between herself and the appointee in terms of her qualifications and experience relevant to the requirements of the disputed position. The advertised requirements for the position were:
“Candidates for these posts must possess an honours primary degree (2.2 or higher) in the relevant discipline (or with one of those disciplines as a major subject in the award year of the degree) and three years post-graduate experience. In addition, to be considered for appointment at lecturer level, candidates must possess a masters degree (or equivalent) in a relevant discipline.”
A copy of the advertisement is included at Appendix 1. A disagreement exists between the parties as to the academic ranking of the complainant’s qualifications, which she obtained in America, compared to those of the appointee who obtained her qualifications in Ireland and England. The complainant holds a Juris Doctorate qualification which the respondent understood at the time of the interview to be equivalent to a Masters qualification. I note that the respondent now believes it to equate to a primary degree but I consider what is relevant was how the complainant’s qualifications were viewed at the time of the interview. She also holds a B.A. degree (majoring in Government) and was admitted to practice at the Illinois State Bar (1982), the Missouri State Bar (1983) and the US Supreme Court (1985). The complainant produced at the hearing a statement from the American Bar Association to the effect that it regards the complainant’s Juris Doctorate degree to be equivalent to a PhD (Appendix 2). The complainant also produced a letter (Appendix 3) from the Higher Education and Training Awards Council (HETAC) to the effect that it regards the Juris Doctorate as equivalent to the qualifications required under HETAC regulations for the supervision of a research masters programme although it states that the Juris Doctorate, which does not always require a research project as part of its course work, is not a PhD. The complainant does not at any point suggest that her qualifications could be deemed to exceed those of the appointee. The appointee holds a BA in Laws, a postgraduate LLM in Commercial Law, a Doctorate in Family Law and is a Barrister at Law. I note that in addition to being called to the bar, the appointee has two post graduate qualifications i.e. a masters and a PhD.
5.5 The complainant refers to her experience in America and suggests that it was effectively ignored by the interview board. The complainant practised law in America in various capacities described as law clerk, law partner, judicial law clerk and consultant attorney from the time she obtained her Juris Doctorate in 1981 up until 1995 when she came to Ireland. Both complainant and appointee have various publications to their credit. The appointee spent six years tutoring and lecturing in Irish universities and the Law Society and one year in a research position in the Law Courts in London. At the hearing the respondent furnished a copy of the marking sheet completed by the interview board. The extracted table below shows (1) the marks awarded to the appointee, (2) marks awarded to the non-Irish candidate placed second and (3) marks awarded to the complainant who shared third place with two other candidates.
Place Qualification (25) Experience (25) Skills & Abilities (25) Personal Qualities (25) Total
1 25 21 25 25 96
2 20 23 22 22 87
3 21 23 21 21 86
The marks show that the appointee was awarded the maximum 25 marks for qualifications while the complainant was awarded 21. The appointee was awarded 21 marks for experience while the complainant was awarded a higher mark i.e. 23 marks for experience. The respondent argues that the marks for experience for the complainant and the candidate placed second, both of whom gained their earlier experience abroad, were higher than those of the appointee and disprove any suggestion that overseas experience was not given due recognition. I am satisfied that the above evidence does not create any inference of discrimination on the race ground.
5.6 The complainant has referred to the conduct of her interview (paragraph 3.3 above) i.e. how she felt her experience was not adequately addressed when her CV was being discussed, how she would feel about teaching Irish students, disparaging comments about the legal profession and a jocose reference to an American by members of the interview board. The respondent has stated that the complainant’s experience was covered in full when the relevant interview board member went through her application form (rather than her CV) and I note that the complainant was credited with higher marks than the appointee in relation to experience. I accept the respondent’s argument that candidates who had trained abroad were questioned about lecturing to Irish students and that the line of questioning was not connected with the complainant’s American nationality. The remarks about the legal profession to which the complainant objected were unconnected with her American nationality. While I am satisfied that the subsequent attribution of “the law is an ass” comment to an American was made in the context of the complainant’s own nationality, I consider that a reference to the complainant’s nationality does not in itself provide evidence of discrimination on the race ground.
5.7 I consider that the complainant’s contention that the college has adopted a racist approach when making academic appointments is not supported by the evidence. The member of the interview panel whom the complainant states favoured the Irish appointee from the outset, was a member of the panel who appointed the complainant when she commenced employment with the college and there was no suggestion that her American nationality was an issue on that occasion. The college has also pointed out that a South African candidate in the disputed competition was placed second on the panel ahead of the complainant. This candidate was appointed to an Assistant Lecturer position, albeit a lower grade position than the Lecturer position which the complainant applied for. No evidence was presented as to the relative qualifications and experience of the South African candidate compared to those of the appointee or the complainant however I would regard his/her appointment as supportive of the college’s contention that it recruits staff of various nationalities. The college cited several other examples where lecturing staff of different nationalities were employed by the college and referred to its ongoing contacts with American universities and the fact that a visiting group of American academics were being hosted at the college on the day of the hearing. The complainant suggests that the college was in breach of its own equal opportunities policy when it advertised the Lecturer post in the national newspapers without posting the vacancies internally in the college however the complainant has adduced no evidence that this approach affected her to a greater extent than any other candidate or could in any sense be deemed to be discriminatory treatment on the race ground. The appointee herself was an internal candidate. With regard to the complaint that the appointee had free access to the Head of the School of Humanities prior to the interviews and was promised the Lecturer post by him, the respondent has rejected the allegation and I do not consider that there is any evidence that the complainant’s nationality was viewed negatively by the Head of the School of Humanities.
5.8 With regard to the incident where a student used the term ‘anal’ and said that it was a term used by Americans all the time (paragraph 3.5 above), I note that following her encounter with the student, the complainant sent a memo to the Head of Department concerning the student’s work headed ‘Re : (student’s name) – Bridging Studies’ . In this memo she referred to the student’s use of the term ‘anal’ and how she found it insulting and his subsequent apology for using the term. However the thrust of the memo concerned the student’s resort to plagiarism in his assignment and that the matter was in the hands of the course board. The memo did not call for any action on the part of the college authorities in relation to the use of the term ‘anal’ or suggest that any further action was necessary. I do not consider that this incident supports the complainant’s contention that the college is tolerant of racist abuse of lecturers by students.
5.9 The college accepts that the complainant made a complaint regarding a remark made to her when she remonstrated with students about smoking in a college building (paragraph 3.5 above). The respondent states however that when the Human Resources Manager was asked by the complainant to investigate the incident, neither the complainant nor any other member of staff could identify the culprit. I do not consider that this incident is indicative of a tolerance of racist abuse by students. The complainant also referred to what she regarded as preferential treatment of the appointee at the time of her initial appointment at Assistant Lecturer level, suggesting that unlike the complainant, the Irish lecturer was allocated an office, a desk and a computer. No evidence was presented that the alleged preferential treatment was the subject of a complaint to the college authorities at the time and given the college’s explanation that the Irish lecturer was allocated the office of the lecturer whom she was temporarily replacing, I do not consider that these matters support the complainant’s allegation of discrimination on the race ground.
5.10 Having regard to the evidence presented, I consider that the complainant has failed to demonstrate a significant difference between herself and the appointee in terms of her qualifications and experience, has not adduced credible evidence that she was adversely treated at interview or otherwise subjected to discriminatory treatment at the Waterford Institute of Technology on the ground of her nationality. I consider therefore that the complainant has failed to demonstrate a prima facie case of discrimination and consequently failed to shift the burden of proof to the respondent in this case.
6. DECISION
6.1 On the basis of the foregoing, I find that Waterford Institute of Technology did not discriminate against the complainant on the race ground in terms of Section 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act in the conduct of the competition to appoint a college Lecturer in December, 2001.”
Nandla (Sewa Singh) v Dowell Lee
[1982] UKHL 7 [1983] IRLR 209, [1983] 2 WLR 620, [1983] ICR 385, [1983] 2 AC 548
Lord Fraser of Tullybelton
“The main question in this appeal is whether Sikhs are a ” racial group ” for the purposes of the Race Relations Act 1976 (” the 1976 Act”). For reasons that will appear, the answer to this question depends on whether they are a group defined by reference to ” ethnic origins “.
…..
The main purpose of the 1976 Act is to prohibit discrimination against people on racial grounds, and more generally, to make provision with respect to relations between people of different racial groups. So much appears from the long title. The scheme of the Act, so far as is relevant to this appeal, is to define in Part I what is meant by racial discrimination and then in later Parts to prohibit such discrimination in various fields including employment, provision of goods, services and other things, and by section 17 in the field of education. There can be no doubt that, if there has been racial discrimination against the appellants in the present case, it was in the field of education, and was contrary to section 17(a) which makes it unlawful for the proprietor of an independent school to discriminate against a person in the terms on which the school offers to admit him as a pupil. The only question is whether any racial discrimination has occurred.
Racial discrimination is defined in section 1(1) which provides as follows:
” 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; or
” (b) He applies to that other a requirement or condition which he
” applies or would apply equally to persons not of the same
” racial group as that other but—
” (i) which is such that the proportion of persons of the same
” racial group as that other who can comply with it is
” considerably smaller than the proportion of persons not
” of that racial group who can comply with it; and
” (ii) which he cannot show to be justifiable irrespective of the
” colour, race, nationality or ethnic or national origins of
” the person to whom it applied; and
” (iii) which is to the detriment of that other because he cannot
” comply with it.”
The type of discrimination referred to in paragraph (a) of that subsection is generally called ” direct ” discrimination. When the present proceedings began in the county court, direct discrimination was alleged, but the learned judge held that there had been no direct discrimination, and his judgment on that point was not challenged in the Court of Appeal or before your Lordships’ House. The appellant’s case in this House was based entirely on ” indirect” discrimination, that is, discrimination contrary to paragraph (b) of subsection 1(1). When the proceedings began the appellants claimed damages, but that claim was not pursued before this House. Having regard to section 57(3) of the 1976 Act, it would have been unlikely to succeed.
……..
…….. As I have already said, the first main question is whether the Sikhs are a racial group. If they are, then two further questions arise. Question two is what is the meaning of ” can ” in paragraph (i) of section 1(1)(b), and question three is, what is the meaning of “justifiable” in paragraph (ii) of that subsection?
“Ethnic origins”
Racial group is defined in section 3(1) of the Act which provides:
” ‘ Racial group ‘ means a group of persons defined by reference to colour, ” race, nationality or ethnic or national origins, and references to a person’s ” racial group refer to any racial group into which he falls “.
It is not suggested that Sikhs are a group defined by reference to colour, race, nationality or national origins. In none of these respects are they distinguishable from many other groups, especially those living, like most Sikhs, in the Punjab. The argument turns entirely upon whether they are a group defined by ” ethnic origins “. It is therefore necessary to ascertain the sense in which the word ” ethnic ” is used in the Act of 1976. We were referred to various dictionary definitions. The Oxford English Dictionary (1897 edition) gives two meanings of “ethnic”. The first is “pertaining ” to nations not Christian or Jewish; gentile, heathen, pagan “. That clearly cannot be its meaning in the 1976 Act, because it is inconceivable that
Parliament would have legislated against racial discrimination intending that the protection should not apply either to Christians or (above all) to Jews. Neither party contended that that was the relevant meaning for the present purpose. The second meaning given in the Oxford English Dictionary (1897 edition) was ” pertaining to race; peculiar to a race or ” nation; ethnological “. A slightly shorter form of that meaning (omitting ” peculiar to a race or nation “) was given by the Concise Oxford Dictionary in 1934 and was expressly accepted by Lord Denning M.R. as the correct meaning for the present purpose. Oliver and Kerr L.JJ. also accepted that meaning as being substantially correct, and Oliver L.J. at [1982] 3 W.L.R. 941G said that the word ” ethnic ” in its popular meaning involved ” essentially a racial concept—the concept of something with which the ” members of the group are born; some fixed or inherited characteristic “.
The respondent, who appeared on his own behalf, submitted that that was the relevant meaning of “ethnic” in the 1976 Act, and that it did not apply to Sikhs because they were essentially a religious group, and they snared their racial characteristics with other religious groups, including Hindus and Muslims, living in the Punjab.
My Lords, I recognise that ” ethnic ” conveys a flavour of race but it cannot, in my opinion, have been used in the 1976 Act in a strictly racial or biological sense. For one thing, it would be absurd to suppose that Parliament can have intended that membership of a particular racial group should depend upon scientific proof that a person possessed the relevant distinctive biological characteristics (assuming that such characteristics exist).
The practical difficulties of such proof would be prohibitive, and it is clear that Parliament must have used the word in some more popular sense.
For another thing, the briefest glance at the evidence in this case is enough to show that, within the human race, there are very few, if any, distinctions which are scientifically recognised as racial. I respectfully agree with the view of Lord Simon of Glaisdale in Ealing L.B.C. v. Race Relations Board [1972] AC 342, 362, referring to the long title of the Race Relations Act 1968 (which was in terms identical with part of the long title of the 1976 Act) when he said :
” Moreover ‘ racial’ is not a term of art, either legal or, I surmise, ” scientific. I apprehend that anthropologists would dispute how far ” the word ‘ race ‘ is biologically at all relevant to the species amusingly ” called homo sapiens “.
A few lines lower down, after quoting part of section 1(1) of the Act, the noble and learned Lord said this: ” This is rubbery and elusive language—understandably when the ” draftsman is dealing with so unprecise a concept as ‘ race ‘ in its ” popular sense and endeavouring to leave no loophole for evasion.”
I turn, therefore, to the third and wider meaning which is given in the 1972 Supplement to the Oxford English Dictionary. It is as follows: ” pertaining to or having common racial, cultural, religious, or linguistic ” characteristics, esp. designating a racial or other group within a larger ” system;”. Mr. Irvine, for the appellant, while not accepting the third (1972) meaning as directly applicable for the present purpose, relied on it to this extent, that it introduces a reference to cultural and other characteristics, and is not limited to racial characteristics. The 1972 meaning is, in my opinion, too loose and vague to be accepted as it stands. It is capable of being read as implying that any one of the adjectives, ” racial, cultural, ” religious or linguistic ” would be enough to constitute an ethnic group.
That cannot be the sense in which “ethnic” is used in the 1976 Act, as that Act is not concerned at all with discrimination on religious grounds. Similarly, it cannot have been used to mean simply any ” racial or other ” group “. If that were the meaning of ” ethnic “, it would add nothing to the word group, and would lead to a result which would be unacceptably wide. But in seeking for the true meaning of ” ethnic ” in the statute, we are not tied to the precise definition in any dictionary. The value of the 1972 definition is, in my view, that it shows that ethnic has come to be commonly used in a sense appreciably wider than the strictly racial or
biological. That appears to me to be consistent with the ordinary experience of those who read newspapers at the present day. In my opinion, the word ” ethnic ” still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin.
For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: —
(1)a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion, different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.
A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member. That appears to be consistent with the words at the end of subsection (1) of section 3:
” References to a person’s racial group refer to any racial group” into which he falls.” In my opinion, it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the 1976 Act is concerned, by which route he finds his way into the group. This view does not involve creating any inconsistency between direct discrimination under paragraph (a) and indirect discrimination under paragraph (b). A person may treat another relatively unfavourably ” on ” racial grounds ” because he regards that other as being of a particular race, or belonging to a particular racial group, even if his belief is, from a scientific point of view, completely erroneous.
Finally on this part of the argument, I think it is proper to mention that the word ” ethnic ” is of Greek origin, being derived from the Greek word ” ethnos “, the basic meaning of which appears to have been simply ” a group ” not limited by reference to racial or any other distinguishing characteristics—see Liddell & Scott’s Greek-English Lexicon (8th edition) (Oxford 1897). I do not suggest that the meaning of the English word in a modern statute ought to be governed by the meaning of the Greek word from which it is derived, but the fact that the meaning of the latter was wide avoids one possible limitation on the meaning of the English word.
My Lords, I have attempted so far to explain the reasons why, in my opinion, the word ” ethnic ” in the 1976 Act should be construed relatively widely, in what was referred to by Mr. Irvine as a broad, cultural/historic sense. The conclusion at which I have arrived by construction of the Act itself is greatly strengthened by consideration of the decision of the Court of Appeal in New Zealand (Richmond P., Woodhouse and Richardson JJ.) in King-Ansell v. Police [1979] 2 N.Z.L.R. 531. That case was discovered by the industry of the appellants’ counsel, but unfortunately not until after the Court of Appeal in England had decided the case now under appeal.
……
The respondent admitted, rightly in my opinion, that, if the proper construction of the word “ethnic” in section 3 of the 1976 Act is a wide one, on lines such as I have suggested, the Sikhs would qualify as a group defined by ethnic origins for the purposes of the Act. It is, therefore, unnecessary to consider in any detail the relevant characteristics of the Sikhs. They were originally a religious community founded about the end of the fifteenth century in the Punjab by Guru Nanak, who was born in 1469. But the community is no longer purely religious in character.
Their present position is summarised sufficiently for present purposes in the opinion of the learned county court judge in the following passage:
” The evidence in my judgment shows that Sikhs are a distinctive ” and self-conscious community. They have a history going back to ” the fifteenth century. They have a written language which a small ” proportion of Sikhs can read but which can be read by a much higher proportion of Sikhs than of Hindus. They were at one time politically supreme in the Punjab.The result is, in my opinion, that Sikhs are a group defined by a reference to ethnic origins for the purpose of the 1976 Act, although they are not biologically distinguishable from the other peoples living in the Punjab. That is true whether one is considering the position before the partition of 1947, when the Sikhs lived mainly in that part of the Punjab which is now Pakistan, or after 1947, since when most of them have moved into India.
Bozs and others v Damoli Construction Solutions Ltd (in liquidation)
DEC E2009 074
“Claim
The case concerns a claim by Mr Bozs, Mr Kocian, Mr Jarasius, Mr Jurelevicius and Mssrs Sabaliauskas that Damoli Construction Solutions Ltd., and Mr Damien Brennan, discriminated against them on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2004, in terms of access to employment, conditions of employment, discriminatory dismissal and in relation to a collective agreement.
……
“It is true that a wide-ranging breach of relevant employment legislation, while not in itself constituting a prima facie case of less favourable treatment under the protected grounds, can support an inference that discrimination has occurred, along the line of reasoning as expounded by the Court. However, I find that in the instant case, Irish comparators were available in the shape of the Irish workers who were employed by the respondent until the end of 2005, and that it is up the complainants to adduce evidence that shows less favourable treatment compared to these Irish workers, including a potentially selective breach of employment rights on account of the complainants’ nationality. I therefore propose to examine the complainants’ evidence from this perspective.
None of the complainants were in a position to show that the respondent’s Irish workers were paid according to the REA, or that they were entered into the appropriate pension scheme. All complainants who were present at the hearing of the complaint said that they were not aware of the situation of the respondent’s Irish workers. The only evidence adduced that shed some light on this matter came from the respondent’s liquidator, who was in attendance. It was documentation that showed that none of the respondent’s workers, whether Irish or non-Irish nationals, were entered into the pension scheme. The available evidence does not give rise to an assumption that the respondent implemented the REA for the Construction Industry for his Irish workers, but did not do so for his non-Irish workers. Accordingly, I find that the complainants have not established a prima facie case in respect of less favourable treatment in the implementation of the REA.
With regard to the provision of health and safety information, all complainants gave evidence that they were in possession of the relevant FAS SafePasses and that they were given health and safety information on site, and provided in translation as necessary. I therefore find that the complainants have not established a prima facie case with regard to less favourable treatment in the provision of health and safety information.
Mr Robert Kocian, who is Slovakian, also stated in his evidence that discipline was unevenly enforced: when the respondent’s Irish workers worked slovenly, it was tolerated by supervisors, whereas when non-national workers worked slovenly or were perceived to do so, they were disciplined. Mr Kocian stated specifically that he was “screamed at” on such occasions in a way Irish workers were not. Mr Kocian did not seek to allege that the screaming contained negative or dismissive elements related to his nationality.
I found Mr Kocian a cogent and credible witness and accept that this aggressive enforcement of discipline happened to him as described, and that the respondent’s Irish workers were not disciplined in the same manner. Furthermore, the respondent’s liquidator did not seek to challenge Mr Kocian’s evidence. I therefore find that Mr Kocian has established a prima facie case of less favourable treatment on the ground of his nationality in the manner in which he was disciplined, which has not been rebutted.
Mr Kocian and Mr Jurelevicius also made complaints of discriminatory dismissal on the ground of their nationality.
Mr Kocian stated that he was told not to come to work while working on a construction project in Limerick prison, whereas others continued to work at the Limerick prison site. According to Mr Kocian, after a week he was told there was still no work for him, and to get another job. He requested his P45 and received it three weeks later.
According to the complainant’s own evidence, it would appear that his employment was terminated because the respondent had no further work for him. I am not satisfied that Mr Kocian has established a prima facie case that he was dismissed from the respondent’s employment because of his nationality.
In his evidence, Mr Jurelevicius specified that after working for the respondent for one year, he was told to stay at home. He stated that six or seven workers, all Lithuanian, Latvian or Slovak, were laid off at the time. Mr Jurelevicius is Lithuanian. He also said that he was aware that others were continuing to work at the respondent’s Blanchardstown site.
In light of the fact that other workers of a variety of nationalities had their employment terminated at the same time as Mr Jurelevicius, I find that the complainant has not established a prima facie case that he was dismissed on the ground of his nationality.
Decision
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did not discriminate against Mr Ritvars Bozs and Mr Marius Sabaliauskas on the ground of race pursuant to S. 6(2)(h) of the Acts, in respect of their terms and conditions of employment contrary to S. 8(1) of the Acts, or in respect of discriminatory dismissal contrary to S. 8(6) of the Acts.
(ii) The respondent did not discriminate against Mr Robertas Sabaliauskas, Mr Grazvydas Jarasius and Mr Robertas Jurelevicius on the ground of race pursuant to S. 6(2)(h) of the Acts, in respect of their terms and conditions of employment contrary to S. 8(1) of the Acts.
(iii) The respondent did discriminate against Mr Robert Kocian on the ground of race pursuant to S. 6(2)(h) of the Acts, in respect of his terms and conditions of employment contrary to S. 8(1) of the Acts, by enforcing discipline in a discriminatory manner.
(iv) The respondent did not discriminate against Mr Robert Kocian and Mr Robertas Jurelevicius on the ground of race pursuant to S. 6(2)(h) of the Acts, or in respect of discriminatory dismissal contrary to S. 8(6) of the Acts.
In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay Mr Robert Kocian €3000 in compensation for the effects of the discriminatory treatment suffered. This award is in compensation for the distress experienced by the complainant in relation to the above matter, and is not in the nature of pay, and therefore not subject to tax”
CB High School Clonmel -v- Mary Stokes (for John Stokes)
[2011] IECC 1
Teehan J.
“1. The Appellant School had 140 places for new students at the beginning of the academic year 2010/2011. There were 174 applicants. A small number of students with exceptional needs, and a larger number of applicants with a brother or brothers already in the school, were automatically given places at, as it were, the head of the queue. This was in accordance with the Admissions Policy of the school.
2. The next – and final – category of applicant catered for by means of being automatically accepted for a place in the school was those boys whose fathers were past pupils of the High School. This again was in accordance with the Admissions Policy. This meant that 83 places were filled.
3. The next stage was to fill the remaining places by means of a lottery involving the boys who had not yet been selected for places. (There is a reference in the decision of the Equality Officer to the fact that four applicants who had maximum eligibility, but who had applied late, were added to the list of those taking part in the lottery; I do not recall hearing evidence of this on the appeal hearing before me, but it seems likely that convincing evidence to this effect was given at the earlier hearing). Among these was John Stokes, a member of the Travelling Community. He was deemed an appropriate applicant, by reason of his parents’ intention to submit their son to a Roman Catholic education in accordance with the Mission Statement and Christian ethos of the school, and of his having attended one of the recognised feeder schools at primary level (and who also, presumably, applied on time), but he was one of the unsuccessful candidates when the draw was made.
4. Some of the criteria for priority selection were not material in relation to the selection of students for the school year 2010/2011.
5. The evidence before me was that 36 students were admitted under the “parental rule”. None of these was a member of the Travelling Community. This was in accordance with the evidence which was that, historically, very few members of that community have undergone second level education (the evidence in this case was that a number of Traveller children attended the High School over the past 20 to 30 years, but they formed a tiny proportion of the school population). It is the contention of the respondent that this rule thereby discriminates against that community, and thus runs counter to the provisions of the Equal Status legislation and the legislation pertaining to education.
6. The High School is one of only two secondary schools for boys in a town with a population of 24,000. The other is the Vocational School; like many parents in the town, Mrs Stokes was unwilling to have her son attend this school, although I have no reason to believe that such bias is in any way warranted.
……………
14. The first issue can be broken into two parts:
(i) having regard to the provisions of the Equal Status Legislation, is the “parental rule” discriminatory against Travellers? And
(ii) if so, can it be objectively justified by reference to a legitimate aim, the means to the achieving of which could be deemed both appropriate and necessary?
15. The evidence from the Respondent’s witnesses painted a very stark picture of members of the Travelling Community availing only in minuscule numbers of access to secondary education over the last few decades. By contrast, while there was no specific evidence in relation to this, it is notorious that, since the advent of free secondary education in the late 1960s and the raising of the school leaving age to 16, the overwhelming majority of students in the general population have attended secondary school to at least Junior Certificate level. Accordingly, it can be stated unequivocally that the “parental rule” – an ostensibly neutral provision as provided for by the amended section 3 (1) (C) of the Equal Status Act 2000 – is discriminatory against Travellers. Of course, the Respondent must be shown to be at a particular disadvantage, but I am satisfied that groupings such as members of the Travelling Community (and also the Nigerian Community and the Polish Community, for example, where parents of boys were most unlikely to have attended the school previously) are particularly disadvantaged by such rule.
16. That having been established, the onus is on the Appellant
(A) to objectively justify that there was a legitimate aim;
(B) to prove that the measure was appropriate; and
(C) to establish that such measure was necessary.
17. With regard to the question of the legitimacy of the aim, the Respondent has adverted in argument to the school’s Admissions Policy, and the lack of any direct correlation between the stated aims and the “parental rule”. Dealing with “Goals”, one of the criteria referred to is “supporting the family ethos within education”. While this goes on to justify the “sibling rule “, with no reference to parents, I find that the overall aim of the Board in introducing the “parental rule” is entirely in keeping with this goal and the “characteristic spirit of the school”, a concept to which it must have regard in accordance with section 15(2) (b) and (d) of the Education Act 1998. The Appellant has thus objectively justified to the satisfaction of this Court that the aim of the Board in this regard was wholly legitimate.
18. As to whether the measure was appropriate, the evidence of Mr. Bannon concerning the history of the admissions policy is of importance. In all but two years in recent times, there have been more applicants than places for incoming students. At one time, priority was given to students where there were “exceptional circumstances”. This led to a situation where almost all applicants sought to come in under this heading. Prior to that, the lottery applied to all applicants, while at one time entry was by means of an assessment test. These policies were at opposite ends of the spectrum and each, for obvious reasons, was highly unsatisfactory. The current policy falls somewhere between these extremes. This in itself does not mean that the policy is appropriate, but it is one which is reviewed annually and I am satisfied that, having regard to all the many relevant considerations of which the Board must take account, it strikes the correct balance and is, therefore, appropriate.
19. In relation to the necessity test, Mr. Bannon gave evidence at some length concerning the links between the school and the community in Clonmel. In the 19th century, the people of Clonmel invited the Christian Brothers to set up a school in the town. The resultant bond has been strong. There is an active past pupils’ union which incentivises high achievement by pupils at the school; former students have been active in providing mentoring, bursaries for sports and financial assistance for the sons of impoverished parents; and the activities of such former students in the very difficult but necessary task of bridging the shortfall in funds provided by the Department and the outgoings of the school would most probably be considerably less were such strong bond not in place. Mr. Bannon spoke of “a sense of ownership about the school where people have attended”, and gave very concrete examples of this in the course of his evidence. Mr. Ó Dulacháin, in argument, has made reference to the fact that parents of past pupils “may more likely be employed or in higher positions of responsibility”; he goes on to argue that through this evidence, Mr. Bannon thus sought to introduce “opaque criteria” referring “either to wealth or standing”. In fact, there was no evidence to the effect that past students of this school – a non-fee-paying school – hold a disproportionate amount of wealth or standing in the community, and the matters canvassed in the course of Mr. Bannon’s evidence in this regard are manifestly important considerations in the formulation of school policies. In the light of all this (and, in particular the highly important issue of funding) I find — and not without hesitation — that the inclusion of the “parental rule” was a necessary step in creating an admissions policy which is proportionate and balanced.
20. It may be that the Oireachtas should look (or look again) at the issue of providing a mandatory requirement for positive discrimination in schools’ admissions policies. In the instant case, however, it is common case that our legislators — who must, like the courts and, indeed, school boards who frame admissions policies, seek to strike a balance between legitimate competing interests – have not enjoined such measure.
21. Having made such findings, the “de minimis” issue does not arise for consideration.
22. I would therefore allow the appeal, and set aside the order of the Equality Officer.”
Spasic v Dyflin Media
DEC-E2008-002
“1. CLAIM
1.1 This case concerns a claim by Ms. Ivana Spasic against Dyflin Media, Dublin that she is entitled to the same rate of pay as that paid to two named comparators in accordance with section 29 of the Employment Equality Acts 1998 and 2004 and that the respondent discriminated against her on the race ground. The respondent accepts that the complainant and the named comparators were engaged in like work but submitted that there were grounds other than race for the difference in pay.
2. BACKGROUND
2.1 The complainant alleges that she was paid less than the two named comparators even though they performed ‘like work’ within the meaning of Section 7 of the Employment Equality Acts 1998 and 2004. It is the complainant’s contention that the difference in pay was related to her race. The respondent accepted like work but submitted that there were grounds other than race for the difference in pay.
…………..
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant who is Serbian claims equal pay with two named Irish comparators in accordance with section 29 of the Employment Equality Acts 1998 and 2004. She claims that she was discriminated against on the race ground in relation to her pay. I must therefore consider whether or not the complainant was discriminated against on the race ground in relation to her pay and is therefore entitled to equal pay with the two named comparators In making the decision in this claim, I have taken into account all of the submissions, both written and oral, made to me by the parties.
5.2 The respondent submitted that there were three other sales executives in addition to the two named comparators who were all doing the same work as the complainant. As the respondent does not dispute like work and submits that there are grounds other than race for the difference in pay, I will proceed to consider this issue. Section 29(5) of the Acts provides that “…..nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.” The complainant commenced work in November 2004 on a basic salary of €20,000 with a minimum sales target of €3,200 per week (€166,00 per annum). The complainant stated that her starting salary was not commensurate with her experience. The respondent stated that it employed sales executives with differing levels of skills and basic salaries are linked to previous sales abilities and justified with minimum targets which are uniform across the company.
5.3 The respondent provided the starting salaries of the complainant, the two named comparators and the three other employees who performed like work. Mr. W, the first named comparator commenced employment on 20 July 2004 on a starting salary of €28,000 and an annual target of €252,000. Mr. C commenced employment on 11 November 2002 on a starting salary of €20,800 and an annual target of €176,800. It submitted at the hearing that previous sales experience is quantifiable by ringing the company where the person previously worked and getting direction on the issue. The respondent would specifically query the targets of the prospective employee and whether they were reached. It submitted that Mr. W’s experience was the reason he was given a significant target to reach. It further submitted that it was unable to quantify previous sales experience of the complainant as it could not contact any referees named by her, one of whom was in Botswana and the other in Serbia despite efforts made by it. It submitted that the complainant therefore commenced employment on a basic starting salary of €20,000 and that salary bands for the position of Sales Executive/Consultant/Representative ranged from €20,000 to €35,000 depending on verifiable experience.
5.4 Whilst Mr. C commenced employment on 11 November 2002, he had a similar starting salary (€20.800) to the complainant and a similar annual sales target (€176,800). It is also the case that whilst Mr. W was paid a starting salary of €28,000 almost two months before the complainant commenced, he had a corresponding sales target of €252,000 per annum which was in excess of €86,000 higher than the complainant’s target. Two other Advertising Sales Executives who commenced employment in February 2002 and September 2003 commenced on starting salaries of €20,000 and €20,800 respectively. The respondent submitted that in all cases, basic salary had to be justified by meeting sales targets over and above which commission was payable. The complainant’s contract provides that her initial salary will be €20,000 per annum based on sales of €3,200 per week. I note that Mr. W’s (the first named comparator) contract provided for a salary review six months after commencement of employment and annually thereafter. It also stated that the target to validate salary is €4,900 in signed sales per week and that commission would be paid at 10% on sales over the agreed weekly target. The respondent was unable to provide a copy of Mr. C’s contract of employment as it could not be located following a move in offices.
5.5 In relation to the contracts of the other Sales Executives, I note also that Mr. T’s contract provides for a salary review six months after the commencement of employment and annually thereafter. I note that Ms. L’s contract also provides for a remuneration review six months after the commencement of employment and annually thereafter and refers to commission being payable at the rate of 10% on sales in excess of her target. Whilst the complainant’s contract did not refer to commission, the respondent submitted at the hearing that 10% commission was payable as standard in the respondent on sales achieved in excess of targets. It submitted that the complainant was also entitled to commission on sales in excess of targets; however, she only received commission on one occasion. It submitted that there were monthly reviews with people where shortfalls in performance were brought to their attention and a discussion in relation to how both parties could improve performance.
5.6 On 22 February 2006, following a meeting with the complainant, the respondent wrote to her in relation to her targets and advised her that reaching the minimum target was a prerequisite for receiving basic salary. At the hearing, it was submitted that in practice, the respondent continued to pay basic salary despite any shortfall in targets. The respondent submitted in evidence records of the complainant’s monthly targets during the period of her employment until she left in February 2006. The records indicate that the complainant did not meet her target any month during her employment. Mr. C who started on 11 November 2002 on a salary of €20,800 with an annual target of €176,800 exceeded his target in 2005 by €64,000 (approx). Whilst his salary was revised upwards the following year in 2006, the respondent submitted that he was additionally compensated by receiving 10% commission on excess sales.
5.7 It appears that employees were given an initial starting salary with a corresponding sales target based on previous verifiable experience. The complainant’s starting salary and the corresponding sales target was similar to Mr. C’s, one of the comparators who commenced employment two years earlier. Mr. W, the other named comparator was given a higher starting salary in August 2004 and a corresponding higher sales target. It is notable that Mr. DC (one of the complainant’s other colleagues) who is Irish and who commenced employment as a Sales Executive on 27 September 2004, almost two weeks prior to the complainant was given the same starting salary as the complainant (€20,000) and the same annual target. I have considered all of the evidence and I find that there were grounds other than race for the difference in salary between the complainant and the named comparators. Whilst the complainant’s contract did not refer to a salary review, there was nothing to prevent the complainant in the ordinary course of events seeking a salary review. In the circumstances of this particular case where the complainant consistently failed to achieve targets each month since the commencement of her employment in November 2004, the complainant was advised on 22 February 2006 that reaching the minimum target was a prerequisite to receiving her basic salary.
6. DECISION
6.1 On the basis of the foregoing, I find that there are grounds other than race for the difference in pay between the complainant and the named comparators in accordance with section 29(5) of the Acts. Accordingly, I find that the respondent did not discriminate against the complainant on the race ground contrary to section 29(1) of the Employment Equality Acts 1998 and 2004 in relation to her pay.”
Doherty & Anor -v- Sth Dublin County Council & Ors
[2007] IEHC 4
Charleton J.
“7. There is equality of treatment between members of the Irish Traveller Community and the settled community vis à vis the provision of housing in bricks and mortar. Anyone, without distinction, will have an entitlement to same upon being homeless. Members of the Irish Traveller Community have a special and unique additional provision made for them in the form of caravan sites, site works and loans for the purchase of caravans. The fact that this additional option is available only to Travellers, from whatever country, does not mean, in my judgment, that it can be exercised in all and every circumstance so as to apparently continue the state of homelessness that gives rise, in the case of all citizens, to the requirement of the local authority to seek to offer accommodation to homeless persons that they might reasonably be expected to reside in.
28. This is the first case in which a claim has been made by a member of the Irish Traveller Community to be provided with more than a site. In all the previous cases to which I have been referred, the argument has been as to whether there is a statutory duty on a housing authority to make provision for sites for members of the Irish Traveller Community and as to whether in particular circumstances, that duty has been fulfilled. In McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July 1980), it was held that the offer of provision of chalet accommodation to the plaintiff, was in the circumstances, a reasonable discharge by the defendant of its duty to house the plaintiff. In O’Reilly and Others v. Limerick County Council and The Attorney General and Human Rights Commissioner, (Unreported, High Court, 29th March, 2006), it was held by MacMenamin J. that a choice to resume accommodation in unacceptable conditions may not disentitle an applicant to relief and that there is a duty on a county council to fully advise those members of the Irish Traveller Community who were uneducated as to their full rights with regard to housing.
29. Since University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February, 1991), a line of authorities have followed the judgment of Barron J. in that case that the scheme of the Housing Acts contemplates not only that an assessment of housing needs should be made in relation both to the Irish Traveller Community and to settled persons, but that it should be acted upon. In two cases, orders were made by the High Court that serviced halting sites should be provided by housing authority respondents within a period of 12 months. In County Meath V.E.C. v. Joyce and Others [1994] 2 ILRM 210, Flood J. ordered that Meath County Council should bring their assessment of housing and serviced camp site needs up to date and to provide sites within 12 months of the date of the perfection of the order he made in that regard. In John O’Brien and Others v. Wicklow Urban District Council and Wicklow County Council, (Unreported, High Court, 10 June 1994), Costello J. made an order that the County Manager should carry out works at specified locations providing for hard core sites, an electricity supply and drainage to certain members of the Irish Traveller Community. All of these judgments followed the decision of Barron J. in University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February 1991). Having first decided that s. 13 of the Housing Act, 1988 imposed a duty to provide caravan sites, as opposed to merely empowering a housing authority to do so, Barron J. went on:-
“Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends in the case of those to whom s. 13 applies to the provision not of dwellings but of caravan sites. It is I think significant that s. 56(2) of the 1966 Act is to apply to serviced halting sites as it does to dwellings. In my view, s. 13 imposes on the local authority an obligation to provide serviced halting sites to those who require them instead of conventional dwellings in the same way as s. 56(1) requires them to provide the latter. Such obligation is, of course, subject to all the provisions which limit the obligations of the housing authority under s. 56 of the 1966 Act. The section does however mean that the housing authority cannot meet its statutory obligations by offering only a conventional dwelling to Travellers. It must bring into force the estimate, assessment and scheme respectively required by ss. 8, 9 and 11. If in accordance with the result of these matters, the housing authority has obligations in accordance with its resources for persons who are Travellers, then those obligations must be fulfilled. In the case of those persons to whom s. 13 applies and who do not wish to be provided with dwellings, the obligation must be fulfilled by the provision of caravan sites. As a matter of construction of s. 13, it seems to me that the statutory obligation to provide a caravan site for Travellers is identical to the statutory obligation to provide dwellings for those of the settled community. The only difference in the obligation lies in the nature of the housing to be provided. Whether the person in need is a traveller or a member of the settled community, once the duty exists it must be performed. In the one case, it is performed by providing a caravan site; in the other by providing conventional housing. I refer only to the position of those Travellers who live permanently in a particular area and whose need for a caravan site is as a permanent home. The provision of a temporary halting site or sites is a different matter and does not arise in the present case.”
30. As a matter of fact, the respondent Council has made available to the applicants a halting site on a temporary basis. It is the intention of the Council to redevelop the site in which they currently reside so as to make provision for them on a permanent basis so that their caravan can be used in conjunction with a day house as explained above. This accommodation will be available within a period of 18 months from the date of this judgment. There has therefore been no failure by the respondent housing authority to fulfil its duty under the relevant provisions of the Housing Acts. It would be desirable were this accommodation to be available immediately. The housing authority, however, has obligations only in accordance with its resources and according to the scheme of priorities set out by it.
Human Rights
31. The applicants argue that their status as members of the Irish Traveller Community means that special arrangements are required to be made for them, even apart from the statutory provisions already referred to. It has been argued that the scheme under the Housing Acts operates on the basis of an untrammelled choice to be made by a member of the Irish Traveller Community between accommodation in bricks and mortar and in a caravan. It is urged that this interpretation be placed upon the Acts because of s. 2 of the European Convention on Human Rights Act, 2003. This provides:-
“2(1) In interpreting and applying any statutory provision or rule of law, the court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provisions or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
32. It is further argued that the respondents, and in particular the housing authority, have an obligation to treat the applicants in a special way having regard to their status as members of the Irish Traveller Community and that this obligation arises by virtue of s. 3 of the European Convention on Human Rights Act, 2003 which reads:-
“3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
33. Under the Act, judicial notice has to be taken by all courts of the Convention provisions and the decisions in relation thereto. If in any proceedings before the High Court, or the Supreme Court exercising its appellate jurisdiction, it emerges that a provision of Irish legislation is incompatible with any Article of the Convention, then a declaration of incompatibility should be made under s. 5 of the Act of 2003. This does not affect the continuing operation of the law. An ex gratia payment of compensation may be made once an application for compensation by a party wronged has been made to the Attorney General. It is not stated, but it is to be inferred, that where a declaration of incompatibility with the European Convention on Human Rights has been made by a court that a political will may exist to alter relevant legislation in favour of compatibility.
34. The European Convention on Human Rights was agreed between the signatory governments in Rome in November, 1950. Its text sets out the fundamental rights which the citizens of Europe are entitled. The Articles pleaded here were Articles 8 and 14. Article 14 prohibits discrimination and provides:-
“14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 8 secures rights whereby the State must respect private and family life. This provides:-
“8. – (1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 3 is also relevant in that it prohibits torture. It states:-
“3. No one shall be subjected to torture or to inhumane or degrading treatment or punishment.”
35. These Articles may be contrasted with Article 40.3 of Bunreacht na hÉireann which provides:-
“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.”
36. The guarantee in Article 40.3 is a promise never to infringe a right. Thus, there can be no laws passed in Ireland which infringe constitutional rights or, in the case of a conflict, which do not draw a reasonable balance between the interaction of two differing rights. When it comes, however, to taking positive action to defend and vindicate the personal rights of the citizen, the text of the Constitution makes it clear that the State is only obliged to do as much as is practicable, or in the original text “sa mhéid gur feidir é”. It is easier to find a circumstance where a State body is actively infringing on someone’s constitutional rights than to define the circumstances under which the State must positively intervene to uphold a right. For instance, if a law were passed, or an administrative measure adopted, providing that members of the Irish Traveller Community could never be housed in communities that were settled, this would be a positive denial of their constitutional right as human persons to be treated equally before the law. The State cannot set out to infringe constitutional rights: but when is it obliged to intervene to uphold them? Many rights could be set at nought by reason of the inability of a citizen to provide the means to exercise them. There is certainly a constitutional right to life and a provision denying access to particular medicines which are necessary for the exercise of that right would be unlawful but where a citizen did not have the means to purchase necessary medicine would that mean that the State had an obligation to intervene by providing him or her with some form of welfare in that regard? The answer may be that the State could, in certain circumstances, have an obligation consistent with its financial and administrative commitments. A similar problem arises in relation to the European Convention on Human Rights. It is to be noted that there is no positive obligation to intervene to uphold private and family life in Article 8 and that, expressly, the text forbids “interference by a public authority with the exercise of this right”. The courts of England and Wales and the European Court of Human Rights have attempted to grapple with this issue without formulating a principle as to when State welfare provision may be necessary in order to allow for the meaningful exercise of the rights protected. It may be that there is a positive duty cast upon public authorities to intervene under Article 8, consistent with the proper disposal of available resources, where special circumstances cause a direct interference of a serious kind in family life and where the subject of that interference has no available means to alleviate the absence of that right. Counsel for the applicant argued that no more than practicable assistance could be offered from State resources and that a citizen has a general obligation to have recourse to welfare as a last resort only.
37. In Anufrijeva and Anor v. Southwark London Borough Council [2004] 1 QB 1124 the Court of Appeal of England and Wales dealt with three different cases that concerned the right to a family and private life under Article 8 of the Convention. Lord Woolf C.J. noted at para. 25 in relation to the problem of deciding when a positive obligation of intervention was cast on State authorities, apart from a duty not to interfere:-
“Strasbourg provides little guidance in this area, for we are not aware of any case where the Court of Human Rights has held a state in breach of the Convention for failure to provide housing to a certain standard, or for failure to provide welfare support. … The dearth of authority is evidenced by the fact that counsel on each side attached importance to two recent decisions, which seem to us of only peripheral significance.”
38. These cases were Botta v. Italy (1998) 26 EHRR 241 where a physically disabled person failed in a claim under Article 8 on the assertion that his rights were infringed because there were no facilities to enable him to get down into the sea in a resort distant from his home. In Zehnalová and Zehnal v. Czech Republic, Reports of Judgments and Decisions 2002 – V, p. 337, a complaint under Article 8 failed where the national authorities had failed to provide access for physically disabled persons to all public buildings. This, the court held, was to invoke rights which were “too wide and indeterminate” as to give “convincing proof of an attack on their private lives”. It may be speculated that some minimum welfare provisions may constitute a positive obligation inherent in effectively respecting private and family life. In Anufrijeva, the Court of Appeal offered these observations, at paras. 43 to 45, as to the formulation of a useful legal test:-
“… Article 8 is capable of imposing on a State a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R(J) v. Enfield London Borough Council [2002] EWHC 735 (Admin), where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, Article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants’ home in Bernard and we consider that it was open to Sullivan J. to find that Article 8 was infringed on the facts of that case … insofar as Article 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant’s private and family life were at risk: see the approach of the Court of Human Rights to the positive obligation in relation to Article 2 in Osman v. United Kingdom (1998) 29 EHRR 245 and the discussion of Silber J. in N. [2003] EWHC 207 (Admin) at 126-148. Where the domestic law of a State imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of Article 8, provided that the impact on private or family life is sufficiently serious and was foreseeable.”
39. In this regard, I note that Costello J. in John O’Brien and Others v. Wicklow Urban District Council and Wicklow County Council, (Unreported, High Court, 10th June, 1994) stated that conditions which are totally unacceptable in a Christian community and which could be relieved if the statutory powers of a local authority were exercised, and without any great expense can give rise to an obligation to intervene, he said:-
“I am also satisfied that the County Manager has power to deal with an emergency and that this power in the circumstances of a case now amounts to a duty.”
40. I would find it impossible to apply the tests of culpability and of inhuman treatment where a number of offers of housing have been made, and where the best form of halting site accommodation is to be made available to the applicants within 18 months.
41. It is argued, in addition, that the housing legislation should be interpreted in favour of the applicants. The limits to which the interpretation requirement set out in the corresponding provision of the United Kingdom Human Rights Act, 1998 may be taken are to be found in the decision of the House of Lords in Ghaidan v. Godin-Mendoza [2004] 3 WLR 113 where it was held that a definition of spouse as extending to a person living with a tenant “as his or her husband or wife” could encompass a surviving homosexual partner who is not, under the decision, to be put in any less secure a position than the survivor of a heterosexual relationship in respect of statutory tenancy rights.
42. It has been urged on the Court that what is reasonable in terms of accepting or refusing accommodation, within the definition of homelessness in s. 2 of the Housing Act, 1988, must take into account the particular circumstances of the applicants living, as they have, all their life either as nomads on the side of the road or, for the about the last ten years in various halting sites. Circumstances can occur where persons who have led a nomadic way of life may find it difficult to accept, on a permanent basis, settled accommodation. It is not, however, what the applicants are being asked to do here. In asserting their rights to nomadic accommodation, they are being met with an answer, from the Council, that a symbolic vestige of their tradition may be preserved in the shape of a site for their caravan with a day house, but only after a reasonable interval of time for the purposes of re-development. In the meanwhile it is not unreasonable that the available accommodation is in bricks and mortar and nor is it unreasonable that the County Council will not go and immediately buy them a plumbed, centrally heated mobile home with electricity supply: this is not in accordance with the scheme of priorities set down by the Council under the Housing Acts and its provision is outside the relevant regulations made under s. 15 of the Housing Act, 1988, as amended.
43. A duty to take into account the sensitivities of members of the Roma communities, whether Gypsies from the neighbouring kingdom, members of the Sinti from Central Europe, or members of our own Irish Traveller Community, can arise when interpreting administrative measures. These obligations are not, however, unlimited. In Chapman v. United Kingdom (2001) 33 EHRR 18 the European Court of Human rights dismissed an argument that a nomadic lifestyle gives rise to an automatic duty on States to intervene in favour of preserving this way of life, stating, at paras. 96 to 99, as follows:-
“Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.
It is important to appreciate that in principle gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude gypsies as a group. They are not treated worse than any non-Gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English Courts, that the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved.
The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violationof Article 8. This would be tantamount to imposing on the United Kingdom, as on other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to the protection of minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States.
It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not of judicial decision.”
44. This decision was followed by the European Court of Human Rights in the decision in Codona v. The United Kingdom, judgment delivered on 7th February, 2006. The applicant was a Gypsy who lived with her young son and other members of her extended family in caravans. Injunction proceedings were issued against her because the site on which the caravans were placed did not have the relevant planning permission. During the course of court proceedings the applicant averred that she did not “wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs. Codona wishes to live in a caravan and have the support of her extended family around her”. The housing authority, on examining the case, concluded that they could only offer bricks and mortar accommodation in a bed and breakfast establishment until it could make a final offer of accommodation. The application before the Court of Human Rights was, in essence, for relief under Article 8 on the complaint that the response of the Council did not take into account her rights as a Gypsy under Article 8 of the Convention. The court held:-
“Following Chapman, the court does not rule out that, in principle, Article 8 could impose a positive obligation on the authorities to provide accommodation for a homeless Gypsy which is such that it facilitates their “Gypsy” way of life. However, it considers that this obligation could only arise where the authorities had such accommodation at their disposal and were making a choice between offering such accommodation or accommodation which was not “suitable” for the cultural needs of a Gypsy. In the instant case, however, it appears to be common ground that they were, in fact, no sites available upon which the applicant could lawfully place her caravan. In the premises, the court cannot conclude that the authorities were then under a positive obligation to create such a site for the applicant (and her extended family). Such would be to extend the positive obligation imposed by Article 8 far beyond the – limited – bounds established in previous case law. In particular, to accept that the authorities were under such an obligation would be to have the effect of imposing upon the respondent State the positive obligation to create either one or more caravan sites so as to equate supply with demand. The court recalls that this was precisely the obligation that the Grand Chamber found that the contracting states could not be said to owe in Chapman (para. 98). The court does not find that there are any compelling reasons in the present case to depart from the position adopted by the Grand Chamber in Chapman.”
45. In addition to the foregoing, I can find nothing in any other decision of the European Court of Human Rights, or of the courts in the United Kingdom or here, which would establish that the particular aspect of family life that requires to be respected in the case of a member of the Irish Traveller Community demands the provision of a new, centrally heated, plumbed caravan with electricity supply. On analysis of the relevant case law under the European Convention of Human Rights, my judgment is that the statutory entitlements of the applicants exceed any benefit that might be available to them on the basis of an interpretation of Article 8 of the European Convention on Human Rights.
46. I would add that the decisions to date show a reluctance to require State authorities to intervene with forms of welfare as an aid to the exercise of rights. Whether welfare is provided, and at what level, and in what particular circumstances, is essentially a matter of political decision. The discourse of politics in this area tends to move between the poles of urging self-reliance and of offering cradle-to-grave support. Like a family, the resources of any nation are limited and it is a matter for political and executive decision as to what resources should be committed to what problems and with what priority. A breach of legislation prescribing such an allocation, as in housing, calls for judicial intervention. Where, however, a plea is made that the court should declare the absence of welfare support to be wrong in a particular situation of itself, the applicant should show a complete inability to exercise a human right for his or her own means and a serious situation that has set the right at nought with the prospect of serious long term harm. Any proposed intervention by the court should take into account that it is the responsibility of the legislature and executive to decide the allocation of resources and the priorities applied by them. “
Valpeters v Melbury Developments Ltd
EE/2006/143
“1. Claim
1.1. The case concerns a claim by Mr Arturs Valpeters that the Melbury Developments Ltd, discriminated against him on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2004, in terms of access to employment, conditions of employment, discriminatory dismissal and in relation to a collective agreement.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 8 May 2006. On 28 May 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 21 January 2009. A submission was received from the complainant on 22 August 2007. A submission was received from the respondent on 15 October 2007. Additional evidence was requested from the respondent at the hearing and received on 29 January 2009.
4. Conclusions of the Equality Officer
4.1. At the hearing of the complaint, the complainant’s representative withdrew the complaint regarding access to employment and the complaint in regard to a collective agreement.
4.2. It was also clarified at the hearing of the complaint that the complainant had not brought a complaint of unfair dismissal under the Unfair Dismissals Acts 1977 to 2005. I am therefore not prevented by S. 101 of the Employment Equality Acts from exercising jurisdiction in relation to the complainant’s complaint of discriminatory dismissal, provided I find that the complainant was an employee of the respondent as defined in S. 2 of the Employments Equality Acts.
4.3. Further to proceedings brought to other employment rights bodies by the complainant, I note that the Rights Commissioner made findings under the Organisation of Working Time Act, 1997, the Terms of Employment (Information) Act, 1994, and the Payment of Wages Act, 1991, which were submitted in evidence. The Rights Commissioners findings with regard to the Organisation of Working Time Act were upheld on appeal by the Labour Court [WTC/06/07], all of which were submitted in evidence. These proceedings to not preclude me from investigating any breach of these entitlements as issues of discrimination.
4.4. Therefore, the issues for decision for me in this case are:
Was the complainant the employee of the respondent, and do I therefore have jurisdiction to investigate his complaint?
Was the complainant discriminated against in terms of conditions of employment on the ground of his race pursuant to S. 8(1)(b) of the Acts?
Was the complainant discriminatorily dismissed pursuant to S. 8(6)(c) of the Acts, on the ground of race?
4.5. I first turn to the issue whether the complainant was the respondent’s employee or an independent sub-contractor.
4.6. The complainant is Latvian and worked for the respondent as a general operative, doing concrete-casting, slabs, window-framing, cleaning and various other duties that did not involve the use of specialised machinery. He was expected to report for work every day, his place and times of work were fixed, his tasks were set by his supervisor, he could not delegate work, and he was given the equipment he needed to do his work. This evidence by the complainant was not challenged by the respondent, indeed, the respondent assisted in clarifying some of the complainant’s evidence.
4.7. The main test, under Irish law, for assessing this in work situations such as the complainant found himself was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [1998 1 IR 34]. The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. Keane J stated: “[…] in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”
4.8. From the complainant’s evidence, I am satisfied that his work for the respondent comes within the test developed in Denny, and that his implied contract with the respondent constitutes a contract of service within the meaning of the Acts. Therefore, the complainant is the respondent’s employee and I hold I have the power to investigate and decide on his complaints.
4.9. I now turn to the substance of the complainant’s case. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.10. The complainant’s case with regard to a receipt of a contract of employment and receipt of payslips rests on his employment status. In this context, it is important to note that the finding in paragraph 4.8above, that the complainant is an employee of the respondent’s with regard to the Tribunal’s jurisdiction, does not automatically lead to a finding of less favourable treatment with regard to the complainant’s employment status. For such a finding to be made, it must be proven, on the balance of probabilities that at the material time other operatives of a different nationality, who were working for the respondent had a different, more favourable employment status than the complainant. The representative of the complainant did not adduce any evidence that this was the case. The respondent’s case was that all its workers were classified as subcontractors (see paragraph 3.3above). I therefore find that the complainant has not established a prima facie case with regard to his receipt of a contract of employment and receipt of pay slips.
4.11. I now turn to the complainant’s case that he was not given health and safety information in a language he could understand. The complainant gave his evidence at the hearing through an interpreter, and I am satisfied that his English is fairly limited. The complainant stated he was not given safety information. The respondent stated that it satisfied itself that the complainant held a valid FAS SafePass, which largely covered the hazards the complainant would encounter in his general operative duties. Training for the SafePass scheme is provided in a number of languages. The respondent further stated that safety information was given to all workers, although they did admit that they did not furnish translation or interpretation for this site-specific safety information.
4.12. In Campbell Catering v. Aderonke Rasaq [ED0252], the Labour Court held that
it is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. … In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.
4.13. I find that the complainant’s right to safety information is one such statutory right arising from the relevant health and safety legislation. The complainant would therefore have had a right to have specific safety information given to other workers translated or interpreted into a language he could understand. I therefore find that the complainant has established a prima facie case with regard to less favourable treatment on the ground of race in this matter that the respondent has not rebutted.
4.14. I now turn to the circumstances attaching to the complainant’s dismissal. It is the complainant’s contention that his employment should only have been terminated for a disciplinary matter, and also that he was given no notice, but rather that his employment was terminated from one day to the other. Specifically, the complainant contends that minimum notice under the Payment of Wages Act, 1991, was not complied with.
4.15. However, I note the Rights Commissioner’s finding that the minimum notice period specified under the Payment of Wages Act, 1991, was complied with. Since the complainant did not adduce any evidence that he was treated less favourably than an Irish worker in the way his dismissal was effected, I find that this part of the complainant’s case for discriminatory dismissal fails.
4.16. I now turn to the question whether the complainant’s selection for dismissal was discriminatory on the ground of race. The respondent’s quantity surveyor gave evidence that the construction project on which the complainant was employed was moving into a different phase, and that the respondent needed machine-operating operatives instead of general operatives such as the complainant. There was no work left to do for the complainant and two other general operatives whose employment came to an end on the same day. The respondent stated that these two operatives were Czech nationals, but insisted that the fact that all three workers were non-Irish nationals was a coincidence and should not be taken as racial discrimination.
4.17. The fact that the three non-Irish national on the site had their employment terminated whereas the four Irish workers continued in employment does give rise to a presumption of discrimination on the ground of race and therefore a prima facie case for the complainant that he was selected to be dismissed because of his nationality. However, I accept the evidence of the respondent’s witness as to the reasons that led to the termination of the complainant’s employment and find that the complainant’s case has been rebutted.
5. Decision
5.1. Based on all of the foregoing, and in conclusion of my investigation, I find, in accordance with S. 79(6) of the Acts, that:
(i) The respondent did discriminate against the complainant in his conditions of employment, in relation to the provision of health and safety information, contrary to S. 8(1)(b) of the Acts and
(ii) The respondent did not discriminatorily dismiss the complainant contrary to S. 8(6)(c) of the Acts on the ground of race pursuant to S. 6(2)(h) of the Acts.
5.2. I therefore order pursuant to S. 82(1) that respondent pay the complainant €500.—for the effects of the discrimination suffered. This award is not in the nature of pay and therefore not subject to tax.”
AER LINGUS v LK, MT and RW
W. v Allianz PLC
Arturs Valpeters v Melbury Developments Ltd
EDA0917
Labour Court
16 September 2009
[2010] 21 E.L.R. 64
Subject
1. Appeal under s.83 of the Employment Equality Acts 1998 to 2007-DEC-E2009-019.
Background
2. The worker appealed against the decision of the Equality Officer to the Labour Court on April 1, 2009, in accordance with s.83 of the Equality Acts 1998 to 2007. A Labour Court hearing took place on September 9, 2009 in Waterford. The following is the Labour Court’s Determination.
Determination
This is a complaint by Mr Arturs Valpeters (hereafter the complainant) against Melbury Construction Ltd (hereafter the respondent) alleging discrimination on the race ground. The complaint was made under the Employment Equality Acts 1998–2008 (hereafter the Act). The complainant is a native of Latvia. He was employed by the respondent as a general operative between May 19, 2005 and April 13, 2007.
The substance of the complainant’s case is that while employed by the respondent he was treated less favourably that an Irish worker would have been treated. In advancing his claim the complainant relied upon the following particulars:
(a) That he was treated as a self-employed sub-contractor by the respondent whereas he was in reality employed under a contract of service;
(b) He received no written contract of employment;
(c) He was not provided with payslips; *67
(d) He received no health and safety training and did not receive a health and safety statement in a language which he understood;
(e) He was not paid in accordance with the registered employment agreement for the construction industry;
(f) He was dismissed from his employment without being afforded the benefit of any procedures which would have been available to a worker of Irish nationality.
The complaint was investigated by an Equality Officer of the Equality Tribunal pursuant to s.79 of the Act. The Equality Officer found that those aspects of the complaint particularised at (b), (c) and (e) had been disposed of in proceedings under other legislative provisions and did not fall to be decided upon by him.
The Equality Officer was satisfied that at all material times the complainant was an employee of the respondent under a contract of service. On the particulars of the complaints within his jurisdiction the Equality Officer found that in respect to the complaints at (a) and (f) the complainant had failed to establish a prima facie case of discrimination and that those complaints could not succeed.
On the complaint referred to at (d) the Equality Officer held that the complainant was discriminated against in not being provided with a safety statement in a language in which he was competent.
The Equality Officer awarded the complainant compensation in the amount of €500.
The complainant appealed against so much of the Equality Officer’s Decision which held that his complaints under (a) and (f) above could not succeed. He also appealed against the quantum of compensation awarded in respect of his complaint particularised at (d) above.
There is no cross-appeal by the respondent.
The respondent, having been duly notified of the time, date and place of the hearing of the appeal failed to appear.
The complainant’s case
The gist of the complainant’s case is that he suffered loss in respect to social welfare entitlements and the deduction of additional tax in consequence of being classified by the respondent as self-employed. He submitted that an Irish national working in the construction industry would have known the difference between being a self-employed contractor and being an employee. It was submitted on the complainant’s behalf that the Court should infer that an Irish worker would not have been subjected to similar treatment.
With regard to the dismissal, the complainant contends that he was not afforded the benefit of any form of procedure before the decision to dismiss him was taken. He claims that an Irish worker would not have been similarly treated.
*68
It was further submitted that the quantum of compensation awarded by the Equality Officer was not adequate or reasonable in all the circumstances of the case.
Conclusions of the Court
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the complainant was treated badly by the respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.
Mr Grogan, solicitor for the complainant has pointed to the difficulty for the complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the respondent should be required to prove that others were treated similarly to the complainant. In the Court’s view such an approach would amount to placing the entire probative burden on the respondent. That would involve an impermissible departure from the plain language and clear import of s.85A of the Act and the Community law provision upon which it is based.
It was further submitted that in circumstances in which the complainant could have no way of knowing whether or not other employees of a different nationality were wrongly treated as sub-contractors the Court should apply what is known as the peculiar knowledge principle so as to place the onus of proving that fact on the respondent. The peculiar knowledge principle is a rule of evidence by which the burden of proofing a fact in issue can, in certain circumstances, be placed on a defendant. It was explained by Palles C.B. in Mahony v Waterford, Limerick and Western Railway Co. [1900] 2 I. R. 273 as follows:
“I rest my judgment on this:—although it is the general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief, there is a well-known exception to such rule in reference to matters which are peculiarly *69 within the knowledge of the defendant. In such case the onus is shifted”
The Chief Baron went on to quote from Taylor on Evidence as follows:
“The second exception to the above-named general rule is that where the subject matter of the allegation lies peculiarly within the knowledge of one of the parties, that party must prove it, whether it be of an affirmative or negative character and even though there be a presumption of law in his favour.”
There are difficulties in applying that principle in the instant case. First, it is a common law rule and the Court cannot see how it could be applied so as to offset or supplant the clear statutory requirements of s.85A of the Act. In any event it appears that the application of the peculiar knowledge principle operates similarly to s.85A of the Act in that the existence of the presumed fact must be established in a prima facie way before the onus of proof shifts to the defendant. Secondly in Attorney General (McGowan) v Carville (1961) 95 I.L.T.R. 41, Davitt P. pointed out that the principle operates where the fact in issue is exclusively or almost exclusively with the knowledge of the defendant. In Hanrahan v Merck Sharpe and Dohme [1988] I.L.R.M. 629, Henchy J. made it clear that mere difficulty of proof would not suffice in shifting the burden of proof to the defendant. More recently, in Rothwell v Motor Insurers Bureau of Ireland [2003] 1 I.R. 268, the Supreme Court (per Hardiman J.) approved and applied the dictum of Henchy J in Hanrahan. The Judge further pointed out the presumed fact in issue must be “peculiarly within the range of the defendants capacity of proof” .
Knowledge of how the complainant’s fellow workers were treated is not exclusively or almost exclusively within the knowledge of the respondent. Nor could it be said that it is peculiarly within the range of respondent’s capacity of proof. It is also plainly within the knowledge of those other workers. The complainant could have sought to ascertain from those workers if they were treated as sub-contractors or as employees. If necessary those workers could have been required to attend at the hearing and testify as to how they were treated.
For these reasons the Court cannot accept that the peculiar knowledge principle can avail the complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with s.85A of the Act.
There is provision for the obtaining of information from a respondent under s.76 of the Act which is intended to be in ease of a complainant who would otherwise be unable to obtain necessary proofs in order to process a complaint under the Act. Where no reply is given or where a misleading or equivocal information is provided the Equality Officer and the Court can draw an inference adverse to the respondent. That procedure was utilised in this case but questions were not put concerning the employment status ascribed to others employed by the respondent.
*70
These observations on the requirement to prove the primary facts relied upon apply with equal force in respect to the complainant’s submissions regarding both his claim alleging discriminatory treatment and his dismissal. In neither case is there a scintilla of evidence to show that others of a different nationality to that of the complainant were treated differently in either respect.
In that regard the instant case is readily distinguishable on its facts from that of Campbell Catering v Rasaq [2004] E.L.R. 310, on which reliance was placed by the complainant’s solicitor. That case concerned a worker who was dismissed having been accused of stealing goods belonging to her employer. She had not been expressly advised of her right to mount a defence and be represented in a disciplinary inquiry. The respondent contended that the complainant was treated the same as any other worker accused of theft. In considering that point the Court said the following:
“It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defense. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.”
The complainant herein was not accused of any form of misconduct and the question of an investigative or disciplinary procedure did not arise. Consequently the underlying rationale of that decision is inapplicable to the facts of the instant case.
In respect to the complainant’s erroneous classification by the respondent as an independent contractor, the Court has been invited to accept, as a notorious fact, that an Irish worker would not have been similarly treated. The Court cannot make such an assumption. From its own experience over many cases it appears to the Court that many employers in the construction industry wrongly classify workers who are in reality employees as sub-contractors as a device to avoid their responsibilities under employment, tax and social welfare legislation. This practice is by no means confined to workers whose national origin is outside Ireland.
It is well established that the Court, as an expert tribunal, is entitled to take account of the knowledge and experience of its members in concluding facts. This was made clear by this Court in Inoue v NBK Designs [2003] E.L.R. 98. *71 That decision echoed a similar approach taken by the Court of Appeal for England and Wales in London Underground v Edwards (No.2) [1998] I.R.L.R. 364 where it was acknowledged that tribunals do not sit in blinkers and are entitled to make use of their own knowledge and experience in the industrial field. Similarly in the Northern Ireland case of Briggs v North Eastern Education and Library Board [1990] I.R.L.R. 181, the Court of Appeal held that tribunals are not debarred from taking account of their own knowledge and experience in formulating decisions. The knowledge and experience of this Court suggests that the complainant’s assertion that his classification as a sub-contractor was discriminatory is not well-founded.
In these circumstances the Court is satisfied that the complainant has failed to establish facts from which it may be inferred that his classification by the respondent as an independent contractor, or his dismissal, were on grounds of his race and hence discriminatory. Accordingly the Court is satisfied that the Equality Officer was correct in the conclusion which he reached on these aspects of the complaint.
Quantum
The Equality Officer found that the complainant did suffer discrimination in not being provided with a safety statement in a language which he understood. The respondent has not appealed against that finding and it is not in issue in this appeal. The complainant has, however, submitted that the quantum of the award made by the Equality Officer is inadequate.
There is no evidence of the complainant having suffered any material or other loss in consequence of the discrimination which the Equality Officer found to have occurred. Nor is there evidence that he suffered any inconvenience or upset attributable to the respondent’s conduct. In these circumstances the Court is satisfied that the award made by the Equality Officer is adequate.
Determination
For all of the reasons set out above the Court can see no basis upon which it could interfere with the Decision of the Equality Officer. Accordingly the within appeal is disallowed and the Decision of the Equality Tribunal is affirmed.
Representation
Aleksandra Kotarzewska v Department of Justice and Equality
EDA163
Equality Tribunal DEC-E2016-100
7 July 2016
[2016] 27 E.L.R. 349
July 7, 2016
1. Dispute
1.1. The complainant alleges that she had been discriminated against by reason of her race and that she had been treated unlawfully by the respondent in discriminating against her getting a job.
1.2. This complaint, under the Employment Equality Acts, was received in the Equality Tribunal on 6 December 2013. On 5 May 2016 in accordance with his powers under s.75 of the Employment Equality Acts, the director general of the Workplace Relations Commission referred the case to me, Roger McGrath an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the director general under Pt VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with s.79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 18 May 2016.
1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with s.83 (3) of the Workplace Relations Act 2015.
1. Complainant’s written submission
1.1. The complainant submitted a written submission outlining her case.
1.2. The complainant is a Polish national who has worked in the Department of Justice and Equality since July 2008.
1.3. The complainant submitted that on 4 June 2013 an office notice was issued by the Department in relation to a competition for assignment to posts at HEO/AO/head of visa section, EO/visa officer and CO assistant visa officer in visa sections at Irish embassies abroad. Under para.2, “Eligibility”, the notice stated:
1.4 “It is usual for civil servants being posted abroad to be issued with Irish diplomatic or official passports and, for some locations, the Department of Foreign Affairs and Trade would regard that as practically essential for the purposes of residence in the foreign state and recognition by and interaction with the various authorities of the host government. Similar considerations would apply with regard to members of the immediate family of officers. Under the Passport Act 2008, Irish passports, whether standard, official or diplomatic, may only be issued to Irish citizens. It is a matter for the individual staff member to obtain an Irish passport in advance of any posting, the commencement of same cannot be delayed on this basis.”
1.5. In the complainant’s view this advertisement appeared to be in breach of the Employment Equality Act 1998 and 2004 and the Equal Status Act 2000 and 2004, in that it was discriminatory with regard to employment and access to employment and advertising.
1.6. The complainant referenced s.12 of the Equal Status Acts which, she said, states that a person shall not publish or display, or cause to be published or displayed, an advertisement which indicates an intention to discriminate, harass, sexually harass, or might reasonably be understood as indicating such an intention.
1.7. The complainant acknowledged that s.36 of the Employment Equality Act *352 allows for certain restrictions, including restrictions in relation to citizenship, to be imposed on civil servants. However, she submitted that it was her understanding that European law takes precedence over any norms of national law and that under the European Directive 2004/38 and the European Communities (Free Movement of Persons) Regulations 2006 and 2008 European citizens residing in the State should be treated in all respects concerning employment in the like manner as Irish citizens.
1.8. It was the complainant’s contention that the department advertisement clearly indicated an intention to discriminate against any employee who was not an Irish citizen, moreover that it indicated an intention to discriminate against an employee whose immediate family members were not Irish citizens.
1.9. The complainant went on to propose that the positions advertised for were not diplomatic posts and therefore an Irish passport is not essential in order to carry out the duties required by visa officers. The complainant stated that she had previously worked as a visa officer in the Irish Naturalisation and Immigration Service as an assistant visa officer, and that colleagues of the same grade have been posted abroad, access to these postings seemed to be restricted to only those in possession of Irish passports.
1.10. In June 2013 the complainant sought clarification from the Department’s HR division however as an adequate response was not forthcoming the complainant lodged a complaint with the Equality Tribunal on 6 December 2013. The complainant stated that at the time she submitted her complaint to the Equality Tribunal she put the date of the publication of the office notice (4 June 2013) as the most recent date of discrimination, however it was her view now that this was incorrect and in fact the discrimination stretched to July 2015 as the panel established as a result of the competition remained in place until that time. In any case on 25 August 2015 a new competition for assignment to posts in visa sections of Irish embassies abroad was announced by way of another office notice. This later office notice contained the same wording relating to eligibility that the complainant had found objectionable previously.
1.11. In questioning the complainant stated that when she applied for the position in 2013 she did get an interview, that the “selection process was not a problem”, that she had “no concerns about not being selected”. She went on to say that the procedures used in the selection process were fair, that her difficulty lay solely with the advertisement and the wording used which she believed indicated an intention to discriminate.
1.12. The complainant went on to say that she did not feel she received an adequate response from the HR section of the Department when she first raised her concerns about the advertisement and that it was regrettable that clarification had been so long in coming.
2. Respondent’s written submission
2.1. The respondent submitted a detailed written submission.
*353
2.2. At the outset of their submission the respondent raised a preliminary point; that there is a complete defence of the complaint by virtue of s.36 of the Employment Equality Act which permits a provision requiring Irish citizenship in relation to holding office as a civil servant.
2.3. The respondent also submitted that a similar exception is set out in EU law and that in any event, Irish law applies in proceedings before the WRC, as the Equality Tribunal or WRC does not have jurisdiction to set aside national law.
2.4. It was the respondent’s contention that the purported complaint under the Equal Status Act was not admissible as that Act makes it clear that it does not apply if the matter falls within the scope of the Employment Equality Acts. The respondent also put forward a view that the Equal Status Act applies to discrimination in relation to the provision of goods or services or discriminating clubs and therefore is not pertinent to this case. Furthermore, the respondent believes, the section of legislation quoted by the complainant in her statement relating to advertising is a paraphrasing of s.10(1) of the Employment Equality Acts, thus it is the Employment Equality Acts which apply.
2.5. The respondent then outlined the circumstances surrounding the selection process for the appointment of visa officers. Circular 52/2013 inviting applications for assignment to posts for visa officers for Irish embassies abroad was posted on the 4 June 2013, with closing date for applications being the 18 June 2013.
2.6. The complainant applied for the positions and was interviewed for inclusion on the panel on 26 July 2013. She was assured prior to interview that placement on the panel would be made with no reference as to whether someone had an Irish passport or not.
2.7. The complainant was not successful in her interview.
2.8. Without prejudice to their argument that there is a complete defence in Irish and EU law to requirements of nationality for public service provisions, the respondents pointed out that as the claimant was not offered any position, she did not therefore suffer any discrimination and was not prevented, by virtue of nationality, from taking up any position that she was offered. The respondent is of the view that the claim is therefore hypothetical, and therefore a moot case and not within the jurisdiction of the Equality Tribunal/WRC.
2.9. The respondent then elaborated on s.36 of the Employment Equality Acts, stating that this section provides a complete defence to the complainant’s claim of discrimination in relation to employment, or discriminatory advertisement or otherwise. Section 36 refers to holding office and in this instance that is holding office in an embassy abroad, where the holding of an Irish diplomatic passport is deemed essential. It is the respondent’s case that s.36(1) exempts positions which have a provision relating to citizenship from the operation of the non-discrimination provisions in the Employment Equality Acts.
2.10. The respondent then went on to address the complainant’s argument that European law should take precedence over national law, and her assertion that Directive 2004/38 and the European Communities (Free Movement of Persons) that European citizens should be treated in all respects concerning employment in like manner as Irish citizens.
2.11. In response the respondent submitted that the WRC does not have jurisdiction to overrule or set aside express provisions of Irish Legislation. The respondent cited Commissioner of An Garda Síochána v Director of the Equality Tribunal and Boyle [2009] E.L.R. 116. It was submitted by the respondent that the judge in this case ruled that the Equality Tribunal could not make a ruling contrary to the provisions of a statutory instrument without a specific mandate to do so. The respondent further cited the judge in the above case;
“Charleton J. went on to say that the correct response of the Equality Tribunal to the complaint by the applicants should have been to point out to them that by legislation it could not seek to remedy the complaint that they had made and the proper approach of the applicants would then have been to seek a declaration from the High Court that national law had proposed to overrule a European law obligation.”
2.12. The respondent submitted that in Boyle therefore, Charleton J. held that there is no principle of European law that allows an administrative body or a court of limited jurisdiction to exceed its own authority in order to remedy deficiencies in national legislation even if it considers that the legislation has not properly implemented European law. This applies to the WRC in exactly the same way as it applied to its forerunner, the Equality Tribunal.
2.13. The respondent went on to submit that EU law also contains an exemption for employment in the public service. The respondent cited Art.45(4) of the Treaty of the Functioning of the European Union, submitting that “non-discrimination on grounds of nationality do not apply to employment in the public service. To support this the respondent referred to Commission v Belgium Case 149/79 [1980] E.C.R. 3881.
2.14. The respondent went on to outline the reasons why the practice of holding an official or diplomatic passport is required.
2.15. In conclusion the respondent reiterated that s.36 of the Employment Equality Acts provides a full defence, that EU law cannot set aside an express provision of Irish law and that in any event, EU law also contains an exception to the equal treatment principle for employment in the public sector.
3. Findings and conclusions
3.1. In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
3.2. In relation to the preliminary point raised by the respondent it would seem to me that s.36 of the Employment Equality Act does indeed provide for the requirement for Irish citizenship in relation to holding office as a civil servant. However, in this case the need to utilise that defence is not required.
*355
3.3. In the course of the hearing it became apparent that the complainant’s issue was not the fact that she was unsuccessful In the selection process but rather she felt the advertisement used indicated an intention by the respondent to discriminate on the grounds of race. The complainant accepted that the selection process itself was fair and that her race was not a factor in her non-selection for the role. The complainant agreed that she had not been treated any less favourably because of her race.
3.4. The requirement for a passport is not for my consideration because this matter never became an issue in the complainant’s non-selection. The complainant’s suggestion that the requirement for an Irish passport might have come against her had she been successful in the selection process is a matter of conjecture, a hypothetical situation and I cannot deal with hypothetical situations.
3.5. With regard to the advertising, s.10 of the Employment Equality Act provides as follows:
A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an intention.
(2) For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which—
(a) connotes or refers to an individual of one sex or an individual having characteristic mentioned in any of the discriminatory grounds (other than the gender ground), or
(b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by the members of one sex or individuals having such a characteristic,
then, unless the advertisement indicates a contrary intention, the advertisement shall be taken as indicating an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.”
3.6. However, there is no provision for an individual complainant to refer a claim of discriminatory advertising. Section 85 provides that such claims may be referred to the Irish Human Rights and Equality Commission (power granted to Irish Human Rights and Equality Commission to serve an equality and human rights compliance notice on persons who have contravened or are contravening subs.(1) by Irish Human Rights and Equality Commission Act 2014 (No. 25 of 2014), s.36(l)(b))
3.7. In Burke v FAS EDA 18/2004 the Labour Court said that it was clear that the intention of the legislature was to vest in the Equality Authority (now a role for the IHREC) the exclusive power to institute proceedings against discriminatory advertisements. Therefore the complainant lacks the legal standing (locus standi) to bring a complaint against the respondent as publisher of the advertisement.
4. Decision
5.1. The complainant lacks the legal standing to bring this complaint and therefore I have no jurisdiction to investigate the claim under the Equal Status Acts and the claim fails.
The complainant appeared in person
Case C-54/07
Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV
(Reference for a preliminary ruling from the Arbeidshof te Brussel)
(Directive 2000/43/EC – Discriminatory criteria for selecting staff – Burden of proof – Penalties)
Summary of the Judgment
1. Community law – Principles – Equal treatment – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43
(Council Directive 2000/43, Art. 2(2)(a))
2. Community law – Principles – Equal treatment – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43
(Council Directive 2000/43, Art. 8(1))
3. Community law – Principles – Equal treatment – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43
(Council Directive 2000/43, Art. 15)
1. The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of Article 2(2)(a) of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The existence of such direct discrimination is not dependent on the identification of a complainant who claims to have been the victim of that discrimination.
(see paras 25, 28, operative part 1)
2. Public statements by which an employer lets it be known that, under its recruitment policy, it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory within the meaning of Article 8(1) of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. It is then for that employer to prove that there was no breach of the principle of equal treatment. It can do so by showing that the undertaking’s actual recruitment practice does not correspond to those statements.
It is for the national court to verify that the facts alleged are established and to assess the sufficiency of the evidence submitted in support of the employer’s contentions that it has not breached the principle of equal treatment.
(see para. 34, operative part 2)
3. Article 15 of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin requires that rules on sanctions applicable to breaches of national provisions adopted in order to transpose that directive must be effective, proportionate and dissuasive, even where there is no identifiable victim.
(see para. 40, operative part 3)
JUDGMENT OF THE COURT (Second Chamber)
10 July 2008 (*)
(Directive 2000/43/EC – Discriminatory criteria for selecting staff – Burden of proof – Penalties)
In Case C‑54/07,
REFERENCE for a preliminary ruling under Article 234 EC from the Arbeidshof te Brussel (Belgium), made by decision of 24 January 2007, received at the Court on 6 February 2007, in the proceedings
Centrum voor gelijkheid van kansen en voor racismebestrijding
v
Firma Feryn NV,
THE COURT (Second Chamber),
composed of C.W.A. Timmermans, President of the Chamber, L. Bay Larsen, K. Schiemann, J. Makarczyk and J.‑C. Bonichot (Rapporteur), Judges,
Advocate General: M. Poiares Maduro,
Registrar: B. Fülöp, Administrator,
having regard to the written procedure and further to the hearing on 28 November 2007,
after considering the observations submitted on behalf of:
– Centrum voor gelijkheid van kansen en voor racismebestrijding, by C. Bayart, advocaat,
– the Belgian Government, by L. Van den Broeck and C. Pochet, acting as Agents,
– Ireland, by D. O’Hagan and P. McGarry, acting as Agents,
– the United Kingdom Government, by T. Harris, acting as Agent, and by T. Ward, barrister, and J. Eady, solicitor,
– the Commission of the European Communities, by M. van Beek and J. Enegren, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 12 March 2008, gives the following
Judgment
1 This reference for a preliminary ruling concerns the interpretation of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).
2 The reference has been made in the course of proceedings between Centrum voor gelijkheid van kansen en voor racismebestrijding (Centre for equal opportunities and combating racism), applicant in the main proceedings, and Firma Feryn NV (‘Feryn’), defendant in the main proceedings, following the remarks of one of its directors publicly confirming that his company did not wish to recruit ‘immigrants’.
Legal context
Community legislation
3 According to Article 1 of Directive 2000/43, ‘the purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment’.
4 Under Article 2(2)(a) of that directive:
‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.’
5 Article 3(1)(a) of the Directive states that it covers ‘conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion’. By contrast, according to Article 3(2) thereof, that directive does not cover ‘difference of treatment based on nationality’.
6 Under Article 6(1) of Directive 2000/43:
‘Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.’
7 Article 7 of that directive states that:
‘1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.
2. Member States shall ensure that associations, organisations or other legal entities, which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.
…’
8 Article 8(1) of the Directive lays down, in addition, that:
‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.’
9 Article 13(1) of Directive 2000/43 requires Member States to designate a body or bodies for the promotion of equal treatment. Under Article 13(2) of that directive:
‘Member States shall ensure that the competences of these bodies include:
– without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 7(2), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination,
…’
10 Lastly, Article 15 of the Directive confers on Member States responsibility for determining the rules on sanctions applicable and specifies that those sanctions may comprise the payment of compensation to the victim and that they must be ‘effective, proportionate and dissuasive’.
National legislation
11 The Law of 25 February 2003 on combating discrimination and amending the Law of 15 February 1993 establishing a Centre for Equal Opportunities and Combating Racism (Moniteur belge of 17 March 2003, p. 12844), as amended by the Law of 20 July 2006 on various provisions (Moniteur belge of 28 July 2006, p. 36940, ‘the Law of 25 February 2003’), seeks to transpose Directive 2000/43 into Belgian law.
12 Article 2 of the Law of 25 February 2003 prohibits any direct or indirect discrimination concerning the conditions of access to employed activity. Article 19 of that law is intended to transpose Article 8 of Directive 2000/43 relating to the burden of proof.
13 The Law of 25 February 2003 also authorises criminal or civil proceedings against discrimination. The court may, pursuant to Article 19 of that Law, order cessation of the act of discrimination (Article 19(1)) and publication of its decision (Article 19(2)) or, pursuant to Article 20 of the Law, it may impose a fine.
14 The Belgian legislature granted Centrum voor gelijkheid van kansen en voor racismebestrijding the possibility of being a party to judicial proceedings where discrimination exists or could exist, without a prior complaint being necessary in that regard.
The dispute in the main proceedings and the questions referred for a preliminary ruling
15 Centrum voor gelijkheid van kansen en voor racismebestrijding, which is a Belgian body designated, pursuant to Article 13 of Directive 2000/43, to promote equal treatment, applied to the Belgian labour courts for a finding that Feryn, which specialises in the sale and installation of up-and-over and sectional doors, applied a discriminatory recruitment policy.
16 Centrum voor gelijkheid van kansen en voor racismebestrijding is acting on the basis of the public statements of the director of Feryn to the effect that his undertaking was looking to recruit fitters, but that it could not employ ‘immigrants’ because its customers were reluctant to give them access to their private residences for the period of the works.
17 By order of 26 June 2006, the Voorzitter van de arbeidsrechtbank te Brussel (the President of the Labour Court, Brussels) dismissed Centrum voor gelijkheid van kansen en voor racismebestrijding’s application, stating, in particular, that there was no proof nor was there a presumption that a person had applied for a job and had not been employed as a result of his ethnic origin.
18 Against that background, the Arbeidshof te Brussel (Labour Court, Brussels), to which Centrum voor gelijkheid van kansen en voor racismebestrijding had appealed, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is there direct discrimination within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin where an employer, after putting up a conspicuous job vacancy notice, publicly states:
‘I must comply with my customers’ requirements. If you say “I want that particular product or I want it like this and like that”, and I say “I’m not doing it, I’ll send those people”, then you say “I don’t need that door”. Then I’m putting myself out of business. We must meet the customers’ requirements. This isn’t my problem. I didn’t create this problem in Belgium. I want the firm to do well and I want us to achieve our turnover at the end of the year, and how do I do that? – I must do it the way the customer wants it done!’[?]
(2) Is it sufficient for a finding of direct discrimination in the conditions for access to paid employment to establish that the employer applies directly discriminatory selection criteria?
(3) For the purpose of establishing that there is direct discrimination within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC …, may account be taken of the recruitment of exclusively indigenous fitters by an affiliated company of the employer in assessing whether that employer’s recruitment policy is discriminatory?
(4) What is to be understood by ‘facts from which it may be presumed that there has been direct or indirect discrimination’ within the terms of Article 8(1) of Directive 2004/43? How strict must a national court be in assessing facts which give rise to a presumption of discrimination?
(a) To what extent do earlier acts of discrimination (public announcement of directly discriminatory selection criteria in April 2005) constitute ‘facts from which it may be presumed that there has been direct or indirect discrimination’ within the terms of Article 8(1) of [Directive 2000/43]?
(b) Does an established act of discrimination in April 2005 (public announcement in April 2005) subsequently give rise to a presumption of the continuation of a directly discriminatory recruitment policy? Having regard to the facts in the main proceedings, is it sufficient, in order to raise the presumption (that an employer operates and continues to pursue a discriminatory recruitment policy) that, in April 2005, in answer to the question whether, as an employer, he did not treat people from foreign and indigenous backgrounds in the same manner and was thus actually a bit racist, he publicly stated: ‘I must comply with my customers’ requirements. If you say “I want that particular product or I want it like this and like that”, and I say “I’m not doing it, I’ll send those people”, then you say “I don’t need that door”. Then I’m putting myself out of business. We must meet the customers’ requirements. This isn’t my problem. I didn’t create this problem in Belgium. I want the firm to do well and I want us to achieve our turnover at the end of the year, and how do I do that? – I must do it the way the customer wants it done!’[?]
(c) Having regard to the facts in the main proceedings, can a joint press release issued by an employer and the national body for combating discrimination, in which acts of discrimination are at least implicitly confirmed by the employer, give rise to such a presumption?
(d) Does the fact that an employer does not employ any fitters from ethnic minorities give rise to a presumption of indirect discrimination when that same employer some time previously had experienced great difficulty in recruiting fitters and, moreover, had also stated publicly that his customers did not like working with fitters who were immigrants?
(e) Is one fact sufficient in order to raise a presumption of discrimination?
(f) Having regard to the facts in the main proceedings, can a presumption of discrimination on the part of the employer be inferred from the recruitment of exclusively indigenous fitters by an affiliated company of that employer?
(5) How strict must the national court be in assessing the evidence in rebuttal which must be produced when a presumption of discrimination within the meaning of Article 8(1) of Directive 2000/43 has been raised? Can a presumption of discrimination within the meaning of Article 8(1) of Directive 2000/43 … be rebutted by a simple and unilateral statement by the employer in the press that he does not or does not any longer discriminate and that fitters from ethnic minorities are welcome; and/or by a simple declaration by the employer that his company, excluding the sister company, has filled all vacancies for fitters and/or by the statement that a Tunisian cleaning lady has been taken on and/or, having regard to the facts in the main proceedings, can the presumption be rebutted only by actual recruitment of fitters from ethnic minorities and/or by fulfilling commitments given in the joint press release?
(6) What is to be understood by an ‘effective, proportionate and dissuasive’ sanction, as provided for in Article 15 of Directive 2000/43 …? Having regard to the facts in the main proceedings, does the abovementioned requirement of Article 15 of Directive 2000/43 permit the national court merely to declare that there has been direct discrimination? Or does it, on the contrary, also require the national court to grant a prohibitory injunction, as provided for in national law? Having regard to the facts in the main proceedings, to what extent is the national court further required to order the publication of the forthcoming judgment as an effective, proportionate and dissuasive sanction?’
The questions referred for a preliminary ruling
19 It should be noted, at the outset, that Article 234 EC does not empower the Court to apply rules of Community law to a particular case, but only to rule on the interpretation of the EC Treaty and of acts adopted by European Community institutions (see, inter alia, Case 100/63 van der Veen [1964] ECR 565, 572, and Case C‑203/99 Veedfald [2001] ECR I‑3569, paragraph 31). The Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of one or other of its provisions (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5, and Joined Cases C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99 Reisch and Others [2002] ECR I‑2157, paragraph 22).
20 The national court has requested the Court to interpret the provisions of Directive 2000/43 for the purpose, essentially, of assessing the scope of the concept of direct discrimination in the light of the public statements made by an employer in the course of a recruitment procedure (first and second questions), the conditions in which the rule of the reversal of the burden of proof laid down in that directive can be applied (third to fifth questions) and what penalties may be considered appropriate in a case such as that in the main proceedings (sixth question).
The first and second questions
21 With regard to the first and second questions, Ireland and the United Kingdom of Great Britain and Northern Ireland maintain that it is not possible for there to be direct discrimination within the meaning of Directive 2000/43, so that the directive is inapplicable where the alleged discrimination results from public statements made by an employer concerning its recruitment policy but there is no identifiable complainant contending that he has been the victim of that discrimination.
22 It is true that, as those two Member States contend, Article 2(2) of Directive 2000/43 defines direct discrimination as a situation in which one person ‘is treated’ less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin. Likewise, Article 7 of that directive requires Member States to ensure that judicial procedures are available to ‘all persons who consider themselves wronged by failure to apply the principle of equal treatment to them’ and to public interest bodies bringing judicial proceedings ‘on behalf or in support of the complainant’.
23 Nevertheless, it cannot be inferred from this that the lack of an identifiable complainant leads to the conclusion that there is no direct discrimination within the meaning of Directive 2000/43. The aim of that directive, as stated in recital 8 of its preamble, is ‘to foster conditions for a socially inclusive labour market’. For that purpose, Article 3(1)(a) states that the directive covers, inter alia, selection criteria and recruitment conditions.
24 The objective of fostering conditions for a socially inclusive labour market would be hard to achieve if the scope of Directive 2000/43 were to be limited to only those cases in which an unsuccessful candidate for a post, considering himself to be the victim of direct discrimination, brought legal proceedings against the employer.
25 The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of Directive 2000/43. The existence of such direct discrimination is not dependant on the identification of a complainant who claims to have been the victim.
26 The question of what constitutes direct discrimination within the meaning of Directive 2000/43 must be distinguished from that of the legal procedures provided for in Article 7 of that directive for a finding of failure to comply with the principle of equal treatment and the imposition of sanctions in that regard. Those legal procedures must, in accordance with the provisions of that article, be available to persons who consider that they have suffered discrimination. However, the requirements of Article 7 of Directive 2000/43 are, as stated in Article 6 thereof, only minimum requirements and the Directive does not preclude Member States from introducing or maintaining provisions which are more favourable to the protection of the principle of equal treatment.
27 Consequently, Article 7 of Directive 2000/43 does not preclude Member States from laying down, in their national legislation, the right for associations with a legitimate interest in ensuring compliance with that directive, or for the body or bodies designated pursuant to Article 13 thereof, to bring legal or administrative proceedings to enforce the obligations resulting therefrom without acting in the name of a specific complainant or in the absence of an identifiable complainant. It is, however, solely for the national court to assess whether national legislation allows such a possibility.
28 In the light of the foregoing, the answer to the first and second questions must be that the fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of Article 2(2)(a) of Directive 2000/43, such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market.
The third to fifth questions
29 The third to fifth questions concern the application of the rule of the reversal of the burden of proof laid down in Article 8(1) of Directive 2000/43 to a situation in which the existence of a discriminatory recruitment policy is alleged by reference to remarks made publicly by an employer concerning its recruitment policy.
30 Article 8 of Directive 2000/43 states in that regard that, where there are facts from which it may be presumed that there has been direct or indirect discrimination, it is for the defendant to prove that there has been no breach of the principle of equal treatment. The precondition of the obligation to adduce evidence in rebuttal which thus arises for the alleged perpetrator of the discrimination is a simple finding that a presumption of discrimination has arisen on the basis of established facts.
31 Statements by which an employer publicly lets it be known that, under its recruitment policy, it will not recruit any employees of a certain ethnic or racial origin may constitute facts of such a nature as to give rise to a presumption of a discriminatory recruitment policy.
32 It is, thus, for that employer to adduce evidence that it has not breached the principle of equal treatment, which it can do, inter alia, by showing that the actual recruitment practice of the undertaking does not correspond to those statements.
33 It is for the national court to verify that the facts alleged against that employer are established and to assess the sufficiency of the evidence which the employer adduces in support of its contentions that it has not breached the principle of equal treatment.
34 Consequently, the answer to the third to fifth questions must be that public statements by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory within the meaning of Article 8(1) of Directive 2000/43. It is then for that employer to prove that there was no breach of the principle of equal treatment. It can do so by showing that the undertaking’s actual recruitment practice does not correspond to those statements. It is for the national court to verify that the facts alleged are established and to assess the sufficiency of the evidence submitted in support of the employer’s contentions that it has not breached the principle of equal treatment.
The sixth question
35 The sixth question asks, essentially, what sanctions may be considered to be appropriate for employment discrimination established on the basis of the employer’s public statements.
36 Article 15 of Directive 2000/43 confers on Member States responsibility for determining the rules on sanctions for breaches of national provisions adopted pursuant to that directive. Article 15 specifies that those sanctions must be effective, proportionate and dissuasive and that they may comprise the payment of compensation to the victim.
37 Article 15 of Directive 2000/43 thus imposes on Member States the obligation to introduce into their national legal systems measures which are sufficiently effective to achieve the aim of that directive and to ensure that they may be effectively relied upon before the national courts in order that judicial protection will be real and effective. Directive 2000/43 does not, however, prescribe a specific sanction, but leaves Member States free to choose between the different solutions suitable for achieving its objective.
38 In a case such as that referred by the national court, where there is no direct victim of discrimination but a body empowered to do so by law seeks a finding of discrimination and the imposition of a penalty, the sanctions which Article 15 of Directive 2000/43 requires to be laid down in national law must also be effective, proportionate and dissuasive.
39 If it appears appropriate to the situation at issue in the main proceedings, those sanctions may, where necessary, include a finding of discrimination by the court or the competent administrative authority in conjunction with an adequate level of publicity, the cost of which is to be borne by the defendant. They may also take the form of a prohibitory injunction, in accordance with the rules of national law, ordering the employer to cease the discriminatory practice, and, where appropriate, a fine. They may, moreover, take the form of the award of damages to the body bringing the proceedings.
40 The answer to the sixth question must therefore be that Article 15 of Directive 2000/43 requires that rules on sanctions applicable to breaches of national provisions adopted in order to transpose that directive must be effective, proportionate and dissuasive, even where there is no identifiable victim.
Costs
41 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1. The fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market.
2. Public statements by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory within the meaning of Article 8(1) of Directive 2000/43. It is then for that employer to prove that there was no breach of the principle of equal treatment. It can do so by showing that the undertaking’s actual recruitment practice does not correspond to those statements. It is for the national court to verify that the facts alleged are established and to assess the sufficiency of the evidence submitted in support of the employer’s contentions that it has not breached the principle of equal treatment.
3. Article 15 of Directive 2000/43 requires that rules on sanctions applicable to breaches of national provisions adopted in order to transpose that directive must be effective, proportionate and dissuasive, even where there is no identifiable victim.
[Signatures]
Dr Bennett Kim Heng Eng v St James’s Hospital
EE/2001/049
Equality Officer
20 December 2001
[2002] 13 E.L.R. 143
Claim
This case concerns a claim by Dr Bennett Kim Heng Eng, a Malaysian national, that he is entitled to the same rate of remuneration as that paid by St James’s Hospital to three named Irish comparators during the period July 10, 2000 to March 31, 2001 in accordance with section 29 of the Employment Equality Act 1998.
*145
Background
The complainant occupied a supernumerary intern post with St James’s Hospital from July 10, 2000 to March 31, 2001. He claims that he did like work with that of three named Irish comparators for a period of nine months prior to being appointed to a funded intern position. He alleges that he has been discriminated against in terms of his remuneration contrary to the provisions of the Employment Equality Act 1998 as during the period in question he did not receive any basic salary whereas his comparators were paid salary during their internship.
The complainant referred a claim for equal pay under section 29 of the Employment Equality Act 1998 to this office for investigation. In accordance with her power under the Act, the Director of Equality Investigations assigned the case to this Equality Officer for investigation and decision. Written submissions were received from both parties to the claim. The respondent accepts that the complainant and the comparators were engaged in like work. It denies the allegation of discrimination and alleges that there were grounds other than race for the difference in pay. The respondent made a written submission on the grounds other than race and the complainant then responded by way of written submission, A joint hearing of the claim was held on September 18, 2001.
Summary of the respondent’s written submission
The complainant occupied an intern post with the respondent from July 10, 2000 to June 30, 2001. For the first nine months of his tenure, he held the post on the basis of a supernumerary, i.e. it was a non-paid/non-funded post.
The complainant’s comparators were employed in funded posts, which attracted full salary and premium earnings. Supernumerary posts do not attract any basic salary. The occupant of a supernumerary post is only entitled to oncall and overtime earnings in respect of work carried out in excess of their 39 hours per week.
The respondent does not dispute like work between the complainant and the three named comparators. It contends that the complainant’s lesser treatment in terms of remuneration is permitted by section 29(5) of the Employment Equality Act 1998 which provides that:
… nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.
The respondent submits that at the time of application for an internship to the respondent hospital, the complainant held a provisional registration with the Irish Medical Council. In accordance with the work permit rules as set out by the Department of Enterprise, Trade and Employment, the complainant would *146 have needed a work permit before he could take up the position of intern in an Irish hospital. The rules provide that before a work permit is granted, the employer must establish that it has not been possible to fill the vacancy with an Irish or other EEA national (or other person for whom a work permit is not required).
77 paid intern posts allocated between St James’s Hospital and Tallaght Hospital were available to the medical graduates of Trinity College in June 2000. The complainant finished eighty-first out of 85 graduates in the overall rankings of the final medical examinations and was not assigned to any of the funded intem posts at either of the hospitals, As the complainant is not an EEA citizen, he would not automatically receive a funded post.
Where a medical graduate fails to obtain a funded post, they may be offered a supernumerary post. A supernumerary intern post is not a paid post within the hospital staffing complement. It is a training opportunity and the doctors are assigned to a medical team to enable them to gain the experience and exposure to the clinical procedures required to complete their intern training.
Trinity College Dublin assigns medical graduates to St James’s Hospital and Tallaght Hospital. Doctors are assigned to training schools based on the overall aggregate of their marks in their final year and on the basis of their own particular placement preferences. While the ranking system operates in most cases to determine whether a graduate will get a post of their choice, if Irish and other EEA graduates fail to be appointed to funded posts under the system, non-EEA graduates may be displaced in order to accommodate their EEA colleagues. The practice is a requisite practice in order that the respondent may accord with it’s obligations under Article 48 and 49 of the Treaty of Rome which provides for equal treatment of workers within the EEA.
The complainant studied medicine at Trinity College and signed a form with the college indicating that he would be willing to accept a supernumerary intern position if he did not receive a funded post. The college then inquired if St James’s Hospital could accommodate the complainant with a supernumerary position. The hospital facilitated and the complainant commenced training in the hospital on July 10, 2000.
Discrimination against nationals of EU Member States is proscribed by the general framework of the Treaty of Rome. One of the main objectives of that Treaty is to promote the free movement of workers between EU Member States, which according to Article 48(2) of the Treaty:
… shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
Council Regulation 1612/68 of the October 15, 1968 on the free movement of workers within the Community ensures the mobility of the labour force in the *147 European Union. Whilst the rights of European citizens are protected at EU level, no Community rules have been formulated for nationals of non-member countries entering or residing within the EU and such people come within the exclusive jurisdiction of the Member State.
Although the recruitment practice described is not formally admitted in the Employment Equality Act 1998, it is submitted that where there appears to be a conflict between domestic legislation and the Treaty of Rome, the Treaty of Rome prevails.
The method used by Trinity College in assigning medical graduates to training posts in the hospitals accords with its obligations and requirements under Article 48 and 49 of the Treaty of Rome and Council Regulation 1612/68 of the 15 October 1968. The complainant was not discriminated against on the race ground contrary to section 29(1) of the Employment Equality Act 1998.
Summary of the complainant’s written submission
The complainant submits that having graduated from Trinity College Dublin, he failed to secure a fully paid intern position and was instead appointed to a supernumerary intern position. This meant that he worked as an intern for nine months without:
1. Basic pay (£1,588.92 per month);
2. Living out allowance (£30.41 per week);
3. Unrostered hours overtime (£11.71 per hour for the first 15 hours and £14.05 per hour after that).
The complainant submits that whilst the supernumerary intern position did provide him with an opportunity to gain full registration, he submits that the respondent exploited him.
The EU Regulations quoted by the respondent provide that all Member States of the EU must treat nationals of other EU Member States as favourably as their own nationals in all employment matters. The matter of whether or not foreign non-EU nationals are to be treated in the same manner as EU nationals is left to each EU Member State. Indeed, the respondent’s submission points out that Community rules have not been formulated for nationals of non-member countries entering or residing in the European Union and that such persons come under the jurisdiction of the Member State. The Employment Equality Act 1998 mandates that a foreign national whether of EU or non-EU origin be treated as favourably as an Irish national. There is therefore no conflict between EU law and the Employment Equality Act 1998.
The complainant submits that he believes that he was an employee of the respondent and not merely a trainee. The respondent applied for and was granted a work permit from the Department of Enterprise, Trade and Employment. He submits that this clearly indicates that he was in the employment of the re *148 spondent and was entitled to equal pay for like work under the Employment Equality Act 1998. He further submits that the respondent has failed to provide him with any reason other than race for the different rates of pay and the respondent has unlawfully discriminated against him contrary to the Employment Equality Act 1998.
Conclusions of the Equality Officer
The complainant in this case referred an equal treatment claim and an equal pay claim to the Director of Equality Investigations. In relation to the equal treatment claim, the complainant alleges that the respondent discriminated against him contrary to the provisions of section 8 of the Employment Equality Act 1998 in relation to access to a paid internship post. Section 77(5) of the Act provides that a claim for redress in respect of discrimination or victimisation must be referred within six months from the occurrence or the most recent occurrence of the act of discrimination. The Director of Equality Investigations may extend the period of time within which to refer a claim if it is shown that exceptional circumstances prevented the claim being referred within the six-month time-limit. The complainant took up the position as a supernumerary intern on July 10, 2000 and the claim was referred to this office on March 5, 2001. Accordingly, the equal treatment claim was not referred within the six-month statutory time-limit and the complainant made an application for an extension of time within which to refer the claim. The respondent objected to the granting of an extension of time. An extension was not granted as the Director was not satisfied that exceptional circumstances prevented the claim being referred within the statutory time-limit. The equal treatment aspect of the complainant’s claim could not therefore be investigated.
In the second claim referred for investigation by the complainant, he alleges that the respondent discriminated against him on the race ground contrary to section 29 of the Employment Equality Act 1998 when he did not receive equal pay with three named Irish comparators who performed like work. As a time-limit issue did not arise in relation to the claim, it was assigned to this Equality Officer for investigation. Although Trinity College is referred to at various points throughout this decision, it was not named as a respondent by the complainant and is not, therefore, a party to these proceedings. In making my decision in relation to the equal pay claim referred by the complainant, I have taken into account all of the evidence, both oral and written submitted to me by the parties to the proceedings.
The background to this case is that the complainant was appointed to a supernumerary (non-funded) intern position for the first nine months of his internship whilst the three named comparators were appointed to funded positions. For the last three months of his internship, the complainant was appointed to a paid post in the Accident and Emergency department of the hospital. The *149 respondent clarified that an increased number of paid posts became available in that particular department and they could not fill their full complement with senior house officers and for the first time, the vacancies were divided amongst the supernumerary interns. At the hearing of the claim, the respondent also clarified the meaning of a funded post. It submitted that a funded post is one which was in the past funded by the Department of Health and is now funded by the Eastern Regional Health Authority and salary may be paid to the occupant of a funded post. The Medical Council approves the number of training posts but funding may or may not be granted for all of these posts and a person occupying a non-funded post occupies a supernumerary post. The respondent was not in a position to clarify the origins of the supernumerary system. In order to clarify the nature of its relationship with Trinity College, it made available a copy of an agreement executed between it and Trinity College where it is stated to be considered by both parties to be desirable that the hospital and the College co-operate to provide a teaching hospital service, inter alia, as a suitable environment for postgraduate training and for the education and training of undergraduate students.
Part IV of the Employment Equality Act 1998 deals with discrimination on grounds other than gender. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller Community. In relation to the race ground, nationality is included in this ground and means that a comparison may be made between a person who has a particular nationality with a person who has a different nationality. Section 28 of the Act provides that C and D represent two persons who differ in relation to any of the eight grounds, e.g. two people who differ in relation to their nationality.
Section 29(1) of the Act provides that:
It shall be a term of the contract under which C is employed, that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
Section 29(2) provides that:
For the purposes of subsection (1), in relation to a particular time, a relevant time is any time … which falls during the three years which precede, or the three years which follow, the particular time.
Two of the three named comparators who are all of Irish nationality were employed by the respondent during the same period as the complainant. The third comparator was employed during the period January 1, 2001 to December 31, 2001 and was therefore employed at a relevant time within the meaning of *150 section 29(2) of the Act as required by section 29(1) of the Act.
Preliminary issue
As a preliminary issue in this claim, I must consider the nature of the position held by the complainant during his internship and in particular, whether the complainant was in an employment relationship thereby giving him an entitlement to equal pay for like work. The preliminary issue was raised by the Equality Officer with the parties at the hearing of the claim. Both parties were informed that the Equality Officer had taken legal advice from counsel on the matter and the nature of that advice was communicated to them. The parties were invited to make oral submissions at the hearing or subsequently in writing. Neither party made submissions on the matter and it is to be noted that the respondent did not at any stage raise the matter as a jurisdictional issue.
During the internship period, all interns work as part of a team under the supervision of a consultant employed by the hospital. I will firstly consider the nature of the relationship between the respondent and the comparators and then the relationship between the respondent and the complainant during the internship period. Firstly, I note that the comparators received written contracts of employment in respect of their internship. During the internship, the respondent determined the services to be performed by them and their working hours and they performed services under the direction and supervision of the respondent for which they received remuneration. Thus, it can be said, in relation to the comparators that there was no doubt but that an employment relationship existed. Similarly, during the period of the complainant’s internship, the respondent determined the services to be performed by him and his working hours and he performed services under the direction and supervision of the respondent. The complainant did not receive a written contract of employment from the respondent and he did not receive any remuneration for his standard working week of 39 hours. After 39 hours work, the complainant became entitled to payment for unrostered overtime (hours in excess of 39 hours per week which were not scheduled to be worked) and the complainant received payment in respect of on-call duty (scheduled emergency cover at night and on weekends). At the hearing of the claim, the respondent confirmed that it made statutory deductions in respect of income earned by the complainant. It is clear that there was a contractual relationship between the complainant and respondent, however, an issue arises whether the relationship was an employment one in the absence of remuneration for the standard hours worked. It appears that the only difference between the complainant’s relationship and the comparators’ relationship with the respondent was that they received written contracts of employment and received a basic salary and he did not. It is the act of not paying him basic salary which the complainant alleges was an act of discrimination on the race ground.
*151
I will now consider a number of aspects of the complainant’s internship. At the hearing, I sought to establish what would have happened if the respondent considered that the complainant or any of the comparators had been guilty of gross misconduct during the period of their internship and I was informed that they would have been dismissed. I note that the respondent sought and was granted from the Department of Enterprise, Trade and Employment, a work permit to employ a non-EEA national. I have examined the application for a work permit which was made by the respondent in respect of the complainant. The application form comprises four parts. Part One of the form requests the particulars of the employer and I note that the respondent’s name is stated opposite the heading ‘registered named of employer’s business’. Part Two of the form requests the particulars of the proposed employee and the complainant’s name and some personal details are entered on that part. Part Three requests details of the job on offer and it is stated to be a ‘supernumerary intern’ position. Part Four requests details of efforts made to recruit an Irish/EEA national and that section is stated to be inapplicable. The declaration of truth at the end of the form was signed by the medical administrator of the respondent hospital. I have also examined the permit to employ a non-EEA national which was granted by the Department and it states the respondent’s name opposite the heading ‘Name of Employer’.
During the period of internship, the complainant held a Certificate of Provisional Registration which was granted by the Medical Council pursuant to the Medical Practitioners Act 1978. I have considered section 28 of the Act which refers to the granting of provisional registration to persons who have been awarded a primary qualification and also to the granting of a Certificate of Experience by the body which awarded the primary qualification to enable the granting of full registration by the Medical Council. Section 28 provides that:
(1) A person who has been awarded a primary qualification shall not become registered in the register other than by way of provisional registration, unless he has been granted a certificate of experience by the body which awarded him that primary qualification.
(2) A certificate of experience shall not be granted to any person for the purposes of subsection (1) of this section unless, after he had been awarded a primary qualification, that person had been engaged in employment in a residential medical capacity in one or more hospitals approved by the Council for this purpose and had been so engaged for such period or periods as may be determined by the Council.
(3) In this section ‘employment in a residential medical capacity’ means employment in the practice of medicine where the person in question is resident in a hospital where he is employed or conveniently near thereto, and he is, by the terms of employment, required to be so resident.
*152 After the expiration of one year’s internship, which must include six months surgical experience and six months medical experience, a certificate of internship in surgery and a certificate of internship in medicine are signed by the consultants under which the intern worked. The certificates state that the intern has been engaged in employment in a residential surgical/medical capacity and has completed satisfactorily the statutory period of six months pre-registration employment in surgery or medicine as the case may be. Part B of the Certificate is signed by a representative of the hospital where the intern worked and certifies that the intern was employed in the practice of medicine to the satisfaction of the Authority of the hospital where the internship was performed. In the case of the complainant, Part A of the certificates of internship state that the complainant was ‘engaged in employment in a residential surgical capacity’ and ‘engaged in employment in a residential medical capacity,’ in the respondent hospital. Part B of both certificates state that the complainant ‘was employed in the practice of medicine in St James’s Hospital’. At the end of the period of internship, a Certificate of Experience is signed by the Dean of the College where the person was awarded their degree and it enables the person in respect of whom it is issued to apply to the Medical Council for full registration in accordance with section 28 of the Medical Practitioners Act 1978. I have examined the Certificate of Experience which was issued in respect of the complainant enabling him to obtain full registration as a medical practitioner and it states that he was ‘engaged in employment in a residential medical capacity’ in St James’s Hospital.
Section 28 of the Medical Practitioners Act 1978 and the documentary evidence in respect of the complainant’s position during his internship supports an employment relationship and the complainant submits that he was an employee of the respondent and not merely a trainee. The respondent in its written submission stated that a supernumerary intern post is a training opportunity. At the hearing, it clarified that a funded post is also considered to be a training opportunity. In the circumstances, I will consider the issue of whether the internship could be considered to be a period of vocational training.
As an aid to considering the meaning of ‘vocational training’ and without seeking to apply European Community law to the facts of this case as the complainant is a third country national who does not enjoy the protection of any association agreements, I had regard to a number of European Court of Justice cases. In Francoise Gravier v. City of Liege (C-293/83) [1985] ECR 593, a case which concerned conditions of access to vocational training in another Member State, the European Court of Justice clarified the meaning of vocational training as (at para. 30):
Any form of education which prepares for a qualification for a particular profession, trade, or employment or which provides the necessary training and skills *153 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.
In that case, the Court held that courses in strip cartoon art came within the definition of vocational training. In a subsequent case, the Court stated that in general, university studies fulfil the criteria for vocational training set out in Vincent Blaizot v. University of Liege & Ors (C-24/86) [1988] ECR 379 at para. 24 and went on to hold that university studies in veterinary medicine fall within the meaning of the term ‘vocational training’. It appears that to come within the definition of vocational training in European Court of Justice jurisprudence, the education provided must prepare for a qualification for a particular profession or provide the necessary training and skills for such a profession.
I note that in a High Court case which concerned the conditions of access to the solicitors’ vocational training programme, the Court found as a fact that the Incorporated Law Society’s vocational training programme embodied two elements, institutional training and in-service training (Bloomer and Ors v. Incorporated Law Society of Ireland, Ireland and the Attorney General [1995] 3 IR 14). It found that under the regulatory regime in place at that time for students to qualify as solicitors:
… a student attends a four-and-a-half month institutional course (the Professional Course) and a two-month institutional course (the Advanced Course) with an eighteen-month period of in-service training as an apprentice in a solicitor’s office ‘sandwiched’ between the two courses.
During the in-service training, the student is bound by indentures of apprenticeship to a practising solicitor. Laffoy J held in that case that on the authority of the European Court of Justice decision in Brown v. Secretary of State for Scotland (C-197/86) [1988] ECR 3205 an apprentice who enters into indentures of apprenticeship pursuant to the Society’s Regulations takes up an activity as an employed person and becomes a worker within the meaning of Regulation 1612/68 on the freedom of movement of workers within the European Community. In the Bloomer case, Laffoy J considered that:
The plaintiffs seek to pursue a course of vocational training in this jurisdiction of which an integral element is the creation of an employment relationship with a practising solicitor.
Arising from the reference in the Bloomer case to the European Court of Justice decision of Brown v. Secretary of State for Scotland, I have considered the case, again, without seeking to apply it to the facts of this case. In that case, the Court emphasised that the concept of worker within the meaning of Article 48 of the EEC Treaty *154 and Regulation 1612/68 has a specific Community meaning. It referred to previous European Court of Justice judgments, Levin v. Staatssecretaris van Justitie (C-53/81) [1982] ECR 1035 and Kempf v. Staatssecretaris van Justitie (C-139/85) [1986] ECR 1741 where the Court held that (at para. 31):
… any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker.
The Court in Brown then referred to Lawrie-Blum v. Land Baden-Wuerttemburg (C-66/85) [1986] ECR 2121 and stated that:
The essential characteristic of the employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.
In relation to this particular case, I note that vocational training is defined in section 12(2) of the Employment Equality Act 1998 as meaning:
… any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.
Section 12(1) of the Act prohibits discrimination on any of the nine grounds in vocational training by any person (a) in the terms on which a vocational training course or related facility is offered, (b) by refusing or omitting to afford access to such a course or facility and (c) in the manner in which such a course or facility is provided. I note that section 12(7) provides, inter alia, that nothing in subsection (1) of that section shall make unlawful discrimination on the race ground in respect of any course of vocational training offered by an educational or training body where:
(a) it provides different treatment in relation to—
(i) the fees for admission or attendance at any such course by persons who are citizens of Ireland or nationals of another Member State of the European Union, or
(ii) the allocation of places on any such course to those citizens or nationals, …
The definition of vocational training in section 12(2) of the Act provides that to come within the definition of vocational training, the system of instruction should be capable of being considered as exclusively concerned with training for an occupational activity. In relation to the question of whether the com *155 plainant’s internship was exclusively concerned with training for an occupational activity, I note that the complainant had already completed a period of education in Trinity College, and had obtained a Bachelor Degree in Medicine, in Surgery and in Obstetrics which enabled him to gain provisional registration as a medical practitioner from the Medical Council. I consider that during the period of internship, the complainant was effectively carrying out work as a medical practitioner under the supervision of a consultant. It therefore appears to me that the year’s internship was not exclusively concerned with training for carrying on an occupational activity and cannot therefore be regarded as vocational training within the meaning of the Act. I note also that under the work permit rules of the Department of Enterprise, Trade and Employment, a work permit is not required where the work is an integral part of the study being undertaken. If it were the case that the respondent considered that the work performed during the internship was an integral part of study being undertaken, it would not have necessitated an application for a work permit. Taking into account the definition of vocational training in the Employment Equality Act 1998, the High Court judgment in the Bloomer case and the respondent’s application for a work permit, I conclude that the period of internship cannot be considered to be vocational training and the exemption provided in section 12(7) of the Act in relation to treatment has no application to this case.
In relation to the question whether the complainant was in an employment relationship with the respondent, I note that the respondent stated that it is not in dispute that the complainant performed like work with the three named comparators during the relevant period and is relying on section 29(5) of the Act which provides that nothing shall prevent an employer from paying, on grounds other than discriminatory grounds, different rates of pay to different employees. The respondent also submitted that the internship was a training opportunity. However, I do not consider that employment and a training opportunity are necessarily mutually exclusive. The respondent did not dispute that the comparators were in an employment relationship and at the hearing, the respondent clarified that it also classified a paid internship as a training opportunity. In my opinion, the existence of a training opportunity does not detract from the existence of an employment relationship. Taking into account the various factors in this case, namely, (i) the documentary evidence in relation to the complainant’s position, (ii) the employment relationship between the comparators and the respondent, (iii) that the complainant held the same position (intern) as the comparators, (iv) that the complainant’s relationship with the respondent embraced the elements of a contract of employment save for the remuneration in respect of basic hours worked (alleged to be the discriminatory act), (v) the respondent’s statement of its power to dismiss the complainant and comparators for gross misconduct and (vi) the respondent’s statement that it did not dispute like work between the complainant and the comparators, *156 I am satisfied that an employment relationship existed between the complainant and the respondent. As the respondent has accepted that the complainant and comparators who also occupied intern positions were engaged in like work, a prima facie case of pay discrimination on the race ground is established. The onus therefore shifts to the respondent to rebut the claim of pay discrimination by showing that there are grounds other than nationality for the difference in pay.
Grounds other than race for the difference in pay
The respondent denies the allegation of pay discrimination and alleges that there were grounds other than nationality for the difference in pay. Section 29(5) of the Act provides that:
… nothing in this Part shall prevent an employer from paying, on grounds other than discriminatory grounds, different rates of remuneration to different employees.
At the hearing of the claim, the respondent clarified that there were two grounds other than race for the difference in pay between the complainant and the comparators. It submitted that the first one was the work permit rules of the Department of Enterprise, Trade and Employment which require that before a work permit is granted, the employer must establish that it has not been possible to fill the vacancy with an Irish or EEA national. The second one was the type of post which the complainant held, i.e. a non-funded post and assignments to these posts took place on the basis of exam results and compliance with the Treaty of Rome.
I shall firstly deal with the respondent’s submission that the rules for the granting of a work permit by the Department of Enterprise, Trade and Employment constituted a ground other than race for the difference in pay. It is correct to say that before a work permit can be granted to an employer in respect of a non-Irish or non-European Economic Area national (EEA) (the EEA comprises of Member States of the European Union (Belgium, Denmark, Germany, Greece, Spain, France. Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden and the UK together with Norway, Iceland and Liechtenstein), employers are generally required to establish that it has not been possible, in spite of reasonable efforts being made, to fill the vacancy with an Irish or other person for whom a work permit is not required. Whilst the work permit rules require that preference is given to Irish and EEA nationals to avail of employment opportunities, I do not consider that it was envisaged that this preference applied to paid posts only and that non-EEA nationals could instead be employed in unpaid posts. In the circumstances, I do not accept that the work permit rules of the Department of Enterprise, Trade and Employment constituted a legitimate ground other than nationality for the difference in pay be *157 tween the complainant and the comparators.
I will now consider the respondent’s second ground other than race for the non-payment of salary to the complainant which is that when placing medical graduates in funded Intern posts, non-EEA graduates may be displaced to accommodate EEA graduates who did not score highly enough in their exams to secure a funded post. The respondent submitted in its written submission that doctors are assigned to training schools based on the overall aggregate of their marks in their final year and on the basis of their own particular placement preferences. It submits that if Irish and other EEA graduates fail to be appointed to funded posts under the scheme, non-EEA graduates may be displaced in order to accommodate their EEA colleagues. It further submits that this is a requisite practice to accord with its obligations under Article 48 and 49 of the Treaty of Rome which provides for equal treatment of workers within the EEA. In its written submission, the respondent also referred to Council Regulation 1612/68 and the entitlement of a national of a Member State to the same priority as regards access to employment in another Member State. It submits that whilst the rights of European citizens are protected at EU level, no Community rules have been formulated for nationals of non-member countries entering or residing in the European Union. It further submits that:
Although the recruitment practice described is not formally admitted in the Employment Equality Act 1998, it is submitted that where there appears to be a conflict between domestic legislation and the Treaty of Rome, the Treaty of Rome prevails.
At the hearing of the claim, the respondent explained that there is a meeting each year between representatives of the two teaching hospitals (St James’s and Tallaght) and Trinity College in relation to the allocation of internship posts. It submitted that when allocating paid intern posts, the list of graduates in order of exam ranking is checked and in particular it is checked whether there are Irish or EEA nationals at the end of the list. If it appears that they might not secure a funded post because of their lower exam ranking, they are given priority in the allocation of paid posts and non EEA-nationals are displaced in the ranking order. The respondent also confirmed that supernumerary posts were not allocated to Irish persons in the year 2000. I have examined the exam rankings of the graduates and I note that an EU graduate who was ranked lower than the complainant (82nd place), was allocated a paid internship post. It is therefore, clear that the reason that the complainant was displaced in the allocation of paid posts was because he was not an EU/EEA national and not because of his exam ranking.
Title III of the EC Treaty provides for the free movement of persons, services and capital. Article 39 EC Treaty (ex-Article 48 of the Treaty of Rome) in particular, provides, inter alia, that freedom of movement for workers shall be *158 secured within the Community. The right to free movement initially established by the Treaty of Rome applies to Member State nationals. It appears to me that the Article in question obliges Member States not to discriminate between their own nationals and nationals of other EU Member States. However, it does not appear that, by corollary, the Article obliges employers to discriminate against non-EU nationals. Similarly, whilst Regulation 1612/68 states that any national of a Member State is entitled to the same priority as regards access to available employment in another Member State, the priority afforded is necessarily subject to the requirements of the 1998 Act and it does not oblige discriminatory treatment of non-EU nationals in circumstances where it is bound by national law not to discriminate on the grounds of nationality. I do not accept the respondent’s submission that Articles 39 and 40 EC Treaty (ex-Articles 48 and 49) and Regulation 1612/68 allow for the displacement of non-EU nationals in order to give priority to EU graduates in the allocation of funded intern positions. Whilst it appears under European law that third country nationals resident in the EU do not enjoy the right to equal treatment with Member State nationals, it does not require discrimination against such persons and the matter of how they are treated is left to each Member State. National law therefore governs the rights and entitlements of third country nationals resident in a Member State in this respect. There is, therefore, no conflict between the domestic law of this jurisdiction and European law in the matter and the provisions of the Employment Equality Act 1998 apply. In the circumstances, I do not accept that the EC Treaty and Regulation 1612/68 constituted a valid ground other than nationality for the difference in pay between the complainant and the comparators.
As the respondent has not submitted any valid ground other than nationality for the non-payment of basic salary to the complainant, the respondent has failed to rebut the claim of pay discrimination on the race ground contrary to section 29 of the Employment Equality Act 1998.
In addition to the complainant’s claim for basic salary, he also claimed unrostered overtime for which he was not paid and a living out allowance. It appears that these claims fall within the definition of ‘remuneration’ in section 2(1) of the Act which provides that remuneration ‘includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment’. At the hearing of the claim, the respondent conceded that the complainant should have been paid for unrostered overtime. It stated that payment for unrostered overtime must be claimed and it was its understanding that the complainant did not apply for it as he understood that he was not entitled to it. The complainant did not dispute the respondent’s statement in the matter and stated that at this point in time, he did not wish to approach his consultants with an estimate of the hours worked in respect of unrostered overtime during the period July 2000 to March 2001. *159 He did not therefore withdraw this element of the claim. In his written submission, the complainant sought payment for unrostered overtime on the basis of 29 hours worked per week during his internship. By letter dated October 30, 2001, the respondent agreed to pay the complainant unrostered overtime based on the formula proposed by the complainant at the hearing of the claim which reiterated the claim in his written submission. I shall therefore make an order in relation to payment for unrostered overtime hours on the basis of 29 hours per week as agreed by the parties.
Decision
On the basis of the foregoing, I find that the complainant was discriminated against in relation to his pay on the race ground contrary to section 29(1) of the Employment Equality Act 1998.
In accordance with section 82 of the Employment Equality Act 1998, I hereby order that St James’s Hospital pay Dr Bennett Kim Heng Eng:
(i) arrears of salary for the period July 10, 2000 to March 31, 2001 at the rates applicable as circulated by the IMO;
(ii) unrostered overtime based on an average of 29 hours each week during the period of the claim at the rates applicable as circulated by the IMO;
(iii) a living out allowance payable per week in respect of the period of the claim at the rates applicable as circulated by the IMO.
Borzena Czerski v Ice Group
DEC-E2006-027
Equality Officer Decision
13 June 2006
[2007] 18 E.L.R. 221
Dispute
This dispute involves a claim by Ms Borzena Czerski that she was discriminated against by Ice Group on grounds of gender and race, in terms of s.6(2) of the Employment Equality Act 1998 and contrary to ss. 8, 11, 22 and 31 of that Act, in relation to access to employment following an interview for the position of production operative with one of the respondent’s clients in August 2001. The respondent rejects the complainant’s assertions.
Background
The respondent is an employment agency. The complainant replied to an advertisement placed in the Western People by the respondent for the position of production operative with one of its clients and attended for interview in August 2001. She contends she was told by the respondent that her name would be kept on file for future vacancies and that the respondent’s failure to select her for employment subsequently constitutes less favourable treatment of her on grounds of gender and race contrary to the Employment Equality Act 1998. The respondent rejects the complainant’s contentions and states that she was unable to comply with the requirement to furnish two references.
The complainant referred a complaint under the Employment Equality Act 1998 to the Equality Tribunal on February 19, 2002. In accordance with her powers under the Act the Director delegated the complaint to Mr Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act on October 10, 2002. A written submission was received from the complainant on June 6, 2003 and copied to the respondent for response in accordance with the procedures operated by the Tribunal. The respondent failed to furnish a response and a hearing of the complaint took place on July 1, 2004 which was attended by both parties. Subsequent to this hearing a number of issues required further clarification and the respondent was represented by its legal representative in these matters. Considerable written correspondence followed and this process concluded in March 2006.
Summary of complainant’s case
The respondent is an Employment Agency. The complainant, who is a native of Poland, replied to an advertisement in the Western People, inserted by the respondent, which sought applications for positions as production operative in the locality. She adds that at that time she was working as a production operative with another company from 2000, performing duties which were similar to those involved with the posts advertised and was seeking alternative employment due to a downturn in business with her current employer. She states that she submitted an application form and CV to the respondent on August 7, 2001. This form required applicants to furnish details of two referees. The complainant *224 states that she was only able to furnish one employment-related referee as she was at home rearing her family between 1986 and 2000 and prior to that she was employed in Poland. She alleges that she spoke by telephone with Ms G, an employee of the respondent, who informed her that this was not a problem. The complainant states she was interviewed by Ms G on August 21, 2001 and there was no mention of problems with references. She adds that following the interview Ms G informed her there were no vacancies at that time but she would keep her name on file.
The complainant states that the respondent visited her workplace in early September 2001 to conduct interviews for positions, including posts as production operative, at APC Ireland. The complainant did not attend for interview as she believed her name was on file following her interview with Ms G the previous month. She adds that when some of her colleagues were recruited for APC Ireland following these interviews she telephoned the respondent to enquire as to why she had not been selected for the posts. She contends that she spoke with Ms B, another employee of the respondent, who informed her that APC Ireland was looking for men and in any event the complainant only had one referee when two were needed. The complainant states that this was the first occasion this issue was raised with her and emphasises that the respondent never indicated to her that a character reference or some other form of reference would be acceptable. She states that had it done so she would have been able to furnish same as she needed them previously as regards her citizenship application (1995) and matters involving the health board. She adds that she offered to acquire a reference from her Polish employer, notwithstanding that she had not worked there since 1986 and this was rejected by the respondent. She contends therefore that the absolute insistence by the respondent that she furnish two employment-related references constitutes less favourable treatment of her on grounds of race.
The complainant also contends that she was discriminated against on grounds of gender. In support of this assertion she points to the alleged comment of Ms B in the course of a telephone conversation in early September 2001 that the post involved heavy lifting and APC were only recruiting men. The complainant also relies on the newspaper advertisement which states that the posts involved manual handling. She refers to the decision of the Labour Court in Conroy v PRK Logistics Ltd Labour Court Determination ( July 7, 2003) which held that the complainant’s difficulty in lifting weights and her gender constituted prima facie evidence of less favourable treatment on grounds of gender.
The complainant notes that the EU Council Directive implementing the principle of equal treatment between persons irrespective of racial or national origin ( Race Directive) was due for implementation in this jurisdiction by July 19, 2003 but was not transposed until the coming into force of the Equality Act 2004 in July of that year. She submits that the Equality Tribunal, as an organ of the State, is bound by the Directive. She further submits that the Labour Court has consistently shifted the burden of proof to the respondent in cases of non-gender *225 discrimination where a prima facie case has been established and it has set out its rationale for adopting that approach in detail in Ntoko v Citibank [2004] E.L.R. 116, Tsourova v Icon Clinical Research Ltd [2005] E.L.R. 250 and Campbell Catering Ltd v Rasaq [2004] E.L.R. 310. She argues therefore that the Tribunal should apply the same approach in the instant case.
Summary of respondent’s case
The respondent rejects the complainant’s assertions in their entirety. It states that it is an employment agency and that the complainant responded to an advertisement it placed in the Western People in August 2001 in which it indicated it was seeking to place persons in temporary production operative roles on behalf of a client. The advertisement did not specify the name of the client. The complainant responded to the advertisement and was sent a database registration form, which was returned to it completed on August 9. It adds that on reviewing the form it noted the complainant had only provided details of one referee. It considered this problematic, as its own policy and the service agreement it had with its client APC Ireland required two referees and it was its policy to seek references from those referees before it took individuals on to its books and placing them with clients.
The respondent states that Ms G interviewed the complainant on August 21, 2001 and informed her of this difficulty. It adds that Ms G enquired of her whether or not a second referee could be provided and she replied that she could only furnish one employment-related reference. In an effort to facilitate the complainant Ms G enquired if she could furnish a character reference to which the complainant again replied no. It also denies that the complainant ever offered a reference from her Polish employer. The respondent states that in the absence of a second referee it had no option but to inform the complainant that no suitable employment was available at that time. The respondent accepts that the complainant subsequently spoke with Ms B on the telephone and that it had placed people with APC Ireland — all of whom were able to furnish two referees. It denies that Ms B told her APC Ireland was only looking for men but accepts Ms B confirmed that the posts involved manual handling — a point that had been included in the newspaper advertisement. It also accepts Ms B informed the complainant that in order to be placed with APC Ireland an applicant had to be able to furnish two referees.
The respondent states that the alleged incidents took place in August/September 2001. It submits therefore that neither the provisions of the EU Council Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or national origin or the provisions of the Equality Act 2004, which, inter alia, gave legal effect in this jurisdiction to that Directive, are not applicable in this case as they cannot have retroactive effect. It notes that the Tribunal has adopted the practice of shifting the burden of proof to the respondent once a prima facie case of discrimination had been established *226 and argues that it has misdirected itself in law by introducing a criterion which did not exist in the statute in force at the time citing the judgment of Keane J in Minister for Transport, Energy & Communications v Campbell [1996] E.L.R. 106 in support of this contention.
Conclusions of the Equality Officer
The issues for decision by me is whether or not Ms Czerski was directly or indirectly discriminated against by Ice Group on grounds of race and gender, in terms of s.6 of the Employment Equality Acts 1998 and contrary to ss. 8, 11, 22 and 31 of that Act. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
I will examine the issue of the burden of proof in the first instance. It is the well settled practice of this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination which is similar to that applied in gender based claims. This requires the complainant to establish, in the first instance, facts from which it can be inferred that s/he was treated less favourably on the ground(s) cited. It is only when the complainant has discharged this burden to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. The rationale for adopting this approach has been set out by the Labour Court in the decisions cited by the complainant at paragraph 3.4 above and the doctrine of precedent requires this Tribunal to follow those decisions unless the circumstances of the case can be distinguished. The Race Directive was adopted by the E.U. Council of Ministers on June 29, 2000. Article 8 of the Directive provides for a burden of proof which is similar to the approach applied by this Tribunal and the Labour Court. It is well settled that in interpreting national law this Tribunal is obliged to do so in the light of the wording and purpose of a Directive so as to achieve the outcome pursued by it. Whilst the events giving rise to this complaint occurred before the Race Directive was transposed into Irish law (July 2004) the recent judgment of the European Court of Justice in Mangold v Helm Case C- 144/04 [2005] E.C.R. I-9981 makes it clear that the national court must guarantee the full effectiveness of the general principle of non-discrimination, by setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that Directive has not yet expired. The approach adopted by this Tribunal previously is consistent with the Directive and in light of the forgoing I propose to adopt it in the instant case. Having evaluated all of the evidence submitted by the parties I am satisfied that the complainant has failed to establish a prima facie case of direct discrimination on each of the grounds of gender and race. In addition, I am not convinced, on balance, that the complainant was told APC Ireland was looking for men when she spoke with Ms B and I accept as more likely that she was told by the respondent the posts involved heavy lifting. I do not consider a statement to that effect to be sufficient, of itself, to raise an inference of less favourable treatment and I find *227 that she has failed to establish a prima facie case of indirect discrimination on grounds of gender. The respondent states it requires a person seeking to register with it to furnish two referees before it will place that person on its books. It is absolutely entitled to place this condition on applicants provided the practice is not contrary to the employment equality legislation. It is common case between the parties that the complainant only furnished one work-related referee on her registration form. She is adamant she was not informed by the respondent that this was a problem until she spoke with Ms B on the telephone in early September 2001. She is equally adamant the respondent did not inform her that a character reference would suffice. I note from the service agreement between the respondent and APC Ireland contains the following statement “Two career references will be checked prior to starting with APC”. No alternative to this requirement is mentioned in the document. I note the complainant’s evidence that had she been asked for a character reference she could have furnished one without difficulty as she was required to obtain character references in 1995 as part of her application for Irish citizenship. In light of the foregoing I am satisfied, on balance, that the complainant’s version of events in August/September 2001 is to be preferred and that she was not recommended for employment with APC Ireland, despite the fact that she was considered suitable by the respondent in all other areas and had received an excellent reference from her current employer, because the respondent required two employment related referees and was unwilling to accept any alternative to that requirement in the circumstances of this particular case.
Section 31 of the Employment Equality Act 1998 provides as follows:
“(1) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment:
(a) applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,
(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8(1),
(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and
(d) cannot be justified as being reasonable in all the circumstances of the case,
then … for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8, on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).”
It is accepted by the respondent that it requires a person seeking to register with it to furnish two referees before it will place that person on its books. As I stated in *228 paragraph 5.3 above I am satisfied that in the instant case this requirement meant two employment-related referees. I am satisfied that the application of such a requirement operates to the disadvantage of a non-Irish national as compared with an Irish national. I am further satisfied that the requirement could be complied with by a substantially smaller number of prospective employees who are non- Irish nationals as compared to prospective employees who are Irish nationals. Consequently, I find that the complainant has established a prima facie case of indirect discrimination on grounds of race. The Act provides a defence to the respondent in these circumstances if it can demonstrate that the requirement can be justified as reasonable in the circumstances. No evidence was adduced by the respondent in this regard and I find therefore that the respondent indirectly discriminated against the complainant on grounds of race contrary to s.31 of the Employment Equality Act 1998.
Decision
I find that:
(i) the complainant has failed to establish a prima facie case of discrimination in relation to her assertion that she was directly discriminated against by the respondent on grounds of race and gender;
(ii) the complainant has failed to establish a prima facie case of discrimination in relation to her assertion that she was indirectly discriminated against by the respondent on grounds of gender;
(iii) the respondent indirectly discriminated against the complainant on grounds of race contrary to section 31 of the Employment Equality Act, 1998.
I therefore order, in accordance with s.82 of the Act, that the respondent pays the complainant €7,000 by way of compensation for the distress suffered by her as a result of the discrimination. This award does not contain any element in respect of loss of income on the part of the complainant.