The Equality Tribunal
Employment Equality Acts
Elizabeth Hirschne Krivan
- V -
Hartley People Recruitment & Training Consultants
(Represented by Neil J Breheny & Co., Solicitors)
File references: EE/2011/320
Date of issue: 15 August 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Race - Appropriate Measures
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment by the respondent on grounds of Race, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 2 March 2011 under the Employment Equality Acts. On 21 May, 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the cases to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to a hearing on 5 June 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she was undertaking a FAS course in Customer Care and Computers, delivered by the respondent and that Hungarian is her mother-tongue.
2.2 The complainant submitted that she completed a form relating to disability to enable her to use an internet translation application during her exam because her first language was not English. Although she was allowed to use the internet translation application during her training course, and in practice exams, she was not permitted to use it in the final examination.
2.3 The complainant submitted that in Hungary she would be allowed to use either an internet translation tool or another person to translate passages and sentences for her. She also submitted that the respondent did not leave a dictionary for her to use although she would not have used it anyway because she would only be allowed to translate single words with it and not whole sentences or passages.
2.4 The complainant submitted that apart from two other people in the class, all other students had English as their mother tongue. The complainant submitted that in this regard either the respondent or FAS, by not allowing her to use the internet translation application discriminated against her on the basis of her race.
2.5 The complainant is seeking compensation for the discrimination suffered.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that they discriminated against the complainants in that the grounds of the assessment apply equally to all participants irrespective of race.
3.2 The respondent submitted that the complainant was a participant on a FAS funded program, and that the assessments are run in accordance with the direction of FAS. In addition, the program is designed and supervised by FAS but delivered by the respondent.
3.3 The respondent submitted that its role is confined to the delivery of the training process and the invigilation of the assessment procedures under which the examinations take place and that it neither determines how the assessment is conducted or the tools available to the participants
3.4 The respondent submitted that at the time of the assessment, the complainant was provided with a dictionary, as provided for by the regulations governing the assessment.
3.5 The respondent submits that the claim is without merit and should be struck out.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment on the basis of race, in terms of Sections 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 There are a number of issues raised by the complainant's written and oral evidence including the issue of who is the correct respondent, the named respondent, FAS or the assessment body who certify the examinations and the standard of the candidates who present for assessment.
4.4 The case outlined to the Tribunal in writing and expanded upon in oral evidence during the hearing is that the complainant should have been provided with appropriate measures to enable her to compete in the assessment and certification process on a par with the English speakers in her course who had mother-tongue English.
4.5 Neither FAS nor the international certifying body who provide the certification process are named as a respondent in this complaint. The respondent provided the training course, and during the course they enabled the complaint to utilize an internet translation application as a learning tool. The availability or otherwise of this tool during an examination has been presented to the Tribunal as the provision of appropriate measures to enable non native English speaker to compete on a level playing field with native English speakers.
4.6 Notwithstanding the issue of who is the correct respondent in this matter, the issue of appropriate measures/reasonable accommodation on the race ground does not exist in the Employment Equality Acts. The provision of appropriate measures under Section 16 of the Acts applies only in relation to the disability ground. Therefore, having considered all the written and oral evidence in relation to this matter, I consider that this complaint must fail on the basis that it is misconceived.
4.7 Section 77A (1), states that "The Director may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter and that power has been delegated to the Equality Officer in this case.
5.1 Having considered all the written and oral evidence presented to me, I find that the complaint is misconceived and therefore dismiss this complaint under Section 77A.
15 August 2013