The Equality Tribunal
Equal Status Acts 2000-2011
Irish Property and Facilities Management Association
File Reference: ES/2011/0139
Date of Issue: 19th September 2012
Equal Status Act, 2000 - 2011, Direct discrimination, Section 3(1) - less favourable treatment, Section 3(2)(f) - age, Section 3(2)(g) - disability Section 3(2)(j) - victimisation, Section 7 - discrimination in relation to access to education, Section 38A - burden of proof, prima facie case.
Delegation under Equal Status Acts, 2000-2011
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2011 on the 25th October 2011, 30th January 2012 and 27th February 2012. On the 29th May 2012, in accordance with his powers under section 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts. On this date my investigation commenced. A submission was received from the complainant on the 7th of March 2012 and from the respondent on the 1st May 2012 and the 1st June 2012 and the 29th June 2012. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 27th August 2012.
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the age and disability ground in relation to access to an educational course in terms of Sections 3(1)(a) and 3(2)(f) and (g) of the Equal Status and contrary to Section 7(1) of that Act in that he was refused a place on a course run by the respondent. He also claims that he was victimised contrary to section 3(2)(f) of the Acts.
2 Complainant's Case
2.1 The complainant who is 54 states that he has a disability and that he has retired from his employment on medical grounds. He applied to the respondent to attend a course called a Higher Certificate/Degree in Property & Facility Management which is run by the DIT on behalf of the respondent. He said that he called to the respondent's premises a number of times during the summer of 2011 to enquire about the course and he spoke to Ms. A the Chief Executive. She informed him that it was too early to apply and she would send him details of the course as soon as they were available. He called again in early September and filled out an application form. By letter dated the 14th of September 2011 he was refused a place on the course because he was not working. The letter went on to state that one of the main provisions of the course was that applicants had to be working in the field of property or facility management and as he was retired he could not meet the criteria for the course.
2.2 The complainant submits that he was fully qualified for course. He worked as a Laboratory Technician and has retired on medical grounds and he now wants to start his own business. He said that he has a Masters Degree in work based learning from QUB and he is now pursuing a Masters Degree in facility management in a college in England and there is no requirement for him to be working in the industry. He submitted that his Masters from QUB fulfills the requirement in the respondent's course for work based learning which is included in the respondent's course. He submits he was discriminated on the age and disability ground. He said that there was a lack of fair procedures in the way the respondent handled his application. He said that Ms. A did not send him out the application form when he requested same and she refused to give him the names of the committee so he could appeal the decision to refuse him access to the course.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against on any of the grounds claimed. The respondent (IPFMA) was formed under the auspices of the Society of Chartered Surveyors (SCS) in 1989 and has a membership of about 520. The association is a link to all those involved in property and facility management. People involved in the profession of property and facility management have extensive multi-disciplinary responsibilities for providing and maintaining and developing services ranging from property strategy and management, building maintenance, space management, communications infrastructure security and contracts management. The objectives of the Association are to develop and maintain excellence in terms of skill and professional conduct through the provision of education and professional development of members and all members agree to be bound by the Association's Code of Professional Conduct and Ethical Standards.
3.2 The respondent developed and presented a Diploma in Property & Facility Management in 1999 and continued to deliver that programme to its members up until 2011. Then they decided to develop a programme which would be recognised on the National Framework of Qualifications (NFQ). They entered into a partnership with the Dublin Institute of Technology and with accreditation from them the respondent developed a Higher Certificate/Degree programme in Property & Facility Management which commenced in September 2011. This course is recognised by the NFQ and is independently accredited by DIT. The programme set out the modules taught on the course including law, project management, benchmarking, financial management, planning & building regulations, multi unit development, building services etc. The criteria require that applicants must be working in the property or facilities management industry at the time of the application and for the duration of the programme. One of the modules on the programme is work based learning where students are required to apply academic theories from the programme to their practical property and facilities management roles in their workplace on an ongoing basis throughout the year. Students are also required to maintain a diary of their day to day application of knowledge gained during lectures which is then assessed as part of the course.
3.3 On the 6th of September 2011, the respondent received an application from the complainant seeking a place on the course. His application was reviewed in conjunction with the criteria and in consultation with DIT. In the complainant's application he said that he was retired. Accordingly he did not meet the requirement for the course i.e. that applicants must be working in the property or facility management industry and consequently was not in a position to undertake the work based learning assessment. On the 14th of September 2011 Ms A., the Chief Executive, wrote to the complainant to inform him that he was not eligible for the course because he was not working in the field of property or facility management. The complainant wrote to Ms. A expressing his dissatisfaction with the decision and stating that he held a Masters in Work Based Learning and stating that this should satisfy any work based learning element. Ms. A responded setting out the requirements of the course and explaining the work based element of the course. The respondent submits that the complainant has not established that he was discriminated against on the age ground or disability ground and stated that the course has participants from mid to late twenties up to 50 years old and all these people satisfy the requirements of the course as they are working in the industry. The respondent also submitted that the complaints are misconceived frivolous and vexatious and requested that the matters complained about should be dismissed under section 22 of the ES Acts.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(f) (g) and (j) of the Equal Status Act and in terms of Section 7 of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the age, disability and victimisation grounds).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(1) provides that: as between any two persons, the discriminatory grounds ... are ...
"(f) subject to subsection (3), that they are of different ages (the ''age ground''),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the ''disability ground''),
(h) that they are of different race, colour, nationality or ethnic or national origins (the ''ground of race''),
(j) that one --
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ''victimisation ground'')."
and Section 7. -- (1) provides:
"In this section ''educational establishment'' means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.
(2) An educational establishment shall not discriminate in relation to --
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student, or
(d) the expulsion of a student from the establishment or any other sanction against the student".
The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
4.2 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that he was discriminated against because of his age and disability. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. The complainant submits that he was discriminated against on the age, disability grounds as set out at paragraphs 3.1 and 3.2 above. The respondent denies the allegations of discrimination.
4.3 I am satisfied that the complainant is covered by the Equal Status Acts. The next matter for consideration is whether he was discriminated against in relation to access education contrary to Section 7(1). It is clear from the evidence presented that the complainant did not meet one of the requirements for the course. I am satisfied that the requirement for an applicant to work in the property industry in order to participate in the Higher Certificate/Degree in Property& Facility Management run by the DIT on behalf of the respondent was not a discriminatory requirement on the age ground. I also satisfied that any applicant regardless of their age and who met these criteria in full would have been admitted to the course. Furthermore the complainant has produced no evidence in relation to how he was discriminated against on the disability ground. I am satisfied that the complainant has failed to establish that he was treated less favourably than another person of a different age or a person without a disability was treated in similar circumstance.
4.4 The next matter I have to consider is whether the complainant was victimised contrary to the section 3(2)(j). The complainant submitted that he was victimised by Ms. A because she did not give him an opportunity to appeal the decision and that she refused to give him the names of the Board of Directors. Ms. A said that the names of the Board were available to the complainant on the website and on the headed paper sent to him and she had no reason to deny him same. In order to establish victimisation under the Acts, the complainant has to provide some evidence that he was treated less favourably by the respondent as a consequence of initiating any of the matters set out in section 3(2)(j)(i) -(v) cited above at paragraph 4.1. He has not provided any such evidence.
4.5 I find therefore that the complainants have not adduced any facts whatsoever from which discrimination can be inferred. The Labour Court, in examining the circumstances in which the probative burden of proof applies in employment equality cases held in the case Melbury Developments and Valpeters (Det. No. ED AO917) as follows:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
I am satisfied that the above reasoning of the Labour Court is applicable to the case herein, in relation to the burden of proof as both Acts have similar provisions. The complainant has made assertions unsupported by any evidence and he has not produced any facts from which discrimination on the race ground can be inferred. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment on any of the grounds claimed.
Having investigated the above complaints, I hereby make the following decision in accordance with section 29(1) of the Equal Status Acts, 1998 to 2011. I find that:
(i) the respondent did not discriminate against the complainant on the age ground pursuant to section 3(1) and 3(2)(f) of the Equal Status Acts and in terms of section 7 of these Acts in relation to access to and educational course;
(ii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 3(1) and 3(2)(g) of the Acts, and in terms of section 7 of these Acts in respect of access to an educational course.
(iii) the respondent did not victimise the complainant pursuant to section 3(1) and 3(2)(j) of the Equal Status Acts.
19th September 2012