This Determination considers an appeal of an Equality Tribunal Decision.  At the Labour Court hearing of the appeal the complainant raised some issues concerning the Tribunal procedures particularly in relation to not having adequate time to consider documents presented by the respondent at the hearing.  The Court stated “The role of this Court is to determine an appeal by way of a de novo hearing of the case; it has no jurisdiction to entertain complaints concerning the way in which the Equality Tribunal fulfills its statutory mandate”.  The Court went on to state that the complainant had had adequate time to consider the documents in preparation for the appeal and proceeded to “deal with the case on its merits by way of a full hearing on all questions of fact and law”.

The respondent is an agency that supplies cabin crew to various airlines in Europe.  It held a selection process for candidates to participate at their own expense in a training programme by the respondent. Normally when a candidate completes the training successfully they will be subcontracted to an airline but are employed by the respondent. 

The complainant alleged that when she was assessed she was told that her English was “approved” in both written and oral exams.  She also asserted that she was asked for her age and date of birth and that when asked why she finished her previous stewardess job she replied “because I got married” and she asserts that the interview ended at that point.

The respondent argued that as the complainant was not interviewed for a job her complaint did not fall within the terms of section 8(1) of the Acts and that the Court had no jurisdiction in the matter.  In addition the respondent asserted that the assessment of the complainant at interview was “nice lady, however had a very strong accent, I found it quite hard to understand her.  Has previous experience.”  In case the Court found that a prima facie case of discrimination was raised as a result of the necessity to be proficient in English the respondent stated that this could be objectively justified having regard to the safety requirements in the aviation industry and presented the Court’s decision in Noonan Services v a worker EDA1126.

Having considered the evidence the Court stated “The Court is satisfied that if it [the interview] was not directed at employment it was most undoubtedly directed at vocational training” and went on to find that the training was vocational training in line with section 12(2) of the Acts.  However, this raised the issue of the complaint lodged by the complainant having to change from “access to employment” to “access to vocational training”.  The Court considered County Louth VEC v The Equality Tribunal and Brannigan and Clare County Council v Director of Equality Investigations concluding that statutory tribunals, such as itself, should not apply a more stringent approach to the amendment of originating forms than the ordinary courts in the amendment of pleadings.  The Court was satisfied that the claim could be amended to reflect this. 

In respect of indirect discrimination the Court stated:

In Noonan the Court held that it is clear that a requirement to have competency in English is likely to place persons whose native language is other than English at a disadvantage relative to persons whose native language is English.  Hence, prima facie, a requirement of competency in English is indirectly discriminatory unless it is objectively justified.  It is well settled that a potentially indirectly discriminatory measure is objectively justified if it is in pursuance of a legitimate objective and the means chosen are appropriate and necessary to that end. 

The Court decided that the requirements set down at international level for the safety and well-being of passengers on board aircraft constituted a legitimate aim and that the requirement was appropriate and necessary in order to achieve that aim.  The Court concluded the claim on the grounds of nationality was not well founded.  The complainant’s claims on the remaining three grounds were also considered not well founded and the appeal was disallowed.

Why this case is of interest

• Proficiency in English and other requirements during selection such as a level of fitness are likely to be considered indirectly discriminatory and must be objectively justified.  HR managers should consider this at the point when the selection criteria are decided upon.
• The Court changed the claim from access to employment to access to vocational training which appears on the face of it to be a fundamentally different claim

Read the full case here: http://www.workplacerelations.ie/en/Cases/2014/June/EDA1427.htm