Case Number: DEC-E2012-174- Full Case Report. Equality Tribunal

• Judgment Date: 01 December 2012
• Year: 2012
• Docket Number: DEC-E2012-174- Full Case Report
• Court: Equality Tribunal

EQUALITY OFFICER'S DECISION NO: DEC-E/2012/174

PARTIES

AWOJUOLA
(REPRESENTED BY MS. MARY HONAN BL - INSTRUCTED BY
THE EQUALITY AUTHORITY)

V

DUBLIN INSTITUTE OF TECHNOLOGY
(REPRESENTED BY ARTHUR COX - SOLICITORS)

File No: EE/2009/142 Date of issue: 12 December, 2012

Headnotes: Employment Equality Acts 1998-2008 - sections 6,12 & 31 -race- discriminatory treatment - vocational training - jurisdiction.

1. DISPUTE

This dispute involves a claim by Ms. Tolulope Awojuola (hereafter referred to as "the complainant"), who is a Nigerian national, that she was discriminated against by Dublin Institute of Technology (hereafter called "the respondent") on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to sections 12 and 31 of those Acts when it applied the level of fees for non-EU students to her application for an Undergraduate Course in the College in September, 2008. The respondent rejects the complainant's assertions and notwithstanding this submits that the course which she applied for does not constitute vocational training in terms of section 12 of the Acts and the complaint is not therefore validly before the Tribunal for investigation.

2. BACKGROUND

2.1 The complainant, who is a Nigerian national, applied for a place on the respondent's BA in Hospitality Management (hereafter referred to as "the course") in 2008. The complainant was successful in her application and attended for registration in September, 2008. The respondent subsequently applied the level of fees for non- EU nationals to her application - which was considerably higher than the fees applied to Irish or other EU citizens who were offered places on the course. The complainant states that she had been granted permission by the State to remain in Ireland on the basis of her parentage of an Irish born child and submits that the respondent therefore discriminated against her on grounds of race - colour, national and ethnic origins - by applying the non-EU national rate of fees to her. The respondent submits, in the first instance, that the course which the complainant applied for does not constitute vocational training in terms of section 12 of the Acts and the complaint is not validly before the Tribunal for investigation. Notwithstanding its position on this point, it (i) rejects the complainant's assertion that it discriminated against her at all and (ii) submits that if the treatment of the complainant constitutes indirect discrimination of her in terms of section 31 of the Acts, that such treatment is objectively justified in terms of that provision.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 25 February, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 1 July, 2011 -the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 19 October, 2011. A small number of points arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until early March, 2012.

3. SUMMARY OF COMPLAINANT'S CASE

3.1 The complainant rejects the respondent's argument that the course she applied for does not constitute "vocational training" in terms of section 12 of the Employment Equality Acts, 1998-2008. Counsel for the complainant submits that the Course Prospectus is occupationally focussed for graduates to pursue careers in management positions in the hospitality industry/sector and therefore supports the argument that the course is one of vocational training. Counsel also notes the reliance placed by the respondent on Decision of this Tribunal in Kelly v UCD¹ and the Determination of the Labour Court in The Employment Equality Agency v Football Association of Ireland² in terms of the phrase "exclusively concerned with training" contained at section 12(2) of the Acts and submits that these authorities and the statutory provision are at variance with the jurisprudence of the European Court of Justice (as it then was and hereafter called the "ECJ"). It is submitted on behalf of the complainant that the judgement of the ECJ in Gravier v City of Liege³ is relevant wherein the Court held that "any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training or skills for such a profession, trade or employment is vocational training, whatever the age and the level of the pupils or students and even if the training programme includes an element of general education."

3.2 Counsel further submits that the ECJ judgement in Blaizot v University of Liege⁴ is relevant in support of the complainant's assertion that the course is one of vocational training. Counsel quotes paragraph 17 of that judgement wherein the Court held that "Neither the provisions of the Treaty, in particular Article 128, nor the objective which the provisions seek to achieve, in particular those relating to freedom of movement for persons, give any indication that the concept of vocational training is to be restricted so as to exclude all university education. Counsel also quotes paragraphs 19 and 20 of the judgment wherein the Court held that university studies could amount to vocational training if they "provide specific training and skills, that is to say where a student needs the knowledge so acquired for the pursuit of a profession trade or employment" and went on to state that "In general, university studies fulfil these criteria, the only exceptions are general course of study which, because of their particular nature, are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation". Counsel adds that the principles established by the ECJ in both the aforementioned judgements were affirmed by that Court in EU Commission v Republic of Austria⁵.

3.3 Counsel for the complainant states that the EU Race Directive⁶, which prohibits discrimination on racial and ethnic origin, extends this prohibition to access to vocational training⁷. She adds that this Article provides an expansive reference to the types of vocational training and guidance the Directive applies to. Counsel notes that Employment Equality Acts, 1998-2008 transpose, inter alia, the Race Directive into Irish law. She submits that the restriction provided at section 12(2) of the Acts, i.e. "exclusively concerned with training"⁸ is at variance with the Directive and argues that the Tribunal must adopt a purposive interpretation of the provision. Counsel states it is well settled that national courts must interpret national legislation in light of the wording and purpose of the relevant EU legislative provisions, that where there is a conflict, the EU law take precedence and that this approach has been approved by the Supreme Court in Nathan v Bailey Gibson Ltd⁹. It is submitted that the judgement of Hedigan J in HSE v Umar¹⁰ is of little assistance in the instant case as the principle of precedence set out in the Bailey Gibson judgement is quite clear. Counsel submits that a literal interpretation of section 12(2) of the Acts would render the protection provided by the EU Race Directive ineffective and argues that the Tribunal is obliged, in light of the foregoing, to adoptive a purposive interpretation of that provision.

3.4 The complainant is a black Nigerian national. She states that she came to Ireland in 2001 as an asylum seeker and that this remained her status in 2008, although she had a Stamp 4 from 2005. She adds that she was never granted refugee status although she was granted official leave to remain in the State as she is the mother of an Irish born child. She states that she applied to the respondent in June, 2008 to pursue a course entitled BA in Hospitality Management. She adds that she was offered a placement on the course and attended registration in September, 2008, during which she was asked if she had been assessed by the respondent's International Student Office. The complainant states that she did not consider herself to be an international student as she had been living in Ireland for the previous seven years and she did not require an international student visa to attend college. She states that she subsequently encountered difficulties in completing the course, in particular accessing the college library facilities and she wrote to the Faculty Administrator on 2 October, 2008 seeking assistance in relation to the level of fees she had been informed she would have to pay. The Faculty Administrator replied the same day advising that the fees for an international student were €11,000 which must be paid before the complainant would be registered as a student. The complainant was also advised to contact the respondent's International Student Office in the matter.

3.5 The complainant states that she subsequently contacted the International Student Office and supplied details of her husband's tax affairs for the previous two years. She states that she was requested to furnish additional documentation from the Revenue Commissioners and in the course of the...