ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021853
Clare Local Development Company
Muireann McEnery, IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 21 of the Equal Status Act, 2000
Date of Adjudication Hearing: 04/02/2020
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 25 of the Equal Status Act, 2000, andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In late 2018, Clare Local Development Company Limited, (CLDC), in partnership with SOLAS and the Limerick Clare Education & Training Board (LCEBT), advertised a QQI Level 5 Course in Horticulture, which was due to commence in February 2019, subject to funding. This course was a full-time programme delivered over 40 weeks.
On 30 October 2018, the Complainant submitted an Expression of Interest form to CLDC in relation to this Course. On 7 November 2018, the Complainant received an invitation, by telephone, to attend for interview on 12 November 2018. At this interview, the Complainant signed documentation in support of his application. The Complainant was also invited to attend a Taster Course, the following day, 13 November 2018, at the centre where the course will be held. However, it appears that there was nobody in attendance at the time the Complainant arrived.
On 15 January 2019, the coordinator of the Horticultural Course (Ms A) contacted the Complainant and advised him that priority age group for participation on the Course was 18 – 35. Consequently, as the Complainant was over 70 years of age, he was advised he was ineligible to participate on the programme.
Having initially written to the Respondent in late January and received no reply, the Complainant submitted an ES 1 form, dated 30 April 2019.
The Complainant received a reply from the Respondent dated 8 May 2019. In this correspondence, the Respondent advised that, when running courses on behalf of Limerick & Clare Education and Training Board, they (the Respondent) must do so in line with the Operating Guidelines which are set down by the ETB. It was further pointed out that, in relation to the Horticultural Course, one of the entry requirements was that participants would be aged between 18 and 35.
The Complainant then submitted a complaint, under the Equal Status Acts, to the Workplace Relations Commission, which was received on 15 May 2019. This adjudication relates to that complaint.
Summary of Complainant’s Case:
At the Oral Hearing, having first confirmed the details as to the background of his complaint, the Complainant submitted that he felt very let down in his endeavours to get training and work experience in horticulture. According to the Complainant, he believed that if he had done this course it would have allowed him to consider self-employed landscaping or other such related activities.
However, the Complainant also submitted, that he might have been able to accept that he was not suitable to participate on the course, due to age, if this had been explained to him before being brought through the application process. The Complainant queried why he was brought to interview if he did not meet course requirements.
Summary of Respondent’s Case:
It was submitted that the Respondent, a non-governmental, state funded organisation, which is limited by guarantee, provides support to the self-employed, community/voluntary groups, entrepreneurs, the unemployed, farm families, etc. It was further submitted that the Respondent currently employs over 200 people on a wide range of programmes and schemes such as LEADER, Social Inclusion and Community Activation Programs (SICAP), Local Training initiatives, Rural Social scheme, Community Employment Scheme and Rural Recreation Project and Tús.
Respondent’s Response to the complaint:
It was submitted on behalf of the Respondent that they run the Local Training Initiatives (LTI) on behalf of Limerick and Clare Education and Training Board (LCETB). According to the Respondent’s submission, when delivering labour market activation programs, such as the programme to which the within complaint relates, they must, as a Second Provider, and adhere to the Operating Guidelines set down for such programs by the ETB.
In support of their argument in this regard, the Respondent quoted from the Operating Guidelines for Local Training Initiatives (LTI), as follows:
“The overall aim of the LTI program is to assist unemployed people, not otherwise catered for through ETB interventions, to move towards employment by providing community-based training and work experience leading to a nationally recognised qualification”.
In addition, the Respondent also quoted from the Operating Guidelines, as follows:
“The LTI programme is focused on addressing the training needs of economically, socially, geographically or educationally disadvantaged learners, primarily 35 years of age or under, with no formal qualifications are incomplete secondary level qualifications”.
In response to the Complainant’s claim of discrimination, the Respondent referred to Section 14 of the Equal Status Act, 2000. In particular, the Respondent drew reference to Section 14 (b) (II), which, they submitted, facilitates the provision of preferential treatment where it caters for persons or categories of persons, who may have special needs, requiring such preferential treatment.
Based on the above, it was submitted on behalf of the Respondent, that the Complainant’s complaint is not well founded.
Findings and Conclusions:
Having carefully considered the evidence submitted by the Complainant, I am of the view that, while he was disappointed at not being able to attend/complete this training course, his disappointment was significantly exacerbated by the manner in which the Respondent dealt with his application. Based on the Complainant’s evidence at the Oral Hearing, it would be reasonable to conclude that, had he been properly advised, at the outset, that the training was targeted at the 18 to 35 age group and been given the rationale for that, he may well have accepted the situation in all the circumstances.
In that context then, it is understandable that the Complainant, or anybody in his circumstances, would be rather dissatisfied with the fact that his application was processed through a number of stages, including interview and invitation to a taster day for the programme, before he was advised of his ineligibility for the programme.
In their response to this aspect of the Complainant’s complaint, the Respondent submitted that all applicants for programs run by them are interviewed, irrespective of their eligibility for any individual program. It was submitted that the rationale for this approach is to provide the Respondent with the opportunity to assess the full extent of an applicant’s requirements and how these might best be addressed, which might then result in the applicant being directed to some other program, for which they would be eligible.
While I fully accept and understand the Respondent’s rationale for adopting such an approach to assessing applications, it is, in my view, imperative that where an applicant is not eligible for a particular program, they should be fully advised of this situation at the outset of any application or screening process. Therefore, I am of the view that the Respondent should adopt such an approach in relation to future applications as this would eliminate any upset which might result from an applicant being brought through a process when they were ineligible from the outset. I am also satisfied that adopting such an approach would not detract from the Respondent’s genuine and holistic approach to the provision of their services to the broadest constituency.
However, notwithstanding the Complainant’s personal dissatisfaction at the manner in which his application was processed, his complaint is based on his contention that the Respondent engaged in prohibited conduct, whereby they discriminated against him, based on his age, in contravention of the Equal Status legislation and it is that specific complaint which is submitted for adjudication.
Section 38A of the Equal Status Act, 2000, states as follows:
(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.
This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.
Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 A (1) of the Acts.
The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.
Having carefully considered all of the evidence submitted by the Complainant, I am satisfied that he was advised his ineligibility for the programme was due to his age. Consequently, I am satisfied that he has, pursuant to Section 85 A of the Acts, established a prima facie case that he was potentially subjected to an act of discrimination, based on his age and that the burden of proof should pass to the Respondent to defend the claim.
The Respondent’s primary argument in defending the claim of discrimination on the grounds of age centres on the application of Section 14 of the Equal Status Act, 2000, which sets out the measures or activities which are not prohibited under the Act. In particular, the Respondent drew reference to Section 14 (1)(b), which states as follows:
14.— (1) Nothing in this Act shall be construed as prohibiting—
(b) preferential treatment or the taking of positive measures which are bona fide intended to—
(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons,
(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs,
It is clear from the evidence adduced, that the “Entry Requirements” for the Training Course, which is at the centre of the Complainant’s complaint of discrimination, stated, inter alia, that the priority age group was that between 18 and 35 years of age.
Having carefully considered all of the evidence, I am satisfied that there is a clear rationale, embedded in the objectives of the initiative, which would justify the identification of such a priority group. Therefore, I find the application of such a measure is consistent with the provisions of Section 14(1)(b) of the 2000 Act, as quoted above.
In addition, I note the Respondent’s evidence that the training programme in question was filled by individuals who fell either within the priority age group or relatively close to that age bracket. The evidence submitted suggests that the Complainant, as an individual of over 70 years of age, was considered to be too far outside the eligibility requirements, for inclusion in the programme. Based on this evidence, it is reasonable to assume that, in the event that the programme was under subscribed, the Complainant could have been allowed to participate, subject to availability of places.
Consequently, having carefully considered all of the evidence adduced and taking all of the above into consideration, I conclude that no act of discrimination has taken place and the Complainant’s complaint is, therefore, not well-founded.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Respondent did not engage in prohibited conduct and the Complainant’s claim in this regard is not well-founded.
Dated: July 6th 2020
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Equal Status Act