Equality Officer Decision No: DEC-E/2009/075
The Department of Education and Science
(Represented by Cathy Smith BL – Instructed by
Chief State Solicitor’s Office)
File No: EE/2008/104
Date of issue: 3 September, 2009
Headnotes: Employment Equality Acts, 1998-2008 sections 6, 12 and 31 – discriminatory treatment – vocational training – race – national origins - ethnic origins- burden of proof – less favourable treatment - direct discrimination - indirect discrimination.
This dispute involves a claim by Ms. Sarah Curran that the Department of Education and Science discriminated against her on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998 and 2007 and contrary to section 12 and 31 of those Acts, when she was not offered a place on Primary Teacher Training courses at two specific Colleges of Education following the CAO first round offers in August, 2007.
2.1 The complainant applied for a number of third level Primary Teaching Training courses as part of the CAO process in 2007. She states that two of the Colleges of Education reserve a certain number of places on those courses for applicants who reside in Gaeltacht Areas. In 2007 the CAO points entry requirement for these courses was lower than the entry requirement for mainstream teacher training courses. The complainant had sufficient point to qualify her for these reserved courses but did not have enough for the mainstream ones. The complainant does not live in a designated Gaeltacht Area and was not therefore eligible for one of the reserved courses. She contends that this constitutes discrimination of her on grounds of race contrary to the Acts. The respondent rejects the complainant's assertions and notwithstanding this submits that the practice is objectively justified in accordance with section 31 of the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 20 February, 2008. 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 26 September, 2008, the date the complaint was delegated to me. Submissions were filed and exchanged and Hearings took place on 30 January, 2009. A number of issues required further clarification and this gave rise to correspondence between the Equality Officer and the parties. The final piece of correspondence on the complaint was received in mid-June, 2009
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that she applied for a number of third level Primary Teaching Training Courses (Bachelor of Education) as part of the CAO process in 2007. She adds that the respondent, through the Colleges of Education, reserves a number of places at two of the Colleges which offer these courses (Coláiste Mhuire, Marino and St. Patrick's College, Drumcondra, both located in Dublin) for applicants who reside in designated Gaeltacht Areas (hereafter called the Gaeltacht Entry Scheme - a title generally used by the respondent). She contends that in 2007 the CAO points entry requirement for that Scheme at the two colleges concerned was 415 and 425 respectively whereas the points requirement for mainstream Bachelor of Education courses in the same colleges was 455 and 465 respectively. The complainant states that she had enough points to be offered a place on the Gaeltacht Entry Scheme but fell short of the points requirement for a mainstream place. She adds that she also fulfilled the requirement for applicants to hold a Grade C (or higher) at Leaving Certificate Irish (Higher Level) and that she was not offered a place under the Scheme, whereas applicants from Gaeltacht Areas with lower points than her were offered a place. The complainant states that the reason she was not offered a place on the course was because she did not reside within a designated Gaeltacht Area. She submits that this constitutes direct and/or indirect discrimination of her contrary to sections 12 and 31 of the Employment Equality Acts, 1998-2007 on grounds of race, in particular on the basis of her ethnic and national origins.
3.2 The complainant submits that that residents of Designated Gaeltacht Areas represent and comprise a body of individuals who subscribe to (i) a shared common language, (ii) a shared ancestral, historical and socio-cultural origin, (iii) shared cultural origin, heritage, traditions and values and (iv) a shared defined common geographical area. She submits that these characteristics provide those individuals with separate national and/or ethnic origins, characteristics which she does not share and therefore treating her less favourably on that basis constitute discrimination of her on grounds of race, contrary to the Acts. The complainant seeks to rely the Decision of this Tribunal in Persaud v Shelbourne Hotel and the judgement of the UK House of Lords in Mandla v Lee in support of her assertion in this regard.
3.3 The complainant asserts that the aims of the Scheme, which commenced in its current format in 1961 - although the practice can be traced back to 1920's - are no longer valid in modern 21st century Ireland. She submits therefore that the operation of the Scheme cannot be considered as objectively justified in terms of section 31 of the Acts. She further submits that the respondent has not conducted any evaluation of the Scheme to ascertain that the aims of the Scheme - to ensure an adequate supply of native speakers for schools in Gaeltacht Areas - has been achieved. The complainant also submits that the respondent cannot rely on section 36(3) of the Acts. She argues that the defence available in that provision relates to employment, not vocational training and consequently it does not apply to section 12 of the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent accepts that the complainant was not offered a place under the Gaeltacht Entry Scheme in either of the colleges named as part of the 2007 CAO process. It states that as part of the Government's policy in support of the Irish language there is a practice, which was introduced in 1961, whereby up to 10% of Bachelor of Education placements at five State funded Colleges of Education may be reserved for applicants residing in Designated Gaeltacht Areas and whose normal language at home is confirmed as Irish. It adds that applicants must fulfil both of these criteria as well as meeting the appropriate CAO points requirement for the college concerned. The respondent states that whilst the complainant met the CAO point requirements she did not fulfil the residency criterion. It adds that her application was therefore not assessed as to whether or not she fulfilled the second criterion - that the normal language at home was Irish - and she was not offered a place under the Scheme.
4.2 The respondent states that applications for places under the Gaeltacht Entry Scheme and the mainstream Bachelor of Education stream must be made through the CAO. It adds that whilst it has a role to play in determining the overall number of places to be reserved under the Gaeltacht Entry Scheme, the points requirements is determined in the normal manner by the CAO based on the principle of supply and demand - i.e. the number of places available versus the number of applications - as is the case with all CAO courses and that it is not necessarily the case that applicants who secure places under the Gaeltacht Entry Scheme always have fewer points than applicants who secure places under the mainstream process. It accepts however, that in 2007 the points requirement under the Gaeltacht Entry Scheme was lower than the mainstream process.
4.3 The respondent submits that the complainant has placed an incorrect interpretation on the concepts of national origin and ethnic origin as they are contained in the Acts. In the case of national origin the respondent asserts that the complainant's attempt to assign a distinct national origin to people residing in a Gaeltacht Area is wrong. It submits that Gaeltacht Areas are clearly not distinct and separate nations and consequently persons residing in those areas do not have a national origin based on that criterion alone. It adds that nationality and national origins are not synonymous concepts. A person can claim a number of nationalities but has only one national origin - derived from the nation where s/he was born. In this regard the respondent seeks to rely on the judgment of Lord Donovan in Ealing London Borough Council v Race Relations Board as follows "'national origins' are the circumstances connecting a person with a national group at the time of his birth". The respondent submits that the vast majority of those persons residing in the Gaeltacht Areas have the same national origins as the complainant - that they were born in Ireland - and consequently her claim cannot succeed.
4.4 As regards ethnic origin the respondent agrees with the complainant that the judgment of the UK House of Lords in Mandla v Lee is extremely useful is defining what constitutes an ethnic group. It notes that in that judgement Lord Frazer set out a number of characteristics which distinguish an ethnic group. Two of these characteristics were considered essential and the others were not considered so, but one or more of which will commonly be found in the group and will help to distinguish it from the surrounding group. The respondent contends that the complainant has not adduced any evidence to demonstrate that residents of Gaeltacht Areas satisfy the two essential elements in the Mandla case. Moreover, it argues that the complainant has failed to demonstrate that residents of Gaeltacht Areas possess the non-essential characteristics set out in the judgement. The respondent also seeks to rely on the English court of appeal judgement in Dawkins v Crown suppliers (PSA) Ltd in which the Mandla judgement was applied by that Court in considering whether Rastafarians were a separate group. In addition the respondent refers to the decision of the UK EAT in GwyneddCountyCouncil v Jones & Another where it held that the Industrial Tribunal had erred in law defining a racial group for the purposes of the legislation by the language factor alone and by sub-dividing the Welsh ethnic group into English-speaking Welsh and Welsh-speaking Welsh. The respondent submits that the complainant has failed to establish that residents of Gaeltacht Areas constitute a distinct ethnic group and her complaint must therefore fail.
4.5 The respondent further argues that it is not the body offering the place on the Third Level course and the complaint is not properly before the Tribunal. In addition, it contends the requirement placed on applicants for places under the Gaeltacht Entry Scheme that they reside in a Gaeltacht Area and speak Irish in the home does not fall within the circumstances prescribed at section 12(1) of the Acts. Without prejudice to these arguments, the respondent submits that the requirements set out above are objectively justified in terms of section 31(1) of the Acts. In this regard it points to the Government's Policy on Irish contained in the policy document "Statement on the Irish Language 2006", the judgement of the ECJ in Groener v Minister for Education and City of Dublin VEC and the statutory obligation on the Minister for Education and Science in respect of the Irish language at section 6J of the Education Act, 1998. Finally, it submits that it is entitled to avail of the defence provided at section 36(3) of the Acts and argues that the provision is not restricted to access to, or conditions of, employment but covers access to vocational training also.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2007 and contrary to sections 12 and/or 31 of those Acts when she was not offered a place on Primary Teacher Training courses at two specific Colleges of Education following the CAO first round offers in August, 2007. 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 Section 6(1) of the Employment Equality Acts, 1998-2007 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”
Section 6(2) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins.."
The complainant has advanced her complaint on the basis that she has a different ethnic and/or national origin to residents of Gaeltacht Areas and that she was treated less favourably on that basis. Notwithstanding the other arguments advanced by the respondent I propose to deal with this issue in the first instance.
5.3 Section 85A of the Employment Equality Acts 1998 and 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment on the grounds specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.4 The respondent accepts that there is a separate stream for residents of Gaeltacht Areas (known as the Gaeltacht Entry Scheme) to access Bachelor of Education courses in certain Colleges of Education and that in 2007 the CAO points requirement for entry to those courses on that Scheme was lower than the points requirement for similar courses in the mainstream. It further accepts that the complainant exceeded the points requirement for the Gaeltacht Entry Scheme but was not offered a place. It states that the reason for refusing her a place was that she did not fulfil the first of two criteria for the Scheme - that she resided in a Designated Gaeltacht Area and it rejects the complainant's arguments that this constitutes less favourable treatment of her on grounds of ethnic and/or national origin contrary to the Acts. It argues that the complainant has failed to establish that she possesses a different national and/or ethnic origin to residents in Gaeltacht Areas or vice versa and therefore she cannot succeed in her complaint.
5.5 The first aspect of the complainant's case is that she was treated less favourably on the basis of her national origins. There is no definition of the term "national origins" in the Acts and I must decide what the terms means in the context of the legislation. The respondent referred the Tribunal to the UK House of Lords judgment in LondonBorough Council v Race Relations Boardin this regard. In that judgement the House of Lords held that "nationality" and "national origins" are two separate concepts with the latter being acquired by a person at the time of birth and connects that person with one or more groups of people who can be described as a "nation" and I concur with this view. The complainant was born in Ireland therefore her national origin is Irish. The small number of Gaeltacht Areas which currently exist are part of the "nation" of Ireland - they do not constitute a separate nation or nations in their own right - and therefore persons born in those areas are also of Irish national origin. In 2007 nineteen applicants were offered places at the two named Colleges under the Gaeltacht Entry Scheme, having fulfilled all of the stated criteria. Whilst the respondent was unable to furnish details of the national origins of these applicants I am satisfied, on balance, that most of them had the same national origin as the complainant and I find therefore that she has failed to establish a prima facie case of direct discrimination on the basis of national origin. The complainant also alleges she was indirectly discriminated on the basis of national origin. She has adduced no evidence to demonstrate that the impugned requirements for the course - to reside in a Gaeltacht Area and to speak Irish as the language at home - put persons possessing the same national origins as her at a particular disadvantage. It follows that her claim of indirect discrimination fails.
5.6 The second basis on which the complainant advances her complaint is on the basis of "ethnic origins". Again there is no definition of the term "ethnic origins" in the Acts and I must decide what the terms means in the context of the legislation. In deciding on this point I have found the judgment of UK House of Lords in Mandla v Lee to be of great assistance and in particular the comments of Lord Frazer, who gave the leading judgment in the case. In his judgement Lord Frazer quoted with approval the comments of Richardson J of the New Zealand Court of Appeal in King-Ansell v Police as follows -
" The real test is whether the individuals or the group regard themselves and are regarded by others as having a particular historical identity in terms of their ..... ethnic origins. That must be a belief shared by the group.....A group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished by others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past... it is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity not simply based on group cohesion and solidarity but also on their belief as to their historical antecedents" .
5.7 Applying these principles Lord Frazer identified two essential characteristics of an ethnic group -
· "a long shared history, of which the group is conscious as distinguishing it from other groups and the memory of which keeps it alive.
· a cultural tradition of its own, including family and social customs and manners"
In addition to these essential characteristics he set out a number of other elements which, although not essential, could be expected to be displayed by the group -
· "either a common geographical origin or descent from a small number of common ancestors.
· a common language, not necessarily peculiar to the group.
· a common literature peculiar to the group.
· a common religion different from that of neighbouring groups or from the general community surrounding it.
· being a minority or being oppressed or a dominant group within a larger community."
5.8 Applying the above principles to the instant case I am not satisfied that residents of Gaeltacht Areas possess the two essential characteristics of an ethnic group as set out above. Whilst there are clearly some common bonds/cultural backgrounds between people who reside in such areas they could not be classified as having a historical basis distinguishing them from other groups. Moreover, I am not convinced that people outside of that group hold the view that those persons comprise a group with a separate and distinct social identity. In addition, I am satisfied, on balance, that there are people who have decided to live in Gaeltacht Areas for reasons unconnected with any ethnic factors. When one looks at the non-essential factors set out by Lord Frazer it could not be said that residents of Gaeltacht Areas have a common geographic origin. Currently, the Gaeltacht Areas are predominately situated along the West coast of Ireland, but there are also such Areas in Waterford and Meath. In addition, there are clearly people who promote the Irish language and support its survival by using it at home and sending their children to Gael Scoileanna who do not reside in Gaeltacht Areas. Whilst one might accept that many of those people who live in the Gaeltacht Areas share a common language and on that basis may be considered a minority within the greater population of Ireland, these factors are insufficient to denote them as having a particular ethnic origin (see UK EAT decision in Gwynedd County Council v Jones & Another ). In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination (both direct and indirect) on the basis of her ethnic origins. One final issue requires attention. I note that the respondent has never conducted any formal evaluation that the aims of the Gaeltacht Entry Scheme are achieved. Had the complainant established a prima facie case of discrimination it might have been difficult for the respondent to satisfy the defence of objective justification under the Acts.
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 complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts 1998 and 2007 and contrary to sections 12 and 31 of those Acts and her complaint therefore fails.