Employment Equality Acts
EQUALITY OFFICER'S DECISION
(Represented by Mr. Peter Leonard BL)
- V -
The Law Society of Ireland
(Represented by Mr. Conor Power BL on the instructions of Eugene F. Collins Solicitors )
File references: EE/2007/036
Date of issue: 19 April 2010
File references: EE/2007/036 - DEC-E2010-
Employment Equality Acts – Discriminatory Treatment - Race - Membership of certain bodies - Prima facie case
1.1. This dispute concerns a claim by Mr. Blazej Nowak (hereafter "the complainant") that he was subjected to discriminatory treatment contrary to section 13 of the Employment Equality Acts by The Law Society of Ireland (hereafter "the respondent") on the grounds of his race. The complainant stated that when he sought to sit the final entrance examination with the respondent he received a letter from The Law Society in January 2007 stating that he had to pay a fee of €65 to make an official application to the Education Committee.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 24 January 2007 under the Employment Equality Acts. This claim was made on the race ground. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer - on 30 November 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 16 March 2010.
2. Case for the complainant
2.1. The complainant, a Polish national, submitted that he applied to the respondent in December 2006 to sit the entrance examination for the Solicitor profession. In January 2007, the complainant submitted, he received a letter from the respondent informing him that he needed to make an official application to the Education Committee in relation to receiving an exemption from the Preliminary Examination. This application is open to foreign graduates, from non-Irish or United Kingdom universities, who wish to be exempted from the preliminary examination. The complainant submitted that the respondent contravened section 13 of the Acts by discriminating him in relation to being asked to pay a fee of €65. This fee, it was submitted, was not required from people who have a degree from a British or Irish university.
2.2. The complainant submitted that he has a degree of Master in Art in law from a Polish University. This, he submitted, made and makes him exempt from the preliminary examination. It was submitted that he had provided a certified copy of his degree certificate and, despite this, he was requested to apply for an exemption from the preliminary examination. The complainant submitted that there was no need for such an application as the respondent was in receipt of his degree certificate. Therefore, the complainant submitted, he has been discriminated contrary to section 13 of the Acts on the grounds of his nationality.
3. Case for the respondent
3.1. The respondent submitted that under the Solicitors Act 1954, section 54 (as substituted by section 40 of the Solicitors (Amendment) Act 1994, a person shall not be admitted as a Solicitor unless he has, inter alia, been bound under indentures of apprenticeship and has duly served under such indentures. Under section 25 of the above Act (as substituted under section 41 of the 1994 Act), a person shall not be capable of being bound under indentures of apprenticeship unless he has, inter alia, passed such examination or examination as may be prescribed pursuant to section 40 of the 1954 Act (as amended by section 49 of the 1994 Act) and has complied with any requirements as may have been prescribed as to admission to apprenticeship, or compliance therewith has been waived as may be prescribed.
3.2. It was submitted that section 40 (4) of the 1954 Act (as substituted by section 49(b) of the 1994 Act) provides that Regulations for the purposes of that section shall provide for the holding at least once in every year of, inter alia, a preliminary examination to be passed by a person seeking to be bound under indentures of apprenticeship who is not otherwise exempted therefrom pursuant to section 41 of the 1954 Act (as substituted by section 50 of the 1994 Act) and section 42 of the 1954 Act.
3.3. It was submitted that section 41 of the 1954 Act (as substituted by section 50 of the 1994 Act) provides for a general exemption from the preliminary examination:
41. - The preliminary examination of the Society shall not be required to be passed -
(a) by a person who holds the degree from any of the universities of Ireland, England, Scotland and Wales, or a degree conferred or recognised by the National Council for Educational Awards under section 3 of the National Council of Educational Awards Act, 1979;
(b) by a person who has passed an examination prescribed as being equivalent thereto, or
(c) by a person who holds the degree of barrister-at-law from the Honorable Society of King's Inns, Dublin, or other professional qualification prescribed as being equivalent thereto.
3.4. It was submitted that section 42 of the 1954 Act provides for a special exemption from the preliminary examination: the Society may, in special circumstances, exempt a person from the preliminary examination of the Society, or any part thereof, either unconditionally or subject to such conditions as they think fir.
3.5. The respondent submitted SI 616 of 2006 - The Solicitors Acts, 1954 to 2002 (Apprentices' Fees) (No. 2) Regulations, 2006. It provides, by regulation 5, that a person seeking the consent of the Society to be bound by indentures of apprenticeship to a practising solicitor shall first have passed the preliminary examination, or have been exempted therefrom by reason of , inter alia, holding a recognised degree, or holding a degree (not being a honorary degree) or other qualification which, in the opinion of the education committee of then Society in the particular case, is equivalent to a recognised degree. Furthermore, regulation 3 provides -
3(a) A person seeking an exemption from sitting the preliminary Examination under Regulation 5(a)(ii) of the principal Regulation shall apply in writing to the Committee and shall provide the following:
(i) a copy of the degree or other qualification for which recognition is sought issued by the educational institution concerned and duly certified by that educational institution not earlier than six months before the date of its presentation to the Committee;
(ii) appropriate documented information from the educational institution concerned as to the courses attended by the applicant leading to the applicant obtaining the degree or other qualification in question;
(iii) where requested by the Committee, a translation into the English language of any document not already in English presented to the Committee relating to complying with sub-clause (i) or (ii) of this clause; and
(iv) any fee as may be prescribed.
It was submitted that SI 616 of 2006 specifies the fees payable for various applications to the respondent.
3.6. It was submitted that the above scheme is required by European Union law. Citing case C-313/01 Morgenbesser v Consiglio dell'Ordine degli Avvocati di Genova the respondent submitted that "recognition, for academic and civil purposes, of the equivalence of a diploma obtained in one Member State may be relevant, or even decisive for the enrolment with the bar of another Member State. However, the taking into account of the diploma of the person concerned must be carried out in the context of the assessment of the whole of the training, academic and professional, which the person is able to demonstrate. In that respect, it is the duty of the competent authority to examine whether, and to what extent, the knowledge certified by the diploma granted in another Member State, and the qualifications or professional experience obtained there, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be regarded as satisfying, even partially, the conditions required for access to the activity concerned".
3.7. It was submitted that the complainant does not hold a recognised degree. Accordingly, in order for him to become a Solicitor and under the statutory scheme regulating the profession, he must either pass the preliminary examination or apply for and obtain an exemption from that examination. This application entails the payment of a fee €65. It was submitted that the complainant has not demonstrated a prima facie case that this requirement puts persons of a particular race, colour, nationality, ethnic or national origin at a particular disadvantage when compared to other persons. It was submitted that the complainant's claim amounts to a claim of indirect discrimination.
3.8. Furthermore, it was submitted that the requirement that those who do not hold a recognised degree must either pass the preliminary examination or apply for and obtain an exemption from the examination is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. It was submitted, in accordance with Morgenbesser, that the requirement for a formal application and payment of administration fee is an appropriate and necessary means of achieving that legitimate aim.
3.9. It was submitted that the requirement for a formal application and payment of an administration fee is objectively justified by that legitimate aim as staff time involved in processing such an application.
3.10. An additional submission was made in relation to the Tribunal's jurisdiction to hear this claim. It was submitted that the Tribunal has no jurisdiction to ignore relevant parts of the Solicitors Acts and the related regulations. Citing Minister for Justice v. Director of the Equality Tribunal  IEHC 72 the respondent submitted that the Tribunal does not have the jurisdiction to make a binding legal declaration of inconsistency or insufficiency on a comparison of European and national legislation. It was submitted that this is a function reserved for the High Court.
4 Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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.
4.2. I do not accept that the case before me is not within my jurisdiction. I do have the power to examine this claim within the scope of the Employment Equality Acts. The respondent is covered by section 13 of the Acts. No arguments in reference to inconsistency or insufficiency in relation to European and national legislation were made to the Tribunal.
4.3. It is clear that the complainant has not completed the process of having his Polish examination recognised by the respondent. During the hearing it became apparent that the complainant, who accepted the necessity for the small administration fee (but who had not paid it), was under the impression that even after his degree had been recognised by the respondent's administration, he would then still need to request that the respondent's Education Committee recognise his Polish degree. I am satisfied that there is no additional requirement to apply or make a formal request to the Education Committee. However, an application must be accompanied with the relevant fee before it is processed and recognised. The complainant stated that he had submitted his certified degree documents and that this ought to be enough.
4.4. The prohibition against discrimination in the Acts encompasses both direct and indirect discrimination. This applies to section 13. I accept, on the facts of this case, that the requirement set out by the Law Society is not directly discriminatory. For example, in a comparator situation, an Irish person who had studied law in Poland would have to apply for the same exemption from the respondent and pay the same fee as the complainant is asked to pay. It is clear that the requirement appears to be indirectly discriminatory. It is obvious that a Polish person is more likely to have a degree from a Polish university than from an Irish university and therefore that a Polish person who wishes to sit the respondent's entry examination is at a particular disadvantage when compared with an Irish person in such circumstances. I am, however, satisfied that the reason for this requirement is objectively justified by a legitimate aim. This aim is to ensure that applicants seeking to enter a profession have a minimum standard of relevant education. I am also satisfied that requirement that a certified copy (with supportive documentation and a translation where necessary) of a degree certificate is submitted combined with the minimal administration fee of €65 is appropriate and necessary. Furthermore I find that this practice is consistent with the requirements set out in the primary legislation governing the Solicitor profession. It is also consistent with the principles set out in Morgenbesser.
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the respondent did not discriminate against the complainant on the race ground. Therefore, the complaint of less favourable treatment fails.
19 April 2010