The Equality Tribunal
Equal Status Acts 2000-2012
(represented by Flynn O’Driscoll Solicitors)
File Reference: ES/2012/031
Date of Issue: 12th September 2014
Equal Status Acts, 2000 –2012 - Direct discrimination, Section 3(1), Section 3(2)(a) and (c) gender and family status, educational establishment less favourable treatment - section 7, burden of proof- Section 38A
Delegation under Equal Status Acts, 2000-2012
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2012 on the 20th March 2012. On the 28th January 2013, 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. This is the date on which I commenced my investigation. Written submissions were received from the complainant on the 16th November 2012 and from the respondent on the 14th of January 2013. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 23rd July 2013 and the final correspondence was received on 22nd October 2013.
1.1 The dispute concerns claims by the complainant that she was discriminated against by the above named respondent on the gender and family status ground in terms of Sections 3(1)(a) and 3(2)(a), and (c) contrary to Section 7 of the Equal Status Act, 2000-2012 in relation to continuing her course following return from maternity leave.
2. Summary of the Complainant's
2.1 On the 4th of August 2010 the complainant enrolled with the respondent for a Higher Diploma in Arts in Primary Education (HDAPE). The Diploma course was of eighteen months duration and she had to achieve 60 credits in order to be eligible to register with the Teaching Council. It was an on-line flexible course to train as a primary teacher. She attended college every second Saturday and also had access to online tuition. The fee for the course was €8,950 which also included a course in the Gaeltacht. There are two intakes to the Diploma; one in September and the other in February of each year. The complainant said that in January 2010 she was pregnant. She informed the College and applied for maternity leave in March 2011 to commence on the 1st of July 2011. Her baby was born on the 6th July 2011. She was due to return to the course in the middle of August 2011 but due to the fact that she had to have a C section and the fact that she wanted to take care of her baby she sought additional maternity leave and a deferral of her course until January 2012. The deferral was granted and she was informed that she could join the programme starting in April 2012. The complainant accepted the deferral to the April 2012 group.
2.2 On the 24th of August 2011 she said that she was informed that on the resumption of her course she would now have to do a new two year course and achieve 90 credits and she would not be given any credit for the part of the programme she had completed to date. She said that the Teachers’ Council had been in discussions with the College since 2009 about the programme and she believed that this new 2 year course was the outcome of the discussions. She said that the respondent failed to inform her at the time of registration that changes to the course were eminent.
The complainant said that she had done 9 months of the course and one session of her teaching practices that she had completed would not be taken into account in this new two year course. She said that she emailed the respondent and expressed dissatisfaction. It was confirmed to her that due to the introduction of the new programme and the fact that she had deferred she would have to transfer on to the new programme and she could not carry credits or assessments from the old programme. The complainant, in a letter dated 13th November 2011, told the College that she was not prepared to defer and start the new programme given that she would now have to do 2 years and 9 months on a course which was supposed to last 18 months. She requested the return of her fees.
2.3 The complainant said that she then received a response dated 9th December 2011 informing her that the Academic Board had discussed her grievance and had decided because of the exceptional circumstances outlined in her case that she could continue on the course she had started, but the programme was revised. As she was joining the cohort of students who started in April 2011 in January 2012 these students had already started new modules of the course in December. The complainant said that the programme was designed especially for her and she would not have a tutor for some of the subjects, she would have to self-study some of the material, she would have a shorter time to complete assignments and she would have no right to seek a review of examination scripts on the basis that she had not access to a tutor. She said that these conditions were not acceptable to her. She said that she was disadvantaged and would have less time to complete project compared with other students. On the 22nd of December 2011 she informed the respondent that she would not be continuing with the Higher Diploma and requested the return of her fees.
2.4 Further e-mails passed between the parties and the complainant was taken off the books of the college. In March 2012 the college informed the complainant that they had talks with the Teaching Council and had asked them to consider an extension of the registration period for student teachers on the eighteen month programme. The complainant said that she did not get this email. In July 2012 she was offered a course in which she could complete the programme she had started. The complainant said that she did not respond to this offer as it was not acceptable to her and only came after she had referred a complaint of discrimination.
The complainant submits that she was discriminated against and penalised by the respondent for deferring the course due to her pregnancy and maternity leave.
3. Summary of the Respondent's Case.
3.1 The respondent denies that the complainant was discriminated against on the gender/family status ground in relation to continuing her course. The respondent stated that the College which is an HETAC accredited College trains primary teachers. It is also accredited by the Teaching Council which is the statutory authority for the regulation of the teaching profession. The course which is a blended flexible programme is aimed at students who cannot access the traditional education. The course is delivered mainly online with attendance at classes on a number of Saturdays. There are two intakes of students each year September and February. The respondent said that 80% of the students are women and about 6% defer on average mainly for pregnancy reasons. The college has a maternity leave policy and a student is required to notify her pregnancy. A student is required to take a minimum of 6 weeks break from study. He said that normally deferring does not create a problem as the student can join to the next cohort with some small changes. The complainant’s case was unusual as she sought a 6 month deferral. The deferral policy is outlined in the student handbook and students are made aware if they defer it will result in different sequencing of modules on their return.
3.2 In late 2009 new regulations were introduced by the Teaching Council without consultation with the College requiring that all students had to have 90 credits (now increased to 120) and the teaching training had to be of two years duration before a student could register as a teacher. He said that there were a number of other changes and this meant that the existing course had to be changed in order that it would be validated and that the students could register following completion of the Diploma. The Teaching Council informed them that anybody registering as a teacher after April 2013 would have to have the new programme completed. This meant that any student taken on in September 2011 onwards had to take the new two year course otherwise they would not be able to register as a teacher. He said the college was left in a difficult situation as regards students who wanted to defer. If students from either the September 2010 or February 2011 intake deferred for any reason they would not have sufficient time on their return to complete the course and therefore they could not register. The complainant deferred for six months so she would not have the course completed in this time frame. There were two options available to her one was to start the new programme or the other was to design a bespoke programme for her so that she could squeeze in all the remaining elements of the course in the timeframe available. The respondent stated that there were a number of other students in the same situation and they would not have completed their course before the April 2013 deadline.
3.3 The complainant rejected the offer of the new two year programme. The respondent then wrote to her on the 9th of December 2011 offering her a bespoke programme. The complainant was returning to the programme in January 2012 and three to four weeks of these modules had already been delivered and a tutor for that part of the course would not be available to her and assignments had already been released so the complainant would have a shorter time to complete them. The respondent said ideally she should have rejoined in December 2011. The complainant rejected this offer and withdrew from the course. The respondent said that they learned in March 2012 in discussions with the Teaching Council that it was likely that they would extend the April 2014 deadline to have 90 credits for registration as a newly qualified teacher. On the 24th of July 2012 the respondent wrote to the complainant informing her that she could complete the 60 credit programme she had already commenced and that they had got agreement from the Teaching Council that any student in her situation would be eligible for registration as a teacher. The complainant was offered a bespoke programme suitable to her needs and she was asked to contact the college to put the necessary arrangements in place. The complainant did not respond.
3.4 The respondent said that they were not in a position to inform the complainant of the outcome of their contacts with the Teaching Council until July when they had got agreement with them. He said that there were 9 other students in the same position as the complainant 6 females and 3 males. One took up the July offer and 2 started the new course and the remainder withdrew from the course.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against on the gender and family status grounds contrary to Section 7 of the Equal Status Acts in relation to the resumption and participation in the HDAPE following a 6 month deferral for pregnancy and maternity reasons. In reaching my decision I have taken into account all the written submissions 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:
3.—“ (1) For the purposes of this Act, discrimination shall be taken to occur—
(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)’’
Section 3(2) provides:
" (a) that one is male and the other is female (the ‘‘gender ground’’),
(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’’),
Section 7 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.
4.2 Section 38A (1) provides that the burden of proof is:
" 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."
It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.3 The matter I have to decide is whether the respondent discriminated against the complainant in relation to returning to the HDAPE course after her pregnancy and maternity leave. The complainant’s case is that the respondent changed the terms of her participation on the course as outlined above and this amounted to discriminatory treatment on the gender/family status grounds. The respondent said that the Teaching Council changed the terms to register as a teacher from 60 to 90 credits and extended the duration of the course from 18 months to 2 years. He said the college was notified of this change in late 2009. The change impacted on the complainant resuming the course because she had to take a 6 month deferral due to her pregnancy.
4.4 I note that the complainant applied for extended maternity leave up to 1st January 2012 and in an email from the respondent dated 24th of August she was informed that the extension was granted and she was registered to join the course in April 2012. In that email she was also informed of the change to the 2 year course. In my opinion the communication with the complainant about the deferral of her course was far from satisfactory. She was not informed at any stage that if she deferred until January 2012 that she would not be able to join the course until April 2012 and that she would have to start a completely new two year course so that her qualifications would comply with the new teaching regulations. Neither was it explained to her that if she deferred until the 1st of December 2011 that she could join the April 2011 student intake and take up the course more or less at the point where she had deferred with some minor adjustments. However, notwithstanding my opinion on this point, I am not satisfied that the complainant has established that she was treated less favourably on the gender and family status ground than another student of a different gender or family status than her was treated or would have been treated in similar circumstances.
4.5 Following an appeal, I note the complainant was offered an alternative to transferring on to the new two year course and commencing that course from the start. While some of the conditions attaching to this alternative course differed from the course being followed by students who did not defer, in that the complainant would have to self-study and catch up with some parts of the modules which would have already been delivered by the time she joined, all the students who deferred would have to complete all aspects of the programme on the resumption of their studies regardless of the reasons for the deferral. It was unfortunate that the change in the conditions for registering as a teacher impacted on the complainant because of the deferral but these changes were beyond the control of the respondent. I note that the changes were introduced by the Teaching Council (Registration) Regulations 2009 and were signed by the Minister on the 18th of November 2009 and further regulations were introduced in 2011 increasing the number of credits required to 120 from September 2014.
4.6 Likewise I note that there were 9 other students both male and female in the same position as the complainant and the respondent entered into negotiations with the Teaching Council and secured an agreement that all of these students could continue on the 60 credit programme and would still be eligible to register as a teacher provided the met a deadline set by the Council. The complainant was offered a bespoke programme tailored to meet her needs so that she could complete her studies but she did not accept the offer. In the circumstances, I am not satisfied that the complainant has presented any evidence from which I could conclude that she was treated less favourably than other students of a different gender or family status in terms of the offers made to her so that she could continue to participate in the course. Accordingly, I find that she has failed to establish a prima facie case of discriminatory treatment within the meaning of the Equal Status Acts.
5.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: I find that the complainant has failed to establish a prima facie case of discrimination on the Gender and Family Status ground in terms of sections 3(1), 3(2)(a) and 3(2)(c) of those Acts. Accordingly, I find in favour of the respondent in this case.
12th September 2014