Labour Court Database
File Number: AEE917
Case Number: DEE916
Section / Act: S21EE
Parties: FOOTBALL ASSOCIATION OF IRELAND - and - THE EMPLOYMENT EQUALITY AGENCY
Appeal by the Employment Equality Agency on behalf of Audrey Dutton against Employment Equality Officer's Recommendation No. EE5/1991 concerning an allegation that in refusing the claimant entry into the North Wicklow and District Schoolboys League the FAI discriminated against Audrey Dutton on the grounds of sex contrary to Section 6 of the Employment Equality Act 1977 in terms of Section 2(c) of that Act.
The Determination in this case is too long for the Recommendation
field of the Database. It is held in the Document Field.
Division: Ms Owens Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
AEE917 DETERMINATION NO. DEE691
THE LABOUR COURT
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21, EMPLOYMENT EQUALITY ACT 1977
PARTIES: FOOTBALL ASSOCIATION OF IRELAND
(Represented by Tony Kerr, B.L. instructed by
Corrigan and Corrigan Solicitors)
THE EMPLOYMENT EQUALITY AGENCY
1. Appeal by the Employment Equality Agency on behalf of Audrey
Dutton against Employment Equality Officer's Recommendation No.
EE5/1991 concerning an allegation that in refusing the claimant
entry into the North Wicklow and District Schoolboys League the
FAI discriminated against Audrey Dutton on the grounds of sex
contrary to Section 6 of the Employment Equality Act 1977 in terms
of Section 2(c) of that Act.
2. The background to this case is set out in the Equality
Officer's Recommendation which is Appendix 1 to this
Determination. The Equality Officer in her Recommendation which
was issued on 25th January, 1991 found that the F.A.I. did not
discriminate against Audrey Dutton
3. The Agency appealed the recommendation on behalf of the
claimant on the 5th April, 1991 on the following grounds.
(i) The Equality Officer erred in law and in fact in her
interpretation of Section 6 of the Employment Equality Act, 1977
in terms of Section 2 of that Act.
(ii) The Equality Officer erred in law and in fact in not
finding that the Respondent discriminated against Ms. Audrey
Dutton, by denying her access to and participation in the North
Wicklow and District Schoolboys League, contrary to Section 6 of
the Employment Equality Act, 1977 in terms of Section 2 of that
(iii) On all grounds that have been submitted during the Equality
Officer's investigation and any other grounds which may be cited
during the course of this appeal.
4. In its submission, the Agency further claimed that Direct
Discrimination had taken place in the following terms:-
(i) That participation in the League (to which the claimant
was denied entry) constitutes vocational training
within the meaning of Section 6 of the Employment
Equality Act, 1977.
(ii) That section 6(2) of the Employment Equality Act, 1977
does not fully implement the terms of Article 4 of
Council Directive 76/207/EEC, specifically by the
inclusion of "...... and which may be considered as
exclusively concerned with training for such activity".
(iii) Further, that the Court should not find that Section
6(2) is a legitimate "Derogation" from Directive
(iv) That the correct interpretation of the wording of
Section 6(1) is that it applies to persons over 6 years
and that Indirect Discrimination took place in terms of Sections
2(c) of the Act in that the requirement in the Rules of the
Schoolboys Football Association of Ireland) (SFAI) ".... that a
properly constituted Divisional league shall cater for boys up to
the age of sixteen years" contains a requirement i.e. to be male,
which is not an essential requirement for vocational training
in the area of professional soccer.
Finally that it is appropriate that the Agency utilise the powers
confirmed on it by Section 20 of the Employment Equality Act to
refer this case on behalf of the named person.
5. The Court heard the appeal on the 22nd August, 1991. The
Agency's submission is attached as Appendix 2. The submission of
the F.A.I. is attached as Appendix 3. Both parties also expanded
orally on their submissions at the hearing.
5. The Court considers it appropriate to deal first with the
final point of appeal which refers to the jurisdiction of the
Employment Equality Agency to process the case on behalf of the
claimant. The Court is satisfied that the intent of Section 20 of
the Employment Equality Act, 1977 was to allow the Agency to act
in cases such as this and that it is reasonable for the Agency to
so act in particular taking into account the age of the person
2. Interpretation of Section 6(1) of the 1977 Act.
The Court does not accept that the arguments of the Agency in
regard to the correct interpretation of the words "over the age at
which these persons are statutorily obliged to attend school" are
either logical or correct. Section 2 of the School Attendance
Act, 1926 and the School Attendance Act, 1926 (Extension of
Application) Order 1972 (S.I. No. 105 of 1972) ordains that the
age at which persons are statutorily required to attend at school
is between six and fifteen. The Court is satisfied that the
correct, literal interpretation of "over the age" means over the
age of fifteen. The person concerned in this case is thus not
within the scope of Section 6(1) of the 1977 Act.
3. Interpretation of Section 6(2) of Act of 1977
Section 6(2) of the Employment Equality Act, 1977 states "....
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
The Agency argues that the Equality Officer erred in her
interpretation of that Section in terms of Section 2(a) of the
same Act, which states that for the purposes of this Act,
discrimination shall be taken to occur "..... (a) where by reason
of his sex a person is treated less favourably than a person of
the other sex".
The Court does not find that the Equality Officer erred (5.6) when
she was satisfied that "... neither the league nor the instruction
which derives from participation in the League can be considered
to be exclusively concerned, or even primarily concerned, with
training for carrying on an occupational activity. Further, the
Court agrees with the Equality Officer's opinion that
"exclusively" is not a word which readily lends itself to a wide
On the contrary, were the Court to accept the arguments of the
Agency in this regard, virtually every organisation could be
construed as providing vocational training. If "vocational
training" were understood to include the skills or proficiency
acquired by participation in any organisation, then the term
"vocational training" would lose its ordinary meaning.
That the situation was foreseen is confirmed by the fact that
during the Dail debate on the Employment Equality Bill the
following ministerial amendment was inserted "and which may be
considered as exclusively concerned with training for such
activity". The record of the debate further states "the purpose
of this amendment is to ensure that the section cannot be
interpreted too widely. The intention is that only vocational
training would be covered".
The Court is satisfied that the development of life skills which
is part and parcel of the growth of all persons, and which may be
enhanced by them taking part in the activities of an organisation
does not, automatically bring that organisation within the ambit
of Article 4 of Council Directive 76/207/EEC.
It thus does not consider it necessary to deal with the submission
of the Agency that Section 6(2) of the 1977 Act is in breach of
Following from the above decision of the Court, the matter of
indirect discrimination does not arise.
In summary, the Court holds that there was not discrimination for
the following reasons:-
(i) The Court finds that it was reasonable for the Agency to
refer the complaint under Section 20, having regard to
the age of the complainant. The Court is satisfied that
a specific intent of Section 20 is to allow the Agency
to so act in cases such as this.
(ii) The F.A.I. is not an educational or training body
offering a course of vocational training.
(iii) The Court accepts that the interpretation by the F.A.I.
of the age question raised by Section 6(1) of the Act is
the correct interpretation.
(iv) Having found that the F.A.I. is not a body offering
vocational training, there could be no indirect
discrimination against the claimant within the meaning
of Section 6 of the Employment Equality Act, 1977, in
terms of Section 2(c) of that Act.
The Determination in this case is too long for the Recommendation
field of the Database. It is held in the Document Field.
Signed on behalf of the Labour Court
27th November, 1991. Deputy Chairman
1. Employment Equality Officer's Recommendation.
2. Employment Equality Agency's Submission.
3. Submission of the Football Association of Ireland.
EMPLOYMENT EQUALITY AGENCY'S SUBMISSION
1. Alleged unlawful discrimination by the FAI.
(a) Direct Discrimination
The Rules of the S.F.A.I. (under the jurisdiction of the FAI)
state, under Rule 1(g):
"1 - A 'properly constituted' Division League is one which
satisfies the following requirements:-
(g) It shall cater for all boys up to the age of sixteen
years on 1st August of any one year.
Arising from that rule the FAI allegedly discriminated against Ms.
Dutton on grounds of her sex by denying her future participation
in the League because she is a girl, contrary to Section 6 of the
Employment Equality Act, 1977 in terms of Section 2(a) of that
2. Section 6 of the 1977 Act states:
"6 - (1) Any person or educational or training body offering a
course of vocational training shall not, in respect of
any such course offered to persons over the age at which
those persons are statutorily obliged to attend school,
discriminate against a person (whether at the request of
an employer, a trade union or a group of employers or
trade unions or otherwise)-
(a) in the terms on which any such course or related
facility is offered,
(b) by refusing or omitting to afford access to any such
course or facility, or
(c) in the manner in which any such course or facility is
(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
3. Vocational Training
The Agency submits that participation in the League constitutes
vocational training within the meaning of section 6 of the Act and
makes the following arguments in support of that view:
(i) Participation in soccer football requires technical as
well as physical abilities. These aspects of football
are developed over a considerable period of a young
player's career. Soccer requires both training
facilities and competitive exposure to develop an
(ii) It is impossible to predict the future of a young
soccer player, however without training facilities and
competitive participation an individual's potential
career is seriously undermined. The ultimate goal of
any serious player is to find a career in the sport,
but for various reasons only a small percentage can
realise that ambition.
(iii) It is impossible to predict with certainty whether
Audrey Dutton would want a professional career in
female socer football but such opportunities do exist
in Europe. (Ann O'Brien, an Irish soccer player has a
very successful professional soccer career in Italy.)
That decision would be taken by Ms. Dutton when she
could assess the opportunities open to her. The effect
of the F.A.I. decision to deny Ms. Dutton participation
in the North Wicklow and District Schoolboys' League is
to deny her the opportunity to develop a possible
career in professional female soccer.
(iv) It is submitted that a career in any profession is
dependent on training for that profession and access
to experience which enables the person to 'acquire,
maintain, bring up to date or perfect the knowledge or
technical capacity required for the carrying on of the
(v) It is generally accepted that the competitive exposure
provided by playing School League soccer is a vital
element in training for professional soccer.
(vi) It is accepted that the SFAI Rules do not refer to the
provision of vocational training. However, the
objectives set out in the Rules should not, it is
submitted, be treated as evidence of the reality of how
the School League operates or of its significance for
young aspiring players. The League plays a vital role
for young players and without the experience and
training provided, and particularly the competitive
exposure, a young player cannot hope to become a
Interpretation of 'Exclusively'
4. 1. In relation to the way in which the definition of
vocational training is qualified in section 6(2) by the
words, 'and which may be considered as exclusively concerned
with training for such activity,' the Agency submits the
2. The objectives of Council Directive 76/207/EEC were,
inter alia, the 'implementation of the principle of equal
treatment ... as regards access to ... vocational training.'
Article 2.1 of the Directive states that 'the principle of
equal treatment shall mean that there shall be no
discrimination whatsoever on grounds of sex either directly
3. The only exclusion provided in the Directive is under
Article 2.2, which states that exclusions from the
application of the Directive are lawful in relation to
"those occupational activities and, where appropriate,
the training leading thereto, for which by reason of
their nature or the context in which they are carried
out, the sex of the worker constitutes a determining
The qualification in section 6(2) operates as an exclusion
from the protection of the Directive but it is one which,
clearly, Article 2.2 does not provide for.
4. Article 4 of the Directive refers specifically to
vocational training and states:
"Application of the principle of equal treatment with
regard to all types and to all levels of vocational
guidance, vocational training, advance vocational
training and retraining means that Member States shall
take all necessary measures to ensure that:
(a) any laws, regulations and administrative
provisions contrary to the principle of equal treatment
shall be abolished ..."
Article 4 goes on to state that 'vocational training shall be
accessible on the basis of the same criteria and at the same
levels without any discrimination on grounds of sex'.
5. Article 4 does not qualify 'vocational training' to
exclude any particular type or level of training, as section
6(2) of the 1977 Act attempts to do. It is submitted that
section 6(2) does not fully implement the terms of the
Directive, indeed it is in breach of the Directive. Article
2.2, the only exclusion permitted by the Directive, clearly
does not apply.
6. In such circumstance, where there is a conflict between
national and community law, it is well established that
Community law must take precedence. The European Court of
Justice (E.C.T.) in the Von Colson case (Case 14/83) stated:
"... the Member States' obligation arising from a
directive to achieve the result envisaged by the
directive ... is binding on all the authorities of
Member States including,for matters within their
jurisdiction, the courts. It follows that, in applying
the national law and in particular the provisions of a
national law specifically introduced to implement
Directive No. 76/207, national courts are required to
interpret their national law in the light of the wording
and the purpose of the directive in order to achieve the
result referred to in the third paragraph of Article
7. This view was reiterated by the ECJ in the case of
Johnson v RUC (Case 222/84).
8. We submit that Murphy v An Bord Telecom (1988) ICR 445
also has relevance to the way in which section 6(2) is
applied in this case. In the Murphy case Keane J. considered
that the words "equal in value" in section 3(c) of the 1974
Anti-Discrimination (Pay) Act were not ambiguous and that
since the claimants' work had been evaluated as being higher
in value than that of the male comparators, they were not
entitled to equal pay. In his opinion, in the absence of any
ambiguity a purposive approach was not necessary.
9. The ECJ took a different view and held that a purposive
approach was appropriate and that the court should look to
the effect of the legislation rather than the actual wording
of it. Keane J, in the light of the ECJ judgement, stated
"Such a construction necessarily involves a departure
from the ordinary and natural meaning of the words
'equal in value.' In the light of the interpretation of
Article 119 laid down by the Court of Justice of the
European Communities, however, it is this approach
rather than the literal approach adopted in my earlier
judgement, which must be adopted by the Court".
10. It is submitted that if 'exclusively' is to be given a
literal interpretation then it too, like the words 'equal in
value' where given a literal interpretation, will infringe
Community law. Indeed if 'exclusively' were given such an
interpretation, most types of training would be excluded from
the scope of equality legislation.
Section 6(2): 'derogation' from principle of equal treatment
5. 1. Without prejudice to the arguments above, if the Court
finds that section 6(2) is not in breach of Directive 76/207
but is a legitimate 'derogation', the Agency would submit the
2. As stated already, Section 6(2) operates as an exclusion
from the principle of equal treatment and as such must be
construed strictly, that is so as to minimise the number of
persons excluded from the protection of Directive 76/207 and
to maximise access to that protection. In the Johnson case,
referred to above, the ECJ stated that 'Article 2.2 being a
derogation laid down in the Directive must be interpreted
strictly;' the Advocate General in his opinion stated, 'let
me be clear: a derogation from a human right as fundamental
as equal treatment must be appraised in a restrictive
manner.' It is in this context that the following arguments
3. In the Dail Debates for 27 April, 1977 the Minister
stated that he was proposing the qualification in section
6(2) 'to ensure that the section cannot be interpreted too
widely. The intention of the legislations that only
vocational training would be covered.' The Minister's
concern was, clearly, to exclude activity which did not
constitute vocational training.
4. We would submit that this case is concerned,
specifically and exclusively, with the vocational training
element of School League participation and the resulting
disadvantages to Audrey Dutton when she is excluded from that
participation. Only the element of vocational training is at
issue here; however, this is an integral part of the overall
experience of participation in the league and consequently
cannot easily be separated from other aspects of that
experience. That does not invalidate the vocational nature
of that experience. That does not invalidate the vocational
nature of the training acquired or the importance of it for
future professional players.
5. The Agency would further argue that it would be
difficult to name a body which is exclusively concerned with
vocational training. There is always, to varying degrees, a
recreational, social, or development aspect to such training,
as for example particularly in areas like music, dance, and
gymnastics. This is also true in relation to the training
provided through School League football but it does not
invalidate the vocational training dimension involved.
6. Children who show talent in areas like dance,
gymnastics, music, etc. often receive vocational training at
a very young age. It would be against the spirit of the
Equality Directive if potential professionals in these areas
were disadvantaged on grounds of sex.
7. In the light of the above, it is submitted that section
6(2) must be applied as liberally as possible. The Court is
again referred to the ECJ in Johnson:
"The question whether an individual may relay upon a
provision of the Directive in order to have a derogation
laid down by national legislation set aside arises only
if that derogation went beyond the limits of the
exceptions permitted by Article 2(2) of the Directive."
It is submitted that the exclusion in section 6(2) goes
'beyond the limits of the exceptions permitted by Article
8. The Court is also referred to the ECJ's view, expressed
in Johnson, of the application of the principle of equal
treatment to training as 'unconditional':
"The application of the principle of equal treatment to
the conditions governing ... access to training is
unconditional and sufficiently precise so that it may be
relied upon by individuals as against a Member State
where it fails to implement it correctly.'
6. 1. The FAI content that section 6 does not apply to courses
of vocational training offered to persons under fifteen years
of age. The Agency disputes this and points out that section
6 applies to courses of vocational training -
"offered to persons over the age at which those persons
are statutorily obliged to attend school."
2. Persons are statutorily obliged to attend school school
at six years of age and we contend that the section therefore
applies to courses offered to persons over six years of age.
It is submitted that as there is no ambiguity in the section
and as it does not conflict with E.C. law, there is no need
for any interpretation other that a literal one.
3. It is further submitted that an exclusion of persons of
a certain age from the principle of equal treatment is not
provided for in Directive 76/207. The Court is referred
again to para. 5.8 above and the ECJ's view that the
application of the principle of equal treatment to training
4. Without prejudice, even assuming that such an exclusion
were legitimate it must be construed strictly. Therefore any
ambiguity should be resolved to the benefit of the person
seeking the protection of the legislation. The Court is
referred to the arguments made above on this issue at para.
5.2. and 5.7.
5. The Court is also referred to para. 5.6 in relation to
the importance of vocational training at an early age.
7. 1. The Agency does not accept that the British case Bennett
v. The Football Association Limited, is of any relevance to
the case here concerned. That case was decided in the
context of legislative provisions which do not exist under
the Employment Equality Act, 1977. In any event, the
language used by Lord Denning in giving his judgement on the
case shows that he did not seriously consider the issues
involved; indeed, he refused leave to appeal to the House of
2. In case of Rita McGhee v Trinity College Dublin EE1.89,
Ms. McGhee alleged that T.C.D. denied her access to the two
year Diploma in Theatre Studies Course contrary to SEction 6
of the 1977 Act in terms of SEction 2 of that Act. Having
investigated the case the Equality Officer concluded that Ms.
McGhee had been unlawfully discriminated against.
3. It was not relevant to the investigation of that case
whether Ms. McGhee had the capacity to become a professional
actor or how long the vocational training would take to
complete. What was at issue in the case was whether the
course was relevant to a potential future occupation in the
acting profession (regardless of whether the individual
wanted such a career) and whether the discrimination suffered
related to the individual's sex/marital status.
(b) Indirect Discrimination
8. 1. It is submitted that Ms. Dutton was indirectly
discriminated against on grounds of her sex contrary to
Section 6 of the Employment Equality Act, 1977 in terms of
Section 2(c) of that Act.
2. The Rules of the SFAI (Appendix 2) outline the 'Rules
Relating to the Rights and Duties of Divisional Leagues,
Clubs and Players' and specifically state that a properly
constituted Divisional League shall cater for boys up to the
age of sixteen years.
3. That requirement, i.e. to be male, is not an essential
requirement for vocational training in the area of
professional soccer and its effect is that a substantially
higher proportion of males can comply with the requirement
than females who can comply with the requirement. Indeed,
the requirement is so sex discriminatory that 100% of the
male population in the relevant age cohort could comply with
the requirement whereas no females in the relevant age cohort
could comply with it.
9. 1. In summary, the Agency alleges that the FAI unlawfully
denied Audrey Dutton vocational training for a potential
future career in professional soccer and therefore
contravened Section 6 of the 1977 Act.
10. 1. S.20 empowers the Agency to refer a complaint of alleged
discrimination to the Court on behalf of a person where it is
not reasonable for that person to do so. It is submitted
that it would not be reasonable to expect Audrey Dutton to
refer this case. Section 20 does not place an onus on the
Agency to establish whether some other party may reasonably
be expected to refer such a case; it need only be
established that the person on whose behalf the matter is
referred cannot reasonably be expected to do so.
11. The Agency seeks the following remedy:
(1) That Ms. Dutton be permitted to play in the North
Wicklow and District Schoolboys' League
(2) That the Rules of the S.F.A.I. be altered to delete both
direct and indirect sex discrimination
(3) That Ms. Dutton be awarded appropriate compensation for
the alleged unlawful discrimination suffered, for the
distress caused, and for the injury to her feelings
SUBMISSION OF THE FOOTBALL ASSOCIATION OF IRELAND
1. The Respondent (FAI) is the governing body for soccer in
Ireland. Its regional affairs are managed by divisional
associations which are in large measure province-based (e.g. the
Leinster Football Association). There are also a number of
sub-national affiliated bodies which have responsibility for the
government and management of particular strata of the game. They
include the Football Association of Irish Schools (FAIS), the
Schoolboys Football Association of Ireland (SFAI) and the Ladies
Football Association of Ireland (LFAI). Subject to the overall
rules and guidelines of the FAI each of these bodies is autonomous
and draws up its own rules and regulations for the management of
its particular area and activity. The rules of the FAIS, SFAI AND
LFAI (Details supplied to the Court), are a matter for those
bodies themselves and come into existence by proposal from their
members which are voted and passed at their Annual General
2. The FAIS governs the activity of soccer taking place in
primary and secondary schools. Teams playing in its various
leagues represent schools. At primary level if the school is
mixed it may put forward a mixed team. At secondary level,
however, the teams are not mixed and there are separate leagues
and competitions for boys' and girls' teams.
3. The SFAI is a national club-based organisation which has
numerous leagues affiliated to it. Each of these leagues has a
series of clubs playing in it (Details supplied to the Court).
The SFAI caters for boys only up to the age of 16 years.
4. The LFAI is responsible for the organisation and running of
ladies soccer. It is a relatively small organisation, having 120
affiliated clubs. It is expanding, however, and has been
introducing leagues for increasingly younger players and is now in
some areas catering for an under-12 age group.
5. In the case of all three bodies, the day-to-day playing
activities are carried out by a series of leagues. Each of these
leagues draws up its own working rules and regulations which
mirror those of its parent body. In general the management of the
associations and their various leagues and clubs is carried out on
a voluntary basis by interested persons who form committees and
management boards. These clubs are organised and formed by people
who are interested in serving the social, entertainment and
sporting needs of a group of people. Often this is a geographic
based group in a village, town or locality. When a club is formed
and wishes to compete it applies to the relevant league operating
in its area. The decision to accept the application rests with
the management of the particular league.
6. The leagues do not seek to have clubs established in any
particular area and there are many parts of the country in which
there are no clubs or leagues operating. There are parts of the
country in which there may be an adult league operating but not
one for the under-16s, or vice versa. This is particularly the
case for the LFAI. Most leagues in the SFAI operate with very
limited financial resources, the North Wicklow and District
Schoolboys League being a case in point.
7. The FAI reiterates its belief that the case, and thus the
appeal, was never properly before the Court. The case was
referred to the Court by the Agency under Section 20 of the 1977
Act. This section only empowers the Agency to refer a complaint
where it appears that discrimination is either being generally
practiced against persons (which is clearly not the case since the
complaint relates specifically to an individual) or has occurred
in relation to a particular person who has not made a reference
under Section 19 in relation to the alleged discrimination and
that it is not reasonable to expect such a reference from her.
The Agency have not shown that it was not reasonable to expect a
Section 19 reference and consequently the FAI submit that the
Court should rule that it has no jurisdiction to hear this appeal
since there was no valid referral to the Court by the Agency
capable of being dealt with. Although this point was made to the
Equality Officer it was not pursued strongly because the FAI
accept that it follows from the Supreme Court's decision in Aer
Lingus Teo v Labour Court (1990) ILRM 485 that the Equality
Officer has no function to deal with any matter concerning
"acceptability" of a complaint (see Walsh J. at 501).
8. Without prejudice to the foregoing, the FAI submits that the
North Wicklow and District Schoolboys League (the League) is not a
course of vocational training within the meaning of Section 6 of
the 1977 Act. Vocational training is defined in Section 6(2) as:-
"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 occupational activity and which may be considered as
exclusively concerned with training for such activity".
This definition is similar to the definition of "vocational
training" laid down by the Court of Justice of the European
Communities in Case 293/89, Gravier v City of Liege (1985) E.C.R.
593, 614, namely:
"any form of education which prepares for a qualification for
a particular profession, trade or employment or which
provides the necessary training and skills for such a
profession, trade or employment".
9. That definition was further considered by the Court of
Justice in Case 263/86, Belgian State v Humbel (1988) E.C.R. 5365.
Here the course of study, alleged by the defendants to constitute
vocational training, was secondary education provided under the
Belgian education system. The Court held that a year of secondary
education could only constitute "vocational training" if it was
part of a programme forming an indivisible body of instruction
preparing for a qualification for a particular profession, trade
or employment or providing the necessary training and skills for
such a profession, trade or employment. The Court further ruled
that it was for the national court to apply these criteria to the
facts of the case before it.
10. The FAI would also draw the Court's attention, when
considering the meaning of Section 6(2), to 298 Dail Debates col.
1549 where the Minister for Labour (Michael O'Leary TD) proposed
an amendment to the original wording of the subsection to ensure
that the section could not be interpreted too widely and was to be
confined to vocational training only.
11. The FAI submits that the League is not a system of
instruction at all and that, even if it were, it is not one
exclusively or even primarily concerned with training for an
occupational activity. Nor is it a form of education which either
prepares for a qualification for a particular profession, trade or
employment or provides the necessary training and skills for such
a profession, trade or employment. The League is a purely
recreational activity and the fundamental social aspect of the
League is clear from Rule 2 of the rules of the S.F.A.I. wherein
the objects of the S.F.A.I. are set out. The FAI urges the Court
to uphold the Equality Officer's finding that "while instruction
in the playing of football is acquired by virtue of participation
in the League, neither the League nor the instruction which
derives from participation in the League can be considered to be
exclusively concerned, or even primarily concerned with training
for carrying on an occupational activity".
12. The FAI further submit that the 1977 Act, as its short and
long titles indicate, is solely concerned with discrimination in
employment and access thereto. In this it differs from the
British Sex Discrimination Act 1975 which, in addition to
prohibiting such discrimination, also prohibits discrimination in
relation to education and in relation to the provision of
facilities and services. Even though the British legislation is
much broader in scope that the 1977 Act, a complaint identical to
that made by the Agency was not successful under that legislation
(Details of the decision of the Court of Appeal in Bennett v
Football Association supplied to the Court).
13. In any event that FAI submits that in order for a course of
vocational training to fall within the scope of Section 6 it must
be one "offered to persons over the age at which those persons are
statutorily obliged to attend school". By virtue of Section 2 of
the School Attendance Act 1926 and the School Attendance Act 1926
(Extension of Application) Order 1972 (S.I. No 105 of 1972) the
age at which persons are statutorily obliged to attend school is
between six and fifteen. As Ms. Dutton's date of birth is 26th
May, 1981 she is at an age when she is still statutorily obliged
to attend school. Before the Equality Officer the Agency argued
that the age at which person are statutorily obliged to attend
school was six. If that had been the legislative intention, the
word "first" would have been inserted before the word
"statutorily". The cardinal principle of statutory interpretation
that must be adhered to (per Henchy J. in Nestor v Murphy (1979)
I.R. 326) is that legislation must be given "a construction which
does not overstep the limits of the operative range that must be
ascribed to it, having regard to the legislative scheme as
expressed in the Act ... as a whole". It is inconceivable that
the legislature, in the course of enacting legislation to outlaw
discrimination in the workplace, would have attempted to intrude
so fundamentally into the sphere of recreational, social and
sporting activity without the kind of safeguards that are to be
found in comparable legislation abroad.
14. Consequently the FAI would urge the Court not to accept the
Agency's submission that it has discriminated contrary to Section
6 of the 1977 Act and to uphold the decision of the Equality
Officer that the League is not a course of vocational training as
therein defined and therefore does not come within the scope of