Equal Status Acts, 2000 to 2013
Equality Officer Decision
Department of Social Protection
(Represented by Cliona Kimber BL instructed by Chief State Solicitor’s Office)
File Ref: ES/2012/0056
Date of issue: 2 October 2014
Keywords: Equal Status Acts 2000-2013 – direct discrimination – Section 3(1) – less favourable treatment – civil status ground – family status ground – Section 3(2)(b) and (c) - provision of a service - Section 6(1) - objective justification
1. Ms. Noreen McQuaid referred a claim to the Director of the Equality Tribunal on 16 May 2012 under the Equal Status Acts, 2000 – 2013 (hereinafter “the Acts”). In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2013, the Director delegated the complaint to me, Valerie Murtagh, 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, 2000-2008. On 14 May 2014, my investigation commenced when the complaint was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 12 August 2014.
2. The dispute concerns a complaint of unlawful discrimination on the civil status ground and the family status ground. The complainant maintains that the Department of Social Protection discriminated against her on the ground of civil status and family status contrary to Section 3(2) (b) and (c) of the Equal Status Acts in relation to access to the Jobbridge National Internship Scheme.
3. Summary of the Complainant’s case
3.1 The complainant was in receipt of Job Seeker’s benefit and the associated credits since June 2011. On 15 October 2011, the complainant noted a local internship vacancy with the JobBridge scheme on the FAS website. She submits that this vacancy would have been very appropriate in terms of providing experience related to her career. The complainant contends that to be eligible to participate in the JobBridge scheme, applicants were required to be on the Live Register and in receipt of Job seekers’ benefit, Job seekers Allowance or signing for social insurance credits for 78 days out of the previous 6 months. On 17 October 2011, the complainant spoke with an advisor on the JobBridge information line who informed her that although she met the general criteria, the fact she was in receipt of One Parent Family Payment (OPFP) meant she was ineligible for the scheme. The complainant e-mailed the Minister’s Office regarding her concerns and requested that the situation be rectified so that she could apply for the vacancy before the closing date. The complainant received a response from the Department dated 19 October 2011 acknowledging that OPFP recipients were prevented from accessing the scheme. The complainant states that she submitted an application for the JobBridge scheme before the deadline but she was not afforded the opportunity to be considered. The complainant submits that she received less favourable treatment as a direct result of being in receipt of OPFP and that her receipt of OPFP is indissociable from her civil and family status.
3.2 The complainant acknowledges that applying for the vacancy was no guarantee of obtaining the position but had she been deemed eligible, she would at least have had a chance to (i) compete for a valuable opportunity to gain experience and (ii) use the supplementary allowance to gain an additional qualification. This would have enabled her to approach the job-market on two fronts, applying for science vacancies and learning support vacancies, an approach which was supported by the FAS Training and Employment Officer whom she met with in January 2012. The complainant states that while she understands the difficult decisions which must be taken by Government in this economic climate, the impact of this particular decision has been that some citizens have not been treated as equally as others. The complainant submits that 92,326 OPFP claimants (CSO figures at December 2010) is a considerable number of citizens to exclude from a scheme. The complainant submits given that lone-parents are an already economically vulnerable group, it is a shame that individuals such as herself, who were actively seeking work and aiming for economic independence were not afforded an equal opportunity to avail of the scheme which could make a real difference to them. The complainant contends that it is paradoxical that in terms of the social welfare system, she was on the live register, actively seeking work yet prevented from accessing a scheme which may have left her much better placed to secure employment and thus not require a social welfare payment. She further submits that any circumstance which hinders a lone-parent from being economically active has a resultant impact on the children in that family. While the complainant acknowledges that in May 2012, the eligibility of the JobBridge scheme was widened to include OPFP recipients, she submits that the sudden reversal further highlights her disappointment and sense of injustice at being prevented from accessing the earlier opportunity.
4. Summary of the respondent’s case
4.1 The respondent submits that as a preliminary objection that the provision of social welfare/social benefits/JobBridge scheme is not a service within the meaning of the Equal Status Acts. In this regard, the respondent submits that in applying the central case in a UK decision in Regina v Entry Clearance Officer, Bombay ex parte Amin  2AC 818, it was held that social welfare is not a service or facility which is capable of being provided by a private person. The ordering of society and the redistribution of social wealth by the taking in of taxes from some persons and redistributing them through social welfare to other persons is a function of government and cannot on any level be provided by a private person. The respondent also submits that in applying Australian caselaw in the case of IWC v City of Perth and Others  146 ALR 696, the State and the Department of Social Protection is obliged to consider the public interest prior to making a decision and the weighing of competing public interests and the allocation of scarce resources is exclusively within the jurisdiction of the Oireachtas.
4.2 The respondent argues that the eligibility criteria for the JobBridge scheme were not discriminatory. The respondent states that the JobBridge scheme is an administrative scheme, does not come in under any specific legislation and was introduced on a pilot basis. It was based on the overall objective of labour market policy in ensuring a pathway to appropriate employment, training and education opportunities for the unemployed. The structure for achieving this objective is through a reinvigorated National Employment Action Plan (NEAP) which currently provides the framework for engaging with the unemployed. Given the scale of the unemployment crisis, the key objective of labour market policy and of the NEAP will be to keep targeted cohorts close to the Labour Market and prevent the drift into long-term unemployment. This will ensure that those availing of activation measures such as the National Internship Scheme will, while retaining social welfare unemployment payments and a top up allowance of €50, get an opportunity to engage in the workplace, get work experience and so be in a position to avail of employment opportunities as the economy improves. For these reasons, it was proposed as a matter of public policy that eligibility for the scheme be targeted at those in receipt of unemployment payments or signing for credits for at least 78 days in the last 6 months; as Department of Social Protection records indicate that 42% of new claimants leave the Live Register naturally within the first 3 months of signing on. Thus, the policy objective is to prioritise scarce resources to targeted cohorts so as to increase their chances of leaving it thereby ensuring a reduction in Exchequer costs over time. The respondent submits that it is not discriminatory to prioritise scarce resources to specific cohorts as appropriate.
4.3 The respondent contends that it was considered that individuals not in receipt of the above or receiving a non-qualifying payment for JobBridge may access a sufficiently diverse range of activation supports including the Community Employment Schemes and Work Placement Programme, which are similarly designed to provide participants with valuable work experience, thereby improving their prospects of securing employment. Initiatives such as the Work Placement Programme and Community Employment schemes provide less stringent conditions and cater for those whose circumstances would preclude participation on JobBridge or comparable programmes. The respondent submits that the JobBridge scheme is under constant review. The scheme has operated very effectively since its launch in July 2011 and over 5000 places had commenced by March 2012. Based on the strong demand, the Minister announced a number of extensions to the scheme in May 2012. This included increasing the number of available placements from 5,000 to 6,000 and extending the eligibility to include One Parent Family Payment and Disability Allowance claimants from 28 May 2012 onwards. The respondent argues that it was reacting to the huge unemployment figures following the crash in 2008 and that a short sharp measure was required to deal with a particular cohort of persons on the Live Register. The respondent contends that even if the measure was discriminatory, it was objectively and reasonably justified under equality law, in that, the measure sought to achieve a legitimate aim and the means of achieving the aim were appropriate and necessary and conformed to the principle of proportionality in the context of creating opportunities in the labour market for persons seeking employment. The respondent submits that these three criteria were met and accordingly, it can avail of the objective justification defence as set down in the CJEU case in Bilka Kaufhaus Gmbh v Weber von Hartz (C-170/84) [1986 E.C.R. 1607. The respondent further argues that in the McKenzie judgment, where there was an appeal of the government’s introduction of emergency FEMPI pieces of legislation, it was upheld as being necessary in the public interest and reaffirmed that the Oireachtas has the power to decide in a situation where there are scarce national resources.
4.4 In conclusion, the respondent submits that provision of social welfare/social benefits is not a service within the meaning of the Equal Status Acts and that the matters complained of are not within the jurisdiction of the Equality Tribunal. In this regard, the respondent cites caselaw including the following; Farah v Commissioner of Police of the Metropolis (1997) WLR 824, Donovan v Donnellan Preliminary decision of Equality Officer 17/10/2001, Regina v Immigration Appeal Tribunal  WLR 1037 andSavjani v Inland Revenue Commissioners  1QB 459. The respondent also contends that the complaint is not properly before the Equality Tribunal as the complainant did not notify the respondent within two months of the alleged discrimination of her intention to make a complaint before the Equality Tribunal if she was not satisfied with the response, as required by section 21(2) of the Acts. The respondent submits that the complaint cannot therefore be entertained as she has not complied with the section. In this regard, the respondent cites the Equality Officer cases relating to Litzouw v Matthews Property DEC-S2010-026 and Jackson v Ann’s Hot Bread Shop DEC-S2009-018 in support of its case.
5. Conclusions of the Equality Officer
Preliminary Issues – Jurisdictional Issues
5.1 The first matter I have to consider is whether the complaint was notified to the respondent and served on the Tribunal within the statutory framework of the Equal Status Acts. The Equal Status Acts state;
“(2) Before seeking redress under this section the complainant—
21(2)(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of —
(i) the nature of the allegation,
(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,”
“21(11) For the purposes of this section prohibited conduct occurs—
(a) if the act constituting it extends over a period, at the end of the period,
I have considered the respondent’s submission in relation to my jurisdiction to hear the complaint of alleged discrimination, in that, it has argued that the notification procedures under section 21 have not been complied with. I note that section 21(2)(a) requires the complainant to notify the respondent of the nature of the allegation. Having examined the notification, I am satisfied that the complainant clearly stated that she believed she was discriminated against on the family and marital status ground by the respondent. The complainant had written to the Minister for Social Protection about the matter and sought advice from other Agencies. In the letter to the Minister sent by e-mail on 17 October 2014, she requested that the Department review its policy on the grounds that it was in breach of equality legislation. The complainant advised that subsequently having received an unsatisfactory response from the Department and the fact the alleged discriminatory treatment was ongoing, she forwarded the ES.1 form to the respondent by registered post on 9 February 2012. For the above reasons and having regard to the provisions of sections 21(2)(a) and 22(11) of the Act, I am satisfied that the notification served on the respondent and the referral of the complaint to the Tribunal comply with the statutory time limits set out in the Equal Status Acts.
5.2 The respondent has argued that the provision of social welfare is not a service within the meaning of the Equal Status Acts and that the Tribunal has no jurisdiction to examine the complaint. The Equal Status Acts states;
‘‘service’’ means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes —
(a) access to and the use of any place,
(b) facilities for —
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c ) a service or facility provided by a club(whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service,
Having examined the jurisprudence in this area, I am satisfied that access to the JobBridge scheme constitutes a service within the meaning of section 2 of the Equal Status Acts. I note that that the list of services in section 2 is not a comprehensive list but simply indicates the Acts potential areas of application. In this regard, I am relying on Equality Officer Decisions in the cases of Mrs X (on behalf of her daughter, Ms. Y) v The Minister for Social and Family Affairs, DEC-S2009-039 and Walczak v Minister for Social Protection, DEC-S2012-011 where it was held that social welfare services are covered by the Equal Status Acts. In relation to the respondent’s argument regarding a UK decision in Regina v Entry Clearance Officer, Bombay ex parte Amin  2AC 818, where it was held that social welfare is not a service or facility which is capable of being provided by a private person; section 2 of the Acts defines ‘person’ as including an organisation, public body or other entity. Public bodies are therefore subject to the Equal Status Acts when they are providing a good or service to the public or a section of the public as held in Equality Officer Decision Donovan v Garda Donnellan DEC-S2001-011. Accordingly, I find that I have jurisdiction to investigate this complaint.
5.3 The matter referred for investigation was whether or not the complainant was discriminated against on the family status and civil status ground contrary to the Equal Status Acts in relation to being denied access to apply for the JobBridge scheme. In reaching my decision, I have taken into account all the written submissions and oral testimony 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:
(a) 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) (in this Act referred to as the ‘‘discriminatory grounds’’) which — ……………..
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(b) that they are of different civil status (the ‘‘civil status ground’’),
“ ‘civil status’ means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved;”,
(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”)
‘family status’ means being pregnant or having responsibility –
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
5.4 There is no dispute over the facts in this case. The respondent agrees that the JobBridge scheme was targeted at a specific cohort who were on the Live Register and that persons who met the eligibility criteria i.e. signing for or receiving job seekers benefit or job seekers allowance credits for 78 days out of the previous six months but where one of their primary payments was for example disability benefit, one parent family allowance, widow’s pension were excluded from applying for the scheme. The two representatives from the JobBridge Policy Unit gave evidence to state that there was a fundamental requirement that the person must be available for work and that individuals on primary payments such as disability allowance or one parent family payment were not required to be available for work. They stated that it is a voluntary, non-statutory administrative scheme, the purpose of which was to keep those on the Live Register close to the Labour Market and upskilling them. They submitted that each month the figures on the Live Register would be highlighted in the media and their main priority was to get those numbers down. They explained that there were separate data regarding persons on primary payments such as disability, one parent family payment, widows benefits etc vis á vis those persons whose main payments was job seekers benefit/job seekers allowance. The two officials gave information in relation to statistics stating that 61 % of those who complete the JobBridge scheme attain employment very quickly upon completion of the scheme. They stated that there are other schemes for persons unemployed for over 12 months, over 55’s, one parent family recipients such as the Community Employment or Work Placement schemes. They stated that the JobBridge scheme operates on the basis of working between 30 and 40 hours per week and the CE and Work Placement schemes are between 20-25 hours per week.
5.5 According to the Equal Status Acts, indirect discrimination occurs ‘where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. Having examined the evidence, I am satisfied that the complainant has demonstrated that she was disadvantaged by an apparently neutral provision on account of her family and civil status. Therefore, the complainant has established prima facie evidence of discriminatory treatment in relation to access to the JobBridge scheme. Therefore, the onus shifts to the respondent to establish that the provision was objectively justified on the basis that,
(i) it was a legitimate aim
(ii) the means of achieving that aim is appropriate
(iii) the means of achieving that aim is necessary
Therefore, in order to satisfy the first limb of the defence of objective justification, the respondent must first show that the provision in question pursues a legitimate aim. In this regard, I am of the view that the Department’s objective, of targeting a specific cohort who were on the Live Register in terms of keeping unemployed persons close to the labour market and reducing the numbers on the Live Register does constitute a legitimate aim.
5.6 The second limb of the test of objective justification is that the respondent must show that the provision was both an appropriate and necessary means of pursuing the legitimate aim. The word ‘appropriate’ means that the measure is suitable for achieving the aim in question and the respondent must show that the provision in fact advances the aim. A provision will be ‘necessary’ where there are no alternative, less discriminatory ways of advancing the respondent’s aim. In this regard, the Labour Court in the case of National University of Ireland, Maynooth v Buckley  ELR 324 stated “This would normally require the respondent to establish that alternative means of achieving the objective were considered and rejected for cogent reasons.” According to Mummery LJ in a UK case, “it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.” Counsel for the respondent argued that the Department is entitled to allocate scarce national resources in the best manner that it sees fit in the context of specific targeting of a scheme to a particular cohort in a time of financial crisis and emergency. In reviewing CJEU jurisprudence in this area, in particular the case Kutz-Bauer v Freie und Hansestadt Hamburg, Case C-187/00  ECR 1-2741, the Court determined that a national state cannot rely on budgetary considerations to justify a discriminatory social policy. The service provider cannot simply argue that it is cheaper to discriminate; it must point to additional factors in order to avail of the defence. Having examined all the evidence in this matter, while I find that the aim of the provision in question was laudable, I find that the means for achieving the aim were disproportionate and disadvantageous towards for example persons on disability benefit, one parent family payment and persons claiming widow’s benefits. Implicit in the respondent’s argument is an assumption that only persons on the Live Register are unemployed and that persons on other social welfare benefits such as one parent family payment are not actively seeking and available for work because of their civil or family status. In the case of the complainant, she gave cogent evidence regarding her considerable efforts to seek work, including trying to avail of the JobBridge scheme. I note from the 2011 Census that there were 92,326 persons receiving one parent family payment at the end of 2010 and 58% of lone parents were in the labour market. I accept the testimony of the staff in the JobBridge policy unit where they outlined the pressure the Department was under following the figures released each month regarding numbers on the Live Register and their main priority in trying to get those numbers down. However, the respondent did not provide any evidence at the time of applying the provision that it had considered whether there were other less discriminatory ways of achieving the aim. It is clear therefore that the means chosen to achieve the aim were discriminatory on the civil and family status in its application.
5.7 Counsel for the respondent submits that the provision was objectively justified on the basis of budgetary considerations. She further submits that a decision was taken some months into the scheme given (i) the success of the scheme and (ii) the ability to re-allocate resources, it could be broadened to include persons on primary payments including individuals on disability benefit, OPFP and widows pensions and that policy considerations could shift. Having examined this matter, I find Counsel’s argument in this regard not to be persuasive. Based on the evidence given by the two employees in situ in the JobBridge Policy Unit, on balance, I am of the view that a more likely explanation is that following commencement of the scheme, the unit received a barrage of queries and objections from persons whose primary payments were disability, one parent family payment, widows benefits etc. voicing their concerns in relation to their non-eligibility for the scheme. In this regard, a number of months into the scheme, a policy decision was taken to widen the criteria for eligibility to the JobBridge scheme to include individuals where their main benefit was a primary payment from 28 May 2012. Having examined all the evidence, I find that the complainant has established a prima facie case of indirect discriminatory treatment on grounds of civil and family status and the respondent has failed the test of objective justification. Furthermore, I am very cognisant of the need for officials, when implementing schemes on a pilot basis to target specific cohorts, to be mindful that such a scheme does not facilitate inadvertent and unconscious discriminatory treatment.
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
6.2 I find that the complainant was indirectly discriminated against on the family status and civil status ground pursuant to sections 3(1) and 3(2)(b) and (c) of the Equal Status Acts. Under section 27(1) of that Act, redress may be ordered where afinding is in favour of the complainant. In considering the amount of compensation that I should award, I have taken into account the effect the discrimination had on the complainant and the stress of the incident on her. I also note that the Minister extended the scheme and widened eligibility to include persons on one parent family benefit in May 2012. Taking this into consideration, I order the respondent to pay to the complainant the sum of €5,000 (five thousand euro) to compensate her for the effects of the discriminatory treatment experienced by her.
2 October 2014