Case Number: EDA1335. Labour Court

• Judgment Date: 01 December 2013
• Year: 2013
• Docket Number: EDA1335
• Court: Labour Court (Ireland)

FULL RECOMMENDATION ADE/13/8 DETERMINATIONNO.EDA1335 INDUSTRIAL RELATIONS ACTS, 1946 TO 1990; SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 ; PARTIES : DUBLIN INSTITUTE OF TECHNOLOGY; (REPRESENTED BY ARTHUR COX SOLICITORS); - AND -; TOLULOPE AWOJUOLA; (REPRESENTED BY EQUALITY AUTHORITY); DIVISION : Chairman: Mr Duffy; Employer Member: Ms Doyle; Worker Member: Ms Ni Mhurchu

SUBJECT:
1. An Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.


BACKGROUND:

2. The Appellant appealed the Decision of the Equality Officer to the Labour Court on the 24thJanuary 2013. Two Labour Court hearings took place on the 28thMay 2013 and on the 19thNovember 2013. The following is the Court's Determination:





DETERMINATION:

This is an appeal by Tolulope Awojoula against the decision of the Equality Tribunal in her claim of discrimination against the Dublin Institute of Technology under the Employment Equality Acts 1998 -2011 ( the Act ). The claim is made on the ground of race. Ms Awojoula is referred to in this Determination as the Complainant and the Dublin Institute of Technology is referred to as the Respondent.

The facts
The facts of the case are not in dispute and can be summarised as follows.

The Complainant is of Nigerian national origin. At the time material to this claim she was also of Nigerian nationality. She has since become a citizen of Ireland.

The Respondent is a statutory body established by the Dublin Institute of Technology Acts 1992 to 2006. It is a third level education institute and is accountable to the Higher Education Authority.

In 2008 the Complainant applied to the Respondent to undertake a course leading to a BA in Hospitality Management. She was accepted for the course and attended for registration in or about September of that year. On the application form on which she applied for the course the Complainant gave her nationality as Nigerian. The Respondent designated the Complainant as an overseas or international student. On that designation the Complainant was required to pay fees in accordance with the Respondent’s international student fee policy. That policy, which took effect from 1^stSeptember 2008 provided, in relevant part, as follows: -

• “For the purpose of this document non-EU refers to territories outside the European Economic Area and Switzerland, and applicants from EEA/Switzerland that do not meet the residency requirement, in line with the Higher Education Authority guidelines

  DIT sets higher fees for non-EU students attending full time undergraduate and full time postgraduate programmes. This document outlines the circumstances in which these higher fees will apply”.

  This document sets out the criteria for determining the status of students for fee purposes as follows: -

  Category A- Free Fees

  To qualify for the free fees scheme an applicant must meet the following three criteria:

  • 
    (i)First Undergraduate Qualification; Application for study in the DIT must be the applicant’s first undergraduate programme of study at a recognised NFQ (National Framework for Qualifications) Level
    (ii)Nationality Test: The Applicant must be in possession of a valid EU passport OR an original long form Irish Birth Certificate OR an original EU National Identity Card, OR be in possession of Official Refugee Status. Please note that EEA and Swiss applicants are assessed as EU nationality in terms of fee assessment
    (iii)Residency: The applicant must have been ordinarily resident in an EU Member State for at least three of the five years preceding their entry into an approved third level course.
  
  Category B- EU Rate of Fees:

  The ‘EU Rate’ of fees is the total tuition fee plus capitation for each programme type as determined by the Irish Department of Education and Science each year. It is the same as a Self-Support Student would have to pay.

  Applicants are charged the EU Rate of Fees if they meet the following criteria;

  • 
    (i) The applicant is ordinarily resident in the EU and has received full-time post primary education in the EU for three of the five years immediately preceding admission OR
    (ii) The applicant is ordinarily resident in the EU and has worked full-time in the EU for three of the five years immediately preceding admission OR
    (iii) The applicant holds a passport from a EU State and has received full-time education in the EU for three years of the five years immediately preceding admission OR
    (iv) The applicant has been granted humanitarian leave to remain in the State and has been resident in the EU for three years of the five years immediately preceding admission.

The Respondent assessed the Complainant as ineligible for the EU rate of fees on the criteria set out above. In consequence she was required to pay the non-EU rate which amounted to €11,000. This was significantly greater than that applicable to those who qualified for the EU rate of fees.

The Complainant contends that the criteria against which applicants were assessed for the EU rate of fees constituted indirect discrimination on grounds of race. This is based on the readily acceptable contention that those who were not born in an EU Member State or who do not normally live in one of these States are more likely to be disadvantaged by these criteria.

The Complainant also contends that the course for which she applied is one of vocational training and comes within the meaning ascribed to that term in European law. She contends that it also comes within the ambit of the Act, when construed in conformity with Directive 2000/43/EC.

The complaint was referred to the Equality Tribunal and was investigated by an Equality Officer who found that the course in issue was not vocational training as that term is defined by the Act. On that finding her claim was dismissed. The Complainant appealed to this Court.

Issues Arising
There is no dispute between the parties on the material facts of this case. There are, however, significant questions of law arising in relation to the interpretation and application of domestic and European law. Those questions relate to whether the course in issue can properly be classified as vocational training and whether, on the facts of the case, the Complainant can maintain a cause of action under the Act grounded on her race or ethnic origin.

Vocational Training

Section 12 of the Act provides: -

• (1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise) —

  (a) in the terms on which any such course or related facility is offered,

  (b) by refusing or omitting to afford access to any such course or facility, or

  (c) in the manner in which any such course or facility is provided.

  (2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

It was conceded on behalf of the Complainant that the course at issue in this case is not exclusively concerned with training for an occupational activity. It was on that basis that the Equality Officer decided the case against the Complainant. However counsel for the Complainant, Ms Honan BL, relied on the decisions of the former ECJ (now the CJEU) in case C-293/83, Gravier v City of Liege[1985] ECR 593, and case C-24/86,Blaizot v University of Liege & Ors[1988] ECR 379 in contending that as a matter of European Law the concept of vocational training must be given a more expansive meaning.

InGravier,the Court held that vocational training includes: -

• “[A]ny form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment or which provides the necessary training whatever the age and level of training of the pupils or students, and even if the programme includes an element of general education”.

InBlaizot,the Court of Justice held: -

• “with regard to the issue of whether university studies prepare for a qualification for a particular profession, trade or employment or provide the necessary training or skill for such a profession trade or employment, it must be emphasised that that is the case not only where the final academic examination directly provides the required qualification for a particular profession trade or employment but also in so far as the studies in question 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 even if no legislative or administrative provision make that acquisition of that knowledge a prerequisite for that purpose.”

  In general university courses fulfil those criteria. The only exceptions are certain courses 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”

The Act gives effect in domestic law to Directive 2000/43/EC (the Race Directive). Article 3 of that Directive provides: -

Scope

• 1. Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

  (a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

  (b) access to all types and to all levels of vocational guidance, vocational...