EQUALITY OFFICER DECISION NO: DEC-E/2009/120
THE TEACHING COUNCIL
(REPRESENTED BY TOM MALLON BL INSTRUCTED BY
ARTHUR COX - SOLICITORS)
File No: EE/2006/427
Date of issue: 22 December, 2009
Headnotes: Employment Equality Acts, 1998&2004, section 6,13, 31 and 36 - discriminatory treatment - professional body -educational qualifications -race- age - family status
This dispute involves a claim by Mr. Kevin Foley that the Teaching Council discriminated against him on grounds of age, family status and race, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to sections 8 and 31 of those Acts, in the manner in which it dealt with his application for recognition and registration of his teaching qualifications, which he submitted in June, 2006.
2.1 The complainant obtained his teaching qualifications in the UK and taught there as a post-primary teacher for twenty-five years prior to his move to Ireland in 2002. In June, 2006 he applied to the respondent to have these qualifications recognised in Ireland thereby enabling him seek registration as a post-primary teacher in this country, which in turn would permit him to obtain employment in that capacity. The complainant asserts that the respondent discriminated against him on grounds of age, contrary to sections 13 and 31 of the Acts, in the manner in which it handled his application. The respondent rejects the complainant assertion that it treated him less favourably on the grounds cited and notwithstanding this submits that as the statutorily appointed designated authority with responsibility for recognition and registration of post-primary teaching qualifications in this jurisdiction, it is entitled to rely on section 36(4) and 36(5) of the Acts in exercising its statutory functions as regards recognition of teaching qualifications.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 31 October, 2006. In accordance with her powers under the Acts 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 Acts. My investigation of the complaint commenced on 15 January, 2009 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing took place on 28 September, 2009.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he obtained his teaching qualifications in the UK and taught there as a post-primary teacher for twenty-five years prior to his move to Ireland in 2002. In June, 2006 he applied to the respondent to have these qualifications recognised in Ireland. He states that the respondent sought information from him about his degree and teacher training period in such detail that it was impossible for him to furnish it. The complainant states he responded to this request explaining that he commenced his degree in 1972 and was unable to furnish such detail, adding that he had almost 25 years of actual teaching experience and was unable to produce details of supervised training periods. He asserts that this constitutes unlawful discrimination of him on grounds of age contrary to the Acts.
3.2 The complainant states that the respondent subsequently recognised his Economics degree in October, 2006 although he was unable to proceed to the next stage of the process (registration) as his teacher qualification did not include a module on "The History and Structure of the Irish Education System". He adds that he was required to either sit an examination on this topic to satisfy this requirement or to undergo an adaptation period (of up to three years) whilst teaching on a probationary basis with the associated terms and conditions. The complainant submits that the requirement to have such a qualification constitutes indirect discrimination of him on grounds of race, as only persons who acquire their teaching qualifications in Ireland can comply with that requirement.
3.3 The complainant further states that the respondent advised him that in addition to the requirement set out in the preceding paragraph, the respondent notified him on 21 October, 2006 that full registration would necessitate him completing a years' teaching practice of at least 18 hours per week. He argues that this constitutes further discrimination of him on grounds of family status contrary to the Acts as he is the sole parent to his son.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects, in the first instance, the complainant's assertion that it discriminated against him on the grounds cited, or at all. It further submits that under the Teaching Council Acts, 2001 and 2006 it is the designated authority for recognition of teacher qualifications under EU Directive 89/48 EEC and its successor EU Directive 2005/36/EC . In this capacity it states that its statutory functions and objects are, inter alia, "to regulate the teaching profession and the professional conduct of teachers" and "to determine, from time to time, the education and training and qualifications required for a person to be registered" and thus enable them to teach in Ireland. It submits that in exercising these functions it is entitled to rely on the exemption provided at section 36(4) and 36(5) of the Employment Equality Acts, 1998 and 2004.
4.2 The respondent states that at the relevant time it operated an application process whereby applicants were required, in the first instance, to seek recognition of their qualifications and then apply to be registered as a teacher on a full or conditional basis. The respondent accepts that the complainant submitted an application in June, 2006. The respondent adds that it requested additional evidence of the complainant's UK qualifications in accordance with its standard practice. It adds that following some correspondence it advised the complainant that it had decided to recognise his educational qualifications and advised that he could proceed to the next stage of the process, registration. The respondent accepts the complainant was also advised at this time (20 October, 2006) that he was required to complete a years' post qualification teaching experience of at least 18 hours per week. It adds that this is also a standard requirement for registration. However, it states that on 24 October, 2006 it informed the complainant that his teaching experience in the UK would satisfy this requirement (teacher education/training) and he would not be required to complete any further teaching practice. The respondent states that this position was re-stated to the complainant on two further occasions prior to the Hearing of the complaint and adds that the complainant was aware that he was entitled to proceed with his application for registration from mid-October, 2006 but chose not to do so.
4.3 The respondent accepts that the formal registration of the complainant's teacher education/training qualifications was subject to him demonstrating an acceptable level of knowledge of the History and Structure of the Irish Education System. The respondent states that the complainant was given the option of an examination or an adaptation period - the options permitted under the relevant EU Directive - to demonstrate this knowledge and did not avail of either option. He was also advised that he was eligible to apply for registration on a conditional basis, which would enable the complainant obtain employment in the Irish Post-Primary education system. The respondent states that the History and Structure of the Irish Education System is an integral element of the teacher education programmes (Higher Diploma of Education) provided by the Irish Colleges of Education. It further states that the requirement to demonstrate this knowledge applies to all applicants seeking registration as a post-primary teacher within the State, regardless of where those qualifications were obtained. It adds that the Council does not only deal with applications for registration from persons who obtain their qualification in Ireland or the UK, it has received applications from citizens of other EU Member States and in those circumstances it is an appropriate and necessary requirement for applicants to have an acceptable level of knowledge of the History and Structure of the Irish Education System in order for the respondent to maintain and improve standards of teaching within the State.
4.4 In summary, the respondent submits that the complainant has failed to establish a prima facie case that the manner in which it treated his application constitutes less favourable treatment of him on all, or any, of the discriminatory grounds cited and on that basis his complaint cannot succeed. In this regard it points to the fact that the same process operates for all applicants whose qualifications were obtained outside of Ireland, regardless of their nationality, age or family status and that the complainant was granted recognition of his qualifications within three months of his original application and shortly thereafter was invited to apply for registration. It further submits that it is statutorily charged with determining whether or not applicants for recognition and registration as post-primary teachers possess the competence and educational qualifications necessary to pursue teaching as a profession. It adds that the relevant EU Directives, which are currently transposed into Irish law by the Recognition of Professional Qualifications (Directive2005/36/EC) Regulations, 2008 sets out the parameters of the processes it can operate in seeking to determine the bona fides of an application. The respondent states that section 36(4) of the Acts provides that it shall not be unlawful for it to require the holding of a specified qualification which is a generally accepted qualification in the State for posts of that description. It submits that the requirement to hold a Higher Diploma of Education has been acknowledged for many years as the specified and generally accepted qualification for the profession of Post-Primary teaching in the State and consequently it is not unlawful to require all those seeking entry to that profession to hold that qualification, or an equivalent - provided the applicant can demonstrate an acceptable level of knowledge of the History and Structure of the Irish Education System. In addition, it further submits that the requirement to hold such a specified qualification is "appropriate" in terms of section 36(5) of the Acts. The respondent argues that it is entitled to avail of these exemptions and seeks to rely on the Decisions of the Equality Tribunal in Ji-Youn Henning v An Bord Altranais and Ilieva v Irish Society of Chartered Physiotherapists . The respondent also refers to the Determination of the Labour Court in Gorry v The Office of the Civil and Local Appointment Commissioners in the context of the Court's interpretation of the phrase "a particular post" encompassing the generic post of Executive Officer in the Civil Service and that this interpretation is equally applicable to the generic post of post-primary teacher.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of age, family status and race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 13 and 31 of those Acts and (ii) can avail of the exemptions provided at section 36(4) and 36(5) of the Acts.. In reaching my decision I have taken into consideration all of the submissions, both written and oral, made by the parties as well as the evidence given by witnesses at the Hearing.
5.2 The normal approach taken by this Tribunal when investigating complaints of less favourable treatment is that the complainant must establish a prima facie case of discrimination in accordance with section 85A of the Acts. However, in this case the respondent has argued that it is entitled to avail of the exemptions provided at section 36(4) and 36(5) of the Employment Equality Acts, 1998 and 2004. If the respondent is successful in that regard the manner in which it evaluates a person's application for recognition and registration of his/her qualifications for the purposes of being permitted to gain employment as a post-primary teacher in Ireland cannot constitute discrimination contrary to the Acts and will dispose of the complaint. I propose therefore to examine this issue in the first instance.
5.3 Section 36(4) of the Employment Equality Acts, 1998 and 2004 provides as follows:
"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."
Section 36(5) states that:
"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."
Section 13 provides that -
"A body which --
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry to, or the carrying on of, a profession, vocation or occupation,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.".
5.4 It is clear that the exemption at section 36(5) of the Employment Equality Acts, 1998 and 2004 applies to a body which falls within the parameters of section 13(c) of the Acts. The respondent is a statutory body established under the Teaching Council Acts, 2001 and 2006. Sections 6 and 7 respectively of these Acts set out objects and functions of the Council. I have examined these provisions and I am satisfied that the respondent is a body which controls entry to the profession of teaching in terms of section 13(c) of the Employment Equality Acts, 1998 and 2004.
5.5 The respondent is the statutory designated authority for the recognition and registration of qualifications under EU Directive 89/48 EEC and its successor EU Directive 2005/36/EC , which have been transposed into Irish law by the Recognition of Professional Qualifications (Directive2005/36/EC) Regulations, 2008 . These Regulations (in particular 5 and 8) charge the respondent (as designated authority) to evaluate and assess applicants who have obtained qualifications outside of the State "under the same conditions as apply to nationals". The respondent states that all applicants for registration to teach in post-primary schools must have, inter alia, a recognised degree meeting the required criteria and a recognised teacher education qualification. In this State the latter is achieved through the Higher Diploma of Education. A compulsory element of the Higher Diploma is a module on the History and Structure of the Irish Education System. The respondent submits that the rationale for this requirement is "education systems are shaped by the historical influences of politics, culture, religion, economic and cultural forces of society. When a person assumes a teaching position in a country it is professionally desirable that s/he has a basic understanding of the character of that system and of the influences which have formed it. An informed awareness of the values, traditions and configuration of the system are desirable for satisfactory engagement with it. Such knowledge and understanding also assist teachers to contribute to the on-going development of the system." and I accept the thrust of this statement. I note that for many years the Higher Diploma of Education has been accepted as the specified requirement for applicants seeking registration to the teaching profession. I further note that the respondent provides an alternative avenue for those who do not have an acceptable level of knowledge of the History and Structure of the Irish Education System to acquire same, which is not unduly onerous. In light of the foregoing I am satisfied that it in order for the respondent in discharging one of its statutory functions - to maintain and improve standards in teaching - to require applicants for registration of their qualifications to possess a specified teacher education qualification (Higher Diploma of Education) or its equivalent and that the latter must include a comparable level of knowledge of the History and Structure of the Irish Education System to the former. I find therefore that the respondent is entitled to avail of the exemption provided at section 36(5) of the Employment Equality Acts, 1998 and 2004. In light of my decision in this regard it is not necessary for me to deal with the issue of whether or not the respondent discriminated against the complainant on the grounds cited in the manner in which it treated his application.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that the respondent is entitled to avail of the exemption provided at section 36(5) of the Employment Equality Acts, 1998 and 2004 and the complainant's claim therefore fails.
22 December, 2009