Decision No. DEC-S2012-024
University College Dublin
(represented by Arthur Cox, Solicitors)
File Reference: ES/2011/040
Date of Issue: 20th June, 2012
Equal Status Acts - Section 3(2)(h), Ground of Race - Section 7, Education - Section 7(3)(d), exemption with respect to lower fees for EU students - Section 11, Harassment - Withdrawal from course - Refund of fees
1.1. On 3rd March, 2011, Mr Edward Okobi (hereinafter referred to as "the complainant") referred a claim against University College Dublin (hereinafter referred to as "the respondent") to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008 (hereinafter referred to as "the Acts"). On the 17th November, 2011, in accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts, on which date my investigation commenced.
1.2. Written submissions were received from the parties. A hearing of the complaint was held on 28th February, 2012. Further information was sought from the parties after the hearing and final correspondence in this respect was received on 27th March, 2012.
2.1. The dispute concerns a complaint by the complainant that he was discriminated against and harassed by the respondent on the race ground contrary to the Acts in terms of Sections 3(1), 3(2)(h) and Section 11 of the Acts and contrary to Section 7(1) of the Acts in that the respondent discriminated against him and harassed him with respect to a course he undertook with the respondent.
3. Summary of the Complainant's case
3.1. The complainant stated that he is a Nigerian national living in Ireland on foot of what is called a Stamp 4 (i.e. leave to remain). He stated that he applied for a particular course with the respondent. He stated that this course was advertised as having course fees which "will be in the region of €2,500 for eligible students". However, he stated that his offer of admission quoted a cost of €12,000. He stated that when he inquired about this he was told that this was the full fee for international students but was not applicable if he was living in Ireland and so if he brought his "tax papers" to the student desk he would be eligible for the lower fee.
3.2. The complainant stated that when he went to the student desk on the appointed day he was told that he was eligible for the lower fee and so he paid the one-third portion of the fee (€835) that was required at that stage. However, he went on to stated that, about a week later, the respondent wrote to him to say that he was not eligible for this fee and would have to pay the reduced fee of €6,000. The complainant gave an account of the conversations he had with the respondent about this matter and provided the Tribunal with a copy of his e-mail correspondence with the respondent in that respect. He submitted that his claim regarding what he referred to as this "misleading" advertisement and his claim that he should be eligible for the €2,500 fee were not investigated by the respondent. He also submitted that he was not provided with a student card by the respondent.
3.3. The complainant also stated that he received a letter from the respondent on 19th October, 2010 in which it wrote that it had received confirmation that he had been withdrawn from the course. He stated that this was discrimination and harassment as he had not told the respondent at that stage that he was withdrawing from the course. He stated that the respondent was trying to force him out of the course and that the letter in question was evidence of this. He also pointed to what he described as threatening language used by the respondent in general in its correspondence with him.
3.4. The complainant stated that he eventually agreed to withdraw from the course on 8th November, 2010. He stated that when he asked for a return of his fees in this context he was initially told that he would receive same but was later told that he would not receive such a refund as he had not withdrawn prior to 1st October. He gave an account of the further communication he had with the respondent in this respect, but did not receive the refund requested. He stated that he was never told that if he wished to be refunded the fees for the course in the event of withdrawal from it, he could only do so if that withdrawal took place before 1st October, 2010.
3.5. In summary, the complainant stated that he was discriminated against by the respondent in the following terms: i) in being required to pay higher fees than others, in being misled by the respondent that he was eligible for the lower fee and in not having the matter given due consideration by the respondent; ii) in being withdrawn from the course unilaterally by the respondent on 19th October, 2010; iii) in not being provided with a refund for the withdrawal. Furthermore, he submitted that he was harassed in that context. He stated that his treatment by the respondent arose "based on the place I was born", particularly as there was no other explanation as to why he would be treated in that manner. He stated that, in that context, he was discriminated against and harassed by the respondent on the ground of race.
4. Summary of the Respondent's case
4.1. The respondent stated that there were three fees for the course in question: the full fee of €12,000; a reduced fee of €6,000 which applied to EU residents who are tax compliant but do not hold an EU passport; a fee of €2,500 which applied to EU passport holders. It stated that the complainant was eligible for the €6,000 fee but not the €2,500 fee. It pointed to s.7(3)(d) of the Acts which provides that a third level institution can set separate fees for EU passport holders. It stated that all applicants are asked to provide the relevant documentation when they present themselves to the student desk, but no decision as to what fee applies to them is made at that stage. Instead, the documentation is passed on to an officer who makes the decision as to what fee applies. It stated that this decision is usually automatic but, in any event, will depend on the relevant criteria applicable to the course in question.
4.2. The respondent stated that, in the present case, the complainant was not told what fee applied until it wrote out to him on 22nd September, 2010 telling him that the €6,000 fee was the applicable fee in his case. It reiterated that the student desk had no authority to confirm what fees applied in any case and stated that it did not do so. It also pointed out that the advertisement referred to by the complainant stated that the €2,500 applied to "eligible" students. It submitted that the complainant's complaint in this matter was investigated and it provided documentary evidence to the Tribunal to support this submission. It added that it was each student's responsibility to check whether they were eligible for the relevant fee. It submitted that the complainant was not provided with a student card because he had not paid the applicable fee.
4.3. Three witnesses for the respondent gave accounts to the Tribunal with respect to their communication with the complainant concerning the withdrawal of his application and/or the refund of fees. The evidence given by those witnesses can be summarised as follows:
i. Refunds of fees are provided only if the person seeking the refund withdraws from the relevant course before certain deadlines (i.e. either 1st October or on a particular date in January as the case may be).
ii. It is assumed that a person who withdraws before 1st October has not participated in the course which is why a fee is refunded in that case. This is counted as a cancellation rather than a withdrawal.
iii. The respondent wrote to the complainant on 21st October, 2010 on foot of a telephone conversation of 30th September, 2010, in which it understood that he had indicated his desire to withdraw from the course.
iv. The respondent accepted that the normal process is to receive confirmation of such applications in writing, or in person (rather than over the telephone).
v. Although it had not received such confirmation from the complainant, the letter dated 21st October was written in order to facilitate the complainant in meeting the deadline for receiving a refund of fees as all withdrawals made before 1st October had to be processed and approved by the University Board at that stage, or soon afterwards.
vi. The complainant rang the respondent on foot of this letter and was clearly upset as he did not wish to withdraw from the course at that time. The respondent was apologetic and the withdrawal was not processed or brought to the attention of the Board at that stage.
vii. As the complainant's ultimate withdrawal took place on 8th November (i.e. after the 1st October deadline) it was not considered a cancellation and so no refund of fees applied.
viii. In that respect, it accepted that one of its staff had written to the complainant stating that he was eligible for a refund but did so on foot of an understanding that the complainant's withdrawal had taken place prior to 1st October. When that person discovered that he had not, in fact, done so, the respondent clarified the matter with him.
4.4. The respondent denied that its treatment of the complainant was harassment or discrimination.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. Section 7(3)(d) of the Acts entitles the respondent to provide lower fees for the course in question to EU passport holders. While this was ultimately accepted by the complainant, he also submitted that he was discriminated against with respect to allegedly being misinformed by the respondent prior to his registration for the course that he was eligible for this fee. He also alleged that the respondent attempted to unilaterally withdraw him from the course and was ultimately successfully in forcing him to withdraw from it. He also alleged that, despite this, the respondent refused to refund his fees. He also alleged that he was harassed by the respondent in this context.
5.3. When I asked the complainant why he considered his treatment in this respect was related to his race, he could not provide me with any cogent answer to that question. At the end of the hearing, he did provide the Tribunal with a comprehensive statement of the reasons why he considered his treatment was discrimination on the race ground. In this statement, he set out again the treatment of him by the respondent and stated, essentially, that this treatment could only be explained by the fact that he was Nigerian. However, I am satisfied that the respondent's treatment of the complainant would not have been significantly different if he had been of a different nationality. If anything, the respondent erred on the side of caution in trying to prevent any upset to him and went out of its way to facilitate him.
5.4. I would add that I am satisfied that the respondent did not try to force the complainant to withdraw from the course. It clearly erred in issuing a letter stating that he had withdrawn from the course when he had not definitively made up his mind to do so at that stage. However, I am satisfied that this letter was written for the sole purpose of facilitating the complainant in obtaining a refund of fees and had no ulterior motive. It is also clear that the person who told the complainant that he was eligible for a refund understood at that time that he had withdrawn prior to 1st October. This was a genuine error on the part of the respondent and was certainly unrelated to his race. In that context, it would not be appropriate for me to make any comment on the refusal to provide the refund to him thereafter.
5.5. In all the circumstances of the present complaint, then, I am not satisfied that the respondent's treatment of the complainant was related to his race. The complainant has failed to establish a prima facie case of discrimination in that context.
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination and/or harassment of him by the respondent on the race ground in terms of Sections 3(1)(a), 3(2)(h), Section 7 and/or Section 11 of the Equal Status Acts.
6.3. The complainant's case fails.
20th June, 2012