SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
OFFICE OF THE CIVIL SERVICE AND LOCAL APPOINTMENTS COMMISSIONERS
(REPRESENTED BY CHIEF STATE SOLICITOR'S OFFICE)
- AND -
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Appeal under Section 83 of the Employment Equality Act, 1998 Dec-E2005-038
2. The worker appealed his case to the Labour Court on the 11th of October, 2005, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 19th of September, 2006. The following is the Court's determination:
The Complainant contends that he was discriminated against by the Respondent on the disability ground contrary to Section 8 of the Employment Equality Act, 1998, (the Act). His complaint relates to the decision of the Respondent to exclude him from consideration for appointment to the grade of Executive Officer in the Civil Service because he did not pass in English in his Leaving Certificate. The Complainant suffers from dyslexia and contends that his failure to pass the examination at issue was attributable to that condition. His claim was investigated by the Equality Tribunal which found against him. The Complainant appealed to this Court.
The material facts of this case are not in dispute and can be summarised as follows:
The Complainant sat the Leaving Certificate examination in 1990. His condition was not diagnosed until 1992. On being diagnosed he sought to have his English examination reviewed by the Department of Education. This could not be facilitated as the papers had been destroyed.
At the time relevant to this complaint the Complainant was employed as a tax official in the Office of the Revenue Commissioners. He entered a competition run by the Respondent for appointment to the post of Executive Officer in the Civil Service. Eligibility for appointment to the posts at issue was determined by regulations made pursuant to the Civil Service Commissioners Act 1956. The eligibility criteria include,inter alia, a requirement that candidates obtained a pass in English or Irish in the Leaving Certificate examination (or its equivalent). The Complainant did not meet this requirement.
The Complainant passed a written examination in the competition. However he was not appointed because he did not meet the educational requirements specified.
Position of the parties.
The Complainant contends that the educational requirements specified by the Respondent for appointment to the posts at issue constitute a provision relating to employment within the meaning of Section 31 of the Act. He further contends that it is a requirement which can be complied with by a substantially smaller proportion of persons with dyslexia when compared to persons without dyslexia and cannot be justified as being reasonable in all the circumstances of the case. On this basis the Complainant contends that the application of the educational requirement to him constituted indirect discrimination within the meaning of Section 31 of the Act.
The Respondent denies that the requirement is indirectly discriminatory. It contends that the duties of the post of Executive Officer are such that persons appointed to it must have a competence in written communication and that the pass standard in English (or Irish) in the Leaving Certificate is an acceptable benchmark of such competence. The Respondent contended that even if the Complainant had passed English in the Leaving Certificate he did not satisfy other educational requirements of the post. Moreover, the Respondent submitted that no evidence has been adduced to establish that significantly fewer persons with the same disability as the Complainant are able to meet the impugned education requirements. The Respondent also relied on the provisions of Section 36 (4) and (5) of the Act, which, it submitted, render lawful the specification of the impugned educational qualification in the circumstances of this case.
On this latter point the Complainant submitted that on its true construction Section 36 does not allow an employer to specify an educational requirement which is indirectly discriminatory without taking account of the individual circumstances of employees or prospective employees such as the Complainant. The Complainant further contends that any such requirements must relate to the specific duties of the particular post to be filled rather than a generic grouping of posts.
Conclusions of the Court.
The relevant statutory provisions applicable in this case are contained at Sections 31 and 36 of the Act.
Section 31 of the Act provides as follows: -
31.—(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,
(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, subject to subsections (4) and (5), 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).
For the purpose of this Determination the Court is prepared to assume (without so holding) that the impugned educational requirements can be complied with by a substantially smaller number of persons with the same disability as the Complainant when compared to persons without that disability. Accordingly the Court has proceeded on the assumption that the requirement at issue comes within the ambit of Section 31 of the Act and is indirectly discriminatory unless it can be justified as being reasonable in all the circumstances of the case.
However, as the impugned provision is in the nature of an educational requirement, its legality is saved by Section 36 of the Act if that Section is applicable to the facts of the case. Section 36, subsections (4) and (5) are relevant in this regard and provide as follows:-
- (4) Nothing in this Part or Part II shall make it unlawful to require, in relation to a particular post—
(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.
The Respondent submitted that subsection (4) of Section 36 provides a complete defence to a claim of indirect discrimination grounded on the imposition of an educational requirement provided that the requirement at issue is one that is a generally accepted requirement for posts of that description within the State. It was urged on the Court that the Leaving Certificate is such a qualification for posts such as that of Executive Officer in the Civil Service.
The Respondent contended that the grade of Executive Officer is a substantive post within the Civil Service and is a particular post within the meaning of subsection (4) of Section 36. In that regard the Respondent referred the Court to the provisions of Section 18 of the Interpretation Act 2005 which provides that in every enactment, unless the context otherwise requires, the singular imports the plural. Thus, it was submitted, the reference to “a particular post” is capable of referring to a number of posts generically classified as Executive Officer.
The resolution of disputes concerning points of statutory interpretation is now governed by the Interpretation Act, 2005, together with the application of interpretative criteria derived from the common law. Section 5 of the Act of 2005 provides that where a provision in an enactment is obscure or ambiguous the provision shall be given a construction that reflects the plain intention of the Oireachtas where that intention can be ascertained from the Act as a whole. As was pointed out by Murray J (as he then was) inCrilly v T&J FarringtonI.L.R.M. 161, p 184, the term “ambiguous” is an ambiguous term itself and nearly every provision of an Act which becomes the subject of controversy and litigation could be said to be ambiguous to some extent.
The wording of subsection (4) of Section 36 is, in the Court’s view, capable of at least two viable interpretations, both of which were canvassed in this case. There must, therefore, be some linguistic doubt as to the meaning attributable to the words used. In these circumstances the Court considers that it is appropriate to consider the provision in the context of the Act as a whole.
Section 31 of the Act prohibits indirect discrimination. Indirect discrimination can potentially arise where a rule or criterion for employment is specified which a particular group or class of persons might find more difficult to comply with on one of the proscribed grounds than those to whom the proscribed ground does not apply. In the case of an educational requirement it is easy to identify a number of groups or categories of person on whom a requirement to hold a qualification such as the Leaving Certificate could bear more heavily than in the case of others. This could mean that the stipulation of an educational, technical or professional qualification for employment would, in practice, be rendered unlawful by virtue of Section 31 of the Act.
The stipulation of educational qualifications is an established feature of recruitment practice in Ireland and elsewhere. It is a generally accepted means of providing a basic objective indicator of suitability for a range of positions and occupations.It is also used as an objective means of confining competition for jobs to those who have a realistic prospect of meeting the requirements of particular occupations or professions. Against that background the Oireachtas must have intended to remove from the purview of s 31 of the Act altogether criteria in the nature of educational, technical or professional qualifications which are generally regarded as necessary for posts of a particular category. This suggests that the saver at subsection (4) is applicable to the filling of posts at a grade or level in respect of which the qualification would normally be required and is not confined in its application to specific individual jobs within a broader classification.
The Court is satisfied that when viewed in this context the reference to “a particular post” at Section 36(4) should be interpreted as encompassing the generic post or occupation of Executive Officer in the Civil Service. The Court is further satisfied that posts involving a similar range of duties elsewhere in both the public and private sectors would normally be reserved to those who possesseducational qualifications of the type at issue in this case. Accordingly, Section 36 (4) provides the Respondent with a complete defence to the claim herein and the Complainant cannot succeed.
In these circumstances it is unnecessary for the Court to consider the other points canvassed by the parties in the course of the hearing.
The appeal herein is disallowed and the Decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
9th October, 2006______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.