Equal Status Act
Cases Indirect Discrimination
DEC-S2003-016-017 Full Case Report
Ogunlade and Oyefeso v Michael Guiney Limited, Cork
The complainants each referred a claim to the Director of Equality Investigations under the Equal Status Act, 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the cases to me, Bernadette Treanor, 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 Act.
2. Dispute
This dispute concerns claims by Ms Ogunlade and Ms Oyefeso that they were discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of their race, colour, nationality or ethnic or national origins in that on 19/1/01 they were denied access to the respondent’s premises. The respondent does not deny that one of the complainants was refused access, but states that it was on grounds other than the complainant’s race. The respondent maintains that the second complainant was not refused access.
3. Summary of the Complainants’ case
The complainants entered the respondent’s premises on 19/1/01. Ms Ogunlade and Ms Oyefeso were refused access and asked to leave. Since Ms Ogunlade and Ms Oyefeso feel that this is a case of mistaken identity, and that Ms Ogunlade was wrongly identified, they maintain that this refusal and the manner in which they were treated was because of their colour.
4. Summary of the Respondent’s Case
The respondent refused access to Ms Ogunlade because of her alleged involvement in an incident on 5/1/01 in which a customer harassed staff. Ms Oyefeso was not refused access to the store.
5. Evidence of the Parties
5.1. Complainants’ Evidence
Ms Bukola Ogunlade, (first complainant)
Ms Ogunlade was not in the store on 5/1/01, as alleged by the respondent.
On the 15/1/01 Ms Oyefeso had a baby shawl to change on behalf of another woman. Ms Oyefeso took Ms Ogunlade to the shop, as she had not been there before. During that visit Ms Ogunlade did not buy anything.
While Ms Oyefeso was dealing with the baby shawl in the shop Ms Ogunlade was looking around the shop. She did not join Ms Oyefeso at the till.
There were four adults and two children in the group on 19/1/01. Ms Ogunlade was first into the shop and a lady told her she was not allowed to enter the shop. When Ms Ogunlade asked why, she was told “no reason”. One of the security guards told her that she had harassed a member of staff a couple of weeks before.
Ms Ogunlade pointed out that she had only been in the shop for the first time onthe previous Monday. She was asked to leave. There were four security guards and one lady involved. Ms Ogunlade asked to see the manager who, she was told, was busy.
Ms Ogunlade insisted on seeing him. She explained that at this point she was very angry and that she could not believe the accusation.
She was told the incident was on video.
The manager did not address her. He just asked security to get her out. They threatened to call the Gardaí. She replied that she had done nothing. The security guard told her that he was the one that spoke to her on the 5/1 and had told her to leave.
At that point the complainant’s group was circled by security staff. There were many people in the store and this treatment was very embarrassing.
The other two adults have not made complaints possibly because they were concerned that it may affect their status in the country.
Ms Ogunlade has dealt with NASC1. She knows her rights and is content that she had done nothing wrong.
Ms Sola Oyefeso, (second complainant)
On 15/1 she was exchanging a shawl for another woman. Ms Ogunlade did not know the respondent’s premises. Ms Oyefeso asked Ms Ogunlade to accompany her. They went straight to the second floor, where the children’s department is located, without any problem. The required colour of baby shawl was not there so they got a refund and left the shop.
While she was changing the shawl Ms Ogunlade was strolling around looking at the goods in store.
On 19/1 there were four adults. Ms Ogunlade went in first. A lady put up her hand and said you must leave. The argument continued back and forth. Ms Ogunlade was told she was barred. One security man said leave but Ms Ogunlade said she was not going to leave. The talk like that was coming from all directions, and maybe the security staff were trying to scare them by saying they would call the Gardaí. Ms Ogunlade said ‘okay but I want to know why I am asked to leave’.
They were told that they could not see the manager, but this was insisted upon.
When the manager arrived he did not speak to them but just indicated that they should be escorted out. He then went back to the office.
Ms Ogunlade said they should get in touch with their lawyer and she contacted the NASC Office.
Ms Oyefeso did speak to the security staff. She told them that there must be a mistake. She understood from the security people’s conversation that someone
1 NASC is the Irish immigrant Support Centre, St Marie’s of the Isle, Sharman Crawford Street, Cork City. had harassed staff. She told them “This lady is not Buky” referring to Ms Ogunlade. “Us blacks, we all look alike.” The lady security guard said no.
Ms Oyefeso had been going to the respondent’s store about once or twice a week for about six months prior to the incident without any difficulties.
Complainant Evidence submitted after the hearing
The names of the other two adults with the complainants on the 19/1/01 were supplied.
A copy of the birth certificate relating to Ms Ogunlade’s baby was produced.
5.2. Respondent Evidence
Ms Nicola Dineen, member of respondent’s staff
Ms Dineen was working in the Babies department on 5/1/01. A Lady asked her for a blanket from a shelf across the room. When the customer was told that there was one on a cot on display, she shouted across the room that she wanted “this one” indicating the one on the shelf. Ms Dineen indicated that the customer would have to wait her turn and while the customer was unhappy about this she waited. A manager got the blanket for the customer who continued shopping around for about 15 minutes before paying for the blanket.
At the checkout Ms Dineen took out the blanket, ostensibly to fold it, and the customer asked if she was being accused of shoplifting.
Ms Dineen replied that that was not the case at all. The customer’s friend said
“come on” so she paid, got her change and stormed off.
Ms Dineen was confident in her identification of this customer as Ms Ogunlade.
Ms Louise Moynihan, member of respondent’s staff
At around 1:05 on 5/1 Ms Moynihan was working on the till in the Babies department. There was a large queue. A woman came to the side of the till for a refund. She was told she would have to wait until the others waiting had been dealt with and she was not happy about this. On her turn Ms Moynihan took the receipt and the blanket and returned the £19.99. The customer began counting it and then threw it across the counter. Ms Moynihan had to get a manager to do a “no-sale” and open the till. The customer was given £20.00.
Ms Moynihan was confident in her identification of this customer as Ms Ogunlade.
Ms Amy Scannell, Store Detective
On 5/1 Ms Scannell was returning from lunch and from the top of the stairs in the Children’s department she could hear a customer being quite aggressive and loud spoken. She saw the money being thrown onto the table. The customer proceeded down the stairs and Mr. Cronly came after her and spoke to her. Ms Scannell had been about 5 to six metres from the incident and had heard references to money.
On 19/1, at about 12:20, she saw the first complainant, Ms Ogunlade, enter. She told Mr. Geasley that she was not allowed in. She then approached the complainant and told her she could not come in. Ms Ogunlade started shouting. Ms Scannell said that her friends were welcome in the store. Ms Ogunlade asked to speak to the manager. Ms Scannell left the group to get the manager while Mr. Geasley remained at the scene. The Manager spoke to Ms Ogunlade asking what was the problem. He could not say much however, as she was shouting. Ms Ogunlade said they were being racist and asked why could her friends not come in. She was told her friends were welcome. She asked why she was not being allowed in and was told it was because of her aggressive behaviour. She stood right in front of Ms Scannell and started shouting. Ms Scannell said she would have to call the Gardaí.
Ms Scannell stated that she explained the reason for the refusal of admission immediately, rather than that she told them that she did not have to give a reason.
It is the responsibility of the security person who recognises a person who is barred to make the approach. Mr. Geasley could not do it on this occasion since he had not been present during the first incident.
Mr. Matt Geasley, (Lunch-time security cover 15/1/01 and 19/1/01)
Mr. Geasley was not on duty on 5/1.
On 19/1/01 he was approached by Ms Scannell who said the person who arrived was barred.
It is necessary to get confirmation from the manager before refusing admission. Only the manager takes this decision.
Mr. Geasley indicated that the group could not enter the shop until he had been given confirmation.
When the manager arrived Mr. Geasley confirmed with him that Ms Ogunlade was barred and told her so.
Mr. Cronly arrived and confirmed that Ms Ogunlade was the customer who had caused a disturbance on the 5/1.
At the end there was himself, Ms Scannell, Mr. Cronly and the manager involved. Mr. Geasley radioed for another security guard. When he arrived the group left.
Mr. Geasley thought that they did not believe him that he would call the Gardaí.
Mr. Pat Cronly, (Security Officer)
On 5/1, there was a lady being a bit aggressive and loud at the checkout, while getting a refund. This was about 2 metres from him. He saw her tossing back money over the counter. From his perspective the customer was being aggressive with a member of staff.
He could not be sure if he had mentioned this incident to the manager. Mr. Cronly made the decision to ask her to leave the store in this instance.
He told the customer “Your behaviour is unacceptable, please leave the store.”
On 19/1/01, Mr. Cronly had been eating his lunch in the canteen when he was told that he was needed downstairs. He approached the complainant, Ms Ogunlade, and stood directly in front of her. While she seemed to be shouting at something behind him, he was focused on the problem.
He asked her two or three times to calm down though she took no notice. He presumed that it was after the incident when he first spoke to Mr. Geasley.
Mr. Cronly said he was focusing on the instantaneous situation. It did not seem to matter how it arose.
When asked to confirm his identification of the customer on 5/1 as Ms Ogunlade on 19/1, Mr. Cronly said when he was there he was dealing with the situation on hands. He was not there to identify.
When he asked them to leave, he agreed that being black was mentioned, as were the videotapes.2
When it was put to Mr. Cronly that he could be seen pointing his finger at Ms Ogunlade in the video, he replied that if he was pointing it was to attract attention. As Ms Ogunlade was shouting it was necessary to speak loudly enough for her to hear.
Mr. O’Donnell, (Store Manager)
The store’s policy is that everyone is welcome, and the minimum standards of behaviour apply. They have no written admission policy.
Only the security staff that were involved in a previous incident can ask a person to leave subsequently.
Security staff are expected to report incidents to him.
Barrings are very rare and while he has no numbers these are not astronomical.
Ms Ogunlade is barred because of the incident on 5/1. The store has no problem with Ms Oyefeso.
On 5/1 Mr. O’Donnell was not a witness to the incident. Mr. Cronly brought it to his attention after lunch, explaining that the customer had been abusive to staff. He investigated it with staff. When he spoke to Ms Moynihan she said the decision to ask the customer to leave was the correct one as it was the worst situation she had witnessed. In those circumstances Mr. O’Donnell said there is a need to protect staff.
On 19/1 Ms Scannell had identified Ms Ogunlade as the person involved in the incident on 5/1. He could not go immediately to Ms Ogunlade but when he did he
2 This appears to support Ms Ogunlade’s contention that the respondent mentioned that the incident on 5/1/01 was captured on video and Ms Oyefeso’s contention that she suggested that all blacks look alike. said, “Can we calm down and discuss this?” He asked Ms Scannell if she was certain that this was the person from the 5th and she confirmed that she was. He was making no impression on Ms Ogunlade. In relation to Ms Oyefeso he said that everyone was free to shop there except Ms Ogunlade because of the incident on 5th.
Mr. O’Donnell wanted to stress that he did speak to Ms Ogunlade or made an attempt to speak to her. He was told the Gardaí had been called. He was sorry that the incident had reached that stage.
Mr. Cronly arrived and confirmed the identification.
Mr. O’Donnell was perfectly content that the identification had been made and the correct person asked to leave. He asked Ms Scannell twice and on hearing Mr. Cronly he was content.
He later took out the security videotape for the 5/1 and showed both it and the tape for 19/1 to Ms Moynihan and Ms Dineen. They were satisfied that it was the same person.
Mr. O’Donnell undertook to identify the security staff that were on duty on 15/1 and forward this information after the hearing.
Mr. O’Donnell stated that Mr. Geasley must be mistaken when he said that they had discussed the confirmation of identification. At that stage Mr. O’Donnell had spoken only to Ms Scannell.
Respondent evidence submitted after the hearing
Details of the security staff on duty in the respondent’s premises on 15/1/01. These were Mr. Pat Cronly with Mr. Matthew Geasley on lunch cover.
A copy of the security firm’s training manual.
Copies of two purchase receipts, two refund receipts and two refund dockets, numbered 21812 and 21844.
6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act. Section 3 (1)(a) provides that discrimination shall be taken to occur where: “On any of the grounds specified…….a person is treated less favourably than another person is, has been or would be treated”.
Section 3 (2) provides that: “As between any two persons, the discriminatory grounds … are …
(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”)”
Section 5 (1) states that “a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public “.
Section 15(1) of the Equal Status Act 2000 provides that “nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person in circumstances which would lead a reasonable individual, having the responsibility, knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that the provision of services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought”.
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of a discriminatory ground (e.g. the race ground)
(b) Evidence of specific treatment of the complainants by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone of a different race or colour received, or would have received, in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7. Conclusions of the Equality Officer In this case the complainants claim that they were discriminated against on the basis of their colour when they sought and were refused service on 19/1/01.
7.1. Prima Facie Case
Applicability of the Race ground
The issue here is whether or not the person to whom the complainants should be compared is of a different race, colour, nationality or ethnic origin. The complainants are both black. The majority of customers who can be seen on video entering and leaving the respondent’s premises on the dates in question are white. I am satisfied that it is appropriate to compare the treatment of the complainants with the treatment one of these white customers would receive and that the race ground is applicable at least on the basis of the complainants’ colour.
Evidence of specific treatment
Both parties agree that there was a denial of service in relation to Ms Ogunlade. Ms Oyefeso submits that she was also denied service but this is disputed by the respondent. Ms Oyefeso submits that the Manager did not address her at any stage and that she was never given any indication that she could shop. All the indications given were that the group of which she was part should leave the shop. In response, the manager states that he did attempt to communicate with Ms Ogunlade, and this is supported by the video evidence. The video does not show any communication between the manager and Ms Oyefeso. What is apparent is that all the while through the incident a security officer remained with the group. This security officer is generally standing between Ms Oyefeso and the store. Only at one point did she go to join Ms Ogunlade and presumably this is the point where she indicated that it must be a case of mistaken identity. While this is slightly off-camera, it appears that Ms Scannell is there in conversation. It appears therefore that Ms Oyefeso was never out of the company of a security officer while in the store. Therefore, even if it had been indicated to her that she may shop, the general situation was not conducive to shopping. On video it is possible to see that the focus of the situation was on Ms Ogunlade. She has admitted that she was angry at the accusation and there appears to have been a lot of shouting and commotion. While it is possible that Ms Oyefeso remained with her companion who was experiencing difficulties out of loyalty even though she had been told she could shop, I find it much more likely that she was not told this directly. Ms Scannell stated that Ms Ogunlade at one point asked why could her friends not come in. If Mr. O’Donnell did in fact say that everyone was “free to shop there except Ms Ogunlade” no evidence has been adduced to confirm that he said this to Ms Oyefeso. I find that on the balance of probabilities Ms Oyefeso was not directly told that she could shop and that she was refused because of her association with her companion Ms Ogunlade. While the form of the refusal was not verbal, it was a physical barrier or deterrent in the form of one security guard or another. I find that this establishes specific treatment of both complainants.
Less Favourable treatment
In relation to key element (c) at 5.6 above I must now consider whether the refusal of service was such that a white person in the same circumstances would be treated more favourably.
The respondent states that Ms Ogunlade was refused because she was identified as the person who had behaved aggressively towards staff on 5/1/01 during the processing of a refund. The respondent has indicated the individual responsible on the security video. She entered and left the store twice on that date. During the first visit she purchased a baby blanket and during the second visit she returned it. The respondent has produced the staff that were at the receiving end of this aggressive behaviour. They have described the incidents, both the initial purchase and the subsequent return of the article, in a wellrounded and convincing manner. (However, the time of the refund incident initially given by Ms Moynihan as 13:05 has been amended to 14:03.) This evidence is supportedby the till receipts of both transactions and the refund docket. The security staff have also described the incident from their perspective, with the result that the overall perception of the incident is robust.
There are some inconsistencies that may have many explanations. According to the till receipts the assistant who dealt with the initial purchase was Nico[l]a as given in evidence. However, the refund receipt was processed by ‘Donal’ rather than by Louise, that is Ms Moynihan. The time of this receipt on the till system is 14:03:56. The customer responsible for these incidents can be seen leaving at 14:03 also, and it should be recalled that Mr. Cronly would have delayed her to some extent in traveling from the children’s department on the second floor to the door. However, it was also mentioned in evidence by Ms Moynihan that she had had to get a manager to do a “no-sale” and open the till. It is possible that the staff did not want to delay this customer unduly and that the processing of the refund was completed after she had been given her refund and had left.
The refund docket number 21812 is largely incomplete in comparison with the docket that related to Ms Oyefeso’s refund on 15/1/01 and this might support the urgency of the situation. On the balance of probabilities I am satisfied that this customer did behave aggressively towards the staff on 5/1/01.
On the 5/1/01, Ms Dineen, Ms Moynihan and Mr. Cronly all interacted in some way with the customer at relatively close quarters. Ms Scannell was a witness to the latter part of the incident at the till from a distance.
On 5/1/01, after the incident at the till, Mr. Cronly took the decision to ask the customer to leave the store. On the basis of Section 15(1) of the Equal Status Act, 2000 this is entirely acceptable. This customer had already indulged in what could reasonably be termed disorderly conduct, and on the basis of Mr. Cronly’s responsibility, knowledge and experience, the store was entitled to ensure that this conduct was avoided in the future by withdrawing the invitation to shop from this customer. Ms Scannell stated that on the 19/1/01, she identified Ms Ogunlade as the customer from the 5/1/01, that she put Mr. Geasley on notice that this was someone who was not welcome in the store and that she went directly to Ms Ogunlade to tell her she could not come in. On video it is very clear that Ms Scannell went straight to Ms Ogunlade and spoke to her, and impeded her progress into the store. This happened before the rest ofMs Ogunlade’s group could enter the store. Ms Scannell does not appear to subsequently go to the rest of the group to refuse them access, as one might expect if the refusal related to their colour or race. The incident, as it develops is centred on Ms Ogunlade. Based on this and the evidence given orally, I am satisfied that Ms Scannell, rightly or wrongly, identified Ms Ogunlade as a customer who had previously caused trouble and who was not welcome in the store. In accordance with Section 15(1) Ms Scannell was the person in the situation with the appropriate responsibility, knowledge and experience required. A reasonable person would arrive at the belief that a person who had been aggressive and disorderly (throwing money back across the counter at the person on checkout duties) on a previous occasion could do so again. On the basis of her identification MS Scannell refused Ms Ogunlade access to the store. I find that Ms Scannell made this decision because she honestly believed that this was the earlier customer, and not because Ms Ogunlade was black.
I find that the refusal was based on Ms Ogunlade’s identification as the customer who had behaved aggressively towards staff on 5/1/01. I am satisfied that where a white person was identified as a customer who had previously behaved in a manner that could be considered disorderly, they would also be refused in accordance with section 15(1) of the Equal Status Act, 2000. I find therefore that the refusal was not on the basis of the complainant’s colour and that consequently she has failed to establish a prima facie case of discrimination on the race ground. Ms Oyefeso had been shopping in the store for about six months without having been refused. It would appear therefore that something must have happened to change that. As mentioned above Ms Oyefeso received specific treatment from the respondent. However, her treatment relates to discomfiture with the chaperoning by security staff. The security staff’s presence was in response to Ms Ogunlade’s entrance into the store. Since Ms Oyefeso’s refusal was by association with Ms Ogunlade, it follows that she was not refused on the grounds of her colour and that she has also failed to establish a prima facie case of discrimination.
Indirect discrimination
The complainants’ representative submitted that this was a case of mistaken identity, and that the complainants, by virtue of their colour were more difficult to identify than white people. Section 3(c) of the Equal Status Act, 2000 is as follows:
(c) (i) [where] a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,
(ii) the person is obliged by the provider of a service (within the meaning of section 4(6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,
(iii) substantially more people outside the category than within it are able to comply with the condition, and
(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.
The complainants both belong to a category of persons who share a common characteristic, their colour. In a situation where a past troublemaker is black, then avoidance of being recognised as that troublemaker is more difficult for black people by virtue of their colour. This is based on the assumption that on accepts it is easier for the indigenous population to recognise members of their own group because of familiarity with their features. However, it is a moot point whether or not a person’s identification, or non-identification as a troublemaker, is something with which they have to comply in accordance with 3(c)(ii) above. In a situation such as this the burden of proof is on the person alleging indirect discrimination to prove on the balance of probabilities that such is the case. An assertion is not enough to amount to proof. Since no evidence was adduced to support the suggestion that it is substantially easier for a white person to be recognised, the complainants have not discharged that burden. Therefore this does not amount to indirect discrimination in accordance with the Act in this case.
Events after the initial refusal
As the incident on 19/1/01 developed, it would have been difficult for other customers not to notice that something was going on. A group of four adults and two children were positioned straight in from the entrance. This group took up a large amount of space in from the entrance and among the displays. Mr. Geasley remained with them at all times and he was in uniform. Added to this there was some shouting. While I accept that it must be embarrassing and infuriating in the extreme to be accused of something, perhaps wrongly, Ms Ogunlade’s behaviour did not help to resolve the matter. On video, she can be seen moving around clearly angry and her attitude appears to be hostile, particularly to Mr. Cronly. She admitted she was angry at the accusation which she felt was wrongly made. By behaving in this way Ms Ogunlade continued to draw attention to herself and to some degree, may even have confirmed Ms Scannell’s opinion that this was someone who might cause a disturbance. When Mr. Cronly arrived, it is understandable that from his perspective there was a disturbance underway. However, shortly after this, Ms Ogunlade can also be seen standing with her back towards a rack of clothes with no less than five security people around her in a relatively tight arc. This included Mr. Cronly, Ms Scannell, Mr. Geasley and two other security men that arrived from other stores having been called by radio. Ms Oyefeso can be seen standing beside this group. As the complainants moved towards the door, it can clearly be seen that the security staff wanted their entire group out of the store. They, the security staff, spread themselves out in a line between the complainants and the store, gradually moving towards the door. This line would have been intimidating to anyone walking into the store and indeed after the complainants were outside, and followed out by Mr. Cronly and Ms Scannell, at least one other customer had to ask for a way through the security staff to exit the store. While this treatment was certainly unwelcome to the complainants, I am satisfied that it was not on the grounds of their race or colour but because of the scene that had developed in the store. I find that this entire incident, after the refusal, was a situation that escalated out of control on the part of both sides.
Mistaken Identity
In relation to the identification of Ms Ogunlade as the aggressive customer on 5/1/01, I have the following comments to make. As mentioned above, Ms Dineen, Ms Moynihan and Mr. Cronly all interacted in some way with the customer at relatively close quarters on the 5/1/01. Ms Scannell was a witness to the latter part of the incident at the till from a distance. On 15/1/01 both complainants were in the store and the time of the refund on the receipt is 14:51:06. According to the security firm’s attendance sheet for that day Mr. Cronly was on duty at that time having had lunch from 13:00 to 14:00 covered by Mr. Geasley. There appears to have been no store detective on duty that day. Therefore, either Mr. Cronly did not come across Ms Ogunlade while she was in the store or if he did, he did not identify her as the individual who had caused a disturbance on 5/1/01. A further possibility is that Ms Ogunlade was not in the store on 15/1/01, although there is no reason to doubt her assertion that she was. A comparison of the parent’s names on Ms Ogunlade’s baby’s birth certificate and the name on the refund docket dated 5/1/01 show no similarities. This does not suggest that it was not her, it simply does not support the contention that it was. Both Ms Ogunlade and Mr. O’Donnell agree that Mr. Cronly identified Ms Ogunlade as the person who had behaved aggressively towards staff on 5/1/01, although Mr. Cronly did not confirm this at the hearing. However, Ms Scannell was responsible for the refusal and it is therefore her treatment of the complainants that is relevant. On 19/1/01 Ms Scannell identified the complainant before she entered the store and from quite some distance. When Mr. Cronly arrived, the only other person to allegedly see this person on both dates, he concentrated on the situation as he saw it. When asked at the Ogunlade & Oyefeso V Michael Guiney Limited, Cork hearing to confirm his identification of Ms Ogunlade as the person from 5/1/01 he stated that he was not there to identify the complainant, but to handle the situation. Neither Ms Dineen nor Ms Moynihan saw Ms Ogunlade in person on 19/1/01. They were shown both videos for comparison purposes. Only Mr. Cronly saw the customers close up on both dates and it is interesting that during the hearing he declined to confirm the identification of Ms Ogunlade as the customer from 5/1/01, by saying that his purpose in joining the group on 19/1/01 was not to identify her. I find this more persuasive than the identification by those staff that saw one incident, compared it to the video footage of another, and confirmed identification 21 months later at the hearing. Having seen the video evidence, while there are similarities between the two individuals, I would be reluctant to rely on it for identification purposes.
It is therefore possible that this was a case of mistaken identity. In relation to the difficulties relating to the identification of a person who has been asked to leave, this case to hand clearly reflects how difficult it is:
For a respondent to prove that the person in a subsequent incident is the same person with whom they had previously had difficulties,
For a complainant to prove that it is not.
In this case the respondent did endeavor to have the identification as accurate as possible with the resources they had available at the time. I would recommend that the respondent and the security company continue in this manner, and endeavor to refine their identification procedures to aid the identification of people who are no longer welcome in the store, in order to avoid subsequent erroneous identifications of people with the consequential damage to their good names.
8. Decisions
8.1. Decision DEC-S2003-016
I find that Ms Ogunlade was not discriminated against on the Race ground contrary to Section 3(1) and 3(2)(h) of the Equal Status Act and in terms of Section 5(1) of that Act.
8.2. Decision DEC-S2003-017
I find that Ms Oyefeso was not discriminated against on the Race ground contrary to Section 3(1) and 3(2)(h) of the Equal Status Act and in terms of Section 5(1) of that Act.
Bernadette Treanor
Equality Officer
27 February 2003
DEC-S2006-004 – Full Case Report
Hassan v Western Union Financial Services (Ireland) Ltd.,
(Represented by A & L Goodbody, Solicitors)
1. Dispute
1.1 This dispute concerns a claim by Mohamed Haji Hassan that on 16 October 2002 he was treated in a discriminatory manner by the respondent’s staff, contrary to Section 5, in terms of Section 3(1)(a) and (c) and 3(2) (e) and (h) of the Equal Status Act 2000. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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 Act.
2 Overview of Complaint
2.1 On 16 October 2002 the complainant, a Somali national and a naturalised Irish citizen, went to an agent of the respondent and sought to collect money in the amount of sterling £50 which had been forwarded to him in Dublin from the U.K. via the respondent’s money transfer services. The complainant was initially informed that the money was not there for collection and was subsequently informed that the money had been withheld by the United States Treasury and was in a security queue and would not be released until such time as the complainant forwarded a copy of his passport to a fax number provided. The complainant was further informed that the copy of his passport would then be forwarded to the United States Treasury Department and the Federal Bureau of Investigation. This was confirmed by the respondent to the complainant in writing in a letter dated 25 October 2002 which stated that “In light of the terrorist attacks in the United States additional security measures have been taken with regard to releasing funds in various countries world-wide. Random transactions are being security locked by the US Treasury Department and put in a queue until all required details have been provided. As Western Union is an American company the US Treasury Department reserves the right to request such information”.
2.2 On 10 December 2002 the complainant complied with the statutory notification procedures under Section 21 (2) of the Equal Status Acts 2000-2004. The respondent replied to the statutory notification per letter dated 7 January 2003 indicating that the withholding of the money by Western Union from the complainant was on foot of legal requirements to screen all remittances against lists of names of persons and organisations, identified as being associated with terrorism, narcotics trafficking and other illegal activity, provided by the US Treasury Department’s Office of Foreign Assets Control, the European Community and other governments, regulatory and law enforcement agencies. The respondent also indicated that such screening is accomplished automatically by Western Union’s data processing programs. When the sender or recipient of a Western Union transfer has a name, which is identical to or similar to one of the names on these lists, Western Union suspends the transaction and investigates it. Western Union does not discriminate in the provision of its services on the basis of race, religion or national origin.
2.3 Both parties to the complaint subsequently lodged detailed submissions to the Tribunal, prior to and following the Hearings of the complaint on 29 April and 20 October 2005. On foot of the respondent’s submission to the effect that Section 14 of the Equal Status Acts applies, as the money was withheld from the complainant in compliance with Council (EC) Regulation No. 881/2002, (the Regulation), the Equality Officer requested detailed submissions from both parties on the issue of jurisdiction, specifically the jurisdiction of the Tribunal to investigate and decide in this matter, (Article 6 of the Regulation refers). Final correspondence was exchanged with the parties on 9 December, 2005.
2.4 Both parties were notified by the Equality Officer that the Decision which would issue in this matter would (i) deal with jurisdiction as a preliminary issue, and (ii) be in brief format due to the highly sensitive nature of some of the commercial material disclosed at Hearing and in written submissions.
3 Jurisdiction
3.1 Section 14(1)(a) of the Equal Status Acts 2000-2004 states
“Nothing in this Act shall be construed as prohibiting-
(a) the taking of any action that is required by or under-
(i) any enactment or order of a court,
(ii) any act done or measure adopted by the European Union,
by the European Communities or institutions thereof or by bodies competent
under the Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation
on the State,”
3.2 Council (EC) Regulation No. 881/2002
3.2.1 Under Council (EC) Regulation No. 881/2002 the respondent is required to have effective checks in place to prevent the transfer of funds through its services to any of the natural or legal persons, groups or entities listed in Annex I to the Regulation who are considered under the Regulation as terrorists or associated with terrorists. The Regulation is silent on the nature of the checks to be used.
3.2.2 Article 5 (1) of the Regulation requires that “natural and legal persons, entities and bodies shall provide immediately any information which would facilitate compliance with this Regulation ………………………… to the competent authorities of the Member States listed in Annex II where they are resident or located, and, directly or through these competent authorities, to the Commission” and shall ” cooperate with the competent authorities listed in Annex II in any verification of this information.
3.2.3 Article 5 (2) of the Regulation states that “Any information provided or received in accordance with this Article shall be used only for the purposes for which it was provided or received”.
3.2.4 Article 4 (2) of the Regulation states that “Any information that the provisions of this Regulation are being, or have been, circumvented shall be notified to the competent authorities of the Member States and, directly or through these competent authorities, to the Commission”.
3.2.5 Article 6 of the Regulation states that “the freezing of funds, ……, in good faith that such action is in accordance with this Regulation, shall not involve the natural or legal person, group or entity implementing it, or its directors or employees, in liability of any kind unless it is proved that the freezing was due to negligence”.
4 Equality Officer’s Decision – Jurisdiction
Having carefully considered the submissions of both parties in this regard I am satisfied that the Tribunal has jurisdiction to investigate and decide in this complaint for the reasons set out at paragraph 7 below.
5 Prima Facie Case
5.1 I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A(1) of the Equal Status Act 2000 (as inserted by the Equality Act 2004) states that;
“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”. (1)
Section 38A(2) states that
“This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person”.
6 Prima Facie Case – Complainant
6.1 Race Ground – Direct Discrimination
6.1.1 The complainant is a Somali national, a naturalised Irish citizen and a Muslim and this is not disputed by the respondent. The complainant has provided no evidence to indicate that either his race or nationality was indicated by him to the respondent at any time in the course of the money transfer in question. The complainant states that his name is of Arabic origin and that this is indicative of ethnic origin. The respondent states that the transfer of funds to the complainant was frozen because the complainant’s name was a close match for a name listed in Annex 1 to Council (EC) Regulation 881/2002 and for no other reason and that earlier references to random transactions having been selected by the US Treasury for investigation were an error.
6.1.2 I am not entirely satisfied that the clear indications given to the complainant at an early date that the transaction was frozen in compliance with US regulatory requirements were simply “an error” as stated by the respondent. The reality is, however, that the actual freezing of the transaction is, as a matter of fact, in compliance with the requirements of the Regulation. The complainant has failed to establish that this compliance was not achieved in good faith or, in circumstances whereby all of the names in the Annex to the Regulation are of Muslim origin, that the freezing of the transaction was directed at the complainant’s racial/ethnic origins rather than straightforward compliance with the Regulation, irrespective of the racial/ethnic origin of the names on the list.
I find therefore that the complainant has failed to establish a prima facie case of direct discrimination on the race ground. I find further that the actual freezing of the funds by the respondent was, as a matter of fact, in compliance with the Regulation and that Section 14 of the Equal Status Act therefore applies to the actual freezing of the funds.
6.2 Religion Ground – Direct discrimination
Both the complainant’s name and the name on the list at Annex I to the Regulation for which the complainant’s name is a close match are Muslim names. The respondent is required to prevent the provision of funds to all persons, entities and bodies listed in Annex 1 of the Regulation. The Regulation must be interpreted purposively not literally and I do not accept the complainant’s contention that checking for anything other than exact name matches exceeds the requirements of the Regulation. Given the variations in names that occur internationally, especially where names are transliterated from other scripts, and the variation between countries as to which names are generally given on official forms, it seems clear that it would be necessary to check more widely than for identical matches and also check for near matches. This is borne out by the fact that the complainant’s name has been misspelled a number of times by various people in the course of correspondence in the investigation of his complaint. The method of checking for the names in Annex I is not specified in the Regulation but the objective of the Regulation is clearly specified and it seems a matter of common sense that the objective could not be achieved with any degree of effectiveness unless near matches were also checked.
6.2.1 The respondent did not freeze the transfer of funds transaction to the complainant simply because he has a Muslim name but rather because the complainant’s name very closely matches the name, also Muslim, of a person listed in Annex I to the Regulation. I am satisfied that the transfer of funds would have been frozen by the respondent to any person having a name which coincided with or closely matched a name on the list in Annex I of the Regulation irrespective of religion. This was borne out by evidence presented by the respondent of the large number of transactions successfully carried out by and to persons globally with Muslim names.
6.2.2 On balance, based on the totality of the evidence presented I am not satisfied that the complainant has established facts from which it can be presumed that direct discrimination on the religion ground has occurred in relation to the actual freezing of funds to him. I find therefore that the complainant has failed to establish a prima facie case of direct discrimination on the ground of religion in relation to the actual freezing of the funds. Furthermore in regard to the actual freezing of funds the respondent was, as a matter of fact, in compliance with the requirements of the Regulation and Section 14 of the Equal Status Act therefore applies to the actual freezing of the funds.
7 Indirect Discrimination
7.1 Notwithstanding paragraph 6 above regarding the actual freezing of funds to the complainant I am not satisfied that the procedures followed by the respondent subsequent to the freezing of the transaction were essential to achieve the legitimate objective of preventing transfers of funds to terrorists, or that they were, in fact, in compliance with the requirements of the Regulation. Specifically, the respondent made no attempt to have the matter of clearing the frozen transaction dealt with by the relevant designated Irish competent authorities (2) or to report it to those authorities and the EU Commission, as required under the Regulation. Instead the respondent required the complainant to forward detailed personal information and I.D. for transmission onward to the respondent’s US headquarters and indicated that the information would be passed to named US authorities for clearance. In oral evidence provided by the respondent at Hearing, and in written correspondence, it was subsequently confirmed that the transaction was actually cleared by the Office of Foreign Assets Control (OFAC) in the US Treasury Department.
In their conduct subsequent to the freezing of the funds I am satisfied that the respondent placed on the complainant a requirement (3) that is not directly discriminatory and is applied to Muslims of non-Irish national origins and non-Muslims of Irish national origins alike viz
The requirements placed on the complainant-
a) not to be a person named on the list at Annex I of the Regulation
b) not to have a name closely matching any of those on the list, or
c) if he has a similar name, to prove to the respondent’s satisfaction that he is not one of the persons on the list, including the production of clear documentary evidence for scrutiny, and
d) to have the checks carried out in the US only
e) to deal with the respondent’s head office in the US and
f) to have the transaction cleared by US authorities.
7.2 The question then arises as to whether substantially more non-Muslim persons or persons of Irish national origin would be able to satisfy each of these requirements than would Muslim persons or persons of non-Irish national origin. I think it is reasonable to conclude, in circumstances whereby all of the names of natural persons listed in Annex I of the Regulation appear to be Muslim, that Muslims will be substantially more likely to have similar names to the persons on that list than would non-Muslims, regardless of national, racial or ethnic origins. Furthermore as the complainant did not identify himself as being of Somali national origins in the course of the actual transfer of funds transaction I am satisfied that it was the fact that he had a Muslim name and not his national or ethnic origins, that was at issue. I find therefore that the respondent has not indirectly discriminated against the complainant on the race ground.
7.3 I am satisfied that a) to c) above are required by Community Law as it is difficult to see how the objectives of the Regulation could be achieved without them. Accordingly, by virtue of Section 14 of the Equal Status Act, they are not prohibited by that Act. In relation to d) to f) the respondent required the complainant to provide information for transmission to the US for screening, with no direct access to any mechanism in Ireland for establishing his identity. The respondent argues that this is necessary as its US base is the centralised office for global transactions and the staff members there are highly trained and professional at carrying out the necessary checks.
7.4 I am satisfied that requirements d) to f) are not required by EU law and are not therefore exempted under Section 14 of the Equal Status Act 2000. Article 6 of the Regulation cannot apply to these requirements. The question then remains as to whether the obligation to comply with requirements d) to f) is “reasonable in all the circumstances of the case”.
7.5 The respondent is bound under Irish law not to engage in practices which are likely to have an indirectly discriminatory impact. It seems obvious that automatically blocking any transfer of cash to a person with a name which is any combination of the names Mohamed Haji Hassan, which are all common Muslim male names, is a good compliance with the Regulation but will also have the unintended effect of making it awkward for many Muslim customers who have absolutely no connection with terrorist activity to carry out perfectly legitimate cash transfers. Indeed, it is likely to cause considerable offence to such customers. One would expect that the respondent would have anticipated this problem and put in place a procedure which recognised both types of situation and responded in a proportionate way to both. It seems unreasonable to put legitimate customers in a position where they are obliged to deal directly with the US (which puts them to unnecessary expense and stress), where they do not have a direct face to talk to and where they have no way of invoking expert local authorities such as the competent authorities to help in establishing their correct identity. Furthermore one isolated transfer of sterling £50 does not look like the most likely illicit terrorist transaction. While the respondent was still obliged to check it under the Regulation, the procedures adopted could, for example, have recognised that, where there was not an exact name match and the transfer amount was low, that this was a pretty low-risk transaction, as envisaged by the 2005 guidelines (4) .
7.6 The respondent operates globally and has established agencies in many countries. It has established a European Regional Operations Centre and states that regular consultations take place with unspecified “regulators” at EU level. Despite such stated consultations and the repeated claims that it froze the transfer of funds to the complainant in strict compliance with the laws enacted by the actual regulators, the respondent transmits data to its US based headquarters for convenience, citing risk control factors and the cost of its corporate transaction verification system. I am not satisfied, given the extent of the respondent’s activities worldwide, that the transaction could not have been cleared within this jurisdiction by suitably trained staff with ready access to the competent authorities who deal with these security issues on an ongoing basis.
7.7 It is clear from communications, immediately preceding the Hearing in this matter,
between the competent authorities in Ireland and the respondent that the authorities are willing to assist in any way they can in interpreting and applying the requirements of the Regulation and that the respondent can readily refer matters such as those arising in this case to these authorities or other agencies dealing with security issues and the EU Commission. Instead, for what the respondent described as commercial convenience, the respondent elected to establish procedures for clearing frozen transactions which do not adhere to the requirements of the Regulation. The respondent further indicated that no consultation regarding the practical application or operation of the Regulation had taken place with the designated competent authorities in Ireland because those authorities are “not regulators”. The Regulation does not provide the respondent with the option of deciding whether they will engage with the competent authorities, it requires that they do so. Specifically, Article 5 of the Regulation requires that “any natural or legal persons, entities and bodies shall provide immediately any information which would facilitate compliance with this Regulation …………. to the competent authorities of the Member States (my emphasis)………… where they are resident or located”. The clearance of the transaction in question therefore was clearly a matter for the Irish competent authorities.
7.8 I am satisfied (i) that it would be entirely reasonable that the respondent would establish procedures, under the guidance of the local competent authorities in the member States in which it operates, for the implementation of the requirements of the Regulation and (ii) that the procedures currently applied by the respondent are arbitrarily imposed and are not reasonable in all the circumstances of the case. I find therefore that the respondent has indirectly discriminated against the complainant on the religion ground.
8 Decision
I am satisfied (i) that the respondent has not directly discriminated against the complainant on the race or religion grounds (ii) that the actual freezing of the funds transfer to the complainant is, as a matter of fact, in compliance with Council (EC) Regulation No. 881/2002 and therefore comes under Section 14 of the Equal Status Act 2000 (iii) that the respondent has not indirectly discriminated against the complainant on the race ground and (iv) that the respondent has indirectly discriminated against the complainant on the religion ground. I hereby order that the respondent pay to the complainant the amount of €4,000 for the effects of the discrimination.
______________________________
Dolores Kavanagh
Equality Officer
1 March, 2006
Notes
(1) See also Igen Ltd.V Kay Wong and Chamberlin Solicitors v Ms. I Emokpae and Brunal University v Ms. Gurdish Webster (Equal Opportunities Commission, Commission for Racial Equality and the Disability Rights Commission – interveners), ref EWCA Civ 142 [2005] Cases No: A2/2004/1141, A2/2004/1397, A2/2004/2758.
(2) The designated Irish competent Authorities under Council (EC) Regulation 881/2002 are (i) The Department of Foreign Affairs and (ii) The Central Bank & Financial Services Authority of Ireland
(3) Section 3.1.c Equal Status Act 2000 refers as the freezing of funds occurred on 16 October 2002
(4) Criminal Justice (Terrorist Offences) Act 2005, Guidance on The Offence of Financing of Terrorism and the Financial Sanctions Regime for Bodies Designated Under Section 32 of the Criminal Justice Act, 1994.
DEC-S2010-056-Full case report
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-056
A Mother (on behalf of her son) v A School
and
The Department of Education and Skills
[Represented by Mr Conor Dignam B.L. instructed by the Chief State Solicitor]
File Ref: ES/2010/073, 075
Date of Issue: 7 December 2010
Keywords: Equal Status – Membership of Traveller community, Admission to educational establishment – indirect discrimination – Whether appeals under section 29 of the Education Act 1998 subject to Equal Status Acts – Whether preferential treatment in admission of siblings of current or former pupils or children of former pupils indirectly discriminatory – Burden of proof – Equal Status Acts 2000 to 2008 ss.3 (1) (c), 3 (2) (i), 3 (3A), 5, 7, 14(b), 34 – Education Act 1998 s. 29.
1. This complaint was referred to the Director of the Equality Tribunal on 22 July 2010 under the Equal Status Acts, 2000-2008 (hereinafter “the Acts”). On 13 October 2010 I, Niall McCutcheon, Director of the Equality Tribunal decided to take responsibility myself for the investigation, hearing and the issue of a decision, and the exercise of all my other powers and functions under the Employment Equality Acts 1998 – 2008 and the Acts, in relation to this case. The same day, for the purpose of enabling me to exercise my functions under Part III of the Acts, in accordance with section 34 of the Acts, I wrote to all the parties seeking information which, in my opinion, was relevant. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 9 November 2010 and all parties were in attendance. Further information sought at the hearing was received by me on 10 November 2010.
2. Dispute
This dispute concerns a claim by the complainant, A Mother on behalf of her son (hereinafter “the complainant”) that he was discriminated against by A School (hereinafter “the High School”) on the Traveller community ground in terms of section 3(2)(i) of the Acts by being refused admission as a student to the School, contrary to section 7 (2) (a) of the Acts. The complainant also claims that the Department of Education and Skills (hereinafter “the Department”) discriminated against him by not upholding an appeal under section 29 of the Education Act 1998 against the decision of the High School.
3. The facts
The School is a Roman Catholic Voluntary secondary school for boys only under the trusteeship of the Christian Brothers.
The complainant is a member of the Traveller community as are his mother and father. He is Roman Catholic as are his parents. He attended a local primary school, a feeder school to the School. He is the eldest of seven children, three boys and four girls. The complainant applied for admission to the School in November 2009, on or prior to the closing date. The number of applications greatly exceeded the number of places available.
The Admissions Policy of the School (dated November 2009) sets out the following Enrolment Policy that applies when places are oversubscribed:
“First Round
The school will examine all applications received on or prior to the closing date in the first round review to determine which applicants have maximum eligibility in accordance with the school’s selection criteria mentioned in this policy and the mission statement and the ethos of the school.
“Second Round
All or any remaining places not allocated in the First Round shall be allocated in accordance with the Lottery Procedure mentioned below.
“Rationale
The rationale of the admissions policy is to fairly and transparently allocate the available places in accordance with the mission statement, the guidelines and recommendations of the Patron and the Department of Education and Skills (DES) where arising, and the selection criteria and lottery referred to below.
“The School’s goals generally
The primary goal of the School is to fulfill its mission statement in accordance with the law, Patron or DES guidelines and the resources currently available to it. The Admissions Policy is intended to reflect that primary goal and in this context the school aims to:
– Provide a fair system of enrolment for boys
– Make reasonable provision and accommodation for students, including students with a disability and special educational needs in accordance with relevant legislation, with due regard to the efficient use of resources provided by the DES.
– Allow for full participation by all students, subject to resources being available and allowing for Health and Safety implications
– Transparently allocate those limited places in accordance with its Mission Statement and the Selection Criteria mentioned below.
“The School’s Goals on dealing with Admissions
When dealing with Admissions where there are a limited number of places, the School seeks to fulfil the above goals in the following manner, namely to allocate the number of places available:
– firstly on the basis of its Mission as a Roman Catholic school;
– Secondly on the basis of supporting the family ethos within education by providing education services for the children of families who already have, or have recently had, a brother of the applicant attend the School for his post primary education;
– And thirdly to make reasonable provision and accommodation for boys within its own locality or demographic area, including students with disability and special educational needs, in accordance with the resources provided by the DES and otherwise available to it.
“Selection Criteria
First Round criteria:
In the first round the School shall firstly select from all of the applications submitted that have maximum eligibility in accordance with the following criteria:
The application is made on behalf of a boy:
– whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school;
The School may also allocate some places to take account of:
– families who have located to Clonmel through work
– the urban/rural balance on a proportional basis in the context of the allowed number of applicants
– exceptional circumstances
– students (living in the catchment area) who are diagnosed with ASD (Autistic Spectrum Disorder).
Second Round
With respect to all or any remaining places not allocated in the First Round the School shall run a Lottery to determine the order in which same shall be filled.
Because the School can only provide a limited number of places for boys, in the event of one or more appeals, a corresponding number of places from the lottery cannot be confirmed pending determination of the relevant Appeal(s), starting with the last place to be filled by the lottery and proceeding accordingly.”
The complainant applied on or prior to the closing date in November 2009 for admission to the School in autumn 2010. The complainant met two of the three First Round Selection criteria , namely:
– whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school;
The criterion he did not meet was as follows:
– who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School.
The complainant therefore did not have maximum eligibility under the First Round criteria. His application was placed in a Lottery along with those who, like him, applied in time but did not have maximum eligibility, as well as four other applicants who applied late but had maximum eligibility. The complainant was not successful in the lottery. He was placed on a waiting list. As of the date of the hearing he is fourth on the waiting list. One of the boys ahead of him on the waiting list applied late but was entered into the Second Round lottery.
Three boys were awarded places in the First Round under the “exceptional circumstances” rule because of loss of a parent or ill-health. No places were awarded in the First Round under the other exceptional criteria, namely
– families who have located to Clonmel through work
– the urban/rural balance on a proportional basis in the context of the allowed number of applicants
– students (living in the catchment area) who are diagnosed with ASD (Autistic Spectrum Disorder).
90 places were awarded in the First Round. 84 names were entered into the Second Round Lottery for 47 places.
The complainant appealed the refusal internally and was unsuccessful. The complainant subsequently appealed to the Secretary General of the Department of Education and Skills under section 29 of the Education Act 1998 who referred the matter to an Appeals Committee. The Appeals Committee heard the appeal on 23 April 2010. It decided not to uphold the appeal for the following reason:
“The Board of Management of the School were fair and reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the places available.”
The Appeals Committee made a Recommendation as follows:
“The Appeals Committee are of the view that the clause in the Admissions Policy relating to “exceptional circumstances” merits review by the Board of Management of the School in order to make it more inclusive.”
The Appeals Committee also added the following comment:
“The Appeals Committee noted that in dealing with late applications the Board of Management did not strictly adhere to its policy. This did not materially affect the outcome.”
4. Summary of complainant’s case against the School.
The complainant argues that the only criterion he did not meet was having a brother who attended or is in attendance at the School, or being the child of a past pupil, or having close family ties with the School. He is the eldest child in his family. Therefore he could not have a sibling who attended the school. The complainant’s father never progressed to second level education. He therefore could not have a parent who attended the school. As a member of the Traveller community, his father (and the rest of his extended family) is statistically much less likely to have attended second level education than the settled population. This criterion of having a family member who attended the school therefore disproportionately affects members of the Traveller community and amounts to indirect discrimination. The School failed to take this into account under the “exceptional circumstances” clause in their Admissions Policy.
The complainant claims that empirical evidence suggests that historically Travellers have suffered “extreme educational deprivation” specifically at second level education. The Report of the Travelling People Review Body 1983 estimated that only half of Traveller children of school going age attended school and very few remained after reaching the age of 12 years. The Report stated that only 10 per cent of Travellers who finish primary school continue to attend school and most of these drop out after one or two years.
This contrasts with the experience of the rest of the population at that time. In 1982, 66.4 per cent of all children who entered second level education completed their secondary schooling. These data correspond with the approximate time period in which the complainant’s father and other family members would have been of a school going age which proves as a further example that members of the Traveller community were statistically less likely to attend second level education.
The Department of Education and Science Guidelines on Traveller Education in second Level Schools 2002 has categorically stated that “school policies should facilitate Traveller enrolment” and has acknowledged that “some schools enrolment policies at second level have not been designed with Travellers in mind and can therefore indirectly act as a barrier to access.” The 2002 Census indicated that 2 per cent of all Travellers who entered second level education completed the senior cycle compared to 23 per cent completion by the general population. To combat this injustice the Department stated that “enrolment policies must therefore take into account the particular needs and lifestyles of Traveller families”. However the attitude and actions of the School are in flagrant breach of the Department’s guidelines. According to the School’s reply [to the complainant] of 29th July 2010 “the fact that a person is a member of the Travelling community is not considered an exceptional circumstance by the Board of Management”. In the complainant’s view, the School has failed in its duty to take into account “all guidelines, regulations and programmes currently made available by the DES” as required by its own admissions policy.
5. Summary of Complainant’s case against the Department.
The Department failed to find against the School at the appeal stage. The Department further failed to ensure that its own guidelines (referred to above) were adhered to during the course of the appeal hearing.
6. Summary of the High School’s Case
The School denied any claims of discrimination, direct or indirect.
The complainant referred his complaint to the Department under a section 29 appeal and the Appeals Committee determined that the Admissions Policy was fair and had been applied correctly.
The complainant was not treated less favourably on the Traveller community ground. He was treated in the same manner as all other applicants to the school. At all times during this process the school treated the complainant in a fair and appropriate manner and in accordance with its policy. The complainant has failed to establish a prima facie case of discrimination in that he has not produced evidence that the treatment he received was less favourable than the treatment someone who is not a member of the Traveller community would have received in similar circumstances.
On the question of indirect discrimination, the High School responded to the allegation that the criterion of having to have a family member who attended the school disproportionately affects members of the Traveller community because Travellers are statistically less likely to have attended secondary school as follows:
The criterion applied is not that a family member has attended second level education but that a family member is attending or has attended the School. This is a standard criterion in admission policies. It is entirely justifiable that the school should have a procedure to follow in cases of oversubscription.
The school has an excellent record of working with students who are members of the Traveller community. There were 5 members of the Traveller community enrolled in the school in 2010. All Travellers who applied for admission in both 2007 and 2008 were accepted. No Travellers applied in 2009. The complainant is the only Traveller to have been unsuccessful in his application to date.
The complainant has argued that the “exceptional circumstances” clause in the school’s admission policy should have been applied to him by reason of his membership of the Traveller community. The School states that the application of this clause was fully explained to all parents i.e. that it applied only in narrowly defined circumstances where an applicant had lost a parent or suffered from ill-health. The complainant therefore was fully aware of its narrow scope. This is evidenced by the fact that on his application form the complainant made no request in this regard.
7. Summary of Department’s case.
The Department contends that it does not own, govern or control the School. The Department cannot direct the School as to its enrolment policy. The claim against the Department is misconceived as the Department is an inappropriate respondent. The matters complained of fall outside the scope of the Equal Status Acts. The Department and more particularly the section 29 Appeals Committee are not “education establishments” within the meaning of section 7 of the Acts. The Department contends that section 7 is the only provision of the Acts which governs discrimination in the education sphere. Therefore the Department and the section 29 Committee fall outside the scope of the Acts. Even if it was contended that the Department was subject to section 5 of the Acts as a service provider, the activities of adjudicative bodies are not “services” within the meaning of the Acts. Even if it was considered that adjudicative bodies were subject, in principle, to the Acts, the section 29 Appeals Committee is limited in the scope of the review it can carry out. The Oireachtas did not intend to grant the Minister for Education and Skills an entitlement, through the section 29 Appeals Committee, to give directions to schools as to how they accept pupils. The jurisdiction of the section 29 Appeals Committee, as interpreted by the Court , is limited to, in effect, a judicial review type role of determining whether the board of management correctly and lawfully applied its enrolment policy, having regard to the facts of the case at the date of board’s decision.
8. Preliminary Issue
I address first the question, does the claim of discrimination made against the Department fall within the jurisdiction of the Equality Tribunal? The complainant claimed that the Department discriminated against him when it failed to find against the School at the appeal stage and that the Department further failed to ensure that its own guidelines were adhered to during the course of the appeal hearing. There is no dispute that the decision of the School not to admit the complainant is subject to the Equal Status Acts. The question is, is the Secretary General of the Department and/or the section 29 Committee, in carrying out their statutory appellate functions subject to the Equal Status Act? If the Secretary General or the section 29 Appeals Committee had discretionary power to substitute for the decision of the School their own decision on the merits of an individual application or had discretionary power to amend the terms of the enrolment policy, they would be taking decisions in relation to the admission or the terms or conditions of admission of a person as a student to an educational establishment. In such a case they might be subject to the Equal Status Act. It is clear, however, from the legal authorities opened to me, that the Secretary General and a section 29 Appeals Committee do not have power to carry out a merits-based review of a decision to refuse an application. Ms Justice Irvine found that
“the powers of the appeals committee under section 29, in the opinion of this Court, was one intended to be confined to a right to review the lawfulness and/or reasonableness of a board’s decision to refuse enrolment.”
Therefore the Department, in exercising its powers under section 29 of the Education Act 1998 cannot substitute its own view on the merits of an individual application for the decision of the school. Neither can it strike down or amend the enrolment policy of a school. It can only quash a decision in relation to the admission or the terms or conditions of admission of a person as a student to an educational establishment if the decision is unlawful or unreasonable. Therefore, in reviewing the decision of the School the Department and the section 29 Committee are concerned not with the decision but with the decision making process. They are not acting as an educational establishment within the meaning of section 7 of the Equal status Act in this instance. Neither are they providing a good or service within the meaning of section 5 of the Equal Status Act in this instance. I find therefore that I have no jurisdiction to consider the claim of the complainant that the Department discriminated against him by not upholding his section 29 appeal. As regards the claim that the Department failed to ensure that its own guidelines (regarding access for Travellers) were adhered to during the course of the appeal hearing, the Acts (at section 14 (b)) certainly permit an educational establishment or a service provider to give preferential treatment or to take positive measures to promote equality of opportunity for persons, such as Travellers, who are disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons. However the Acts do not put an obligation on educational establishments or service providers to do so. Therefore I have no jurisdiction to consider that element of the claim against the Department.
9. Indirect Discrimination:
Indirect discrimination is defined in section 3 (1) (c) of the Acts as:-
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) [i.e. covered by one of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
Section 3 (3A) of the Acts provides that in any proceedings statistics are admissible for the purpose of determining whether indirect discrimination has occurred.
The complainant claims that the following criterion in the enrolment policy of the High School indirectly discriminates against him:
“who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School.”
It is for the complainant to prove, on the balance of probabilities, that this criterion puts a Traveller at a particular disadvantage compared with non-Travellers. If he succeeds in this, the burden of proof shifts to the High School to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. Under section 3 (3A) of the Acts, the complainant can use statistical data as an evidential tool to prove a particular disadvantage and so shift the burden of proof. It is possible to establish a case where statistics are inadequate or non-existent, if the complainant can prove that a provision is intrinsically liable to affect his group [in this case Travellers] more that others and there is a consequent risk that it will place his group at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of Travellers. It is sufficient that it is liable to have such an effect.
Once the complainant has proved that the criterion puts a Traveller at a particular disadvantage, it is for the High School to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The High School must prove each element of the defence [objective justification, legitimate aim, appropriateness and necessity]. To permit a criterion which puts a group at a particular disadvantage to be maintained is a derogation from the principle of equal treatment. According to settled case-law, in determining the scope of any derogation from an individual right such as that of equal treatment, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued.
There are four sub-criteria to the impugned criterion. They are:
1. Has a brother who attended the School in the past, or
2. Has a brother who is currently in attendance in the School, or
3. Is the child of a past pupil, or
4. Has close family ties with the School.
The 4th element above is understood to mean only that the applicant is the child of a current member of staff. No one was admitted to the School on this basis in the current year. It is not relevant therefore to this case.
The School informed me that of the 90 boys given offers of places after the first round, 33 were brothers of boys currently in the school, 16 were brothers of former pupils without a brother currently in the school and 36 were the sons of former pupils who did not have a brother currently in the school.
10. Siblings of existing and former pupils.
The complainant, as the eldest son, claims that he is put at a particular disadvantage in that he cannot by definition benefit from the priority given to siblings of current or former pupils. While this is true, his disadvantage arises from his being an eldest son and not from his being a Traveller as such. The complainant further argues that giving priority to brothers puts Travellers at a particular disadvantage in that, due to historic low participation by Travellers in secondary education, an older Traveller sibling is much less likely than a non-Traveller to have attended or completed secondary school. Census figures show that 66 per cent of Travellers over 15 years old who had completed full-time education had not progressed beyond primary school. The equivalent figure for the general population is 21 per cent.
In 1988, according to the Department’s figures, fewer than 100 Travellers were enrolled in post-primary schools. The corresponding figures for 1999 were 961, 2003: 1,714 and 2008: 2,874. It is clear therefore that Traveller enrolment in post-primary schools has risen in the last decade from a very low base. The complainant has also emphasised that the retention rates for Travellers in post-primary schools is significantly lower than for the general population. He argues therefore that the likelihood of a Traveller having an elder brother who is or was enrolled at the High School is significantly lower than for a non-Traveller.
Against this, however, it must be noted that Traveller family size is on average double that of the general population. According to the 2006 Census, the average number of children in Traveller households with children is 4.2 compared to 2.0 among the general population. The chances of a Traveller boy having a male sibling are therefore much greater than that of a non-Traveller boy. Priority for siblings can therefore favour Travellers. It is argued that giving priority to siblings of former pupils would particularly disadvantage Travellers in that the rise in Traveller participation in post-primary education is very recent. The older the brother the less likely he is to have attended secondary school. On the other hand, given the very high drop-out rates of Travellers in post-primary schools, particularly in the senior cycle, priority for brothers of former pupils (as opposed to brothers of existing pupils) would favour Travellers whose brother dropped out early.
On the balance of probabilities I cannot conclude that giving priority to brothers of either existing or former pupils in enrolment is intrinsically liable to put Travellers at a particular disadvantage compared with non-Travellers.
11. Sons of former pupils.
The complainant argues that giving priority to the sons of former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers since Travellers of the complainant’s father’s generation (those who would have been of post-primary school going age in the 1980’s) were most unlikely to have attended post-primary school. Figures supplied by the Department show that less than 100 Travellers in the entire country in 1988 were enrolled in post-primary schools. Therefore the chances that a Traveller of the complainant’s father’s generation was in fact at post-primary school is extremely remote. The School argue that the criterion applied is not that a family member has attended second level education but that a family member is attending or has attended the School. The School produced no evidence that any Travellers attended the school during the 1980’s. The School in oral evidence explained that prior to 20 years ago (before 1990) entrance to the School was determined by competitive written examination. This would certainly have acted as a serious barrier to Travellers securing admission since the academic standard achieved by Travellers in primary schools at that time was on average very low.
The operation of this policy of giving priority to the sons of former pupils therefore appears to disadvantage Travellers more than non-Travellers. It is necessary to establish whether or not the complainant was put at a particular disadvantage. Under the enrolment policy, once a child applied on time, was a Roman Catholic and attended a designated feeder school, the child needed to met one of the three following sub-criteria to be offered a place:-
1. Has a brother who attended the School in the past, or
2. Has a brother who is currently in attendance in the School, or
3. Is the child of a past pupil.
All children of past pupils who applied in time and who did not meet the sibling criteria were successful, 36 in all. The chances of an applicant like the complainant who did not meet any of these criteria being successful in the second round was 55 per cent, that is, he was one of 84 applicants in a lottery for 47 places. If the third sub-criterion (being a child of a past pupil) was not a priority, then those places awarded to the sons of past pupils who did not meet the sibling criteria (36 in all) would have been added to the number to be allocated by lottery under round two. That would have increased the complainant’s chances in the second round to 70 per cent., that is he would have been one of 120 applicants in the second round lottery for 83 places. Therefore, I conclude on the balance of probabilities that the policy of giving priority to children of past pupils puts the complainant as a member of the Traveller community at a particular disadvantage compared with non-Travellers.
The question I must now consider is this: has the School proved that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The goal or aim of the criterion, according to the published Admissions Policy is:-
On the basis of supporting the family ethos within education by providing education services for the children of families who already have, or have recently had, a brother of the applicant attend the School for his post primary education.
This may justify giving priority to siblings but does not, on its face, state an aim which requires as a means to achieving that aim giving priority to the children of former pupils. In oral evidence the School stated that it had as its aim the strengthening of family loyalty to the school, by rewarding those fathers who supported the school by assisting in various ways. I accept that strengthening bonds between the parents, as primary educators of a child and the school is a legitimate aim. However, I do not consider that giving a blanket priority in admission to children is appropriate (i.e. proportionate) or necessary, for the following reasons:
1. The priority applies to the children of all past pupils, irrespective of the actual level of current engagement of the father with the school. In many cases therefore, the means would not achieve the aim.
2. There are other ways of achieving this aim which would not disadvantage children whose fathers did not attend the school, such as organising a past pupils’ union, by the activities of a parents’ association etc.
3. The impact on Travellers is disproportionate to the benefit of the policy.
I find therefore that the School has not proved that the priority given to the children of former pupils is appropriate and necessary.
12. Conclusions
I find that I don’t have jurisdiction to consider the complaint of discrimination against the Department of Education and Skills.
I find that the complainant has not proved that the priority given to siblings of current or former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers.
I find that the complainant has proved that the priority given to the sons of former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers and that the School has not proved that this criterion is objectively justified by a legitimate aim and is appropriate and necessary.
13. Redress
In general the appropriate redress is to put the complainant in the position he would have been in but for the discrimination. If the school did not give priority to the sons of former pupils, the chances of the complainant succeeding in the second round lottery would have been significantly greater. It is impossible to re-run the lottery under revised criteria. In the circumstances I order:
1. That the School immediately offer a place to the complainant.
2. That the School review its Admissions Policy to ensure that it does not indirectly discriminate against pupils on any of the grounds covered by section 3 (2) of the Equal Status Act. This is without prejudice to its status as a Roman Catholic voluntary secondary school for boys only.
Niall McCutcheon
Director
7 December 2010
DEC-S2008-049 – Full Case Report
Equal Status Acts, 2000-2008
Equality Officer Decision DEC-S2008-049
Fahey v Ulster Bank
(represented by Mr. Robert Browne, Solicitor,
McKeever Rowan Solicitors)
Keywords
Equal Status Acts, 2000-2004 – Section 3(1)(a) – Direct discrimination, Section 3(1)(c) – Indirect discrimination, Section 3(1)(a) – Age Ground, Section 3(2)(f) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2004
This complaint was referred to the Director of the Equality Tribunal on 22nd April, 2005 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2004, the Director delegated the complaint to me, Enda Murphy, 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, 2000 to 2004. The hearing of the case took place on 3rd July, 2008. Final correspondence was received from the parties on 7th August, 2008.
1. Dispute
1.1 This dispute concerns a complaint by Ms. Phyllis Fahey that she was discriminated against by the respondent on the Age groundin terms of Sections 3(1)(a), 3(1)(c) and 3(2)(f) of the Equal Status Acts, 2000 to 2004 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Act, 2000.
2. Summary of the Complainant’s Case
2.1 The complainant, who was aged 70 years at the time of the alleged incident of discrimination, telephoned the Ulster Bank in Maynooth on the afternoon of 15th February, 2005 to enquire about taking out a car loan for an amount of €6,000. She had just finished repaying her previous car loan to a finance company and was seeking a loan from the respondent in order to change her existing car. The complainant had been a customer of the Maynooth branch of Ulster Bank for the previous 10 years and had a substantial amount of money on deposit in her account. The complainant did not have any other borrowings with the Ulster Bank and both her and her husband’s pensions were paid directly into the Maynooth branch. The bank official, Ms. X, with whom the complainant spoke on the telephone, requested confirmation of her age before putting her on hold while she consulted with the branch manager. When Ms. X returned to the telephone she informed the complainant that the branch manager had stated that it was bank policy not to grant loans to anybody over the age of 65 years. The complainant challenged the bank official, Ms. X, on the basis that she had an excellent record in her dealings with the Ulster Bank over the previous 10 years and that her accounts had always been in credit. However, the bank official while remaining apologetic informed the complainant that those were the bank’s rules. The complainant states that she was very embarrassed and upset by the bank’s refusal to grant her a loan and she was further embarrassed when she had to contact the car dealership, where she had earlier put down a deposit on a new car, in order to cancel it. The complainant claims that this made her look as if she had a very poor credit rating.
2.2 The complainant subsequently contacted a Car Finance Company and a Credit Union to enquire if either institution imposed an upper age limit for granting car loans and both of these institutions confirmed that they did not. The complainant obtained the car loan from the Credit Union without any difficulties and she subsequently purchased the new car from a different car dealership as she was too embarrassed to return to the car dealer with whom she had originally put down a deposit. The complainant subsequently contacted the Ulster Bank in Maynooth to inform the bank that she had managed to secure a loan elsewhere without any difficulty and on this occasion she again spoke to Ms. X, the bank official with whom she had originally dealt with on 15th February, 2005. Following this contact with the bank, the complainant received a telephone call from Mr. Y, the Branch Manager, and when she informed him that she had been offered the car loan from two other financial institutions he replied that they probably operated under different regulations and he stated that it was the policy of Ulster Bank not to give loans to persons over the age of 65 years. The complainant notified the respondent on 16th March, 2005 that she proposed to submit a complaint to the Equality Tribunal regarding this matter. Mr. Y indicated in his written response to this notification that telephone queries received by the bank regarding lending facilities were normally taken with a view of indicating to the applicant the procedures and criteria that are taken into consideration when assessing loan applications. He also indicated in this response that it is normal procedure for an applicant to be invited to call to the branch for an interview and to bring supporting documentation in order to discuss the loan application. The complainant states that she was extremely annoyed at the bank’s response and claims that the requirement for an interview was neither referred to nor offered to her in any of her telephone conversations with the respondent’s bank officials despite the fact that the respondent had three opportunities within which to invite her for an interview. The complainant submits that the respondent failed to consider her request for a loan in accordance with its established assessment criteria and she contends that the only reason she was refused a loan by the respondent was on the grounds of her age.
2.3 The complainant also submitted that the respondent’s stated practice of treating applicants differently when they are not in full time employment is indirectly discriminatory against older people, since a requirement to be in full time employment is “an apparently neutral provision” which would put older people at a particular disadvantage compared to other persons. The complainant claims that this is not a justifiable condition for assessment of risk or ability to pay and is, therefore, unlawful discrimination.
3. Summary of the Respondent’s Case
3.1 The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of her age. It submits that there was a misunderstanding between its branch official, Ms. X and the complainant during the course of the initial telephone query about a car loan. However, the respondent denies that the complainant was refused a car loan on the basis that she was over the age of 65 years or that it operates a discriminatory lending policy on the grounds of a persons age. The respondent’s credit policy states that the only criterion, in terms of the age of an applicant, is that they are at least 18 years of age, this being the age at which capacity to contract is legally recognised and the respondent submitted that it does not impose an upper age limit in assessing personal loan applications. The other criteria which the respondent takes into consideration when assessing an application for a car loan include the employment situation of the applicant, repayment capacity, track record and credit check.
3.2 The respondent submitted that its branch officials could receive anything between 50 and 100 telephone queries during the course of a working day and given that the incidents which are the subject of the present complaint are alleged to have taken place some three and a half years from the date of the hearing, it was submitted the recollection of the officials that dealt with the complainant have become impaired with the passage of time. The respondent accepts that the complainant telephoned the branch on 15th February, 2005 in order to enquire about a car loan. Ms. X, Bank Official, spoke to the complainant on this occasion and although her recollection of this conversation was very vague, she can recall requesting the complainant to provide details of her date of birth as this information did not appear on the system records that were available to her. Ms. X asked the complainant if she had any objection to providing this information and she claims that the complainant was reluctant to disclose her date of birth as she was of the opinion that this information should have already been available to the bank. The respondent claims that it was standard practice when dealing with customers on the telephone for its officials to request details of a person’s date of birth for the purposes of account security and in order to facilitate the updating of incorrect or incomplete information appearing on its records. Ms. X recalls speaking to Mr. Y, the Branch Manager, around that time regarding the telephone conversation she had with the complainant and of informing him that she had requested the complainant’s date of birth as this information was not on the computer system. Ms. X claims that she would have informed the complainant about the assessment criteria for loan applications and that it would be necessary to submit a loan application. Ms. X stated that she has no recollection of informing the complainant during the course of their telephone conversation that the respondent did not provide loans to persons over the age of 65 years.
3.3 Mr. Y, Branch Manager, stated that he recalls speaking to Ms. X about a conversation which she had with the complainant regarding a car loan. Ms. X had sought direction from him as the complainant had indicated that she was over the age of 65 years and he informed Ms. X that age was a factor when considering a loan where an applicant was not in full time employment and over the age of 65 years. Mr. Y claims that although he cannot fully recall the exact details of the conversation, his reply would have been that the bank would look at all factors when assessing loan applications, for example, repayment capacity, track record, credit check, and age and that anything outside of the guidelines would have to be sent to the respondent’s Retail Lending Unit for approval. Mr. Y recalls speaking to the complainant on the telephone subsequently and of informing her of the respondent’s responsibilities under the Consumer Credit Act and that the only restriction in terms of an upper age limit was in relation to mortgage lending. The respondent submitted that telephone queries about lending facilities are taken with a view of indicating to the applicant the procedures for assessment and to provide advice regarding the criteria that are taken into consideration. The respondent submitted that it cannot give a definite answer on any loan application without putting it through its credit scoring system and following which the applicant is invited to call to the branch for an interview and to bring the required supporting documentation. The respondent contends that the telephone conversation with the complainant did not get as far as arranging an interview at the branch; however, it denies that she was informed by any of its officials that it operated a policy of not affording loans to persons over the age of 65 years.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 In the present case, the respondent submitted that the recollections of its bank officials, namely Mr. Y, the Branch Manager, and Ms. X, Bank Official, who dealt with the complainant in relation to the incident have become impaired as a result of the lapse of time of approx. three and a half years between the alleged incident of discrimination and the hearing of the complaint. The respondent submitted that this delay has made it very difficult for it to comprehensively defend the allegations of discrimination. In considering this issue, I note that the complainant has complied with the requirements of Section 21 of the Equal Status Acts and that notification of the complaint was sent to the respondent on 16th March, 2005. The respondent replied to this notification on 15th April, 2005 and this reply included a memo which was completed by Mr. Y following discussions that he had with Ms. X regarding the alleged incident of discrimination on 15th February, 2005. I also note that Ms. X compiled a note regarding the details of her conversation with the complainant following the receipt of the notification of the complaint and that she referred to this note when giving evidence at the hearing. I accept that a person’s recollection of events that occurred some three and a half years ago may become somewhat blurred with the passage of time, however, I am satisfied that the respondent received notification of the complaint within the statutory notification period of two months and was therefore, made fully aware and put on notice of the allegations that it would have to defend at that particular juncture. In the circumstances, I do not accept the respondent’s argument that its defence against the alleged act of discrimination has been prejudiced by the length of time that it has taken to bring this matter to hearing.
Direct Discrimination
4.3 The question that I must decide in this case is whether or not the respondent discriminated against the complainant on the grounds of her age when she sought to obtain a car loan on 15th February, 2005. The complainant claims that she was refused a car loan by the respondent on the grounds of her age and that she was informed by both, Ms. X, Bank Official, and Mr. Y, the Branch Manager, that it was the bank’s policy not to give loans to persons over the age of 65 years. The respondent claims that there was a misunderstanding between the complainant and Ms. X during the course of their telephone conversation on 15th February, 2005 when the complainant was requested as a matter of routine to confirm the details of her date of birth. The respondent claims that the complainant perceived this request as an infringement on her rights under the equality legislation; however, it denies that the complainant was refused a car loan on the basis that she was over the age of 65 years.
4.4 In considering this issue, I note it is not disputed by the respondent that the complainant contacted the Maynooth branch of the Ulster Bank by telephone on 15th February, 2005, when she was aged 70 years, in order to make enquiries about acquiring a car loan. Neither is it disputed that the complainant was requested to provide details of her age by the bank official with whom she spoke on this occasion. The complainant claims that the bank official put her on hold during the course of the telephone call and following consultation with the branch manager the official informed her that it was bank policy not to give loans to persons over the age of 65 years. I also note the respondent claims that telephone queries about lending facilities are taken with a view to providing information to the applicant regarding the procedures and assessment criteria and that it would be normal procedure for an applicant to be invited to attend an interview at the branch before any decision is made whether or not to grant the application. Having regard to the evidence adduced, I find that the respondent did not adhere to its stated loan application procedures in the present case and I am satisfied that the complainant was not invited or afforded the opportunity to attend an interview to discuss the loan application, despite the fact that the respondent had more than one opportunity within which to do so. I have found the complainant to be a very credible witness and in considering the totality of the evidence presented, I find that the complainant’s evidence regarding the telephone conversation that she had with Ms. X on 15th February, 2005 to be more compelling, and on the balance of probabilities, a more accurate account of the discussions that transpired on this date. I am satisfied that the complainant was left in no doubt following this telephone conversation that her application for a car loan was being refused by the respondent on the basis that she was over the age of 65 years. In coming to this conclusion, I have found the following uncontested evidence of the complainant to be particularly persuasive:
The complainant contacted two other financial institutions following this telephone call to enquire if they imposed an upper age limit for granting car loans.
The complainant subsequently contacted the car dealership where she had paid a deposit on a new car in order to cancel it.
The complainant secured the car loan from a Credit Union despite the fact that she was an established customer with the respondent and had a substantial amount of money on deposit in her bank account. I have also taken note of the fact that the complainant did not have any existing or outstanding loans with the respondent when she contacted it on 15th February, 2005.
The complainant subsequently contacted the respondent to inform it that she had been successful in obtaining the car loan with another financial institution and that this institution did not impose an upper age limit.
4.5 I am of the view that it is highly unlikely the complainant would have taken the aforementioned measures or actions if she had not been informed by the respondent on 15th February, 2005 that her application for a car loan was being refused on the grounds of her age. I am satisfied that it was during the course of the initial telephone conversation between the complainant and the bank official on this date that the actual incident of discrimination occurred. I am also of the opinion that the respondent had a number of opportunities to address this matter during the course of its subsequent contact with the complainant, namely during the course of the subsequent telephone calls between the complainant and Ms. X and Mr. Y and in its written correspondence to the complainant following the receipt of her complaint; however it failed to do so. Having regard to the foregoing, I find that the complainant has established that she was treated less favourably than a person who was under the age of 65 years would have been treated in a similar situation. Accordingly, I find that the complainant has succeeded in establishing a prima facie case of discrimination on the age ground and that the respondent has failed to successfully rebut the allegation of discrimination.
Indirect Discrimination
5.1 The complainant submitted that the respondent’s stated practice of treating applicants for loans differently when they are not in full time employment is indirectly discriminatory against older people, since a requirement to be in full time employment is “an apparently neutral provision” which would put older people at a particular disadvantage compared to other persons. The complainant claims that this is not a justifiable condition for assessment of risk or ability to pay and is therefore, unlawful discrimination. Section 3(1)(c) of the Equal Status Acts states:
“3.- (1) For the purpose of this Act, discrimination shall be taken to occur –
(c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”
In considering whether the complainant was subjected to indirect discrimination in the present case, I have noted the evidence presented by the respondent regarding the criteria that it took into consideration when assessing car loan applications. In this regard, I note that Mr. Y, Branch Manager, gave evidence that the issue of whether a person is in full time employment is a factor that is taken into consideration when assessing a loan application if the applicant is over the age of 65 years. I also note that Mr. Y stated in his letter to the complainant on 15th April, 2005, that he informed Ms. X (in reply to her request for direction in relation to her telephone call with the complainant) that age was a factor when considering a loan where the applicant was not in full time employment and over the age of 65 years. Mr. Y also indicated in this letter that the criteria which the respondent takes into consideration when assessing a loan application are repayment capacity, track record, credit check and age. He also indicated that the respondent’s credit policy as to whether it should lend to an individual is based primarily on risk and on affordability and the respondent will ensure that an assessment is carried out to ensure that the individual has the ability to be able to repay the facility.
5.2 In considering the provisions of Section 3(1)(c) of the Equal Status Acts, I am of the view that in order for a person to establish a case of indirect discrimination, it is necessary for that person to demonstrate that the apparently neutral provision, which is referred to in this section, puts that person at a particular disadvantage, in effect, compared to other persons. If the person succeeds in this regard, it is then a matter for the respondent if it is to successfully rebut the allegation of indirect discrimination, to prove that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. In applying this reasoning to the present case, I am of the view that in order for the complainant to establish a case of indirect discrimination, she must demonstrate that the “apparently neutral provision” i.e. the requirement to be in full time employment put her at a particular disadvantage compared to other persons in terms of the respondent’s decision to refuse her request for a car loan. In considering this issue further, I have noted the respondent’s evidence that it does not approve car loan applications over the telephone and that its normal procedure is to invite the person who is making the loan application to attend an interview at the branch in order to make a formal application. The respondent claims that the complainant, in the present case, did not get as far as the interview stage and therefore, that she did not make a formal application for a car loan.
5.3 Based on the evidence presented, I have already found (as outlined in paragraph 4.4) that the complainant was directly discriminated against by the respondent on 15th February, 2005 on the basis that she was refused a car loan on this date on the grounds of her age i.e. by virtue of the fact that she was over the age of 65 years. In coming to this conclusion, I am satisfied that the complainant’s request for a car loan was not assessed in accordance with the aforementioned criteria as outlined by Mr. Y but rather that a summary decision was taken following consultation between Ms. X and Mr. Y on 15th February, 2005 that the complainant was not eligible for a car loan on the grounds that she was over the age of 65 years. I am also satisfied that the respondent, in coming to its decision to refuse the complainant’s request for a car loan, did not take any measures to establish whether or not she was in full time employment and I therefore find that this requirement was not taken into consideration by the respondent in terms of its decision to refuse the car loan application to the complainant on 15th February, 2005. In the circumstances of the present case, I find that the “apparently neutral provision” which the complainant alleges was invoked i.e. the requirement to be in full time employment was not taken into consideration by the respondent and that it did not form the basis of any assessment as to whether the complainant should be refused the loan. Having regard to the foregoing, I am therefore satisfied that this requirement did not put the complainant at a particular disadvantage as compared to other persons in terms of the manner in which her request for a loan was assessed. Accordingly, I find that the complainant has failed to establish a case of indirect discrimination in terms of Section 3(1)(c) of the Equal Status Acts, 2000 to 2004.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision. I find that a prima facie case of discrimination has been established by the complainant on the Age ground in terms of sections 3(1) and 3(2)(f) of those Acts and I also find that the respondent has failed to rebut the allegation of discrimination.
6.2 In accordance with section 27(a) of the Acts, I award the complainant the sum of €2,000 in compensation for the upset and humiliation experienced.
Enda Murphy
Equality Officer
18th August, 2008
DEC-S2010-033-Full Case Report
Equal Status Acts
Decision No. DEC-S2010-033
Dalton v Department of Health and Children
Key words
Equal Status Acts – Section 3(2)(g), Disability ground – Section 3(2)(a) Gender Ground – Section 3(2)(b), Marital Status Ground – Section 4(1), Reasonable Accommodation – complainant seeks to impose obligation – Section 3(1)(c), indirect discrimination – Section 5(1), service provider
1. Delegation under the relevant legislation
1.1. On 3rd January, 2006, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 25th September, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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, on which date my investigation commenced.
1.2. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Thursday, 20th May, 2010. (An earlier hearing had been adjourned at the request of the complainant in light of exceptional circumstances that were outlined in her adjournment request). Both parties were in attendance at the hearing. Due to the fact that the submission from the respondent was provided the day before the hearing, and in the interests of natural justice, an opportunity was provided to the complainant to respond to these submissions in writing after the hearing. This response was received on 2nd June, and a further letter was received from the respondent on 22nd June.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability, Gender and Marital Status grounds contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Sections 3(2)(a), (b) and (g) and Section 4(1) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated her less favourably in its treatment of her in response to a complaint she made against the H.S.E., which was in itself made on foot of a complaint against a G.P.
3. Summary of the Complainant’s Case
3.1. The complainant stated that she has a disability and has been in receipt of an invalidity pension since 1990 in that regard. She said that she has been diagnosed with ME and endochrine failure. In addition, she has had two hip replacement operations and back surgery. She also has scoliosis and has had an immune system failure. She stated that she also suffers from depression and insomnia. She objected to her disability being questioned by the respondent.
3.2. The complainant stated that, in March 2001, she made a complaint to the H.S.E. against a named G.P. (“the G.P.”) but that this complaint was left unaddressed by both the H.S.E. and the respondent. In that regard, she outlined the contact she had with the H.S.E. with regard to this complaint and that she was not satisfied with the response she ultimately received, some 18 months after making her initial complaint. Thereafter, she started petitioning the respondent to look at the H.S.E. and to “get some justice going”. She stated that the respondent has not responded to her petitioning and has not yet resolved the issue. In that regard, she stated that she has been stonewalled by the H.S.E. and the respondent, despite, inter alia, getting PQ’s put into the Dail in relation to the matter.
3.3. The complainant agreed that she was informed by the respondent that the appropriate forum for taking her complaint was to the Medical Council. She stated in response that the respondent had a duty of care to her and it should not matter whether the Ombudsman or Medical Council was responsible for her complainant; it should do something about it anyway because of that duty of care. She stated that the respondent was adopting a “Nuremberg defence” by saying that its hands are tied. She said that the H.S.E. was severely endangering the public with its codes of practice and she is alarmed that the respondent menaces people they are behaving badly towards. In short, she stated that the respondent should oversee the H.S.E. board and that responsibility devolves upwards towards it in that regard.
3.4. The complainant stated that she returned her medical card on principal on the basis that the H.S.E. and the respondent were caring bodies and so should deal with her complaint in a caring manner. She stated that she handed it back as she found it dangerous to accept a medical card that was administered by crooks. She pointed out that not having a medical card was a problem that endangered her life and health but that she did not want to engage with a disreputable body. She said she would have taken her medical card back if her case had been investigated.
3.5. The complainant stated that the respondent discriminated against her because it left her powerless and that she was vulnerable in this regard because she was not married, because she had a disability and because she was a woman. She said that the connection between her treatment and her gender was achieved through a process of elimination of every other reason for the respondent’s treatment of her. She said it was a fact of Irish society that a different attitude was taken towards women without husbands. She said that this was because Ireland was backward and primitive and it allowed the H.S.E. to attack and half-kill vulnerable people.
4. Summary of the Respondent’s Case
4.1. The respondent submitted that the complainant must demonstrate that her condition constitutes a disability within the meaning of the Equal Status Acts. It submitted that she must also demonstrate the nature and effect of that disability for it to be properly assessed by the Tribunal. It submitted that, for example, where paraplegia is a sufficient description in a case involving wheelchair access to premises, a disease like M.E., if it is capable of constituting a disability within the meaning of the Acts, will not always have a disabling effect. In addition, the ways in which it affects an individual will vary (not only from person to person but in the same person over time). It said that the complainant was arguing that because she had a disability and in the absence of any other logical reason for the treatment in question, that the disability must be the cause of the treatment. It stated that this cannot establish a prima facie case and it is entirely appropriate for it to query her disability in this context. Subsequent to the hearing, it stated that its principal submission in this regard is that there is no connection between her medical difficulties and the treatment she alleges.
4.2. The respondent stated that the complainant began corresponding with the H.S.E. in 2001. It stated that this correspondence culminated in her receiving a letter from an officer in the H.S.E. in October 2001. However, it stated that voluminous correspondence with both the respondent and the H.S.E. continued thereafter. It noted that the letters from the complainant in that regard were increasingly rude and anyone asked to deal with her complaint became “part of that story”.
4.3. The respondent said that, ultimately, the correspondence and the case comes back to the same point viz. that the respondent had no involvement with the conduct of the G.P. and in so far as it carried out an investigation (which it described as “an investigation with a small i”), it was into whether the H.S.E. had dealt with the matter in an appropriate fashion. It stated that the suggestion that there is a formal procedure and the respondent had an appellate function in relation to a complaint of this particular kind is simply not correct. Instead, it said that it had “used its good offices” with regard to the complaint, and an officer of the respondent gave evidence to that effect. She added that the respondent had told the complainant that it had no role in overseeing the H.S.E. in this context.
4.4. The respondent stated that it had advised the complainant that the proper place for making a complaint of the nature of the one in question was before the Medical Council as it was not related to the financial aspect of the doctor-patient relationship (i.e. the General Medical Scheme (GMS) aspect). It stated that the relationship between the H.S.E. and the complainant in that regard arises from her medical card status. The respondent stated that the complainant could also have taken the matter to the Ombudsman.
4.5. The respondent stated that the complainant was suggesting that the mere occurrence of ill-treatment proves that such ill-treatment occurred because she is a person with a disability. It submitted that this is an entirely circular and fallacious arguments. It stated that, even if one was to assume that she had been mistreated by the respondent, which it vehemently denied, the complainant was unable to state the causal connection between the treatment that is alleged to be discriminatory and her disability and/or gender and/or marital status. It submits that there is, in fact, no evident difference in this treatment and the complainant has failed to establish a prima facie case in that regard.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. The complainant has made a complaint on the marital status, gender and disability grounds, and I must consider whether the respondent has discriminated against her on any or all of those grounds. As she has made a complaint on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, at whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”, and whether “if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.” If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would “give rise to a cost, other than a nominal cost” to the respondent. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.3. In the Acts, “disability” means, inter alia, the presence in the body of organisms causing chronic disease or illness. I am satisfied, in that context at the very least, and based on her evidence both oral and documentary, that the complainant had a disability within the meaning of the Acts at the time in question.
5.4. The principal thrust of the complainant’s case is that the respondent should have formally investigated her complaint against the H.S.E. and overturned its decision in relation to the G.P. However, I am satisfied that the respondent has no authority over the H.S.E. in relation to this or any other aspect of the present complaint. Certain power to deal with complaints against G.P.’s is devolved to the H.S.E in relation to matters arising from the medical card scheme. Otherwise, the Irish Medical Council is the relevant body for making such complaints; if the Medical Council would not hear the complainant’s complaint, that is nothing to do with the respondent. Furthermore, the respondent cannot be held responsible for any failure on the part of the complainant to take the matter to the Ombudsman, if that was a suitable approach. In making this complaint in the terms in which she did, then, I am satisfied that the complainant seeks to impose an obligation upon the respondent as that obligation does not exist in reality. I have no authority to impose such an obligation.
5.5. The complainant also alleges that, in so far as the respondent did anything for her, it discriminated against her in its general treatment of her. It is clear that what the respondent did do was try to assist her, in an informal manner, in resolving her dispute with the H.S.E. It went out of its way to do so. Quite apart from the fact that it was under no obligation in that regard, I do not see how the respondent would have treated the complainant any differently if she was married, single, did not have a disability, or had a different disability. I also note that the complainant did not make any claim with regard to Section 4(1) of the Acts. I am satisfied that there was no obligation on the part of the respondent to provide reasonable accommodation in any event.
5.6. The complainant also suggests that there was some form of indirect discrimination carried out by the respondent in that its treatment of her forced her to return her medical card in protest. However, Section 3(1)(c) of the Acts requires indirect discrimination to flow from a provision implemented by a respondent. There is no such provision in this case; the hardship caused to the complainant arose as a consequence of her own action which she freely undertook under no duress from the respondent, or anyone else for that matter. In any event, any such provision would have to have been made by the H.S.E. and not by the respondent, who would have had no authority to do so.
5.7. In short, I am satisfied that the communication between the parties to this complaint related solely to the respondent’s efforts to defuse the complainant’s dispute with a third party, the H.S.E. In that regard, I am satisfied the respondent would have treated someone without a disability or with a different disability, or someone of a different gender or marital status, in the same manner as it treated the complainant. In any event, it is not responsible for the alleged discrimination suffered by the complainant in relation to the G.P. and/or the H.S.E. and so, in all the circumstances of the present complaint, it was not providing the complainant with any service within the meaning of Section 5(1) of the Acts. Therefore, the complainant has therefore failed to establish a prima facie case of discrimination on any of the grounds alleged and I do not need to consider the matter any further.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in terms of Sections 3(1)(a), 3(2)(a) and Section 5(1) of the Equal Status Acts.
6.3. I find that the complainant has failed to establish a prima facie case of discrimination on the marital status ground in terms of Sections 3(1)(a), 3(2)(b) and Section 5(1) of the Equal Status Acts.
6.4. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a), 3(2)(g) and Section 5(1) of the Equal Status Acts.
6.5. Accordingly, the complainant’s case fails.
_____________
Gary O’Doherty
Equality Officer
2 July 2010DEC-S2011-016-Full Case Report
DEC-S2011-016
Patrick Mongan v FBD Insurance plc
[Represented by Claffey Gannon & Co. Solicitors]
File Ref: ES/2009/035
Date of Issue: 19 April 2011
Keywords: Equal Status – Membership of Traveller community – inability to read or write – cancellation of car insurance- direct and indirect discrimination – non-declaration of pending criminal prosecution – Burden of proof – Equal Status Acts 2000 to 2008, ss. 3 (1) (a), 3 (1) (c), 3 (2) (i), 5 (1). 25 (1) and 38A.
1. This complaint was referred to the Director of the Equality Tribunal on 23 March 2009 under the Equal Status Acts, 2000-2008 (hereinafter “the Acts”). On 16 December 2009 the Tribunal received a written submission from the complainant. A responding submission was received from the respondent on 3 February 2010. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 13 January 2011 and both parties were in attendance.
2. Dispute
This dispute concerns a claim by the complainant, Mr Patrick Mongan (hereinafter “the complainant”) that he was discriminated against, within the meaning of section 3 (1) (a) and section 3 (1) (c) of the Acts by FBD Insurance plc (hereinafter “the respondent”) on the Traveller community ground in terms of section 3(2) (i) of the Acts by having his motor insurance policy cancelled, contrary to section 5(1) of the Acts. Claims of discrimination by association and victimisation were not pursued at the oral hearing.
3. The facts
The complainant is a member of the Traveller community. He cannot read or write. He first became a customer of FBD Insurance in 2005 when he took out commercial van insurance. In 2007 he transferred his insurance policy to another van. On 20 July 2008 the complainant was involved in a public order incident outside a pub in Lusk Co. Dublin for which he was arrested and charged that night. He was released on bail to attend the District Court in Balbriggan Co. Dublin on 4 September 2008. In August 2008 the complainant bought a second-hand passenger car, a Renault Laguna. He presented himself at the main FBD offices on the Naas Road, Dublin, where he spoke to a woman at the reception area. He wished to transfer his previous van insurance to his new car. He was told that that was impossible. Instead he was advised to take out a new insurance contract on the car, dated 29 August 2008. The woman he dealt with asked him had anything changed, had he had an accident since his previous application. He answered no. The policy had the following standard condition:
“It is understood that no driver has been involved in an accident of loss in the last five years, or has been convicted of any driving or criminal offence or has any prosecutions pending.”
On 4 September 2008 the complainant appeared before Balbriggan District Court where he was given the benefit of the Probation Act.
On 17 October 2008 the complainant parked his car in a car park near licensed premises in Finglas, Dublin. When he returned to retrieve it the following morning it was gone. He reported the theft to An Garda Siochana and to the respondent by phone. The employee of the respondent who took his call (Ms A) of the New Claims Section formed the opinion that there may be potential fraud about the claim. She recorded her suspicions as follows in a “Claim Notification Form” in a section titled “Claim Notification Next Action Notes” and in an e-mail to the underwriting department of the respondent, on 20 October 2008, as follows:
“Insured was very undecisive (sic.) and uncertain about the area where he left his car. He also said he had the car six months or since its been on cover here which is only since the 29th of August and then argued that he wants full value for it since its brand new. Also he said he got it off his brother but did not have contact details for him and could say where he got him (sic.) Was very undecisive about times. He was unsure if he had alarm or not but has immobiliser plus he said there is only one key a cardkey which he still has in his possession. Also there is a lot of presie (sic.) notes on his policy for lapse/cancellation/direct debit problems plus there is an injury on insurance link for Ms M. at the same address.”
Ms A was prompted in her conversation by preset questions displayed on her computer screen. At the end of the call she completed what is known as a risk indicator sheet which gave a weighting to a large number of various risk factors. The relevant indicators with their weighting in this case were:
Indicator Weighting
Recent policy inception/Cancellation/substitution 3
Difficulty in obtaining facts circumstances 6
Handlers intuition 15
Vehicle purchased within the last year & previous owner cannot be located
(buy & sell) cash purchase 3
The total points were 27. The minimum number to trigger a referral for decision for further investigation is 15. So “handlers intuition” which is the gut feeling of the employee who received the call is given sufficient weight to be enough on its own to generate a referral.
A Mr B carried out an investigation of the claim. He found no evidence of fraud. During his inquiries he was informed by a source (not An Garda Siochana) of the complainant’s summons before Balbriggan District Court. The respondent wrote to the complainant on 3 December 2008, in the following terms:
“Dear Sir
We understand that at the inception of the Policy you may have had a prosecution pending which may have resulted in motoring/criminal offences.
Please let us have full details of same, together with an explanation as to why this material fact was not disclosed to us.
If we do not hear from you within 10 days from the date of this letter, we will proceed to cancel the above numbered policy.
Yours faithfully
Underwriting Department.”
The complainant consulted his solicitor and swore the following in an affidavit on 19 December 2008:
I say that I was involved in an incident outside Murtagh’s Pub, Lusk on the 20th July 2008 following a social gathering.
I further state that I was arrested for intoxication in a public place and subsequently attended court on the 4th of September 2008 at Balbriggan District Court. The judge stated that I was never in trouble before that he would apply the Probation Act in this case.
To the best of my knowledge and through searches of the Local Garda Station I have no further criminal record.
I state that I was not aware that it was necessary to inform my insurance company of this incident as it did not relate in any way to my Motor vehicle or to a motoring offence.
Notwithstanding this explanation, the respondent wrote to the complainant on 9 January 2009 as follows:
“It has been brought to our attention that information declared by you in your Proposal form is incorrect. You did not declare that you had a Prosecution pending for a criminal offence on 20 July 2008. This represents non-disclosure of a material fact on your behalf. In the circumstances, we are treating the Policy as null and void ab initio.”
In response to an inquiry from the complainant’s representative, the respondent advised on 18 February 2009 that:
“The Policy has been treated as null and void ab initio due to the fact Mr Mongan signed a declaration that he had not suppressed or misstated any material fact and that he had not been convicted of any criminal offence or had prosecutions pending. As this is not the case, we would consider this a material fact and had we been aware of this, we would not have provided a quotation and in the circumstances, we regard the above Policy as null and void ab initio from inception.”
4. Summary of complainant’s case against the Respondent.
The complainant has two elements to his case, indirect and direct discrimination.
Element 1 – indirect discrimination.
The complainant has a low level of literacy. He was educated to the age of 4 or 5. He was not in a position to read or write. He is a member of the Traveller community. Members of the Traveller community have a significantly higher risk of low literacy than settled persons. The respondent indirectly discriminated against the complainant on the Traveller community ground by failing to read out the contents of the Proposal Form and, in particular, by not explaining to him the condition on pending prosecutions which led to the cancellation even though the complainant informed the respondent’s employee that he could not read or write.
Element 2 – direct discrimination.
The complainant believes that because he is a Traveller the respondent treated him less favourably than they would treat another person in exercising their discretion to cancel his insurance contract. The complainant does not believe that the respondent would ordinarily cancel an insurance contract for prosecution for a minor public order offence, particularly where the Probation Act had been applied.
The complainant also believes that the process followed by the respondent leading up to the taking of the decision to cancel his contract was tainted by discrimination. The decision to identify his claim as a potentially fraudulent one was taken by Ms A based on her “handler’s intuition”. If it was not for Ms A’s exercise of her discretion to refer his case for fraud investigation, an allegation that was proved to be unfounded, the fact of the complainant’s prosecution for a minor public order offence would not have emerged, and his contract would not have been cancelled. The complainant deplored that Ms A’s motivation for taking the decision she did could not be tested because she was not present at the hearing, although she was still employed by the respondent in the same capacity.
5. Summary of respondent’s case.
The contract of insurance is one of the utmost good faith (uberrimae fidei). Non disclosure of a material fact renders an insurance policy voidable ab initio at the instance of the insurance company. There is plenty of decided case law on this which supports the respondent’s actions. The complainant did not disclose a material fact and they cancelled his insurance, as they would do so in respect of everyone in those circumstances, irrespective of background. The fact that the complainant was a Traveller was not known to them and did not influence their decisions.
As regards the claim of indirect discrimination on the Traveller ground because of not making allowances for a customer’s potential illiteracy, the respondent states that it is their policy to read out the proposal form in detail, every single question and declaration, to anyone who identifies themselves as having problems understanding the form. The respondents deny that the complainant disclosed his illiteracy when taking out the insurance. They argue that it would be discriminatory to assume that any client who happened to be a Traveller was illiterate. In any event, the respondents claim that it is their practice to ask all persons taking out insurance about prosecutions pending or otherwise.
6. Conclusions of the Director
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
I have no jurisdiction to consider whether or not the respondent complied with the terms of the insurance contract or with insurance law when they cancelled the contract.
Claim of indirect discrimination.
Indirect discrimination is defined in section 3 (1) (c) of the Acts as:-
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) [i.e. covered by one of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
Section 3 (3A) of the Acts provides that in any proceedings statistics are admissible for the purpose of determining whether indirect discrimination has occurred.
First of all it is for the complainant to identify the apparently neutral provision which he seeks to impugn. It is then for the complainant to prove, on the balance of probabilities, that this provision puts a Traveller at a particular disadvantage compared with non-Travellers. If he succeeds in this, the burden of proof shifts to the respondent to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.
‘Provision’ is defined in the Acts to mean a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person. The complainant claims that the apparently neutral provision in this case is an omission to read out the terms of the proposal form, the omission to explain the policy to any given customer to take into account the possibility that the client may be illiterate. I do not consider that there is a policy or provision on the part of the respondent not to explain the terms and conditions of their contracts. I conclude that they operate on the assumption that most clients are literate and can read the terms and conditions for themselves, but are prepared to go through the proposal form in detail for any client who informs them that they have difficulty in understanding. I do not find that there is a general provision which disadvantages those with low literacy. I conclude that there is a policy is to facilitate those with literacy problems. It may not have been applied in the complainant’s case.
I found the complainant to be a credible witness. I accept his account of what transpired when he went to the Naas Road offices of the respondent. In particular, I accept that he made the respondent’s employee aware of his problems with reading and writing. I think it is important to note that the complainant was an existing customer and that both the complainant and the employee who served him may not have been as painstaking in concluding the paperwork as they might have been if the complainant was a new customer. It is my conclusion that the complainant was aware of the need to divulge any accidents he was involved in and any criminal convictions, but genuinely did not understand that this obligation extended to declaring any pending prosecutions for non-motoring offences. This misinterpretation is one that might also be shared by a literate person casually reading the relevant clause:
“It is understood that no driver has been involved in an accident of loss in the last five years, or has been convicted of any driving or criminal offence or has any prosecutions pending.”
On the facts of this case I do not consider therefore that the complainant was, by reason of his low literacy, put at a particular disadvantage compared with other persons. I conclude that the complainant has not proved that the respondent applies an apparently neutral provision which by reason of their greater likelihood to have low literacy level, puts members of the Traveller community at a particular disadvantage compared with other persons. Therefore his claim of indirect discrimination fails.
Claim of direct discrimination
Direct discrimination is defined in section 3 (1) (a) of the Acts as occurring 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’). The complainant alleges that the respondent treated him less favourably that they would a non-Traveller in two respects:-
They cancelled his contract for non-disclosure of his pending prosecution for a minor public order offence in circumstances where they would not have cancelled the contract of a non-Traveller; and
They referred his claim for the loss through theft of his car for investigation for potential fraud, leading to the discovery of his prosecution, a subjective decision that was tainted by discrimination.
As regards 1, the respondent argues that they have a rigid policy of cancelling policies where a material fact is not disclosed in the proposal form. They apply this policy irrespective of the social background of the insured. They argue that if the complainant had disclosed at the time he signed the proposal form that he had a prosecution pending for a public order offence they would have declined cover. The reason for this is that individuals with pending prosecutions or convictions for public order offences have, in the respondent’s experience, a higher risk of losses in terms of fire or damage than an individual with no such convictions or pending prosecutions. In oral evidence and cross-examination a manager from their underwriting department stated that they cancelled at least 250 policies annually for non-disclosure of a material fact. However, he had no idea how many were for non-disclosure of a pending prosecution. The only offences they would overlook if not disclosed were parking offences. The key issue was the non-disclosure of a pending prosecution. Section 38A of the Acts provides that 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. In this case the complainant has made assertions but has not established facts from which I can conclude that a prima facie case of discrimination has been made in the cancellation of his contract for non-disclosure of his pending prosecution.
As regards 2, the complainant points out that a subjective element, “handler’s intuition” or “gut feeling” played a decisive role in the decision of Ms A to refer of his claim for the theft of his car for fraud investigation. Ms A did not give evidence at the hearing and was not available for cross-examination. The complainant however, in response to the question: Do you think it would have been clear to Ms A that you were a member of the Traveller community? said: “I don’t know. I wouldn’t think so. I don’t know.” The complainant has not established the basic fact that Ms A was aware of his being a Traveller. Therefore the burden of proof does not shift to the respondent and they are not required to prove that the decision to refer the claim for fraud investigation was in no sense whatsoever on the grounds that the complainant was a Traveller.
7. Decision
In accordance with section 25 of the Acts I make the following decision:
The respondent did not discriminate against the complainant within the meaning of section 3 (1) (a) and section 3 (1) (c) of the Acts on the Traveller community ground in terms of section 3(2) (i) of the Acts.
Niall McCutcheon
Director
19 March 2011
Equal Status Acts, 2000-2008
Decision No. DEC-S2010-034
Martin v Esplanade Hotel
Key words
Equal Status Acts – Section 5 or Section 6 – indirect discrimination, Section 3(1)(c) – particular disadvantage – legitimate aim – reasonable and necessary – prima facie case rebutted – internet only rates – online booking
1. Delegation under the relevant legislation
1.1. On 27th February, 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 5th February, 2010, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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, on which date my investigation commenced.
1.2. Submissions were sought from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Monday, 19th April, 2010. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was indirectly discriminated against by the respondent on the age ground contrary to the Equal Status Acts (hereinafter referred to as “the Acts”) in terms of Sections 3(1)(a) and Section 3(1)(c) of the Equal Status Acts and contrary to Sections 5(1) and/or Section 6(1) of the Equal Status Acts in that the respondent treated him less favourably by refusing to quote him a room rate over the phone, which he submitted puts him at a disadvantage relative to younger persons and that this refusal was not objectively justified by a legitimate aim and the means of achieving that aim were not appropriate and necessary.
3. Summary of the Complainant’s Case
3.1. The complainant is 83 years of age. He submitted that he phoned the respondent on 29th August, 2008 with a view to booking the respondent hotel for a visit to Bray (where the hotel is located) which he intended to make the following month. He submitted that he asked for the nightly room rate from Mr A, the staff member who took the call. He said that Mr A told him that it wasn’t possible to provide the required information and that he would have to go online to obtain this information. He submitted that he informed Mr A of his age and that he did not have a computer and did not know how to use one. He said Mr A then told him that he should get someone else to do it for him, to which the complainant replied he was not comfortable with getting someone else to take care of what he considered to be his personal business.
3.2. The complainant said that Mr A refused to provide him with information about the room rates requested. He denied that Mr A provided him with a room rate of €109 B&B, as alleged by the respondent, and that the documentary evidence he provided showed this. He did state that Mr A told him that he could come along on the day in question and pay whatever the rate was on that particular day, plus any additional charges that might apply. He said he was distressed and irate at what had happened and was of the view that, once he mentioned his age, “that was the end of the story”, although he agreed there was no overt remarks about his age. He also noted that he was present to give evidence but Mr A was not, and his evidence therefore carried greater weight.
3.3. The complainant submitted that when he made his visit to Bray, staying in another hotel, he collected a comment card from the reception of the respondent hotel and that this card provided “by phone” as an option for booking the hotel. He said the hotel was not busy and had a placard outside its door indicating a room rate for that particular night, although he could not recall what that rate was. He also quoted an ad from a newspaper which, he said, stated that special offers can be taken over the phone.
3.4. The complainant submitted that he is not familiar with modern IT technology and does not have access to it. He presented in evidence reports from the Central Statistics Office and Work Research Centre (WRC)/Age Action Ireland to show that, while IT and accessing services via the internet have become the accepted norm for most age groups in society, for older people this is not the case. He submitted that a significant percentage of the 65+ age group cannot or do not have access to online facilities. While this research did not deal specifically with the 80+ age group, he submitted that it appears clear from that research that the discrepancy would be more pronounced among that age group. In short, he stated that use and literacy with regard to computers reduces significantly with age and that there is a clear distinction between age brackets in this regard.
3.5. The complainant submitted that, in refusing to give him details of its overnight rate, the respondent indirectly discriminated against him on the age ground, in terms of Section 3(1)(c) and in light of Section 42 of the Acts which made it responsible for the actions of Mr. A. He stated that the requirement to access this information over the internet put him at a particular disadvantage compared with younger service users and that the respondent was appraised of the complainant’s age and difficulty accessing the internet from the outset. He said that he had not been given a quote, but even if he had, it would still be discriminatory to have the package in question quoted only online. He further submitted that the requirement to use the internet to access the information has not been objectively justified by a legitimate aim which has been achieved through appropriate and necessary means, particularly when other means can be used to achieve the aim in question. In any event, he did not accept that the aim was a legitimate one as the stated purpose, achieving maximum occupancy, was not achieved in this case and this was backed up by the fact that there were vacancies at the time the complainant sought to book.
3.6. In short, the complainant submitted that the respondent as a service provider (in the context of Section 5(1) of the Acts) and accommodation provider (in the context of Section 6(1) of the Acts), has indirectly discriminated against the complainant on the age ground in the provision of its service and in the provision of accommodation and/or any services or amenities related to accommodation.
4. Summary of the Respondent’s case
4.1. The respondent stated that Mr A no longer worked for it and so was not able to give evidence on its behalf. It accepted that this meant it only had his word for what was said. However, it submitted that Mr A did offer the complainant a per night rate in the course of the telephone conversation in question, viz. €109 and €25 for dinner. It said that it was sufficient that they had given a quote and that no-one who rings up would not be given a quote. The respondent did not dispute the complainant’s evidence in relation to the comment card or that the hotel was not busy on the day he stayed in Bray. It said it imagined that there were people staying in the hotel that night who had booked by phone, but did not know for certain. It could not say what rate these people would have been given as rates fluctuate every day.
4.2. The respondent said that its policy is to merely direct potential customers online to avail of better rates and that it would never refuse to take a booking over the phone. It stated that the internet offers in question are cheaper because there is no advertising cost worth talking about and no labour cost; thus, the discount arising can be passed on to the customer. It stated the purpose of the policy is to maximise occupancy as it gives people more buying power. It stated that approximately 30% of its bookings are made online and 70% are from other means, so online bookings are not the only channel for selling rooms. Nonetheless, it accepted that an error had been made in relation to the handling of the phone call from the complainant and that Mr A should have taken the complainant’s number and asked the Manager to ring back to deal with the problem. While it said this was a customer service issue rather than a discrimination issue, it said it gave a fulsome apology to the complainant in the course of its correspondence with him.
4.3. In relation to the newspaper ad referred to by the complainant, the respondent stated this was an ad from a later time (June 2009) than the time the complainant booked, that business had changed in the meantime and special rates are now quoted online and by phone, depending on availability.
4.4. The respondent rejected the complainant’s assertion that it discriminated against him on the ground of age. It stated that the majority of its tour business on any given year is made up of senior citizens who are valuable clients and it has not received any other complaints of discrimination against older customers. In that regard, it said it had been running since 2003 without complaint. In short, it submitted that the issue was one of customer service not discrimination as the way the complainant was dealt with was as a person and not as an 83-year old man.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Applicable Provision of Acts
5.2. I note the respondent submitted that both Section 5 and Section 6 are applicable in this case. However, this is precluded by the provision of Section 5(2) as, if Section 6 applies, Section 5(1) does not. The service or facility at issue in this case is clearly the use of an hotel for recreation or leisure purposes. I am satisfied that, as such, it is a matter that is properly considered under Section 5 of the Acts. In that regard, I note that other complaints involving a similar service have been dealt with by this Tribunal under Section 5.
Neutral Provision
5.3. The complainant submitted that the practice/requirement to access room rate information over the internet, and in particular in refusing to give the complainant the details of the overnight rate, is discriminatory on the age ground within the meaning of Section 3(1)(c). This provision states that discrimination on any of the grounds occurs: –
“where an apparently neutral provision puts a person [on any of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
5.4. The respondent submitted that its policy in general was to make available, through the internet, special discounted rates which were not made available through other methods of booking the use of its facilities. It submitted that most telephone customers were provided with the room rate for the time for which the booking was sought; where no date was indicated, as in this case, they were provided with the room rate at the time the inquiry was made. Either way, the respondent submitted that they were informed about and encouraged to avail of the discounted rates that could be obtained through the internet. I am satisfied, based on the totality of the evidence, that the policy employed by the respondent in relation to internet rates is as thus described by it. In short, I am satisfied that the respondent provided room rates to persons booking by phone but had discounted rooms available for sale over the internet and that, as far as Section 3(1)(c) is concerned, this is the neutral provision that is at issue in this complaint.
5.5. The question I must consider, then, is not whether Mr A acted in a discriminatory fashion in failing to provide a room rate, but whether the respondent’s general policy of providing discounted room rates over the internet was discriminatory. If Mr A did fail to provide the complainant with a room rate, he was failing to properly implement this policy. In that case, his treatment of the complainant in the course of this phone call is, as submitted by the respondent, a customer service issue, as I am satisfied that it had nothing to do with his age. It is therefore not a matter for me to consider.
Section 3(1)(c)
5.6. I must now consider whether the respondent’s policy was indirectly discriminatory, within the meaning of Section 3(1)(c). It is clear that the policy in question puts the complainant at a disadvantage vis-à-vis other persons because he does not have the computer skills necessary to avail of discounted internet offers provided by the respondent. I am also satisfied that, in this jurisdiction, persons of the complainant’s age are significantly less familiar with modern information technology than other persons, particularly in relation to usage of the internet. The documentary and statistical evidence provided by the complainant clearly shows this to be the case; indeed, it showed that the vast majority of such persons consider they do not have the knowledge and skills necessary to use the internet. In that context, and in all the circumstances of the present complaint, it is clear that the neutral provision at issue puts the complainant at a particular disadvantage compared with persons of a different (younger) age.
5.7. I am satisfied that the complainant has established facts from which it may be presumed that prohibited conduct has occurred in relation to him and he has established a prima facie case of indirect discrimination on the ground of age. However, the respondent can successfully rebut this prima facie case if it can show that the neutral provision in question is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
5.8. In that regard, the respondent submitted that the aim of the policy in question was to increase occupancy; the complainant submitted that it failed in this aim because the hotel was not busy when he went to investigate the matter on the night he planned to stay there. I note the Acts require only that the aim in question is legitimate, it does not necessarily have to be successful. I note that the proliferation in usage of the internet as a sales tool for anything from purchasing airline tickets to buying a bucket show that this is an enormously well-established and effective business practice. In any event, I am satisfied that, at least in the respondent’s case, there was a reduction in administrative costs associated with using the internet as a method for booking accommodation and other services from it. The respondent was able to pass on this reduction in costs to potential customers by offering discounted rates to them, and I am satisfied that this could potentially increase and/or maximise occupancy. Therefore, I am satisfied that the aim was a legitimate one.
5.9. The fact that the aim in question is legitimate is insufficient on its own to justify the existence of the respondent’s policy in the context of Section 3(1)(c): the means used to implement this policy must also be appropriate and necessary to achieving the stated aim. If the internet had been the only method available for booking rooms with the respondent, that would have had the effect of denying the complainant access to the respondents services without assistance from someone who could use a computer and would not have been appropriate in that context. In short, those unable to avail of such offers are not precluded from availing of the respondents services. In that regard, I note that the majority of the respondent’s customers did not book using the internet.
5.10. The policy in question was to provide discounts to persons who availed of the respondent’s services by using the internet rather than other methods of booking. Providing the same rates through other methods as through the internet would make a nonsense of the strategy required to implement this policy. Therefore, it is perfectly reasonable and necessary for the respondent not to offer the discounts in question to other customers in such circumstances as this, and where it has already been established that the aim in question was legitimate.
5.11. In short, the complainant has established a prima facie case of indirect discrimination as the respondent’s policy to provide discounted rates over the internet set him at a particular disadvantage because of his age. However, the respondent has successfully rebutted this as I am satisfied that this policy was put in place to achieve a legitimate aim viz. increasing occupancy in the respondent hotel, and the means of achieving that aim were appropriate and necessary.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has established a prima facie case of discrimination on the age ground in terms of Sections 3(1)(c), 3(2)(g) and Section 5 of the Equal Status Acts, and that the respondent has successfully rebutted the allegation of discrimination.
6.3. Accordingly, I find in favour of the respondent in this case.
_____________
Gary O’Doherty
Equality Officer
6th July 2010
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC – S2009-015
PARTIES
Thompson v Iarnrod Eireann/Irish Rail
(represented by Mr. Colm Costello. Solicitor,
Coras Iompair Eireann)
File Reference: ES/2007/0022
Date of Issue: 2nd March, 2009
TABLE OF CONTENTS
Case Summary
Keywords
Equal Status Acts 2000-2004 – Indirect discrimination, Section 3(1)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1)
Dispute
The complainant maintains that he was discriminated against on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008.
Complainant’s Case
The complainant has a visual impairment and uses a Department of Social and Family Affairs Free Travel Pass on Irish Rail DART services to and from work each day. He is required to queue for a travel ticket for each day of travel and is prohibited from acquiring a ticket in advance, for example the evening before, as other customers who do not avail of the free travel pass are allowed to do. The complainant claims that the “same day only” restriction for the travel tickets used by the holders of Free Travel Passes constitutes discrimination under the Acts and a failure to provide reasonable accommodation to a person with a disability.
Respondent’s case
The respondent denies that it has discriminated against the complainant on the grounds of his disability or that it has failed to provide him with reasonable accommodation in terms of the manner in which he is required to acquire a travel ticket when using his Free Travel Pass. The respondent submitted that the implementation of the requirement for the holder of Free Travel Pass to obtain a ticket on each day of travel is necessary in order to safeguard the company against fraudulent activity and the considerable costs which could arise as a result of such fraudulent activity.
Decision
The Equality Officer found that that a prima facie case of indirect discrimination has been established by the complainant on the Disability ground in terms of sections 3(1)(c) and 3(2)(g) of the Equal Status Acts 2000 to 2008, and that the respondent has failed to rebut the allegation of discrimination. The Equality Officer also found the respondent has discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4 of the Equal Status Acts, 2000 to 2008.
In accordance with section 27(1)(a) of the Acts, the Equality Officer awarded the complainant the sum of €750 in compensation as redress for the inconvenience caused. The Equality Officer also ordered, in accordance with Section 27(1)(b) of the Acts, that the respondent review its policy in terms of the requirement for the holders of Free Travel Passes to present at the ticket office on each day of travel to acquire a ticket in order to ensure that the policy is in full compliance with the terms of the Equal Status Acts, 2000 to 2008.
Equal Status Acts, 2000-2008
Equality Officer Decision DEC-S2009-015
Sean Thompson
(Represented by Ms. Geraldine Hynes, Solicitor,
The Equality Authority)
-v-
Iarnrod Eireann/Irish Rail
(Represented by Mr. Colm Costello,
Solicitor, Coras Iompair Eireann)
Keywords
Equal Status Acts, 2000-2008 – Indirect discrimination, Section 3(1)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 20th February, 2007 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 28th January, 2009.
1. Dispute
1.1 The complainant claims that he was discriminated against by the respondent on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 and that he was not provided with reasonable accommodation in attempting to avail of the services that the respondent provided.
2. Summary of the Complainant’s Case
2.1 The complainant has a visual impairment and uses a Department of Social and Family Affairs Free Travel Pass on Irish Rail DART services to and from work each day. The complainant is required to queue for a travel ticket for each day of travel and is prohibited from acquiring a ticket in advance, for example the evening before, as other customers who do not avail of the Free Travel Pass are allowed to do. The complainant is also prohibited from getting a weekly or monthly travel ticket and as a result has to leave his house earlier in order to queue to get his ticket as he is travelling at rush hour in the morning. The complainant claims that customers who do not have a disability can obtain a ticket in advance and thereby avoid delays going to work but he is not permitted to do this. The complainant raised this issue with the respondent on a number of occasions and was informed that because of the very high number of Free Travel Passes in circulation, the security and control of their illegal use was a significant problem for the respondent. He was informed by the respondent that Free Travel Passes were issued by the Department of Social and Family Affairs and a formal contract had been in place for many years which required the holders of Free Travel Passes to present themselves at the booking office on the day of travel as part of this contract. The complainant was also informed that there was a significant problem with the fraudulent use of Free Travel Passes and the practice whereby a pass holder must present himself/herself at the booking office for visual inspections safeguards against this fraudulent activity.
2.2 The complainant rejects the reasons put forward by the respondent regarding the requirement for this policy and he submitted that in order to circumvent the issue of fraudulent activity, when travel tickets issued to Free Travel Pass holders are being checked by an Inspector, the respondent could insist on both the Social Welfare Free Travel Pass ID and the travel ticket being produced. The complainant claims that the condition placed on a customer with a Free Travel Pass to present himself/herself on the day of travel in order to get a ticket makes it unduly difficult for a person with a disability to avail of the service being provided by the respondent. The complainant further submitted that the conditions imposed on disabled passengers in relation to ticket purchase which are the subject of this complaint militate against the active participation in the workforce by people with disabilities. The complainant claims that the ‘same day only’ restriction for the travel tickets used by the holders of Free Travel Passes constitutes discrimination under the Acts and failure to provide reasonable accommodation to a person with a disability.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it has discriminated against the complainant on the grounds of his disability or that it has failed to provide him with reasonable accommodation in terms of the manner in which he is required to acquire a travel ticket when using his Free Travel Pass. The respondent stated that the Department of Social and Family Affairs operates the Free Travel Pass Scheme and under the terms of the Scheme it is obliged to honour the passes that are produced for travel on the train services which it operates, including travel on DART services. There are a number of different categories of persons that qualify to avail of this Scheme with the two main categories being persons who are over the age of 66 years and persons with a disability who meet the qualifying criteria. The free travel concession passes are issued and controlled by the Department of Social and Family Affairs and the terms of the Free Travel Pass Scheme encompasses the requirement for customers in possession of Free Travel Passes to present themselves to the booking clerk on the day of travel and produce their free travel pass for inspection in advance of being issued with the relevant rail ticket. The holder of the Free Travel Pass is issued with a return ticket upon presentation of the pass at the ticket office which can only be used for travel on the date of issue.
3.2 The respondent stated that the restriction on travel tickets for persons under the Free Travel Pass Scheme also applies to people other than those with disabilities i.e. those who are aged 66 years and over. It submitted that these restrictions do not make it unduly difficult or impossible for the complainant to avail of the rail services that are being provided by the respondent. The respondent submitted that there is a very high number of these Free Travel Passes in circulation (circa. 600,000) and it has experienced considerable difficulties with the fraudulent use of these passes in the past. It submitted that the implementation of this policy is necessary in order to safeguard the company against such fraudulent activity and the considerable costs which could arise as a result of such fraudulent activity. The respondent claimed that if the company were to lose this safeguard then it would be at risk of exposing itself to even more serious fare evasion.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
4.2 In the present case, the complainant is visually impaired and I am therefore satisfied that he is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. I note that the facts in this case are largely undisputed and it is accepted by both parties that the complainant, as the holder of a Free Travel Pass, is obliged to comply with the requirement to present at the booking office on each day of travel in order to acquire his ticket. The issue that is in dispute between the parties is whether or not this requirement on the complainant, as the holder of a Free Travel Pass, and the restrictions that are placed on him in terms of the manner in which he is obliged to acquire a travel ticket amount to discrimination on the ground of his disability and/or a failure by the respondent to accommodate his needs as a person with a disability within the meaning of Section 4 of the Acts.
Discriminatory Treatment
4.3 In considering this issue, I note that the Free Travel Pass Scheme is operated and administered by the Department of Social and Family Affairs and the Scheme is available to a number of different categories of persons including persons over the age of 66 years and persons with a disability who meet the qualifying criteria. I am satisfied that the reason the complainant qualified for a Free Travel Pass in the first instance was on the grounds of his disability and therefore, his entitlement to travel on the respondent’s rail services arose as a result of this disability. Under the terms of the Scheme the respondent is obliged to afford access to its DART and rail services to the holder of a Free Travel Pass and it is duly remunerated by the Department of Social and Family Affairs for travel that is undertaken by the holders of the pass. The respondent receives a set amount from the Department for each Free Travel Pass issued irrespective of the amount of travel undertaken by the individual pass holder. It was not disputed between the parties that there are certain requirements placed upon the holder of a Free Travel Pass in terms of the manner in which he/she is required to procure a ticket in order to avail of these services. For example, a non-pass holder who is purchasing a ticket has the option of acquiring a weekly or monthly ticket whereas the holder of a Free Travel Pass is prohibited (under the terms of the Free Travel Pass Scheme) from availing of such options as they must present themselves at the booking office on each day of travel in order to acquire a ticket. It is therefore apparent that the complainant, as the holder of a Free Travel Pass, is being denied access to the full range of ticket travel options which are available to a person who purchases a ticket from the respondent in the “normal manner”.
4.4 I am of the view that the aforementioned requirements which are placed upon the complainant as the holder of a Free Travel Pass and a person with a disability, put him (and other persons within this category) at a disadvantage compared to other customers of the respondent without a disability who do no avail of the Scheme. Section 3(1)(c) of the Equal Status Acts makes provision for indirect discrimination in the following terms:
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”
Accordingly, I find that the implementation of the aforementioned requirement upon the complainant, as the holder of a Free Travel Pass, is sufficient to raise an inference of indirect discrimination (rather than direct discrimination) on the disability ground within the meaning of Section 3(1)(c) of the Acts. In order to successfully rebut an inference of indirect discrimination it is necessary for the respondent to demonstrate that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. I note the respondent has claimed that the restrictions which are imposed upon the holders of Free Travel Passes in terms of the manner in which they are obliged to acquire a travel ticket are required under the terms of the Free Travel Pass Scheme and in order to safeguard against the considerable costs which could arise as a result of the fraudulent use of these passes. The complainant has submitted that the requirements which are placed upon him by the respondent, as the holder of a Free Travel Pass, are neither necessary nor effective to achieve the aims of counteracting fraudulent use of the Passes.
4.5 In considering this issue, I note that the complainant (both in evidence at the hearing and during the course of correspondence with the respondent) has outlined a number of alternative measures which he contends the respondent could implement, other than the requirement that the holder of a Free Travel Pass obtain a ticket on each day of travel, in order to circumvent the fraudulent use of Free Travel Passes, namely:
· When the travel tickets that are issued to the Free Travel Pass holders are being checked by an Inspector, the respondent could insist on both the Free Travel Pass and the ticket being produced. Purple tickets are issued to the customers with Free Travel Passes and it would therefore be easy to implement this procedure.
· The respondent could insist that the Social Welfare Free Travel Pass ID be produced at the same time as the ticket to Inspectors at the gates upon boarding the train.
I am satisfied that the respondent has failed to adduce sufficient evidence to refute the complainant’s contention that the aforementioned measures could be used as an alternative to the present requirements that are placed upon the holders of a Free Travel Pass in order to achieve the aim of counteracting fraudulent activity. I also note that the respondent has not provided any evidence whatsoever in terms of the levels of the fraudulent use involving Free Travel Passes and/or the financial repercussions that accrue to the company as a result of this activity.
4.6 I fully accept that the respondent has encountered difficulties in relation to the fraudulent use of Free Travel Passes and that it is entitled to put appropriate measures in place in order to safeguard the company from such activity. However, having regard to the evidence adduced, I cannot accept that the imposition of the aforementioned requirements by the respondent which put a specific section of its customer base i.e. in the present case persons with a disability (and who are holders of a Free Travel Pass) at a disadvantage compared to other customers are appropriate and necessary in order to achieve the aim of counteracting fraudulent activity. I am satisfied that the imposition of the requirement upon the complainant (and other persons within this category), as the holders of a Free Travel Pass, to present at the ticket office on each day of travel in order to acquire a ticket, in circumstances where other customers without a disability who do not avail of the Free Travel Scheme are not required to do so, amounts to indirect discrimination within the meaning of the Equal Status Acts. In the circumstances, I find that the complainant has established a prima facie case of indirect discrimination on the disability ground and that the respondent has failed to rebut the inference of discrimination.
Reasonable Accommodation
4.7 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question …”.
The question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities. This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate his needs as a person with a disability in terms of facilitating his access to avail of its DART service. Having regard to the wording of Section 4(1) of the Act, discrimination occurs in circumstances whereby the unreasonable refusal or failure of the respondent to provide special measures or facilities makes it “impossible or unduly difficult” for the person to avail of the services on offer. I have noted the complainant’s evidence that the restrictions imposed upon him, as the holder of a Free Travel Pass, result in a considerable amount of hardship in terms of the travelling time that it takes him to get to and from work and that this is exacerbated by the nature of his visual disability. I am satisfied that these restrictions result in a significant degree of inconvenience and difficulty to him as a regular commuter on the respondent’s DART services, and as a person with a disability, who is dependent on this mode of public transport in order to travel to and from work. In the circumstances, I am of the view that the restrictions imposed upon the complainant make it excessively and “unduly” difficult on him to avail of the respondent’s DART service.
4.8 I note that the complainant raised these difficulties with the respondent on a number of occasions prior to the referral of this complaint and consequently, I am satisfied that the respondent was fully aware of the difficulties the complainant was experiencing in terms of his access to the DART services. I have noted the respondent’s evidence that it has on occasions made exceptions to the requirement for the holder of a Free Travel Pass to present at the ticket office on the day of travel in order to acquire a ticket; and by way of example the respondent referred to a situation whereby a senior citizen, who is the holder of a Free Travel Pass, would be permitted to acquire a ticket if he/she presented at the ticket booth the night before the planned journey. The respondent also accepted that there was a certain amount of discretion available to the staff issuing tickets in terms of the operation of this policy. Having regard to the discretion that was available to the respondent, I am satisfied that it could have exercised a degree of flexibility in order to facilitate the complainant in terms of the implementation of the policy; however, based on the evidence presented in this case, the respondent failed to put any such measures in place in order to facilitate him.
4.9 In the circumstances, I am satisfied that the respondent failed to do all that was reasonable to accommodate the needs of the complainant as a person with a disability in order to avail of its DART services. Section 4 of the Acts also provides that where the provision of special treatment or facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable. Having regard to the foregoing, I am satisfied that the issue of nominal cost in terms of the provision of the special facilities which the complainant required was not a factor in this case as these facilities (as referred to above) were already available to the respondent at the time that he raised these difficulties in 2006. In the circumstances, I find that the respondent has failed in its obligation to provide special facilities or measures for the complainant in accordance with the provisions of Section 4 of the Acts.
5. Vicarious Liability
5.1 The respondent has claimed that the Free Travel Pass Scheme is controlled by the Department of Social and Family Affairs and it submitted that a formal contract has been in place for many years between it and the Department which requires the holder of a Free Travel Pass to obtain a ticket on each day of travel. The respondent has therefore submitted that it was obliged to implement this requirement in order to comply with the terms of this contract. In considering whether the named respondent in these proceedings i.e. Irish Rail can be held liable for discriminating against the complainant as a result of the implementation of the terms of this scheme, I have taken cognisance of the provisions of Section 42(2) of the Equal Status Acts which provides:
“Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act as donealso(my emphasis) by that other person”
Therefore, an issue arises as to whether the named respondent in the present case i.e. Irish Rail was acting as an agent for the Department of Social & Family Affairs for the purposes of Section 42(2) of the Acts. I note that under the terms of the Free Travel Scheme the respondent is obliged to afford access to its rail and DART services to the holder of a Free Travel Pass and it is duly remunerated by the Department of Social and Family Affairs for travel that is undertaken by the holders of the pass. I am therefore satisfied that Irish Rail was acting in the capacity as an agent of the Department of Social and Family Affairs within the meaning of Section 42(2) of the Acts. I am of the view that the inclusion of the word “also” in this section of the Acts is significant in terms of determining whether any liability accrues on the part of Irish Rail in the present case. I am satisfied that Irish Rail was providing a service to the holders of Free Travel Passes within the meaning of Section 2(1) of the Equal Status Acts (in accordance with the terms of its contract with the respondent) and in doing so it was implementing the discriminatory requirement which was imposed upon the complainant in the present case i.e. the requirement to obtain a ticket on each day of travel. I therefore find that Irish Rail, being the service provider which implements the discriminatory requirement, is vicariously liable in accordance with the provisions of Section 42(2) of the Equal Status Acts.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that a prima facie case of indirect discrimination has been established by the complainant on the Disability ground in terms of sections 3(1)(c), 3(2)(g) of the Equal Status Acts, 2000 to 2008, and I find that the respondent has failed to rebut the allegation of discrimination. I also find that the respondent has discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4(1) of the Equal Status Acts, 2000 to 2004.
6.2 In considering the level of redress to be awarded in this case, I have taken cognisance of the fact that the complainant was not refused access to the respondent’s DART service. The discrimination to which the complainant was subjected in this case arose as a result of the implementation by the respondent of the scheme which imposes the requirement upon him, as the holder of a Free Travel Pass, to present at the ticket office on each day of travel in order to acquire a ticket, in circumstances where other customers without a disability who do not avail of the Scheme are not required to do so. I am mindful of the fact that although the complainant was inconvenienced by the implementation of this requirement and that it made his access to the service unduly difficult; he was, in fact, able to avail of the service. I am therefore of the view that a high award is not appropriate in this case. In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €750 in compensation as redress for the inconvenience caused.
6.3 I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent review its policy in terms of the requirement for the holders of Free Travel Passes to present at the ticket office on each day of travel to acquire a ticket in order to ensure that the policy is in full compliance with the terms of the Equal Status Acts, 2000 to 2008.
Enda Murphy
Equality Officer
2nd March, 2009
Shamoon v Chief Constable of the Royal Ulster Constabulary
[2003] UKHL 11 [2003] IRLR 285, [2003] NI 174, [2003] UKHL 11, [2003] 2 All ER 26, [2005] ICR 1458, [2003] ICR 337
LORD NICHOLLS OF BIRKENHEAD
My Lords,
1. This is a sex discrimination case. The appeal raises an issue concerning identification of the appropriate comparator. It is not the first time this type of issue has come before the courts in discrimination cases. So it may be helpful to go back to first principles.
2. In this country discrimination law is statute-based. Statute law prohibits discrimination on specified grounds, such as sex, in specified circumstances, such as the field of employment. Initially the proscribed grounds were sex, marital status and race. Disability and gender reassignment have since been added to the list. Additionally, in Northern Ireland the proscribed grounds include religious belief and political opinion. Each statutory provision specifies with some particularity the circumstances in which discrimination, on the relevant proscribed ground, is unlawful. For instance, under section 6(2) of the Sex Discrimination Act 1975 it is unlawful for an employer to discriminate against an employee by dismissing her or him.
3. The definition of discrimination differs in some respects from statute to statute. But the essence of what is known colloquially as direct discrimination is the same in all the statutes. It consists of treating one person less favourably than another on the proscribed ground. Thus, to take the provisions of the Sex Discrimination Act 1975 as illustrative, section 1(1) of that Act provides:
“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if –
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man …”
The ‘circumstances relevant for the purposes of any provision of this Act’ are the circumstances in which discrimination is prohibited by the Act: see R vImmigration Appeal Tribunal, Ex parte Kassam [1980] 1 WLR 1037, 1041, per Stephenson LJ, and Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, 1953.
4. Thus, where the act complained of consists of dismissal from employment, the statutory definition calls for a comparison between the way the employer treated the claimant woman (dismissal) and the way he treated or would have treated a man. It stands to reason that in making this comparison, with a view to deciding whether a woman who was dismissed received less favourable treatment than a man, it is necessary to compare like with like. The situations being compared must be such that, gender apart, the situation of the man and the woman are in all material respects the same. This self-evident proposition is spelled out in section 5(3) of the Sex Discrimination Act: see Dillon LJ in Bain v Bowles [1991] IRLR 356, 357. As originally enacted (the later amendments are not relevant for present purposes), section 5(3) provides:
“A comparison of the cases of persons of different sex or marital status under sections 1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
This provision applies regardless of whether the comparator is an actual person or a hypothetical person. It is equally applicable to both types of comparator.
5. Each of the statutory provisions also includes victimisation within the definition of discrimination. This is an essential ancillary safeguard. Persons who exercise their statutory rights are not to be penalised for doing so. Employers and others who retaliate in this way are guilty of discrimination. The victimisation provisions adopt substantially the same structure as the direct discrimination provisions, save only that the proscribed ground is different. In cases of direct discrimination, the proscribed ground is sex, or whatever. In cases of victimisation the proscribed ground is that the claimant committed one of the ‘protected acts’; for instance, that the claimant had brought proceedings under the Act. Subject to this necessary adjustment, the definition of victimisation calls for a similar ‘less favourable treatment’ comparison. In the case of direct sex discrimination the comparison is between the treatment afforded to the claimant woman and that afforded to a man. In the case of victimisation the comparison is between the treatment afforded to the claimant and the treatment afforded to a person who has not committed a protected act. Section 4 of the Sex Discrimination Act provides:
“(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –
(a) brought proceedings against the discriminator or any other person under this Act …[etc]”
6. In the Sex Discrimination Act there is one linguistic difference between section 1(1), defining direct discrimination, and section 4, defining discrimination by way of victimisation. Section 5(3), containing the ‘like with like’ direction, is expressed to apply to sections 1(1) (sex discrimination) and 3(1) (marital status discrimination). Section 5(3) makes no mention of section 4(1) (victimisation). I do not think this omission is significant. I can see no reason in principle why the two comparison exercises should differ in their nature. Rather, although the language may be maladroit, the phrase ‘in those circumstances’ in section 4(1) seems to be intended to serve the same purpose in relation to victimisation as section 5(3) serves in relation to direct discrimination under section 1(1). Indeed, this is made explicit in the updated language of the Disability Discrimination Act 1995. In the definition of victimisation in that Act, section 55(1) calls for a comparison between the treatment afforded to the claimant and the treatment afforded to ‘other persons whose circumstances are the same’ as those of the claimant.
7. With this introduction I turn to consider the application of these provisions in practice. In deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the ‘less favourable treatment’ issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the ‘reason why’ issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
9. The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10. I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.
13. The views expressed above accord with the decision of your Lordships’ House in the victimisation case of Chief Constable of the West Yorkshire Police vKhan [2001] 1 WLR 1947. The observations made by myself and others in that case regarding comparators have to be read in the context of the particular issue then before the House. The claimant, Sergeant Khan, was looking for new employment with another employer. He had unsuccessfully sought a reference from his existing employer, the Chief Constable of West Yorkshire. He claimed that his request had been refused because he had started proceedings in an industrial tribunal alleging racial discrimination. The Chief Constable submitted that in deciding the less favourable treatment issue Mr Khan’s treatment was to be compared with the treatment which would have been afforded to a hypothetical police officer having two characteristics: first, that he had not committed a protected act and, secondly, that he had brought proceedings against the Chief Constable on some other ground, such as libel or wrongful dismissal. The House rejected the second half of this submission. The statute calls for a simple comparison between the treatment given to Mr Khan and the treatment which would have been given to a police officer who had not done a protected act. Protected act aside, the hypothetical comparator should be in the same position as Mr Khan, not in an admittedly different but allegedly comparable position.
The present case
14. The majority of the industrial tribunal expressed themselves as satisfied that Chief Inspector Shamoon ‘had been treated differently because she was a woman’. With all respect to the tribunal, I have to say that the reasoning underlying this conclusion is far from clear. Superintendent Laird acted in response to representations made by the Police Federation. The Federation representatives did not make similar representations in respect of male chief inspectors in other traffic regions. The tribunal considered it was not required to decide whether the Federation representatives ‘had been guilty of discrimination’ against Chief Inspector Shamoon. But if the Federation representatives were not discriminating against Chief Inspector Shamoon on the ground of her sex, it is far from clear why Superintendent Laird, in response to the Federation representatives, should nevertheless have acted on the grounds of sex. This is possible, but some further explanation was called for in this case, not least because the tribunal’s prior consideration of the less favourable treatment issue is opaque.
15. Insufficiency of reasons ordinarily leads to the case being remitted for a re-hearing, although neither party made such a request in this case. Such a direction is not appropriate if there was no evidence on which a properly directed tribunal could have upheld the claimant’s application. Whether there was such evidence in this case is an issue on which I have entertained more doubt than your Lordships. In reaching its overall conclusion the tribunal set out some criticisms of Superintendent Laird’s evidence. There was no urgent need to change the practice, and the Force regulations were being altered in less than three months’ time. I am inclined to think that a well reasoned decision could not have been upset as perverse. However, since all your Lordships consider otherwise I would not dissent on this point. In agreement, therefore, with all your Lordships I too would dismiss this appeal.
LORD HOPE OF CRAIGHEAD
My Lords,
16. This is an appeal from a decision of the Court of Appeal in Northern Ireland (Carswell LCJ and Nicholson and McCollum LJJ) which was delivered on 18 May 2001 allowing an appeal by way of case stated against the decision of an industrial tribunal that the appellant, Chief Inspector Joan Cartwright Shamoon, had been discriminated against on the grounds of her sex.
17. The appellant had lodged a complaint with an industrial tribunal for Northern Ireland on 9 December 1997 alleging that she had been discriminated against on the ground of her sex contrary to article 3 of the Sex Discrimination (Northern Ireland) Order 1976 by her employer, the Chief Constable of the Royal Ulster Constabulary. In April 1998 she lodged three further applications in which she alleged that she had been subjected to unlawful discrimination and victimisation in the course of her employment. After a hearing which lasted for twenty four days and took place on various dates between 18 October 1999 and 30 March 2000, the tribunal dismissed the three complaints which were lodged in April 1998. But the first complaint was upheld. A majority of the tribunal were of the opinion that there was sufficient material in the evidence from which it could reach the opinion that she had been discriminated against on the grounds of her sex.
18. The respondent expressed dissatisfaction with the decision of the tribunal and requested it to state a case for the opinion of the Court of Appeal on the following questions of law:
1. Was the tribunal correct in law in holding that the relevant circumstances in each case relating to the applicant and two Chief Inspectors referred to as comparators in paragraph 3.11 of the tribunal’s decision were not “materially different” within the meaning of article 7 of the Sex Discrimination (Northern Ireland) Order 1976?
2. Was the tribunal correct in law in holding that the respondent treated the applicant less favourably than they treated or would treat other persons?
3. Was the tribunal correct in its application of the burden of proof?
4. Was the tribunal entitled on the facts proved or admitted to hold that the applicant was so treated on the grounds of her sex?
The facts
19. The appellant had been a member of the Royal Ulster Constabulary (“the RUC”) for twenty two years prior to the events which gave rise to the complaint. Since September 1995 she had held the rank of chief inspector. She was employed in the Traffic Branch of the RUC. The branch was divided into three divisions – North, South and Urban Traffic. The appellant was deputy head of Urban Traffic. Her superior officer was the Superintendent who was in charge of that division. The appellant had worked as deputy to three superintendents before Superintendent Laird became the head of Urban Traffic in February 1997.
20. The RUC operated a Staff Appraisal Scheme. Clause 3.3 of the scheme provided that all ranks from constables who had completed a year out of probation to superintendents who had been confirmed in rank or appointment were to be appraised. There were two separate stages in this exercise. The first was the preparation of an annual report compiled by the officer’s supervisor who was the assessing officer. The second was an interview by a designated senior officer who was the counselling officer. Clause 3.2 of the scheme provided that that the reports would normally be completed by a superintendent as the counselling officer. But by 1997 it had become the established custom and practice, and was endemic within the Force generally, that chief inspectors did the counselling of constables. As the appellant held the rank of chief inspector, it was the practice for her to carry out counselling in respect of all the staff appraisals of constables in Urban Traffic.
21. In April 1997 Constable Lowens made a complaint to Superintendent Laird about the manner in which the appellant had conducted the appraisal in his case. His complaint was upheld by Superintendent Laird. In September 1997 Constable Currie expressed dissatisfaction about comments which the appellant made in her appraisal about him. After discussion with Superintendent Laird the appellant agreed to delete some words from her report to which Constable Currie had taken exception. But the Constable took his complaint to the Police Federation. The Federation’s representatives then asked for a meeting with Superintendent Laird. On 6 October 1997 a long meeting took place between Superintendent Laird and three representatives of the Federation, who were one each from the three ranks of constable, sergeant and inspector. During this meeting the procedures concerning staff appraisals were discussed. Superintendent Laird’s evidence to the tribunal was that Constable Currie’s appraisal was not discussed at this meeting, although he admitted that there were allusions to recent problems. He denied that the discussion referred directly to the appellant. But the tribunal found that it was probable that her handling of Constable Currie’s appraisal was specifically discussed, as this was the background against which the meeting had been sought.
22. In the course of this meeting Superintendent Laird assured the representatives of the Federation that he would not act contrary to policy or procedures in the conduct of the appraisals. The Federation’s representatives then brought the terms of the Staff Appraisal Scheme to his attention, whereupon he accepted that he should follow the letter of the scheme. He promised that henceforth he would do the appraisals, although he said that they would be carried out by the appellant in his absence. It was however already common knowledge that the policy relating to appraisals was to change in December 1997, with the result that from and after that date they were to be undertaken by chief inspectors. On 10 October 1997 the appellant was approached by a civil servant regarding completing staff appraisals. She spoke to Superintendent Laird and suggested that as he was off on the Monday and Tuesday she could do them. But he said that he had given an undertaking to the Federation and arranged to have the appraisals done when he came back.
23. When Superintendent Laird informed the appellant of the outcome of his meeting with the Federation she immediately expressed her dissatisfaction and annoyance over what she regarded as his failure to stand up to the Federation and resist their demands. She told him that she wished to invoke the grievance procedure, as her colleagues of equal rank in the North and South divisions of the Traffic Branch were still doing the appraisals. She told him that she felt victimised, discriminated against and astounded by what had happened. Superintendent Laird’s response to the fact that other chief inspectors were doing appraisals was that they were in other divisions and he was only concerned about what happened in Urban Traffic. In the event the appellant did not formally invoke the grievance procedure. What she did instead was to lodge an application with the industrial tribunal complaining that she had been unlawfully discriminated against on the ground of her sex.
24. Part II of the Sex Discrimination (Northern Ireland) Order 1976 describes the discrimination to which the Order applies. Article 3(1), which is headed “Sex discrimination against women”, provides:
“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if –
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man …”
Article 7, which is headed “Basis of comparison”, provides:
“A comparison of the cases of persons of different sex or marital status under article 3(1) or 5(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
25. Part III of the 1976 Order deals with discrimination in the employment field. Article 8(2) provides:
“It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her –
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment.”
The tribunal’s decision
26. The appellant asked the tribunal to regard the other two chief inspectors in the Traffic Branch as comparators for the purpose of determining whether she had been treated less favourably than a man was or would have been treated. For the respondent it was submitted that neither of them were appropriate comparators. But the tribunal did not accept this submission, as the male officers were of similar rank and were carrying out similar responsibilities in their divisions to those of the appellant and no evidence had been provided that their work was materially different. The tribunal concluded unanimously that the appellant had been unfavourably treated by Superintendent Laird in respect of the appraisals. The question whether this had subjected her to a detriment within the meaning of article 8(2)(b) was not raised at the hearing either by way of evidence or of cross-examination, nor were any submissions directed to it by counsel for either party. The result was that the tribunal did not deal expressly in its decision with the question of detriment. But it appears to have proceeded on the assumption that the appellant had been subjected to a detriment. In paragraph 10 of the case stated it is recorded that the tribunal concluded unanimously that the appellant had been less favourably treated when Superintendent Laird “removed” from her the right to continue to do appraisals on constables.
27. In paragraph 3.13 of its decision the Tribunal dealt with the remaining issue in the case, which was whether what they described as “the treatment meted out” to the appellant was because she was a woman. The facts which it regarded as relevant to this issue, together with its conclusions, are set out in this paragraph in these terms:
“It was common knowledge that the policy relating to appraisals was to change in December 1997. It was therefore open to the Superintendent to question the Federation as to the need to strictly follow the Force regulations when they were to be changed in less than three months. There did not appear to be any urgent need to change what had become the custom and practice within the Force generally that Chief Inspectors did the counselling of Constables. In addition by the time of the Federation meeting the offending section in Constable Curries’ appraisal had been deleted on Superintendent Laird’s evidence (sic). If that was so, what was the need for such a meeting, Constable Currie was now satisfied. The only change as a consequence of the meeting was that the applicant had the completion of appraisals taken from her. That seems to have been the prime reason for the meeting. As far as the tribunal are aware, the Federation did not make any further representations within the force with regard to Chief Inspectors doing counselling and the strict compliance with the Regulations.
The majority of the tribunal were of the opinion that there was sufficient material from which it could reach the opinion that the applicant had been discriminated against on the grounds of her sex. The majority of the tribunal accepted that the changing of what had been the custom and practice regarding the completion of staff appraisals by Chief Inspectors only related to the applicant, and were satisfied that she had been treated differently because she was a woman. The minority member was of the opinion that the less favourable treatment was not because of her gender and was of the opinion that a male Chief Inspector in similar circumstances would have received similar treatment.”
The judgment of the Court of Appeal
28. The Court of Appeal dealt first with the issue of detriment. As to what the word “detriment” means in the context of article 8(2)(b) of the 1976 Order, Carswell LCJ approved of the construction of this word which was adopted by the Employment Appeal Tribunal in Lord Chancellor v Coker and Osamor [2001] IRLR 116. It held that it was ejusdem generis with “dismissing” in the same paragraph of the article, so that there had to be some physical or economic consequence as a result of discrimination which was material and substantial to constitute a detriment. The Lord Chief Justice said that this was in accord with the decision of the Court of Appeal in Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87 that an unjustified sense of grievance cannot amount to a detriment. He then said that the tribunal was in error in failing to consider whether the appellant had been subjected to a detriment, and that there was nothing in the evidence which could suffice to found a conclusion that she had suffered a detriment within the meaning of the article. As he put it,
“She did not have a ‘right’ to carry out appraisals, and it was at most a practice that this work was entrusted to her. There was no loss of rank and no financial consequence when the function was removed from her.”
He said that, on the construction of the word which it considered to be correct, the court was of opinion that no tribunal properly applying the law could conclude that the appellant had suffered a detriment and that this was sufficient to determine the appeal in the respondent’s favour.
29. The court went on however to deal with the issues of less favourable treatment and treatment on grounds of sex. As to less favourable treatment, Carswell LCJ applied the criterion which had been laid down by the Court of Appeal in Chief Constable of the RUC v A [2000] NI 261, 271 for the purposes of unlawful discrimination under section 16(2) of the Fair Employment (Northern Ireland) Act 1976, which was to regard as relevant those circumstances on which a reasonable person would place some weight in determining how to treat another. He said that there were circumstances in the appellant’s case that did not apply to the other chief inspectors. Complaints had been made against her about her performance of the appraisal of constables, and representations had been made by the Police Federation about that. In the court’s view these were circumstances which no reasonable person could ignore or omit in comparing the appellant with the other chief inspectors. He held that if the tribunal had adopted the correct test it was bound to reach the conclusion that the other chief inspectors were not valid comparators and that it had not been established that the RUC had treated her less favourably than it would have treated any other officer in the same circumstances.
30. Carswell LCJ then dealt with the third issue. This was whether the appellant’s treatment, if it was different from that of the other officers, was because she was a woman. Adopting the approach set out by Neill LJ in King v Great Britain-China Centre [1992] ICR 516, 528-529 and approved by Lord Browne-Wilkinson in Zafar v Glasgow City Council [1998] IRLR 36, 38-39 and on the hypothesis that the appellant had been treated differently from male officers, he said that the tribunal would have been entitled to consider the possibility of discrimination on the ground of sex and look to the employer for an explanation. He said that that explanation was furnished in the present case by the fact that complaints were made about the appellant’s discharge of her duties and the Police Federation made representations about her, and that there was no evidence to be found either in the case stated or in the tribunal’s decision which would furnish a basis for a finding that this was on the ground of her sex. On this ground too the Court of Appeal held that the tribunal’s decision had to be reversed.
Detriment
31. I deal with this point first, as it was on the ground that no tribunal could properly hold that a detriment had been established in this case that the Court of Appeal decided to reverse the tribunal’s decision and to dismiss the appellant’s complaint. Mr Morgan QC for the respondent very properly conceded that the court’s decision on this point could not stand, in the light of the views which had been expressed subsequently as to the meaning of this word in your Lordships’ House in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48; [2001] 1 WLR 1947.
32. Judgment in that case was delivered on 11 October 2001. It arose out of a complaint of victimisation by a police officer contrary to section 2(1)(a) of the Race Relations Act 1976 on the ground that he had been discriminated against because his employer had refused to provide him with a reference. Section 4(2) of that Act, which deals with discrimination in the field of employment, provides:
“It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee –
(a) in the terms of employment which he affords to him; or
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment.”
The wording of paragraphs (b) and (c) of that subsection is the same as that in paragraphs (a) and (b) of article 8(2) of the 1976 Order, apart from the words used to indicate the gender of the person discriminated against on the ground of sex. It is plain that the word “detriment” has the same meaning in both contexts.
33. At p 1951A-B, para 14 in Khan’s case Lord Nicholls of Birkenhead said
“I accept Sergeant Khan’s claim that the refusal to provide a reference for him constituted a detriment within the meaning of section 4(2)(c) even though, as matters turned out, this did not cause him any financial loss. Provision of a reference is a normal feature of employment.”
Lord Hoffmann also dealt with the question whether, assuming there was discrimination under section 2(1) of the 1976 Act, Mr Khan was subjected to “detriment” within the meaning of section 4(2)(c). He pointed out, at p 1959G-1960A, that being subjected to detriment (or being treated in one of the other ways mentioned in section 4(2)) is an element of the statutory cause of action additional to being treated “less favourably” which forms part of the definition of discrimination:
“A person may be treated less favourably and yet suffer no detriment. But, bearing in mind that the employment tribunal has jurisdiction to award compensation to injury to feelings, the courts have given the term ‘detriment’ a wide meaning. In Ministry of Defence v Jeremiah [1980] QB 87, 104 Brightman LJ said that ‘a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment.'”
Lord Mackay of Clashfern also noted, at p 1956F, para 37 that the word “detriment” has been widely defined. He referred to De Souza v Automobile Association [1986] ICR 514. Bingham LJ’s observation in Barclays Bank plc v Kapur [1989] IRLR 387, para 54, that the phrase “subjecting him to any other detriment” in section 4(2)(c) of the Race Relations Act 1976 was to be given its broad, ordinary meaning is consistent with this approach. The decisions in De Souza v Automobile Association and Barclays Bank v Kapur predate the decision of the Court of Appeal in this case, but it appears that its attention was not drawn to these authorities.
34. The statutory cause of action which the appellant has invoked in this case is discrimination in the field of employment. So the first requirement, if the disadvantage is to qualify as a “detriment” within the meaning of article 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in article 8(2)(a) are all of that character and so are the words “by dismissing her” in section 8(2)(b). The word “detriment” draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May LJ put it in De Souza v Automobile Association [1986] ICR 514, 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.
35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence. As Lord Hoffmann pointed out in Khan’s case, at p 1959, para 52, the employment tribunal has jurisdiction to award compensation for injury to feelings whether or not compensation is to be awarded under any other head: Race Relations Act 1976, section 57(4); 1976 Order, article 66(4). Compensation for an injury to her feelings was the relief which the appellant was seeking in this case when she lodged her claim with the tribunal. Her complaint was that her role and position had been substantially undermined and that it was becoming increasingly marginalized.
36. The question then is whether there was a basis in the evidence which was before the tribunal for a finding that the treatment of which the appellant complained was to her detriment or, to put it more accurately as the tribunal did not make any finding on this point, whether a finding that the appellant had been subjected to a detriment could reasonably have been withheld.
37. It is clear that the treatment of which the appellant complains was in the field of her employment. The practice by which she did the appraisals of constables as part of her job in the Urban Traffic Branch had been terminated. As for the question whether a reasonable person in her position might regard this as a detriment, the background is provided by the fact that not only was it the practice for the appraisals to be done by the chief inspectors but this was, as the tribunal put it, endemic in the Force. There was evidence that the appellant had carried out as many as thirty five appraisals since she was promoted to the rank of chief inspector. Once it was known, as it was bound to be, that she had had this part of her normal duties taken away from her following a complaint to the Police Federation, the effect was likely to be to reduce her standing among her colleagues. A reasonable employee in her position might well feel that she was being demeaned in the eyes of those over whom she was in a position of authority. The tribunal did not make an express finding to that effect, but there was material in the evidence from which this conclusion could be reasonably be drawn. The respondent did not lead any evidence to the contrary, so he is in no position to resist the drawing of these inferences from the evidence. In my opinion the appellant was entitled to a finding that she was subjected to a detriment within the meaning of article 8(2)(b).
Less favourable treatment
38. The background to this part of the case is provided by article 3(1)(a) of the 1976 Order, which applies where in any circumstances relevant for the purposes of any provision of the Order a person treats a woman on the ground of her sex “less favourably” than he treats or would treat a man, and by article 7, which provides that a comparison of the cases of persons of different sex under article 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
39. The obvious questions which these provisions raise are: with whom should the comparison be made, and which circumstances are to be considered as relevant: see Daniel Peyton, Sex and Race Discrimination, para 3.2.5. But these issues are by no means straightforward. As Sandra Fredman, Discrimination Law, pp 96-99, has explained, the need for a comparator has been one of the most problematic and limiting aspects of direct discrimination as defined in the legislation about discrimination on grounds of sex and race. The requirement is less harsh than in the legislation about equal pay, as the provisions about discrimination on grounds of sex and race permit a “hypothetical” comparison, based – in a sex case, for example – on the question how the woman “would” be treated if it is not possible to find an actual comparator. Nevertheless the choice of comparator requires that a judgment must be made as to which of the differences between any two individuals are relevant and which are irrelevant. The choice of characteristics may itself be determinative of the outcome: see Advocate General v MacDonald 2001 SC 1 and Pearce v Governing Body of Mayfield School [2001] EWCA Civ 1347; [2002] ICR 198. This suggests that care must be taken not to approach this issue in a way that will defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas with which it deals.
40. Ms McGrenera QC for the appellant submitted that the correct approach in this case was that described by Lord Nicholls of Birkenhead in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, 1953D-1954B, paras 25-27. The approach which Lord Nicholls favoured was that which had been adopted in Aziz v Trinity Street Taxis Ltd [1989] QB 463, 480B-483F, in which the judgment of the court was delivered by Slade LJ. Those were victimisation cases. They were not concerned with the issue of direct discrimination. As Lord Nicholls explained at p 1951C-D, para 16, the primary object of the victimisation provisions is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their rights under the legislation or are intending to do so. Article 4 of the Order, which corresponds to section 2(1) of the Race Relations Act 1976 with which those cases were concerned, defines discrimination by way of victimisation. This arises where a person discriminates against another person in any circumstances relevant for the purposes of any provision of the Order “if he treats the person victimisedless favourably that in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has” done or intends to do one or other of a number of things, commonly referred to as “protected acts”. Lord Nicholls said, at p 1954A, para 27, that the statute was to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act. On this approach the reasons for the difference in treatment are not to be taken into account at this stage. The stage at which they are brought into account is at the stage when the tribunal is considering why the employer afforded less favourable treatment to the employee.
41. In Kirby v Manpower Services Commission [1980] 1 WLR 725, where a clerk who had been moved to another job after giving away confidential information complained of victimisation under section 2 of the Race Relations Act 1976, Slynn J delivering the judgment of the Employment Appeal Tribunal said at p 733E that the right question was whether people who gave away information which was received in confidence would be treated by the employer on broadly the same basis. In Aziz v Trinity Street Taxis Ltd [1989] QB 463 Slade LJ said that this was not the right test for resolving the question whether the complainant had been treated less favourably. The complainant in that case had been deprived of his membership of an organisation of taxi drivers, which was an organisation of workers within the meaning of section 11(1) of the Race Relations Act 1976. His case was that this was an act of victimisation, contrary to sections 2 and 11(3)(b) of the Act and his argument, which Slade LJ accepted, was that in the context of that case the “relevant circumstances” referred simply to the complainant’s membership of the organisation. As he explained at p 482G-H, the relevant circumstances are assumed to subsist at the time when the treatment complained of occurs. So the fact that the complainant was expelled from the organisation, which was the treatment complained of, was in itself not a relevant circumstance. But at p 482H-483F Slade LJ also excluded the reasons which the organisation gave for the expulsion. He said that this was something to be considered at the next stage, which is directed to what he described as the issue of causation. The question at the initial stage was simply whether the organisation had treated the complainant less favourably than it treated or would have treated other persons by expelling him from membership. The only circumstance which was relevant to the issue whether he was treated less favourably for the purposes of sections 2 and 11(3)(b) of the Act was the fact that he was a member of the organisation.
42. The control group which the appellant selected in the present case comprised the other chief inspectors in the employment of the RUC. Ms McGrenera maintained that they were the appropriate persons with whom to make the comparison. In the appellant’s case the employer’s practice whereby appraisals were carried out by chief inspectors was terminated. She says that she was less favourably treated than the other chief inspectors, who were of the same rank and were serving in the same branch of the police force, because the practice was allowed to continue in their case. There were two important differences. The first is that the other chief inspectors were serving in other divisions of the Traffic Branch over which Superintendent Laird had no managerial responsibility. The second is that in her case but not in theirs there had been complaints and representations. But the appellant’s argument, relying on what Lord Nicholls said in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, is that these are “reason why” points. The crucial question is whether this truly was the reason why she was treated less favourably, or whether she was treated less favourably than the men were on the ground of her sex. As to the prior question, which is whether the complainant was treated less favourably, the appellant’s case is that the fact that the other chief inspectors were in different divisions and that complaints and representations were made in her case and not in theirs should be disregarded as these are not to be treated for this purpose as relevant circumstances.
43. The respondent maintains that the question of less favourable treatment must be addressed on the basis that the circumstances of the comparators were the same, or not materially different, from those of the appellant. On his approach, article 7 requires there to be brought into account not only the fact that the other chief inspectors were serving in different divisions over which Superintendent Laird had no responsibility but also the fact that it was in the appellant’s case only that complaints had been made and in her case only that representations had been made by the Federation. He submits that it is clear that, when regard is had to these facts, the other chief inspectors were not valid comparators at all. This was the approach taken by the Court of Appeal. It concluded that, because the relevant circumstances of the other chief inspectors were not the same as those of the appellant, her case was bound to fail. This was because she was unable to show that her employer treated her less favourably than he had treated a man in the same employment whose circumstances were the same as, or not materially different from, hers.
44. I confess that I was for a long time attracted by the argument that the test for direct discrimination which article 3(1)(a) lays down can be divided up into two distinct parts, and that the circumstances which are to be considered relevant to the issue raised by the phrase “treats her less favourably” do not include circumstances which are or may be relevant to the question why the woman was treated differently. But, on further examination of the language of the Order, I am persuaded that article 3(1) does not permit this approach.
45. Aziz v Trinity Street Taxis Ltd [1989] QB 463 and Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 were, as I have said, cases about discrimination by way of victimisation. As Slade LJ was careful to stress in Aziz at p 476B, the form of discrimination alleged in that case was not discrimination within the meaning of section 1(1) of that Act (the equivalent of article 3(1) of the Order). It was the form of discrimination described as victimisation in section 2 (the equivalent of article 4 of the Order). These two forms, as Slade LJ said, are “quite different.” Lord Nicholls, too, explained in Khan at p 1951H, para 18, that he was addressing difficulties which had arisen in the application of the definition of victimisation. He did not address the issues raised by the definition of direct discrimination.
46. The language of article 3(1) and of article 4 is sufficiently similar to enable the same approach to the exercise of comparison to be adopted in each case. The phrase “in any circumstances relevant for the purposes of any provision of this Order” appears in both. And they both use the expression “treats … less favourably”, which requires a comparison to be made as to how the person treats, or would treat, the person who is said to have been discriminated against or victimised. As against that, there is the obvious point that article 7, which lays down the rule that a comparison of the cases “must be such that the relevant circumstances in the one case are the same, or not materially different, in the other,” states that it applies to a comparison under article 3(1) but omits to mention article 4. But I agree with my noble and learned friend Lord Nicholls of Birkenhead that there is no reason in principle why the two comparison exercises should differ in their nature. The rule which article 7 lays down appears to be the same as that which any sensible person would apply when undertaking any exercise by way of a comparison. It appears simply to be requiring that one must compare like with like. If that is so for the purposes of article 3(1), why should it not be so for the purposes of article 4?
47. But the crucial point is that questions to which the “like with like” test is to be applied differ as between these two articles. Article 4, as to victimisation, then lays down a test which falls naturally into two parts. The first part of the test requires an exercise by way of a comparison. This is the less favourable treatment part. It is satisfied if the discriminator treats the person victimised less favourably “than in those circumstances” he treats or would treat other persons. The circumstances which are relevant to this exercise are those described in the provision of the Order, previously referred to in the opening words of the article, which describe the circumstances in which discrimination is unlawful. The second part deals with the reason for that treatment. This part does not involve any comparison at all. What it requires is proof that the treatment complained of was “by reason of” a protected act. A precise list of the things that are protected is then set out in subparagraphs (a) to (d) of the article. It is in that context that a judgment is required, and was made in Aziz and Khan, as to what the circumstances are which must be brought into account for the purposes of the comparison which has to be made under the first part of the article.
48. The structure of article 3(1)(a), on the other hand, is quite different. What it requires is proof that the alleged discriminator treated the woman less favourably on the ground of her sex. The words “than in those circumstances” which define the scope of the comparison required in article 4 are absent. Instead the direction which is set out in article 7 must be applied. It provides that the comparison must be such that “the relevant circumstances” in the one case are the same, or not materially different, in the other. The reason why article 7 does not say that the basis of comparison which it lays down must be applied to a comparison under article 4 is because article 4 itself sets out the basis for the comparison which it requires. It does so by directing attention to the circumstances mentioned in the opening words of the article. This is a narrower basis than that required of article 3 by the phrase “the relevant circumstances” in article 7. The circumstances referred to in this phrase are not just those mentioned in the opening words of article 3. They go much wider than that. The phrase directs attention to all the circumstances which are relevant to the way in which the woman has been treated. Moreover, there is no need to break this test down into two parts. It is, as Lord Nicholls has said, in essence a single question. The comparison which is invited by the words “treats her less favourably” lies at the heart of the entire subparagraph.
49. It is, I think, open to question whether the issue of less favourable treatment should be examined separately from the third issue with which the tribunal dealt under article 3(1)(a), which was whether the treatment which the appellant received was “on the ground of her sex”. The third issue is the primary question. It directs attention to the question why the claimant was treated as she was. It calls for an examination of all the facts. If the two issues are to be examined separately, it may be helpful for this question to be addressed first. But, whichever approach is adopted, one must not lose sight of the fact that article 3(1) must be read as a whole and that it must be read together with article 7. A comparison of the cases of persons of a different sex under article 3(1)(a) must therefore be such that all the circumstances which are relevant to the way they were treated in the one case are the same, or not materially different, in the other.
50. The crucial point, then, is this. The application of the rule in article 7 cannot be avoided by breaking article 3(1)(a) down into two parts. This is because this rule applies to article 3(1) as whole. The language of the Order does not permit circumstances which have to be taken into account for one part of article 3(1)(a) to be ignored when the exercise of comparison which the article requires is being applied to the other part. The relevant circumstances must be taken to be the same for both parts of the article, even if these two parts are considered separately.
51. For these reasons I am in agreement with the Court of Appeal that, as the facts of their case were different from that of the appellant, the other chief inspectors were not, on their own facts, valid comparators. I also agree that the tribunal, which appears to have proceeded on the basis that they were, misdirected itself on this point. But I think that the Court of Appeal were wrong not to acknowledge that the issue of less favourable treatment can be examined hypothetically, as is indicated by the words “or would treat” in article 3(1)(a). Carswell LCJ said that the court was following the approach which he had described in Chief Constable of the Royal Ulster Constabulary v A [2000] NI 261, where he said:
“To make out a case under section 16(2)(a) of the 1976 Act a complainant has to show that the respondent has treated him ‘less favourably than he treats or would treat other persons.’ In the absence of evidence of a regular way in which other persons in the same circumstances are treated, he has to prove that at least one other person in comparable circumstances has been treated differently, which may tend to show how others would have been treated if they and not the complainant had been concerned.”
In other words, as there was – to apply this formula to the facts of this case – no other chief inspector against whom complaints had been made or about whom representations had been made by the Police Federation, the appellant was bound to fail in her claim that she had been discriminated against. The Court of Appeal held that the appellant’s case was bound to fail for the lack of a valid comparator, as she was unable to show that at least one other chief inspector who was in the same position in all respects as she was had been treated differently.
52. The requirement that it must be shown that at least one other person whose circumstances were in fact comparable to those of the complainant was treated differently introduces a step into the exercise which is not found in the legislation. The way the case was argued for the appellant may have invited this approach, as her case depended on accepting the other chief inspectors as valid comparators. But I do not think, with great respect, that this can be regarded as a rule which must be applied in all cases. There could be cases where the position held by the complainant was the only one of its kind and incapable of being compared with that held at the relevant time by anyone else in the employer’s organisation. The words “or would treat” in article 3(1) of the Order permit the question whether there was discrimination against a woman on the ground of her sex to be approached on a hypothesis. The crucial question is whether there was discrimination, and it would defeat the purpose of the Order if this question could not be addressed simply because the complainant was unable to point to anyone else who was in fact in the same position as she was. Isolated or unique cases would be left without the protection which the legislation is designed to provide. The flaws which I detect in the Court of Appeal’s reasoning lie in its assumption that it was necessary for the appellant to show, as part of the relevant circumstances, that there were in fact other chief inspectors over whom Superintendent Laird had responsibility in whose case too there had been complaints and representations and in its conclusion that, because she had not done this, her case must necessarily fail.
53. The approach to the various questions raised by article 3(1)(a) which seems to me to be best suited to the circumstances of this case, on its own facts, is this. It is to regard the male chief inspectors in the Traffic Branch and the work they did as a starting point, but no more than a starting point, for the comparison which is invited by the wording of the article. The position of the two male chief inspectors was directly comparable with the appellant’s position in at least three respects that were directly relevant to hers. They were of the same rank, they were serving in the same branch (although not in the same division) and they too had been carrying out staff appraisals in accordance with the recognised custom and practice in the force. The appellant had been deprived of this part of her work which the male chief inspectors were continuing to do. The next step is to consider, hypothetically, whether the appellant was treated less favourably than they would have been if the complaints had been made against them and representations had been made by the Police Federation in their case and if they too had been serving in the division for which Superintendent Laird was responsible.
54. The respondent’s case is that the reason for the difference in treatment is that in the appellant’s case there were complaints and representations. The vitalquestion, to which I now turn, is whether this truly is the reason why she was treated as she was by her employer or whether, as the appellant alleges, the difference in treatment was on the ground of her sex. Article 3(1)(a), as I have said, permits this question to be approached hypothetically. Let it be assumed that the other chief inspectors – the hypothetical comparators – were in the same division and the subject of the same complaints and representations as the appellant, so that the only difference between them and the appellant is that they were all men. The question is whether the way in which the appellant was in fact treated was different from the way the other chief inspectors would have been treated if they too were persons over whom Superintendent Laird had responsibility and the complaints and representations had been directed against them. If the answer to that question is yes, and there is no other explanation, it can be inferred that she was treated less favourably than they would have been on the ground of her sex.
On the ground of her sex
55. Claims brought under the legislation about discrimination present special problems of proof for applicants, as Lord Browne-Wilkinson pointed out in Zafar vGlasgow City Council [1998] IRLR 36, 38-39, para 16. As he said in that case, those who discriminate on grounds of race or gender do not in general advertise their prejudices. They may indeed not even be aware of them. It is unusual to find direct evidence of an intention to discriminate. So the outcome in a case of this kind will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. In Nagarajan v London Regional Transport [2000] 1 AC 501, 511A-B Lord Nicholls of Birkenhead said that, save in obvious cases, this question will call for some consideration of the mental processes of the alleged discriminator:
“Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”
56. The approach which should be taken to the evidence was explained by Neill LJ in King v Great Britain-China Centre [1991] ICR 516, 528-529:
“(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.”
That was a case of racial discrimination, but the approach which Neill LJ described is equally capable of being applied where the allegation is that the discrimination was on the ground of sex.
57. In this case the appellant was, as I have said, entitled to a finding that she was treated less favourably than the male chief inspectors. In other words, she had been discriminated against and she was a woman while they were men. It cannot be said that the discrimination was clearly not on the ground of her sex. There was no evidence to that effect. The tribunal say in paragraph 3.11 that there was no evidence that the work of the male chief inspectors was materially different from hers. So this was a case where it was for the employer to provide an explanation. The evidence on which the respondent relied for the explanation was the evidence of Superintendent Laird. If the tribunal was of the view that his explanation was inadequate or unsatisfactory, it was open to it to infer that the discrimination was on the ground of the appellant’s sex.
58. The Court of Appeal said that the conclusion of the majority of the tribunal set out in paragraph 3.13 of its decision was unsupportable and that no reasonable tribunal could have reached such a conclusion on the evidence which it set out. The reasons why the majority felt able to conclude that the appellant had been treated differently because she was a woman are clearly vulnerable to this criticism, as the tribunal appears to have proceeded on the basis that the other chief inspectors could be treated as valid comparators. The conclusions of the majority and of the minority member are set out, but no explanation is given as to why they reached different views after reviewing the evidence.
59. An appellate court should hesitate before it decides to reverse the decision of the tribunal on a matter of this kind. The question which was at issue here was a question of fact, and the tribunal had the advantage of seeing and hearing the witnesses. In a case such as this, where direct evidence of discrimination is absent and so much depends on inference, this is a crucial advantage which the appellate court does not share. It has also been recognised that a generous interpretation ought to be given to a tribunal’s reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.
60. There are several indications in the decision that the tribunal was dissatisfied with Superintendent Laird’s evidence. He contended that neither Constable Currie nor the appellant were mentioned directly during the discussions at his meeting with the Federation and that they were only alluded to. But the tribunal concluded in paragraph 3.8 that it is highly probable that they were discussed at that meeting. In paragraph 3.12 several options other than the course which was actually taken by Superintendent Laird are set out. He could have asked the Federation whether they were proposing to take the issue about appraisals up with the Force generally or sought further guidance or checked with other regions as to what his response should be before acting in the appellant’s case. He did not raise the matter at the monthly meetings of senior officers, and he acted without delay although it was common knowledge that the procedures were to be changed in December. The tribunal declined to hold that the Police Federation was discriminating against the appellant, as it was not a party to the proceedings. But the fact was, as the tribunal point out in paragraph 3.12, that it did not make the same representation that the strict letter of the rules about staff appraisals should be followed in the case of male chief inspectors in the traffic regions. Although the tribunal do not say this in terms, it must have been obvious to Superintendent Laird that the appellant was being singled out in this respect. It appears that the tribunal was of the opinion that he was being less than frank when he was giving his explanation.
61. The discussion of these points by the tribunal is brought to a head in the first of the two paragraphs which I have quoted from paragraph 3.13. As I read this paragraph, it attempts to set out the basis for the inference which the majority felt able to draw that the appellant had been discriminated against on the ground of her sex. In summary, the following points are made. It was open to Superintendent Laird to stand up to the Federation’s representatives and resist the demand for strict compliance with the rules. The policy was to be changed in a few weeks’ time, and the complaint by Constable Currie had already been dealt with as the offending passage had been deleted from his appraisal and he was satisfied. What then was the need for the meeting or for the practice which everyone had been following up to now to be changed? The appraisals were taken away from the appellant without delay or consultation, but they were not taken away from the chief inspectors who were men.
62. It would not have been in the least surprising if, in the light of this background, Superintendent Laird had conceded that he gave in to the Federation more readily than he would have done in the case of the male comparators because the appellant was a woman. Of course he did not make that concession. But one must bear in mind the fact, which Lord Browne-Wilkinson alluded to in Zafar v Glasgow City Council [1998] IRLR 36, that men in his position do not advertise their prejudices and may indeed not even be aware of them. Lowry LCJ was making the same point in Wallace v South Eastern Education and Library Board [1980] IRLR 193 when he said:
“Only rarely would direct evidence be available of discrimination on the ground of sex; one is much more often left it infer discrimination from the circumstances. If this could not be done the object of the legislation would be largely defeated so long as the authority alleged to be guilty of discrimination made no expressly discriminatory statements”
I think that it would have been open to the tribunal to draw that inference.
Conclusion
63. But was this the basis for the decision by the majority? I have not found this an easy question to answer. In the end, however, I have been persuaded for the reasons given by my noble and learned friend Lord Hutton that the failure by the majority to explain why they took the view they did is a fatal defect. The fact that there was a division of opinion in the tribunal made it all the more necessary for a clear explanation to be given in the findings of fact for the decision which they reached. But the tribunal’s findings of fact do not point decisively to the conclusion that Superintendent Laird’s decision was discriminatory. In the absence of such findings the basis for the majority’s decision is left to conjecture and there are tenable grounds for thinking that, when all the facts are taken into account, it was wrong. The only explanation which is given by the majority is that they accepted that it was only in the appellant’s case that the custom and practice regarding the appraisals by chief inspectors was changed, and that they were satisfied that she was treated differently because she was a woman. The first of these propositions was not disputed. But what was the factual basis for saying that this was because of the appellant’s sex? Perhaps because of the error into which the tribunal had fallen of thinking that the other chief inspectors could be treated as valid comparators, the majority appear to have overlooked the fact that, as the circumstances of the other chief inspectors were not the same as those of the appellant, it was necessary to approach this question hypothetically. It was not enough simply to point to the fact that she was treated differently from the way the other chief inspectors were treated. But there is no indication in the reasoning of the majority that any consideration was given to the question how they would have been treated, on the assumption that their circumstances were the same as those of the appellant in all respects. There is a gap here in the majority’s reasoning which the findings of fact cannot fill.
64. That being so, although I am unable to agree with every step in the Court of Appeal’s reasoning, I respectfully agree with the result which it reached which was that the conclusion of the majority is unsupportable on the facts and that the decision of the tribunal should be reversed.
65. The Court of Appeal answered questions 1, 2 and 4 of the questions posed in the case stated in the negative and declined to answer question 3. All these questions proceed upon assumptions about what the tribunal decided. As the basis for the decision is so lacking in explanation, I think that the better course would be to decline to answer any of them. I would dismiss the appeal.
G v St Gregory’s Catholic Science College (Rev 1)
[2011] EWHC 1452 (Admin) [2011] ELR 446, [2011] ACD 91
Mr Justice Collins:
This claim, which was lodged on 16 December 2009, concerns the lawfulness of the uniform policy applied by the defendants which, because the claimant was unwilling to comply with one aspect of it, meant he was unable to take up his place at the school. He was then aged 11 and was due to commence his secondary education at the defendants’ school.
The claimant is of African-Caribbean ethnicity. He has since birth not cut his hair and it is kept in cornrows. This is in accordance with his family tradition. Cornrows (sometimes called braids) are prohibited by the uniform policy of the school and so he was not permitted to attend school so long as he kept his cornrow style. In his claim, he contended that the prohibition on cornrows it was unlawful because discriminatory on sex and on race grounds. Further, he asserted that there had been a failure to give any advance notice of the ban on cornrows (since, it was said, the written uniform policy did not make it apparent that the ban existed). As a result of his mother’s complaints, the ban on cornrows has now been made explicit. It was said that there should have been consultation before this change was made and there was accordingly a breach of his legitimate expectation that the policy which did not explicitly ban cornrows would be applied. There were further complaints that there had been a failure to follow guidance issued by the what was then the Department of Children Families and Schools (DCFS), now the Department of Education, and a failure by the defendants to discharge their equality duty (imposed by s.71 of the Race Relations Act 1976 and s.76A of the Sex Discrimination Act 1975 respectively and now contained in s.149 of the Equality Act 2010 which came into force on 5 April 2011).
The claimant is now at a different school. The defendants assisted him in obtaining a place and he is happy there. He is able to retain his cornrow style and says:-
“I love my school, everyone is different and the teachers only care that I am learning, they don’t have a problem with the way I look.”
He had moved to the other school before this claim was lodged and so one of the grounds for resisting permission put forward in the defendants’ Acknowledgement of Service was that the claim served no purpose: it was academic. It was also said that his mother had failed to pursue a complaint to the governors but had preferred to litigate. In addition, it was said that the claim was out of time.
Kenneth Parker J granted permission for the claim to be pursued on 15 June 2010. While unusual, it is not impossible for a claim to be entertained even if it will bring no benefit to the claimant in that he or she will not obtain any concrete relief. So here, the claimant himself does not wish to be able to attend the defendants’ school. However, it is said that there is an important issue to be decided, namely whether the no cornrow policy for boys is lawful if it is applied as it was to boys such as the claimant. Since Mr Oldham Q.C. had not in his skeleton argument sought to maintain that I should not consider the claim because it was academic I assumed that the defendants were concerned to know whether their policy or the manner in which it was put into effect was lawful. The claimant was, it was said, equally concerned to establish that there was unlawful discrimination in the maintenance of such a policy which would affect other schools and so have a damaging effect on others who were of the same ethnicity and held the same view as him.
The Equality and Human Rights Commission (ECHR) applied for and on 23 September 2010 was granted permission to intervene. It instructed a Professor John to produce a report upon which it intended to rely to put forward written and perhaps, if it wished to apply to do so, oral submissions. Professor John’s report was thoroughly unsatisfactory and, once obtained, should not have been relied on by the ECHR. I need not go into detail since the ECHR has accepted that it could not rely on the report, has withdrawn from the claim and is to pay the defendants’ reasonable costs incurred in dealing with Professor John’s report. Suffice it to say that those advising the ECHR showed a decided lack of judgment in serving Professor John’s report and producing written arguments based upon it.
In the circumstances, I was prepared to permit the claim to be argued. I made it clear at the outset that I was only concerned to decide whether the policy as applied by the defendants is unlawful because discriminatory. That meant that I should consider its lawfulness against the law as it now stood, namely under the Equality Act 2010. However, that Act, although not using precisely the same language as the Acts of 1975 and 1976, is no different in its effect since it (as did the previous Acts as amended) follows the European Directive of 2000. It followed that I was not concerned with the allegations of breach of legitimate expectation or the precise circumstances of how the school dealt with the claimant and his mother in September 2009. The claimant’s beliefs and the reasons why he and his family were concerned to keep his cornrows are of course material. The defendants know from these proceedings why he is adamant that he should not be required to abandon his cornrows at school, but have continued to resist his claim. This, incidentally, shows that he would not have achieved anything by pursuing a formal complaint to the governors. They contend that their policy is not discriminatory either on race or sex grounds and, further, if there is indirect discrimination, it is justifiable. While therefore any failure to discharge the equality duty is not directly relevant to the present lawfulness of the policy, it is material if the defendants need to show that any indirect discrimination is justifiable.
I should make it clear that I am not deciding whether on what the defendants knew at the time their decision was or was not lawful. Even if I decide that the present policy if applied to boys such as the claimant (having regard to his reasons for not wanting to abandon cornrows) is unlawful, it does not follow that the defendants acted unlawfully at the relevant time because all will depend on what they knew or ought to have known of those reasons. There are some factual issues raised on what was said and what information was given which I have not resolved nor could I resolve them. It emerged in the course of the hearing that a claim for damages based on discrimination had been brought in the County Court. If I decide that the policy as applied is and was lawful clearly that claim will go nowhere. If I decide that the policy as applied is unlawful, it will be for the county court judge to decide whether at the time the defendants knew or ought to have known that the claimant’s case was such as required the policy to be modified in his favour. That will be likely to depend on what the judge finds as a matter of fact was told to the defendants and what, if any, steps the defendants should have taken to enable them to understand the claimant’s position.
I have referred to the policy in its application deliberately since Mr Wolfe rightly accepts that the defendants are entitled to adopt a uniform policy, including what haircuts are permissible, which is or may seem to be very restrictive or conservative. Thus he accepts that choice or a desire to adopt a particular fashion is no good reason to be permitted not to abide by the policy. The defendants for their part recognise (albeit nothing is said in the policy as to any such exception to it) that religious or medical reasons may justify an exception. Thus Rastafarians or Sikhs who do not cut their hair will be permitted not to conform. The question I have to decide is whether, on what is now said by the claimant, his mother and witnesses who have made statements on his behalf, he should have been allowed not to conform since to refuse to allow him to do so amounted to unlawful discrimination.
I shall deal first with race discrimination. The legislation in force in September 2009 was contained in the Race Relations Act 1976 as amended. Section 1 of the Act defines what amounts to racial discrimination. It is not contended that there was direct discrimination, which is dealt with in s.1(1). Thus the relevant provisions are contained in s.1(1A) (which was inserted into the Act with effect from 2003 to comply with the EU Directive). This reads, so far as material:-
“(1A). A person discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but –
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts or would put that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim
(1B) The provisions mentioned in subsection (1A) are …
(b) Sections 17 to 18D.”
Section 17 makes it unlawful for the responsible body (that is to say in this case the governing body) of an educational establishment (which includes the defendants’ school) to discriminate against a person
“(a) in the terms on which it offers to admit him to the establishment as a pupil or …
(c) where he is a pupil of the establishment – …
(ii) by excluding him from the establishment or subjecting him to any other detriment.”
The 2010 Act covers all types of discrimination. Section 19 deals with indirect discrimination, relating it to the various protected characteristics identified in s.19(3). Those include race and sex. S.19(1) and (2) read:-
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purpose of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) A cannot show it to be a proportionate means of achieving a legitimate aim.”
It will, I think, be apparent that the language used in the 2010 Act does not produce any different effect to that used in the 1976 Act. Neither counsel sought to argue that it did. Thus the law was the same in September 2009 as it now is in determining the existence of indirect discrimination (or, for that matter, direct discrimination which is said to be material when considering sex rather than race) and, if it exists, whether it is justified.
The equivalent provision in the 2010 Act to s.19 of the 1976 Act is s.85. S.85(1)(b) and 2(f) reflect the relevant provisions of s.19 to which I have referred. I need not set them out.
S.71 of the 1976 Act required a public authority (which includes the defendants) to have due regard to the need to eliminate unlawful discrimination. This obligation is now contained in s.149 of the 2010 Act, which is somewhat more detailed in setting out what may be required. Again, it is not necessary to set out the provisions in detail since Mr Wolfe contended that there was on the evidence a failure to comply with the duty in that the defendants did not consider or take any steps to advise themselves whether the relevant policy did eliminate unlawful discrimination.
The DCSF has published guidance on uniforms and uniform policy for maintained schools. This, it is submitted, should have been followed since it would have enabled the defendants to comply with their s.71 duty. The relevant provisions are as follows:-
“Background
1. School uniform plays a valuable role in contributing to the ethos of a school and setting an appropriate tone. Most schools in England have a school uniform or dress code, and other rules on appearance. DCSF strongly encourages schools to have a uniform as it can instil pride; support positive behaviour and discipline; encourage identity with, and support for, school ethos; ensure pupils of all races and backgrounds feel welcome; protect children from social pressures to dress in a particular way; and nurture cohesion and promote good relations between different groups pf pupils. Above all, many schools believe that school uniform supports effective teaching and learning.
2. There is no legislation that deals specifically with school uniform or other aspects of appearance such as hair colour and style, and the wearing of jewellery and make-up, and this is non-statutory guidance. It is for the governing body of a school to decide whether there should be a school uniform and other rules relating to appearance, and if so what they should be. This flows from the duties placed upon the governing body by statute to conduct the school and to ensure that school policies promote good behaviour and discipline amongst the pupil body.
What should a school do?
4. A school should ensure that its school uniform policy is fair and reasonable. It should ensure that the uniform chosen is affordable and does not act as a barrier to parents when choosing a school. A school must have regard to its obligations under the Human Rights Act and anti-discrimination legislation. We stronglyrecommend that in setting its uniform/appearance policy the governing body:
Consults widely on its proposed school uniform policy and changes to an established policy. As well as current pupils/carers, prospective pupils and parents/carers should be included in any consultation. Consultations should also include representatives of different groups in the wider community, such as community leaders representing minority ethnic and religious groups, and groups representing pupils with special educational needs or disabilities. Local authorities may have already prepared information and guidance for schools or may be able to conduct consultations on some issues on behalf of schools. An example is attached at Annex 1;
Considers how the proposed uniform policy might affect each group represented in the school;
Considers the concerns of any groups about the proposed policy, and whether the proposed policy amounts to an interference with the right to manifest a religion or belief, and whether it is discriminatory. The school will need to weigh up the concerns of different groups and it might not be practical to accommodate fully the concerns of all groups. For example, groups of children drawn from different parts of the same religious community may each have differing requirements, requiring several variations of school uniform if each were accommodated in full, which would not be practical.
…
Documents the consultation process undertaken, the points made by respondents, and the decisions taken in weighing up competing points of view. The school might decide that the needs of individual groups are outweighed by factors such as:
Health and safety: the school has a right to expect that long hair can be safely tied back for work in the science levorotary, or technology workshops. Similarly, it may be reasonable for a school to ban pupils from wearing jewellery where it considers this poses a risk of injury, or where it considers that wearing jewellery to school might place a pupil at increased risk of bullying and harassment;
Security: the school needs to be able to identify individual pupils in order to maintain good order and identify intruders easily;
Teaching and learning: if a pupil’s face is obscured for any reason, the teacher may not be able to judge their engagement with learning, and to secure their participation in discussions and practical activities;
Protecting young people from external pressure to wear clothing they would not otherwise choose to adopt, protecting them from harassment, and from having to adopt dress codes associated with extreme or anti-social elements in the wider community, including styles and colours of clothing associated with gangs;
Promoting a strong, cohesive, school identity that supports high standards and a sense of identity among pupils; if some children look very different to their peers, this can inhibit integration, equality and cohesion;
The need to promote harmony between different groups represented in the school;
Describes its uniforms/appearance policy clearly and publicises it well, for example on the school website, in school rules, and in any admissions or general school prospectus. Rules on wearing school uniform may be included in the home school agreement. Pupils and parents/carers should receive information that makes them aware of school expectations before they are required to express a preference for a school;
Considers carefully, once the uniform/appearance policy has been agreed, any request that is made to vary the policy to meet the needs of any individual pupil to accommodate their religion or belief;
Considers carefully, once the uniform/appearance policy has been agreed, any request that is made to vary the policy to meet the needs of an individual pupil because of temporary or permanent medical conditions. For example, pupils with skin conditions may be unable to wear specific fabrics, and pupils with foot or leg injuries may be unable to wear school shoes. Further information is included in a training resource pack for schools and local authorities entitled Implementing the Disability Discrimination Act in schools and early years settings. Advice on how to access the pack is available from the Special Educational Needs and Disability section of TeacherNet.
Cross references the school uniform/appearance policy against other relevant school policies, such as the behaviour policy.”
Paragraphs 22 to 24 deal specifically with equality and discrimination issues. They read:-
“22. In formulating a uniform/appearance policy, a school will need to consider its obligations not to discriminate unlawfully on the grounds of sex, race, disability, sexual orientation and religion or belief. A school should also bear in mind the concept of ‘indirect’ discrimination. This involves the application of a requirement which, although applied equally to everyone, puts those of a particular gender, race, sexual orientation or religion or belief at a disadvantage because they cannot in practice comply with it. Such a requirement will need to be justified.
23. An example of indirect discrimination could be a school that bans ‘cornrow’ hairstyles. As these are more likely to be adopted by specific racial groups, banning this type of hairstyle without justification could constitute indirect racial discrimination.
Race equality policy
24. A school should consider its uniform/appearance policy in the context of its race equality policy; its obligation to promote equality of opportunity between pupils of different racial groups; and the requirement to assess the impact of school policies on pupils drawn from different racial groups.”
While this guidance cannot and does not purport to indicate that any failure to follow it or any part of it will result in a finding of unlawfulness, it is clearly highly material. Paragraph 23 refers to the possibility that a policy which prohibits cornrows may be discriminatory and so should have put the defendants on inquiry. The defendants’ case is that their policy is not in truth discriminatory but if it is, it is justifiable. As will become apparent, they rely in particular on the absence of any other complaints from pupils or applicants or their parents, and a general parental approval of their uniform policy. Thus they submit consultation would not have made any difference since the benefits flowing from the policy far outweigh any possible disadvantage to any individual.
The uniform policy in force in September 2009, a copy of which the claimant’s mother had been given, contained the following introduction:-
“The Governors consider personal appearance of the greatest importance at ALL TIMES and all pupils are expected to be in full uniform, both at school AND on the way to and from school. It is the responsibility of all parents to ensure that their children arrive at school in accordance with the dress code of the school.”
This follows rules relating to haircuts, which read:-
“Haircuts
The Governors place a great emphasis on appearance and uniform. One aspect of an acceptable appearance is the haircut. This standard is difficult to maintain amongst the various fashions but we have clear rules – these refer particularly to boys.
Hair should not be so long as to fall below the collar.
No ‘Skinhead’ or shorn hairstyles.
Hair should be cut uniformly all over without creating a crop or layered effect.
No razor cuts so as to create lines or designs across the hair or eyebrow.
Nothing outlandish – in colouring and so on.
Wax / Gel cannot be worn on the hair.
Extensions are not allowed. (If Trichological reasons see Head of Year).”
There are specific uniform rules which dictate what boys and girls respectively can and cannot wear. The only one relevant to hair states that for girls long hair must be tied back. But for black African and African-Caribbean girls cornrows are permitted since they are regarded by the defendants as conventional in girls but not in boys. Further according to the headmaster, Mr Andrew Prindiville, it has been the school’s experience that some black girls find it more difficult to tie back long hair, which needs to be done for safety reasons in for example some science classes, and cornrows avoid this problem.
The policy did not specifically refer to cornrows. However, at the reception meeting for new pupils the cornrow ban was stated. Unfortunately, the claimant and his mother were late arrivals and did not hear the announcement nor had they been told earlier any more than the policy. Thus the first they knew of the ban was the refusal to allow the claimant to attend unless the cornrows were removed. There were discussions about the possibility of the claimant cutting his hair or trying to meet the policy by removing the cornrows (his hair was not it seems beyond collar length), but they had not achieved any positive result. So it was that the claimant was unable to take up his place at the school.
The present rules about hair style are as follows:-
“Hair must be clean, neat and of a moderate style (boys must not wear braids). Peculiar and bizarre styles are quite unacceptable. These styles include, for example, hair that falls below the collar (for boy’s), wearing of hair extensions, bleached, dyed, tinted or highlighted hair, closely cropped or shaved hair, and patterns and lines cut into the hair. Furthermore pupils must be clean-shaven at all times and the shaving of eyebrows is not acceptable. Pupils whose hairstyles are unacceptable will not be admitted to school and risk disciplinary action.”
Braids are now expressly forbidden for boys. The general requirement is that ‘hair must be clean, neat and of a moderate style’. Mr Wolfe has submitted that cornrows meet this general requirement and so it is not appropriate to prohibit them for boys rather than girls simply because it is considered that they are not conventional for boys. This argument is, as will become apparent, more material in the context of Mr Wolfe’s submissions in relation to sex discrimination, but it could be said to be relevant more generally. However, I do not think it assists in the context of race discrimination since, apart from the sex difference, cornrows would be prohibited since they are not regarded as conforming to the policy which, in common parlance, might be described as short back and sides.
The school has published policies on Equality and Diversity and on Race Equality. It is in the London Borough of Brent and in one of the most ethnically diverse communities in the United Kingdom. The vast majority of its pupils are not white and those of African-Caribbean or African ethnicity constitute over 30% of the total of 1027 pupils. There are particular concerns in the area about gang culture (which is predominately a male problem). This must be kept out of the school and the uniform policy is believed to assist in this aim. The school has received outstanding grades in the 2009 Ofsted report in respect of pupil safety and behaviour, pupils’ spiritual, moral, social and cultural development and the effectiveness with which it promotes equality of opportunity and tackles discrimination. I must make it clear that there is and can be no suggestion that the school is in any way knowingly guilty of any racial or other discrimination. The contrary is the case. It has an excellent record. Mr Wolfe has not sought to suggest the contrary. Thus any unlawful discrimination which may be found to exist results from a failure to appreciate fully what the law requires and honest errors.
Mr Prindiville has made two lengthy statements. The first explains the rationale behind the uniform policy and why it is believed that cornrows for boys should not be permitted. The second was produced to deal with Professor John’s report. That is now unnecessary, but there are some matters in the second statement which are relevant to the reason for the school’s policy. As its name indicates, the school is a Catholic school and, as is stated in its Race Equality Policy, it ‘strives to educate all its pupils within an environment where the Catholic traditions of learning, truth, justice, respect and community are promoted’. The majority of pupils are Catholic, but it is not essential that they should be. Hence, the recognition that Sikhs or Rastafarians may need special treatment in relation to their hair. However, there are no pupils falling into those categories.
A major concern has been to keep any gang culture out of the school and to avoid the ethnic tensions and violence which so often accompany it. Mr Prindiville says that the aim is to make the school a place where the pupils are first and foremost safe and valued equally: this is not always the case outside the school gates. As the Ofsted report shows, this aim is being achieved. And, says Mr Prindiville, it ‘accords with our very strong Catholic ethos. Pupils are taught to see the school as a community in which are all (sic) equal and made in the image of God.’ He summarises the position thus:-
“As I will explain our uniform and haircut policy for students other than sixth formers is a critical part of our strategy for maintaining excellent behaviour, for keeping gang mentality out of the school and for ensuring that students do not adopt attire or haircuts that may encourage that mentality. I should add that when I refer to the uniform policy … I am including a reference to our policy on haircuts. “
That overall the approach is successful is, he says, confirmed by the Ofsted report, which states:-
“Equality of opportunity is at the heart of the school’s work and the impact is outstanding. Outcomes for students are good, with minimal unevenness between different groups. There is no evidence of discrimination.”
Mr Prindiville explains the reasons which have led the school to apply their uniform policy. In paragraphs 24 to 30 of his first statement, he says:-
“24. Moreover, I believe that a Uniform Policy is particularly important for our school because of the cultural diversity of our students, the gender mix of our school, and the social pressures that boys, especially, experience outside of school, in particular to join a gang. Boys at the school talk freely about the need to plan their travel arrangements very carefully as they may be assaulted if their journey takes them into an area that is not “their own”. Clearly, as a school we are determined to ensure that outside, largely male gang culture has no place in our school and we believe that we have been successful in doing so. It is our belief that our Uniform Policy plays a critical role in ensuring that the culture associated with gangs of boys in particular, e.g. haircuts, bandanas, jewellery, hats, hoodies, etc has no place in our school.
25. Moreover, distinctive haircuts can, I believe, be badges of ethnic or gang identity in an aggressive or unwelcome sense and can help foster disunity rather than unity. For example, the school ban on shaven heads is part of a conscious determination to avoid white boys, whether English or, say, Eastern European, adopting any form of “skin head” styles with all the negative, and sometimes racist, connotations that go with this. Consequently we adopt a zero tolerance approach to all male hairstyles other than those permitted by our haircut policy.
26. If we were to make an exception for one particular hairstyle (whether skinhead, patterned, cornrows or any other) we would, I believe, no longer justify a zero tolerance approach to all the various “popular culture hairstyles’ students might request to have.
27. I must stress that I do not regard these as speculative or uncertain matters. I am very well acquainted with severe behavioural problems which abound in many schools in London and further afield, and the reasons for them. I have no doubt that that a less conservative approach to uniform than ours often contributes to these behavioural problems. Similarly I know that if we were to allow one hairstyle such as skinhead, patterned or cornrows, boys and their families would be vociferous in their demands to be allowed to wear others.
28. We believe that such haircuts have no place in our school. Furthermore the “pop culture” associated with gangs of boys e.g. haircuts, bandanas, jewellery, hats, hoodies, etc are not part of a Catholic ethos, and in some respects (in particular the violence and other criminality which is often associated with it) this culture is inimical to such an ethos.
29. To this end, therefore, we require boys to adopt what many might describe as a traditional school boy haircut or a “short back and sides”. This also necessarily means that there are a variety of hairstyles which can be worn by girls but not boys including cornrows, ponytails, pigtails, bunches etc.
30. I should make it clear that I am not saying that wearing cornrows are to be especially identified with gang culture. What I am saying is that if we ere to permit the wearing any particular non traditional haircut, such as cornrows, this would lead to a huge pressure to unravel the strict policy that we have adopted and which is a vital part of our success in keeping out of our school influences which have no place there – gang culture and pop culture.”
He observes in his second statement (paragraph 62) that he tries ‘to consider the individual person. Whether and the extent to which braiding is a matter of cultural/ethnic significance for a person cannot in my view be assumed, and will I think probably depend from individual to individual’. That is an entirely valid observation, but the problem is that the school is not apparently prepared to allow cornrows for boys even if they are a matter of cultural or ethnic significance. And it is that that is relied on by Mr Wolfe in support of the claimant’s case that there is indirect racial discrimination.
For this claim to succeed, the claimant must show that the policy can result in discrimination within the meaning of the legislation and that, in the circumstances there is a particular disadvantage to the claimant in the prohibition on cornrows. If he establishes this, it is for the defendant to justify the discrimination. Mr Oldham submits that the policy as a whole must be considered and, as I understand him, it is not permissible to consider in isolation one element of the policy. It is far from clear how that could in practice work. Is there to be some sort of de minimis rule? But it is misconceived. If an aspect of a policy is discriminatory, the policy is to that extent tainted. Further, there have been a number of claims which have concerned a single element of a uniform policy – see for example R(Watkins-Singh) v Aberdare High School [2008] EWHC 1865 (Admin) (refusal to permit the wearing by a Sikh girl of the Kara) and Eweida v BA [2009] 1 ICR 303 (uniform policy prohibiting wearing of a cross over clothing). Thus if discriminatory and if not justifiable, the prohibition of cornrows is unlawful and the policy to that extent is itself unlawful.
In Watkins-Singh [2008] ELR 561 (to which I shall have to refer in more detail) Silber J (paragraphs 39 and 40) said that it was necessary to identify the relevant ‘provision, criterion or practice’, to use the statutory language. In paragraph 39 he said this:-
“It is common ground that the relevant ‘provision, criterion and policy’ in this case is the school’s uniform policy which is made up of the written policy, details of how it was applied and the school’s approach to the recognition of exceptions to its general policy. There is also no dispute that the relevant ‘provision, criterion or practice’ was that only one pair of plain stud ear rings was allowed to be worn and that no jewellery beyond that was allowed unless the item was required to be worn as a compulsory requirement of the pupils’ religion or culture. “
So here, the relevant provision, criterion or practice is the prohibition on boys below the sixth form wearing cornrows.
Mr Oldham makes the point that there must be a group of persons who are adversely affected by the prohibition. It is not enough that one family has its own special views. This point was considered in Eweida. Elias, P said this at p.316-317 (paragraphs 59 to 63):-
“59. We agree with Ms Simler’s submission. In our judgment, the whole purpose of indirect discrimination is to deal with the problem of group discrimination. The starting point is that persons of the same religion or belief as the claimant should suffer the particular disadvantage, distinct from those who do not holds that religion or belief, as a consequence of holding or practising that religion or belief. The claimant must share that particular disadvantage because otherwise she could not show that she was a victim; the provision would not adversely affect her. But in our judgment it is not enough for a claimant to identify a disadvantage which she personally suffers and which others not sharing her belief do not, and than establish liability merely by discovering – anywhere it seems – a like minded soul who shares her belief so that he or she would be similarly disadvantaged if employed in similar circumstances by the employers.
60. In our judgment, in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group.
61. It is conceivable that a particular specialist religion, perhaps a subset of a major religion, may operate in a particular region or locality and employers in that area may have to cater for that belief even though employers elsewhere do not. But there must be evidence of group disadvantage, and the onus is on the claimant to prove this. We recognise that this means that if someone holds subjective personal religious views, he or she is protected only by direct and not indirect discrimination. There is hardly any injustice in that if the purpose of indirect discrimination is to counter group disadvantage and there is none.
62. In this case, the tribunal found no evidence at all of group disadvantage. It is true that they focussed upon whether there was a barrier and did not consider the possibility that there may be disadvantage even with respect to some who chose to comply, or would be willing to comply, with the provision. However, in our judgment there is no possibility that the tribunal could have found the necessary group disadvantage in any event. The claimant did not adduce any evidence that some who complied with the provision did so despite objecting to the provision on religious grounds, and in our judgment there was no proper basis for making an assumption that such persons would necessarily exist.
63. Ms Moore may be right to say that it is almost inconceivable that there will not somewhere be some other persons who share the beliefs of the claimant, but that possibility would not in our view be anywhere near sufficient to establish the necessary degree of disparate impact or group disadvantage.”
That case concerned alleged discrimination on religious grounds, but the principle applies equally to any type of discrimination.
Even if the evidence shows that there is a group who are disadvantaged, the claimant cannot, submits Mr Oldham, establish that he would suffer the particular disadvantage that the law requires. His evidence does not meet the test which, he submits, following observations of Silber J in Watkins-Singh, requires that the wearing of cornrows is for him a matter of exceptional importance. Mr Oldham further submits that in any event English law does not recognise that voluntarily adopted socio-cultural practices associated with a particular race can amount to race discrimination.
The claimant is seeking to establish that there is a group of which he is a member which does suffer particular disadvantage if forbidden to wear cornrows. He relies on his and his mother’s evidence and the evidence of two expert witnesses. Dr Richard Majors, an educational psychologist and a visiting Associate Professor at the University of Colorado in the USA, has studied and has considerable experience in many aspects relevant to African, African-Caribbean and African American culture. Braids have been historically a practice in West Africa, Ethiopia and Egypt, each tribal region having its own traditional style and unique design signalling status, kinship, age group, religious vital and village application. But, more importantly for the purposes of this claim, he states:-
“Historically, cornrows, braids and plaits were also worn for appearance and grooming purposes by slaves. For example, enslaved house servants wore cornrows, braids and plaits to appear well-groomed. Many slaves after capture who had their heads shaved for hygiene reasons – when free – grew their hair into braids or dreadlocks (e.g. long strands of hair that have been twisted closely from the scalp down to the tips) in defiance of the slave master.”
He continues (paragraph 12):-
“Family Value
12. Cornrows have intergenerational values as well. Hair braiding is an ancient art-form handed down from generation to generation. Hence, hair braiding has historical/cultural significance to black culture and family. From a very young age, members of many African tribes wear their hair styles in braids or knots. Members in a tribe have their hair groomed by older female relatives, mothers, sisters, cousins and aunts. Also, I know families in both the US and Britain who have a family tradition (i.e. non-religious beliefs) where the men in the family wear their hair in cornrows, plaits and braids and do not cut their boys’ hair. There are examples of such family traditions as well in the Caribbean. “I know a number of families in the Caribbean where it is taboo for young boys to have their hair cut” (Marcia Elliot, Sept 27,2010, telephone interview, Hairdresser, Morris Roots, Hair Salon, London).
Haircutting in this context is unacceptable because hair is viewed as sacred by these families. These families wear their hair for non-religious reasons, rather than for religious beliefs. “
He also makes the point that, while cornrows are worn more often by women, they are not exclusively for women only and it is common for young boys and men to wear them.
Mr Simon Hepburn, who is of Black Caribbean ethnicity, is Chief Executive of the Advisory Centre for Education. He states:-
“From my experience and knowledge all of the above hairstyles (viz: short back and sides, plaits, cornrow and dreadlocks) are traditional and conventional especially for Black Caribbean boys more than for Black African boys. Periodically one of these hairstyles became very popular and ‘fashionable’ but within some families they will have and want to maintain a family tradition, which often goes back for decades and is not part of ‘popular fashion’. In these situations popular fashion has caught up with a ‘family tradition'”
Mr Aloysius Frederick is chairman of the Governors of the defendants’ school. He is of Black Caribbean ethnicity. He approves the policy and says he has never heard any complaint from a parent concerning the prohibition on cornrows. But he says this:-
“As an African-Caribbean man growing up, I used to have my hair in cornrows as part of the fashion of the day. It was easy to groom. I personally did not regard it as part of my culture or a badge of my ethnicity but I recognise that other people might take a different view about hair styles.”
He seems to be recognising that there are some who do regard cornrows as a badge of their ethnicity.
Thus there is evidence that there are those of African-Caribbean ethnicity who do for reasons based on their culture and ethnicity regard the cutting of their hair to be wrong and so they need it to be kept in cornrows. It may be that those who regard it as an obligation rather than a preference are in a minority, but on the material before me I am satisfied that there is a group who could be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows.
The claimant has not cut his hair since birth. In his family, as his mother states, all men wear their hair in cornrows. There was criticism of the absence of a statement from the claimant himself and a suggestion that he was being run by his mother. This she denies and he has produced a statement. Mr Oldham criticises it as not being in the form of a statement of truth. I am not impressed with those criticisms and see no reason to doubt the honesty of what he says. He confirms the family approach, adopted by all his male cousins. The claimant says this:-
“I really like my hair and its been that way all my life, this problem at school was the first time me and my mom, ever talked about my hair, its so normal to us. I just don’t see a problem with it. I have had my hair all my life. I really like my hair my brother and dad have cornrows and we all like it. I really don’t want to cut it off this was the first time I had to ask the question, ‘whats’ wrong with my hair. “
He concludes, after indicating how happy he is at being at a school with people who are culturally different:-
“Every race has differences, in religion and culture, the plaiting is ours, and I would like to keep it, it’s the one thing I really like, and the best part was when I saw my idol, David Beckham, cornrow his hair, it showed me that he appreciated African hair styling, and that we are all the same underneath it all.”
His statement was, his mother says, his own. He was not coached in any way. He was not prepared to have his hair cut despite wanting to start at the school: he was proud to have been accepted there. Unless cut or in cornrows, his hair, being an African-Caribbean, would have stuck up and could not have conformed to the policy.
Mr Oldham has submitted that his and his mother’s evidence falls short of establishing a cultural or ethnic need to maintain his cornrows. He relies particularly on the Watkins-Singh case. The comparators to the claimant are those boys whose racial beliefs are not compromised by the uniform code on the issue of cornrows – see per Silber J at paragraph 46. Silber J decided for the reasons given in paragraphs 51 to 55 that the threshold was set too high in the defendants’ submission and that there was not a need for the claimant to establish that it was a requirement of her religion to wear the Kara. In paragraph 56 he set out the tests to be applied in these words:-
“On the facts of this case, I believe that there would be ‘a particular disadvantage’ or ‘detriment’ if a pupil is forbidden from wearing an item when (a) that person genuinely believed for (sic) reasonable grounds that wearing this item was a matter of exceptional importance to his or her religious belief and (b) the wearing of this item can be shown objectively to be of exceptional importance to his or her religion or race, even if the wearing of the article is not an actual requirement of that person’s religion or race.”
In paragraph 57 he continues:-
“I stress that I am not saying that there will only ever be ‘a particular disadvantage’ or ‘detriment’ if these elements are proved as obviously there will be other cases in which those requirements are satisfied in different ways. There is therefore both an objective element in (a) and an objective in (b). My conclusion is that on the facts of this case, I believe because elements (a) and (b) are satisfied, there will be a particular disadvantage’ or ‘detriment’ if the claimant is not allowed to wear the Kara.”
Mr Oldham emphasises the need for the claimant to establish the exceptional importance to him of his cornrows, which follow from his not cutting his hair. He contrasts the evidence of the claimant in Watkins-Singh in which she said that in her mind the Kara was ‘one of the defining physical symbols of being a Sikh’. For her, to wear it resulted from a sense of duty and was an expression of her race and culture. This, Mr Oldham submits, is very different from what the claimant says. He puts it no higher than that he likes his cornrows and has always worn them.
The words used by Parliament are ‘a particular disadvantage’. The adjective ‘particular’ is obviously intended to indicate that what is recognised is more than a disadvantage – that would apply if a person was unable to act in a way in which he or she wished to act because, for example, it was considered to be a desirable way of manifesting his or her beliefs. It is clear that more than choice is needed to constitute a particular disadvantage. But I think, with the greatest respect to Silber, J, it may be that the need to show exceptional importance puts the threshold too high. Certainly there is a need to show particular importance: that is the word used, and it conveys a need for a high standard.
Silber J was impressed with the fact that the claimant continued to wear the Kara even though she suffered sanctions for doing so. In this case, the claimant was not prepared to have his hair cut in order to be able to attend the school. He suffered what clearly was a traumatic experience in being turned away on his first day. Thus I am satisfied that, whether or not exceptional rather than particular importance is the right test, he meets the threshold. He has therefore suffered a particular disadvantage.
I turn to consider the argument that English law does not recognise that voluntarily adopted socio-cultural practices associated with a particular race can amount to race discrimination. Mr Oldham has sought assistance from a case decided by a federal judge in New York, Rogers v American Airlines 527F Supp 229. This concerned cornrows at work. The head note shows the issues in that case. It was held that the rule prohibiting cornrows did not violate the 13th Amendment to the Constitution which prohibited practices which constituted a ‘badge of slavery’. The claimant had first worn cornrows only after the style had been popularised by an actor and ‘the plaintiff did not allege that an all-braided hair style is worn exclusively or even predominately by black people’. The claim failed on its facts, but the judge did make the point that the law was directed only to discrimination on grounds of race, colour, religion, sex or national origin. ‘National origin’ was not to be confused with ethnic or socio-cultural traits.
I do not find that case helpful. It concerns different legislation. It is, I think, worth recalling what is required for a group to constitute an ethnic group within the meaning of the Act of 1976. In Mandla v Dowell Lee [1983] 2 AC 548 (a case concerning a school uniform policy requiring boys’ hair to be no longer than collar length with which the plaintiff could not as a Sikh comply) at p.582 Lord Fraser of Tullybelton said this:-
“For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the meaning of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.”
Relevant characteristics included a common geographical origin and being a minority group within a larger community. Thus family and social customs can be a ‘part of ethnicity’ within the meaning of the Act. That is the case here.
Thus I reject Mr Oldham’s argument. It seeks to distinguish cultural and family and social conditions from ethnicity, but they are often part of what brings a person of a particular ethnicity within the particulars of the Act. In a case such as this, that distinction cannot properly be made. Further, I am satisfied that in deciding as I have I am not making any new law.
Having found that there is indirect discrimination, I must now consider justification. Performance of the equality duty is of relevance in establishing justification. The purpose of the duty is to require public bodies to whom it applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them: see per Arden LJ in R(Elias) v Secretary of State for Defence [2006] 1 WLR 3213 at paragraph 274. She observed:-
“This is a salutary requirement and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.”
Absence of any reference to an examination of the material issues is not determinative – it is necessary to look to whether the decision maker has in substance had due regard to the relevant statutory need (see observations of Dyson LJ in R(Baker) v SSCC [2008] EWCA Civ 141 at paragraph 27). It is of significance that the DCSF guidance specifically refers to the possible discrimination arising from a prohibition on cornrows. Mr Wolfe submits that, had the necessary exercise been carried out as suggested by the guidance, the defendants would have been able to ascertain whether there was a need to grant exception to the policy in particular cases. It is clear that the equality duty was not fulfilled, but that does not of itself mean that the policy was not, to use the statutory language, a ‘proportionate means of achieving a legitimate aim’.
The defendants rely heavily on the absence of any complaints about the prohibition of cornrows. Some boys did arrive to start school with cornrows and were told that they must be removed. All, other than the claimant, complied. In addition, since the claimant’s case was given publicity, there have been no complaints. Thus it is said that prior consultation would not have resulted in any different approach and the defendants were entitled to regard their policy as proportionate even though one person was adversely affected by it.
The problem of course is to know why all who conformed and did not complain acted as they did. The school’s policy is not one which is applied in some other local schools, as the claimant’s experience shows. It may be that those who had the same views as the claimant appreciated that there was no point in applying to the defendants’ school. It may be that those who complied were prepared to accept the disadvantage in order to get a place in an excellent academic establishment. While I accept that the absence of any complaints is a material factor, it cannot be determinative. And, as I accept, there may be reasons why there have been no complaints which do not mean that there has not been a particular disadvantage to some who hold similar views to the claimant. Advance consultation might have painted a different picture.
The aim of the policy was clearly legitimate. I must emphasise that Mr Prindiville is not saying and has never said that cornrows are indicative of any gang membership or culture. The point he makes is, as he puts it in paragraph 30 of his first statement:-
“What I am saying is that if we were to permit the wearing any particular non traditional haircut, such as cornrows, this would lead to huge pressure to unravel the strict policy that we have adopted and which is a vital part of our success in keeping out of our school influences which have no place there – gang culture and pop culture.”
The concern is that to permit an exception for one hairstyle would mean that it would not be possible to justify a zero tolerance approach to others. There would be likely to be applications from others for example to allow ‘skin head’ cuts as they are common in some eastern European cultures. It is said that to allow such as the claimant to wear cornrows would mean that the policy which was producing the desired results would be undermined and so the school would be expected to run the risk of trouble.
I am afraid I do not find these objections valid. It is only if there is a genuine cultural and family practice of not cutting males’ hair and wearing cornrows that an exception could be made. It would be made clear that the grounds for such an exception would have to be established and that conformity must occur unless to conform was regarded as impossible. There is no reason why hairstyles which might be indicative of gang culture should be permitted. There is, for example, not a shred of evidence to suggest that anything but choice could lead to a skin head cut.
It was accepted by Mr Oldham that religious reasons could justify non compliance. It is not suggested that that would undermine the policy. I see no difference in principle between those exceptions and the claimant’s case. It will be made clear what are the limitations on non-conformity.
The uniform policy is not applied to sixth formers in the same rigid fashion. Some have from time to time chosen cornrows. The school has sought to dissuade them and has succeeded. No doubt those below the sixth form know that the policy is not applied in the same way to sixth formers. I see no good reason why they should not know the limitations or any other exception. And it will no doubt be made clear that any hairstyle which does not conform to the policy will only be permitted if the pupil and his family persuade the headmaster that there is a genuine particular requirement based on ethnicity or religion or medical grounds for it.
I am accordingly not persuaded that the indirect discrimination which the prohibition on cornrows produces is justified.
I turn to consider the claim based on sex discrimination. The essence of discrimination is that there is less favourable treatment of a male compared to a female. Here, it is said that girls are allowed cornrows, largely because they can wear their hair longer than boys, and so there is no good reason why boys should not be allowed the same.
The correct approach to consideration whether uniform policies (including hairstyles) amount to sex discrimination, bearing in mind that in respect of clothing, wearing of jewellery and hairstyles there are differences between men and women and girls and boys, has been indicated by the Court of Appeal in Smith v Safeway Plc [1996] ICR 868. That case concerned a rule that male employees could not have hair which was below collar length and the refusal to permit the appellant to wear his hair in a pony tail. The EAT had decided that to distinguish between permissible length of hair for male and female staff was discriminatory. The Court of Appeal disagreed.
Discrimination does not necessarily arise from different treatment of sexes. It will only exist if one or other sex is treated less favourably. The court accepted that, as counsel for Safeway had submitted:-
“Rules concerning appearances will not be discriminatory because their content is different for men and women if they enforce a common principle of smartness or conventionality, and taken as a whole and not garment by garment or item by item neither gender is treated less favourably in enforcing that principle.”
In paragraph 13, Phillips LJ said this:-
“In my judgment, a package approach to the effect of an appearance code necessarily follows once one accepts that the code is not required to make provisions which apply identically to men and women. Phillips J held that this was the approach more likely to lead to a sensible result in that case and in cases like it. I agree. This is not to say that when applying the test, the requirement of one particular item of a code may not of itself have the effect that the code treats one sex less favourably than the other. But one has to consider the effect of any such item in the overall context of the code as a whole.”
A code will not be discriminatory if it applies a conventional standard of appearance.
What is to be regarded as conventional may well vary as time goes by and will depend on the facts of a particular case. Smith’s case did depend on a finding of fact by the tribunal that pony tails for men were not to be regarded as conventional. Whether that would apply in 2011 may be open to doubt, but that does not affect the validity of the approach that the law requires.
There can be no doubt that it is not uncommon for African-Caribbean boys and men to wear cornrows. The claimant’s solicitors sent an employee around a number of African-Caribbean hair salons in Brent and her evidence shows that all regarded cornrows for boys as normal. Thus, submits Mr Wolfe, cornrows for boys are accepted by general usage and so should be regarded as conventional.
Cornrows for African-Caribbean girls were recognised as acceptable because they were a satisfactory means of keeping long hair neat and under control. The fact that all girls can wear them whatever the length of their hair does not affect this basic rationale behind permitting them. And there are reasonable views based on safety considerations that it is easier for African-Caribbean girls to wear cornrows then to tie their hair back when the need arises. The claimant’s mother disagrees, but the school’s view is one it is entitled to have and is based on its experience.
In this context, the approach set out in Smith that the policy as a whole rather than item by item should be considered is of importance. A policy requiring no longer than collar length hair for boys and, more generally, a conservative short back and sides is reasonable. It is said to have produced satisfactory results. Thus I do not think that the cornrows difference means that boys are treated less favourably than girls. Furthermore, although cornrows for boys are by no means unusual, I am not persuaded that the defendants are wrong to regard them as not being conventional.
In my judgment, there is no unlawful sex discrimination. The claimant is protected by the indirect race discrimination. I see no good reason why a choice of cornrows should be permitted on grounds of sex discrimination. A rigid appearance policy at a school is clearly entirely reasonable provided it complies with equality law.. Permitting long hair for girls and not for boys may be regarded as discriminatory since boys nowadays not unusually wear their hair longer. But I have no doubt that ‘not unusual’ does not equate to conventional and an appearance policy such as the one operated by the defendants is not discriminatory albeit it applies different rules to girls than for boys.
In the result, I reject the claimant’s arguments that there is sex discrimination but accept that the policy as now applied can result in indirect race discrimination. For someone having the views held by the claimant it is discriminatory. But, as I have said, that does not necessarily mean that there was an unlawful refusal to accept the claimant in cornrows in September 2009. That will depend on what the defendants knew or ought to have known at the time.
Stokes -v- Christian Brothers High School Clonmel & anor
[2015] IESC 13
This case relates to the admission policy of the respondent School, the Christian Brothers High School, Clonmel (“the School”). It has already been litigated, at length, in three separate oral hearings, before three different tribunals on foot of a complaint by Mrs. Stokes made in July 2010.
2. After various preliminary procedures there was an oral hearing before the Director of the Equality Tribunal in November 2010. The Director upheld the complaint on the basis of the “parental rule”, a rule which gave a certain priority to applicants who were the children of past pupils.
3. From this decision the School appealed to the Circuit Court, under a right of appeal conferred by s.28(1) of an Act of 2000. This appeal was successful and the decision of the Director was set aside. This was the second full oral hearing.
4. From this decision, thirdly, Mrs. Stokes appealed to the High Court “on a point of law” on behalf of her son. The Equality Authority applied for and was granted leave to appear at the appeal as Amicus Curiae. The decision of the High Court (McCarthy J.) was delivered on the 3rd February, 2012. The appeal was dismissed.
5. Now, Mrs. Stokes purports to appeal to this Court, a third appeal and a fourth hearing of this complaint.
______________________________________________________________
6. In summary, therefore, Mrs. Stokes made a complaint on behalf of her son in relation to the School’s admission policy. The complainant was successful before the Director of the Equality Agency. The School appealed to the Circuit Court. On appeal the School was successful and Mrs. Stokes appealed to the High Court. However, the School was again successful and the appeal was dismissed.
7. All of these hearings were full oral hearings at which both parties were present or represented. The Equality Authority, whose Director made the first-instance decision was represented as Amicus Curiae at the third hearing in the High Court.
The present issue.
8. Mrs. Stokes, on behalf of her son, now purports to appeal to this Court. The School says no such appeal lies.
Mrs. Stokes relies, firstly, on the terms of Article 34.4.3 of the Constitution:
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court…”.
Legal provisions affecting the Appeal.
9. Section 28 of the Equal Status Act 2000 undoubtedly provides to either side a right of appeal from the Director to the Circuit Court. It provides:
“28(1) Not later than forty two days from the date of a decision of the Director under s.25, the complainant or the respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of appeal.
(2) In the determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).
(3) No further appeal lies, other than an appeal to the High Court on a point of law”.
(Emphasis added)
10. In this case, the School was successful in the Circuit Court in setting aside the Order of the Director. An appeal from this decision lies to the High Court “on a point of law”. But “No further appeal lies” by virtue of the provisions of subsection (3).
11. There is no doubt in my mind but that the purported appeal to this Court would be a “further” appeal. It would be “further” to the School’s appeal from the Director to the Circuit Court and to Mrs. Stokes appeal from the Circuit Court to the High Court “on a point of law”. Any appeal after that, in the same matter, is necessarily a “further” appeal. It is a “further” appeal, most fundamentally, because there have already been two previous appeals. But the statute says that “no further appeal lies”.
12. I accept, for the reasons given by Mr. Justice Clarke in his judgment in this case that a statutory restriction of the right of appeal to this Court must be expressed in clear language. I would specifically follow a dictum to that effect of Keane C.J. in A.B. v. Minister for Justice Equality and Law Reform [2002] 1 IR 296. At p.303 the learned Chief Justice said:
“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the Courts to remedy such a casus omissus, if that is what it is. That would be a weighty consideration in every case: in this case, there is the additional factor that the right of appeal to this Court provided for in Article 34.4.3 may only be removed or abridged by a statutory provision which is clear and unambiguous…”.
(Emphasis added)
13. I cannot see that there is anything which is unclear, or which is ambiguous, in the following very simple form of words:
“No further appeal lies…”
When this phrase is considered in its context, which context is the two previous subsections of s.28, (providing for a right of appeal to the Circuit Court from a decision of the Director, and for the powers of the Circuit Court on the hearing of such an appeal), the meaning is very clear: no appeal further to the appeal already provided to the Circuit Court shall lie. To this there is but one exception, expressed in the phrase:
“… other than an appeal to the High Court on a point of law”.
14. This appeal has already been availed of by Mrs. Stokes, and she was unsuccessful in it. There is, in my view,“no further appeal”. The single appeal provided by way of exception to the general rule has been exhausted, so that the general rule now stands without exception:
“No further appeal lies…”.
Neutrality.
15. It will be observed that the terms of s.28 are absolutely neutral as between the parties. If the position of the parties here were reversed, if the School had won before the Director and Mrs. Stokes had successfully appealed, and the School had further appealed to the High Court “on a point of law”, without success, then the School would be as effectually precluded from any “further appeal” as I believe Mrs. Stokes to be in the actual circumstances of the case.
16. It is easy to see why this is so. In the interest of the parties and the community as a whole there must be some limit to litigation. Interest rei publicae ut sit finis litium. There has been in this case a full oral hearing of both sides before the Director, before the Circuit Court and now before the High Court but the appellant maintains that there is a further appeal, available as of right, and not subject to a requirement to meet any threshold, such as the necessity to prove that the case involves a novel point of law, or a point of law of exceptional public importance.
Appeals from the Circuit Court generally.
17. The present case is one arising under the specific statutory provisions of the Equality Acts. But even outside this context, in the case of the great majority of Civil appeals from the Circuit Court to the High Court about matters other than the Equality legislation, there is no further appeal to the Supreme Court.
18. The general right of appeal from the Circuit Court to the High Court in a Civil case is regulated by Part III of the Courts of Justice Act, 1936, whose title is “The Circuit Court”. Section 38(1) of the Act 1936 provides that:
“An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by this part of this Act that no appeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made by this part of this Act) of the Circuit Court in a Civil action or matter.”
19. It may be useful to set out s.38, redacting the material in that Section which is irrelevant to the present case. Thus redacted, the Section reads as follows:
“An appeal shall lie from every judgment or order… of the Circuit Court in a Civil Action or matter…”.
20. Section 39 of the same Act provides that:
“The decision of the High Court or of the High Court on circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable”.
This form of words manifestly excludes any appeal to this Court.
21. Just as manifestly, if “no further appeal lies” the decision on the last permitted appeal is equally “final and conclusive and not appealable”.
22. Nevertheless, despite the general provision in the 1936 Act, I would not have considered that a right of appeal to this Court was excluded were it not for the specific words of the Act of 2000. It might possibly be, that for unspecified reasons which seemed sufficient to the legislature, that that body had decided to lay down a different regime for appeals under the Equality legislation. Furthermore, since this appeal provided by statute lies, if at all, under the provisions of a special Act, and not the general provisions in relation to Civil matters of the Act of 1936, the view might be taken that the general right of appeal from the High Court provided by Article 34 exists in the present case.
23. But the legislature did see fit to provide, immediately after providing for an appeal from the Director to the Circuit Court, that “no further appeal shall lie…”. Accordingly, unless that phrase, or the sentence of which it forms part, can be regarded as unclear or as ambiguous, it follows that the right of appeal has been excluded.
“Clear” and “Unambiguous”.
24. Words used in a legal context are to be interpreted, unless the contrary intention appears (usually by a statutory definition), in their ordinary and natural meaning. This is sometimes called the “literal rule”.
25. There have been considerable changes in the mode of statutory interpretation in the last twenty years both as a result of judicial decision such as that of Keane J. (as he then was) in Mulcahy v. Minister for Marine (High Court, unreported 4 November 1994) and as a result of statutory innovation, notably the Interpretation Act 2005. This measure was inspired to a large degree on the Law Reform Commission’s excellent paper Statutory Drafting and Interpretation: Plain Language and the Law. In this document, the Commission argue for the retention of the “literal rule” as the primary rule of statutory interpretation. This involves construing words in their ordinary and natural meaning. It does however suggest a more purposive form of interpretation where a statutory provision is ambiguous. See s.5(1) of the Act of 2005.
26. This Section provides as follows:
Part 2
Miscellaneous rules
5. – (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)-
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of-
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.
27. Section 5 cannot avail the appellant here unless it be first established that statutory provision, here s.28 of the Act of 2000, is obscure or ambiguous. No reliance has been placed on the terms of s.5(1)(b).
It will be seen that there is some overlap in wording and connotation between two of the phrases with which we have been concerned in this judgment. The first of these, which occurs in the judgment of Keane C.J. in A.B. v. Minister for Justice [2002] 1 IR 296, quoted at para. 12 above: is “clear and unambiguous”. The second phrase, used in s.5(1)(a) of the Interpretation Act, 2005 is: “obscure or ambiguous”.
In the leading dictionary of the English language as it is spoken in Great Britain and Ireland, the Oxford English Dictionary, the word obscure in its adjectival meaning is most relevantly described as:
“Not manifest to the mind or understanding; imperfectly known or understood; not clear or plain, hidden, doubtful, vague, uncertain.”
The most relevant meaning appears to me to be those which I have underlined above. It is also defined as:
“Not perspicuous; not clearly expressed; hard to understand.”
The relevant meaning of the word clear according to the same source is:
“Distinct, intelligible, … unambiguous; manifest, evident.”
28. The term “unambiguous” is intended to connote the reverse of “ambiguous”. This term is derived in part fro the Latin root “ambi- ” or “ambo-” which, according to the same source, has the sense of “both, on both sides, both ways”.
29. The term “ambiguous” itself is defined in the same source as:
“Indistinct, obscure, not clearly defined”-
Or (most relevantly in this context) as:
“admitting more than one interpretation or explanation; having a doubtful meaning; equivocal”.
The word is also given the meaning of “using words with a doubtful or double meaning”.
30. Murdock’s Dictionary of Irish Law says (not without some ambiguity), under the heading “Ambiguous”: “doubtful meaning”. However Jowitt’s Dictionary of English Law defines the term as “double meaning, doubtfulness, obscurity”.
31. The prefix “un-”, prefixed to an adjective, such as “ambiguous” is, according to the OED, used to express negation, in usages such as “uneducated, unfair, unhappiness” and others. It frequently expresses a reversal of the sense of the word to which it is prefixed, as in unselfish, or unsociable.
32. The term “unambiguous” is, unsurprisingly, defined as meaning:
“Not ambiguous, clear or definite in meaning”.
___________________________________________________________
33. I regard the phrase “no further appeal shall lie…” as perfectly clear and definite in meaning, and entirely lacking in ambiguity. I find it difficult to see how a contrary case could be made.
34. According to the Oxford Dictionary, the word “further” means:
“Beyond the point reached, to a greater extent, more; in addition, additionally…”.
35. If the statutory phrase in s.28(3) were limited to the words:
“No further appeal lies”
the meaning would be obvious. No additional appeal, beyond the right of appeal already provided in the previous subsections (i.e. that from the Director to the Circuit Court) is open to a party dissatisfied with the latter Court’s decision.
This is precisely the position that obtains in relation to appeals from the District Court (where the great bulk of all cases are heard) to the Circuit Court, but no further, except by Case Stated.
36. If, therefore, ambiguity is to be found in s.28(3) it can only be found in the balance of the words:
“… other than an appeal to the High Court on a point of law”.
The effect of this phrase equally obvious. It is to create a single exception to the statutory position that “no further appeal lies”. A dissatisfied litigant aggrieved at the decision of the Circuit Court, has one further recourse, and one only:
“… an appeal to the High Court on a point of law”.
This provision, indeed, substantially replicates, in relation to rights of appeal, the position of appeals from the District Court to the Circuit Court. The decision of the latter court is final apart from the possibility of a Case Stated on a point of law.
37. In the present case, Mrs. Stokes had, and has already availed of, the “appeal to the High Court on a point of law”, and has lost it. If the School had taken the appeal and lost it, no further appeal would have been available to it. Similarly, no further appeal is available to her, the complainant.
38. Nevertheless, one of my colleagues considers that the language of s.28(3) is not “sufficient to exclude an appeal to this Court”. This is on the basis that:
“… it might be argued that the phrase ‘no further appeal’ is simply designed to limit the scope of appeal to the High Court rather than to preclude what would otherwise be a constitutionally conferred right of appeal to this Court”.
39. It is certainly true that the appeal to the High Court conferred on a person dissatisfied with the result in the Circuit Court is limited to an appeal on “a point of law”. It is that appeal, which is (a) to the High Court and (b) on a point of law, which is the sole exception to the main provision of s.28(3). The words “no further appeal lies…” do not in anyway relate to the scope of an appeal to the Supreme Court: they operate wholly to exclude such appeal. In this instance, I am convinced, the legislature means what it says. If it were simply desired to limit the appeal to the High Court to an appeal on a point of law, it would be quite unnecessary to provide that “no further appeal lies”.
Policy considerations.
40. As I have tried to indicate above, there is a sound policy basis for the limitation of litigants, as was done in this case, to a full hearing, a full appeal by rehearing on the merits, and a further appeal “on a point of law”. However, the legislature has not been consistent in this matter, or at least not expressly so. In the Residential Tenancies Act 2004, it is provided at s.123(3) that:
“Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a Determination Order) on a point of law.
By the following subsection, s.123(4):
“The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive”.
41. This Act, indeed, is one of those cited by Mr. Justice Clarke in the course of his judgment, though the emphasis there is on the phrase “shall be final and conclusive” which is not, manifestly, the same form of words used in this Act which is “no further appeal lies…”. But the result is the same. If the result were not the same, it would be difficult to see the basis on which the legislature permitted a further appeal to the Supreme Court to an unsuccessful party in a claim brought under the Equality Acts, but denied it to a person dissatisfied with a decision of the High Court about a residential tenancy.
Similarly, s.26 of the Data Protection Acts, 1988 and 2003 deals with appeals. There is an appeal from the decision of the Data Protection Commissioner to the Circuit Court which is provided in quite express terms. Indeed, the definition of the Act provides that “the Court” means the Circuit Court. Section 26(3)(b) of the Consolidated Act provides:
“An appeal may be brought to the High Court [from the Circuit Court] on a point of law against such a decision: and references in this Act to the determination of an appeal shall be construed as including references to the determination of any such appeal to the High Court and of any appeal from the decision of that Court.”
This is rather obliquely worded, referring on the face of it to how another particular form of words (“the determination of an appeal”) is to be construed. But it is consistent only with the existence of an appeal from the High Court which, at the time the Data Protection Acts were passed, could only be to this Court. There is nothing even remotely resembling this form of words in the Equality Act.
Accordingly, it is impossible to discern any coherent legislative policy in relation to the appeal processes from disputes which are adjudicated in the first instance by some form of non-judicial tribunal or office holder. There is no appeal at all to this Court from the High Court in a case which starts in the Residential Tenancies tribunal; but there is such an appeal in proceedings which start before the Data Protection Commissioner. Outside the context of tribunals or non-judicial decision makers, there is no appeal fro the High Court to this Court in the case of Circuit Court civil proceedings generally. There is, accordingly, no consistent policy on the question of such appeals. Perhaps there may be a good reason for the variations.
42. If s.28(3) of the Equal Status Act, 2000 simply provided:
“No further appeal lies.”,
its meaning would be plain and unambiguous. There would be no appeal beyond the level of the Circuit Court. As is the form of words which the Oireachtas enacted is:
“No further appeal lies, other than an appeal to the High Court on a point of law.”
If it had read:
“Other than an appeal to the High Court on a point of law, no further appeal lies.”
the meaning might have been more obvious, but it is sufficiently clear as it is. In any event, and regardless of the order in which the phrases occur, the grammatical form of the single sentence which constitutes subsection (3) is a general provision “no further appeal lies” and a single exception. It appears to me that where one exception only is provided by a section which also lays down the general rule, that exception is exhaustive of the exceptions to the general rule on the basis “expressio unius, exclusio alterius”.
In Dodd, Statutory Interpretation in Ireland, (Tottel Publishing, 2008) page 145, the learned author cites with approval Mr. Bennion’s book on the same subject as follows:
“The maxim expressio unius, exclusio alterius translates as “to express one thing is to exclude another”. Expressio unius, exclusio alterius is itself an aspect of the principle expressum facit cessare taciturn, which translates as “something expressed nullifies what is unexpressed”. Where the legislature in the text deems it appropriate to expressly cater for particular matters, and could have included other matters, but did not, then the inference arises that such omissions are deliberate and that such matters are intended to be excluded from the provision. The maxim is at the strongest where the legislature enumerates certain matters connected by a common theme, class or category, as opposed to covering them by general words, but omits certain things from the list. The maxim operates by indicating the legislature’s intention by implication or inference.”
43. It must also be borne in mind that the expense of four separate and individual hearings, before the Director, the Circuit Court, the High Court and the Supreme Court, is likely to be much greater than any individual person could easily bear, unless aided or totally subvented by a State Authority. A litigant, especially one acting on what he or she conceives to be a point of principle, may be prepared to bear this expense, or to seek aid from a State Authority, but I cannot see that the community and the taxpayers should be burdened, and the law rendered uncertain, by a fourth hearing where there have already been three in relation to a relatively simple matter. In any event, I believe that the right of appeal to this Court, after the three previous hearings, has been barred by clear and unambiguous words. There are drawbacks to the provision of multiple appeals which entirely transcend the expense involved. If two full oral hearings together with two appeals on a point of law are provided, the scope for confusion and contradiction is multiplied. If this Court differs from the High Court on a point of law, and still more if either of these Courts detects a frailty or inadequacy in the evidence before the Director or the Circuit Court, there is some risk of a lengthy and expensive four stage legal procedure which achieves nothing at all.
No doubt the observations of Mr. Justice Clarke on the evidence required on the hearing of a complaint under this legislation will be of use to those who, in the future, may urge a complaint under it, or to those who defend such a complaint. I wish to add, however, that in my view the construction of the Statute in question here, in its application to private schools, whether fee-paying or not, will have to be considered in terms not merely of the statutory words but of the applicable constitutional provisions. Article 42 of the Constitution is concerned with Education. Amongst other things the Article acknowledges the Family as “the primary and natural educator of the child”, and refers to “the inalienable right and duty of the parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children”. Article 42.2 provides that parents are free to provide this education “in their homes or in private schools or in schools recognised or established by the State”. Article 42.3.1 says that the State “shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State or to any particular type of school designated by the State”. Article 42.4 provides that the State “shall endeavour to supplement and give reasonable aid to private and corporate educational initiative”.
In mentioning these provisions I do not mean to imply that other provisions of the Constitution may not equally be relevant, such as the right to freedom of association (Article 40.6) and to religious freedom (Article 44).
44. In my view, it is important for the Court to recollect the dominant position in this argument of the actual words used by the legislature. In A.B. v. Minister for Justice [2002] I.R. 296, it was indisputable that a person wishing to appeal the decision of the High Court in relation to certain refugee issues had to seek the leave of the High Court to do so. Equally clearly, this application for leave was required to be made within a period of fourteen days. The question was whether an appeal against the refusal of the High Court to extend this period itself required the leave of the High Court. The Supreme Court, in a judgment delivered by Chief Justice Keane held that on the ordinary construction of the words of the Statute no such leave was required. He stated (p.302) that it is difficult to discern any rational basis for such a legislative course by the Oireachtas but continued, at p.303, in the first part of a passage already cited:
“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the Courts to remedy such a casus omissus, if that is what it is”.
45. I believe these words must be in the forefront of our deliberation on this point. It is certainly the case that the Statute Book provides examples of very different forms of words used to exclude the right of appeal to this Court. The forms of words employed differ as between themselves and all differ from the words used in this case. But the fact that different forms of words have been used in other contexts is not, in my view, significant if the words used in this particular instance are “clear and unambiguous”. Similarly, the Statute Book provides numerous examples of types of litigation in which an appeal to this Court is excluded (for example, the Residential Tenancies Act, referred to above) or preserved (as in the case of s.5(2)(a) of the Illegal Immigrants Trafficking Act, 2000, referred to in the preceding paragraph).
It is, frankly, unclear (at least to me) why an untrammelled right of appeal was excluded in one case and preserved in the other, or preserved in one case and excluded in the other. But that, at least in the absence of a constitutional challenge, is entirely a matter for the legislature. It is not for a court to challenge that body’s policy choices, any more than it is for the legislature to challenge the decision of the Courts in a matter constituting an administration of justice, and of which the Courts are properly seised.
46. I would strike out this purported appeal being of the opinion that it does not lie for the reasons given above.
Judgment of Mr. Justice Clarke delivered the 24th February, 2015.
1. Introduction
1.1 How scarce places in popular schools are to be allocated has been a matter of controversy for many years. That controversy has operated at a policy level and also, in certain cases, at a legal level. This case concerns the application of a rule in respect of admissions to a secondary school which, it is said, indirectly affects children from the travelling community. The rule in question gives preference to children whose parent (father, in fact, because it is a boys only school) had previously attended the school in question. At its most simple, the argument is that such a rule significantly impacts in a discriminatory way against members of the Travelling Community because of the limited number of members of that community who are of an age to have children wishing to go to secondary school, who had themselves the benefit of secondary schooling.
1.2 In that sense, the issue is simply put. The appellant on this appeal (“John Stokes”) has brought these proceedings through his mother. It will be necessary to refer to the procedural history in due course. However, the case which John Stokes sought to make was successful at the level of the Equality Tribunal. Thereafter, the respondent to this appeal (“Clonmel High School”) brought a statutory appeal to the Circuit Court. That appeal was successful, and the finding of discrimination reversed. Thereafter, an appeal was brought to the High Court by John Stokes. That appeal was unsuccessful, as a result of which a further appeal is sought to be advanced on his behalf to this Court.
1.3 It must immediately be noted that there is an important legal question as to whether any right of appeal exists to this Court in those circumstances. That is one of the issues with which this Court is concerned. In addition, there are certain other issues arising, assuming that an appeal does in fact lie, to which I now turn.
2. The Issues
2.1 Assuming that there is an appeal, an understanding of the other issues requires a brief statement of the legal framework, within which there can be a finding of indirect discrimination. The relevant statute is the Equal Status Act 2000, (“the 2000 Act”) as amended by Part 3 of the Equality Act 2004 (“the 2004 Act”) and by Part 14 of the Civil Law (Miscellaneous Provisions) Act 2008. It should first be noted that it is not disputed that Clonmel High School is an educational establishment within the meaning of s. 7 of the 2000 Act and that, therefore, in accordance with subs. (2) of that section, there is a prohibition on discrimination in respect of the admission or the terms or conditions of admission of a person as a student to such an establishment. While there are three principal forms of discrimination which have been rendered unlawful under the relevant legislation, the only form contended to exist on the facts of this case is what is often described as indirect discrimination. The other forms of discrimination, which do not arise here, are direct discrimination and discrimination by association.
2.2 At the heart of the law concerning indirect discrimination is s. 3(1)(c) of the 2000 Act, as substituted by s. 48 of the 2004 Act, which provides that there will be discrimination where:-
“… an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
2.3 It will immediately be seen that there are a number of features to that section. The measure which is alleged to discriminate may be apparently neutral, but it must be established that the person making a complaint of discrimination is placed “at a particular disadvantage” as a result of the impugned provision. If such disadvantage is established, then discrimination will be found to exist unless the provision is objectively justified by a legitimate aim and such aim is sought to be achieved in an appropriate and necessary manner.
2.4 It must also be noted that the discrimination must be in relation to a person in a category specified in s. 3(2). Members of the Travelling Community are in such a category being specified in s. 3(2)(i). It follows that, in the context of this case, in order for indirect discrimination to be established, it must be shown that the challenged provision places John Stokes, as a member of the travelling community, at a “particular disadvantage” vis-a-vis persons who are not members of the travelling community. If that fact cannot be established, then that is the end of the case. However, if “particular disadvantage” can be established, then a second question arises as to whether the provision can nonetheless be justified by reference to a legitimate aim and as an appropriate and necessary means of achieving that aim.
2.5 A number of issues in respect of both legs of the test have been in contention from the very beginning of this process. In addition, an issue as to whether the claim brought on behalf of John Stokes was out of time has been in contention since the Circuit Court stage. Subject to an appeal lying to this Court, the issues in respect of both legs of the test and in respect of the time question remain alive on this appeal.
2.6 In order properly to understand the precise issues which arise, it is appropriate to start by tracing the history of these proceedings from the beginning.
3. History of the case up to and including the Equality Tribunal proceedings
3.1 In November 2009, an application was made on behalf of John Stokes for admission to Clonmel High School for the following academic year. The school’s admissions policy gave preferential access to applicants who met each of the following three criteria:
“- whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who already has a brother who attended or is in attendance at the school, or is the child of a past pupil, or has close family ties with the school;
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school.”
John Stokes is the eldest child in his family, and his father had not attended secondary school. Thus, John Stokes did not meet the second of the three criteria, as he was neither a sibling of a present or past pupil, a child whose father had attended the school, or someone with close family ties to the school.
3.2 The school was oversubscribed in terms of applications in that year and, in accordance with the school’s own admissions policy, a lottery was carried out to allocate places to those who did not meet the above three criteria. Of those who did meet all three criteria, 57 were allocated places on the sibling ground, and a further 36 on the parental ground. Once those places had been allocated, 47 places remained available for the remaining 84 applicants, of which John Stokes was one.
3.3 John Stokes was informed in January 2010 that he had been refused a place on the basis of the results of the lottery, but was placed fourth on the waiting list. The school’s admissions policy also provides for an internal appeal against such a refusal. That appeal was heard on the 8th February, 2010, but was also unsuccessful. Under s. 29 of the Education Act 1998, there is also an appeal to the Secretary General of the Department of Education and Science against a refusal to enrol. A process of facilitation in relation to such appeals also exists. Both were attempted, but each was unsuccessful. The facilitation was deemed unsuccessful on the 31st March, 2010, and the refusal of the appeal was communicated on the 13th May, 2010. The Appeals Committee, to which the matter had been referred by the Secretary General, explained:
“The Board of Management of Clonmel High School were fair and reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the places available.”
However, the Committee did recommend that the exceptional circumstances clause in the school’s admissions policy should be reviewed “in order to make it more inclusive.”
3.4 A complaint was then referred to the Director of the Equality Tribunal (“the Director”) in July 2010, to the effect that both Clonmel High School and the Department of Education had indirectly discriminated against John Stokes on the basis that, as a member of the Travelling Community, it was much less likely that his father would have attended secondary school, and thus he was disproportionately disadvantaged by the relevant admissions policy. No issue as to the jurisdiction of the Director was raised by the school.
3.5 Following a request for further information by the Director, an oral hearing, under s. 25(1) of the 2000 Act, was held on the 9th November, 2010, with representatives of Clonmel High School and John Stokes’s mother in attendance. Further information, which had been sought by the Director at the hearing, was furnished on the 10th November, 2010. A decision was issued on the 7th December, 2010.
3.6 The Director commenced by ruling that he did not have jurisdiction to consider the element of the claim made against the Department of Education. The remainder of his decision focused on the allegation of indirect discrimination against Clonmel High School. After explaining the relevant legislative provisions, the Director turned to the facts of the case and to the statistics concerning the Traveller Community. He concluded, based on the statistical evidence before him, that giving priority to brothers of either existing or former pupils was not liable to put Travellers “at a particular disadvantage compared with non-Travellers.”
3.7 However, on the “parental rule”, the Director, taking into account the evidence in relation to attendance at secondary school of members of the Traveller Community in John Stokes’ father’s generation, concluded that the operation of the policy disadvantaged Travellers more than non-Travellers. The Director then compared the chances of John Stokes getting a place under the present policy to what it would have been if the parental rule was not applied. He found that John Stokes’ probability of getting a place in the latter scenario would have been 70%, an increase of 15% from what it actually was under the present policy. Therefore, he found that John Stokes was at a particular disadvantage compared to non-Travellers as a result of the preferential treatment afforded to children of past pupils. Finally, the Director considered whether the policy, although creating a particular disadvantage, was proportionate and could be objectively justified. The school’s argument that the scheme fostered family loyalty to the school was rejected for three reasons:
“1. The priority applies to the children of all past pupils, irrespective of the actual level of current engagement of the father with the school. In many cases therefore, the means would not achieve the aim.
2. There are other ways of achieving this aim which would not disadvantage children whose fathers did not attend the school, such as organising a past pupils’ union, by the activities of a parents’ association etc.
3. The impact on Travellers is disproportionate to the benefit of the policy.”
3.8 As the 2010-2011 academic year had started by the time of the Director’s decision, he found that it would be impossible to re-run the lottery in accordance with revised criteria. As redress, he ordered that John Stokes immediately be offered a place in the school, and that the school review its admissions policy to ensure compliance with equality legislation.
4. The Circuit Court proceedings
4.1 An appeal by way of rehearing lies from the decision of the Director to the Circuit Court under s. 28(1) of the 2000 Act. The appeal by Clonmel High School came before His Honour Judge Teehan. On the first day of the hearing, the 9th June, 2011, an application was made by Clonmel High School to have the appeal dismissed on the basis that the Director did not have jurisdiction to hear the appeal as the time requirement for bringing such an appeal had not been complied with. Under s. 21(2) of the 2000 Act, as amended by s. 54 of the 2004 Act, a complainant must notify an alleged wrongdoer of the nature of the allegation and the fact of an intention to seek relief within two months of the last date of prohibited conduct. That date is fixed as the date on which the relevant notification is sent (s.21(2A)). The Director does have discretion to enlarge the time under s. 21(3). However, no such extension of time was sought or granted in this case. As noted above, this matter was not in issue before the Director, nor was it expressly pleaded in the Circuit Court Notice of Appeal. After hearing submissions from both sides, Judge Teehan dismissed the application on the basis that the notification was within time, in his view, as time only began to run in May, 2010, when the s. 29 appeal concluded. In addition, it was held that Clonmel High School had acquiesced throughout the Equality Tribunal proceedings.
4.2 Judge Teehan delivered his judgment on the substantive issue on the 26th July, 2011. At para. 12 of his judgment, the following issues for determination were identified:
“[I]s [Clonmel High School] in breach of its duty to [Mary Stokes] and her son under the provisions of the Equal Status legislation; and, if so, is the difference between a 55% chance and a 70% chance of such little materiality that that (sic) it is governed by the maxim ‘de minimus non curat lex’?”
Again, having examined the historic evidence of Traveller participation in secondary education, the trial judge concluded that the “parental rule” was discriminatory against Travellers to the extent that members of that community, such as John Stokes, were at a particular disadvantage. The Circuit judge held that the onus then shifted to the school:
“(A) to objectively justify that there was a legitimate aim;
(B) to prove that the measure was appropriate; and
(C) to establish that such measure was necessary.”
4.3 With regard to point (A), the trial judge was satisfied that the “parental rule” was entirely in keeping with the school’s stated aim of “supporting the family ethos within education” and the “characteristic spirit of the school”, and was thus objectively justified as being wholly legitimate. Then, under point (B), the trial judge reviewed the appropriateness of the lottery system for those who did not fall into the preferred category. An examination of the history of how the school had admitted students in the past showed that a variety of methods had been used, including an entrance examination in some years, and a lottery in respect of all applicants in others. The present policy, which was reviewed on an annual basis, was found to strike an appropriate balance. Finally, in relation to point (C), the trial judge concluded that the continuing benefits provided by the link between past pupils and the school (whether in fundraising or other school activities) meant that “the inclusion of the ‘parental rule’ was a necessary step in creating an admissions policy which is proportionate and balanced.” The Circuit Court, therefore, upheld the appeal, and set aside the decision of the Director. However, it was noted that it might be appropriate for the Oireachtas to examine whether equality legislation should go further and provide for positive discrimination in schools’ admissions policies.
5. The High Court proceedings
5.1 An appeal also exists under s. 28(1) of the 2000 Act, as amended, to the High Court from the decision of the Circuit Court on a point of law. John Stokes appealed against the decision of the Circuit Court, and a cross-appeal was lodged by Clonmel High School on the preliminary issue as to whether the application to the Equality Tribunal had been made within time. The Equality Authority was granted leave to appear as an amicus curiae on the 7th September, 2011. The High Court judgment of McCarthy J. was delivered on the 3rd February, 2012 (Unreported, High Court, 3rd February, 2012).
5.2 On the preliminary issue of time, McCarthy J. rejected the contention that the last date of the prohibited conduct was the date of the conclusion of the appeal to the Secretary General of the Department of Education or that the prohibited conduct was continuing. Rather, he accepted that the refusal of admission in January 2010 was the single instance of alleged prohibited conduct, and that time began to run on the date that the internal appeals process against that refusal concluded on the 12th February, 2010. On that basis, the application was almost five months out of time. McCarthy J. further held that the Director had not adverted to or exercised the powers available to him to extend the time for the bringing of an appeal. On this point, McCarthy J. observed, at para. 13:
“The school would have succeeded before the Director on the time point. Judicial review would, prima facie, have been granted of the Director’s decision on the basis that he had no jurisdiction ab initio to enter into the merits but no such application is before me.”
5.3 The judge then turned to the relevant provisions on indirect discrimination and in particular to the term “particular disadvantage”. Having cited the various definitions contained in the Oxford English Dictionary (2nd Ed.), McCarthy J. stated at paras. 25 and 26:
“25. I do not believe that the disadvantage suffered by travellers (in common with all other applicants who were not the sons of past pupils) pertains or relates to ‘a single definite person…or persons as distinguished from others’ or ‘distinguished in some way among others of the kind: more than ordinary; worth notice, marked; special’. This disadvantage relates to persons in addition to travellers and is not peculiar or restricted to travellers, and does not distinguish them among others of the kind (i.e. applicants for admission) and cannot be said to be ‘more than ordinary’, ‘worth notice’, ‘marked’, and ‘special’ because, of course, there are others in the same position as they are.
26. If one takes as the comparison all other applicants (173) everyone who is not the son of a past pupil is at a disadvantage by virtue of the rule. There is no distinction between the extent of the disadvantage suffered by travellers and others. If one makes the comparison with those who are the sons of past pupils the disadvantage suffered is the same as all applicants who were not such sons and have no priority. If one were to further break down the total number into class and make the comparison with persons other than those enjoying priority entry as sons, similarly, the applicant would be in the same position as all of those persons. Or if the persons chosen for comparison were only those admitted because their siblings were present or past pupil no discrimination is alleged and if, finally, one were to chose persons of the class in the lottery (as an actual fact) there would similarly be the same disadvantage. If one were to posit the existence of a hypothetical class, namely, a class comprising of those given priority entry and those who, as a fact, were in the lottery alone, a similar conclusion would follow.”
As McCarthy J. concluded that there was no particular disadvantage, the subsequent question of objective justification did not arise. The appeal was, therefore, dismissed. It is from this decision that an appeal is sought to be advanced to this Court. The Equality Authority also appeared before this Court as amicus curiae. I now turn to the question of whether an appeal is permitted.
6. Does an Appeal Lie?
6.1 It is important to note the provisions of the legislation on which reliance is placed by Clonmel High School for the proposition that no appeal lies to this Court. The appeals process from a decision of the Director on the merits of a case is dealt with in s. 28 of the 2000 Act in the following terms:-
“28.—(1) Not later than 42 days from the date of a decision of the Director under section 25, the complainant or respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of the appeal.
(2) In its determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).
(3) No further appeal lies, other than an appeal to the High Court on a point of law.”
6.2 It is only appropriate for this Court to address the issues of substance which potentially arise on this appeal in the event that there is jurisdiction to entertain an appeal in the first place. Therefore, I turn to the question of whether such a jurisdiction exists.
6.3 The starting point has to be to consider the constitutional jurisprudence of this Court on the question of legislative provisions which have the effect of excluding or limiting a right of appeal from the High Court to this Court. It is first necessary to note the provisions of Article 34.4.3 of the Constitution which states:
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
6.4 It follows that the right of appeal from a decision of the High Court to this Court has a constitutional status, but one which is not absolute, for it is possible that such right of appeal can be restricted or excluded by legislation. However, in the light of the constitutional status of the right of appeal, this Court has consistently expressed the viewthat the wording of any statute which is said to restrict that constitutional right of appeal must be very clear.
6.5 The effect of Article 34.4.3 has been considered by this Court on a number of occasions. In The People (Attorney General) v. Conmey [1975] I.R. 341, at p. 360, Walsh J. stated:
“Before turning to deal specifically with these provisions I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the Constitution and any diminution of that jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action.”
Similarly, in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384, at pp. 403-404,O’Higgins C.J. stated that any legislative fetter on the Supreme Court’s appellate jurisdiction must be express:
“A law which regulates by subtraction from the Supreme Court’s appellate jurisdiction must do so expressly and must, in particular, conform to the stipulation contained in Article 34, s.4, sub-s.4, that it shall not extend to cases involving questions of constitutional validity.”
More recently, in Clinton v. An Bord Pleanála [2007] 1 IR 272, Fennelly J. quoted from the judgments of Keane C.J. and Geoghegan J. (with whom Denham, McGuinness, and Fennelly JJ. agreed) in A.B. v. Minister for Justice, Equality and Law Reform [2002] 1 IR 296 on this issue. In A.B., Keane C.J. stated at p.303:
“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the courts to remedy such a casus omissus, if that is what it is. That would be a weighty consideration in every case: in this case, there is the additional factor that the right of appeal to this court provided for in Article 34.4.3° may only be removed or abridged by a statutory provision which is clear and unambiguous.”
Geoghegan J. also observed at p. 316 of A.B:
“It would seem to be clear from the authorities, however, that an exclusion or regulation of the right to appeal to the Supreme Court need not be expressed. It is a matter of construction of the relevant statutory provision in each case, but there must not be any lack of clarity or ambiguity.”
On the basis of these authorities, Fennelly J. concluded at p. 293 of Clinton:
“It emerges from the foregoing that any legislative attempt to limit either the right or the scope of the constitutionally conferred right of litigants to appeal decisions of the High Court must be expressed in clear and unambiguous terms.”
6.6 Therefore, the real question under this heading is, whether the wording with which this Court is now concerned is sufficiently clear and unambiguous to meet that test.
6.7 It is first necessary to note that the form of appeal provided from a decision of the Director to the Circuit Court is broad. However, it is the question of the extent of any right of appeal thereafter that is really at issue. The relevant provision is s. 28(3) of the 2000 Act, which is brief in its terms, and provides that “[n]o further appeal lies, other than an appeal to the High Court on a point of law”. The reference to no further appeal seems to me to relate to an appeal beyond the broad appeal to the Circuit Court already provided for earlier in the same section.
6.8 The argument in favour of the proposition that no appeal lies to this Court is that an appeal from the High Court to this Court might be said to be a “further appeal” and might, thus, be taken to have been excluded by the provisions of subsection (3).
6.9 The argument against such a construction, which was put forward on behalf of John Stokes, drew attention to the type of wording which has most commonly been used in legislation to exclude an appeal from the High Court to this Court. As an example, counsel cited s. 39 of the Courts of Justice Act 1936, which provides that an appeal to the High Court shall be “final and conclusive and not appealable”. Another example of the use of less ambiguous phraseology is s. 123(4) of the Residential Tenancies Act 2004, which provides “The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive”.
6.10 It is true, of course, that the Constitution does not require the use of any particular formula or form of words to give rise to what is described in Article 34.4.3 as an “exception” to the appellate jurisdiction of this Court. It must, inevitably, be a matter of construction of the words used in each case. Therefore, the fact that the form of words used in this case does not conform to that used in the majority of legislative provisions by which an appeal to this Court is excepted is not, of itself, sufficient to establish that an appeal lies.
6.11 On the other hand, there are important features of s. 28(3) of the 2000 Act which need to be considered. The first is that it is clear that the subsection is intended to permit only a limited form of appeal. The appeal is one “on a point of law”. That is terminology which has been used to limit many forms of statutory appeal to, and within, the courts. For instance, s. 42(1) of the Freedom of Information Act 1997 provides for an appeal on a point of law to the High Court by a person affected by a decision of the Information Commissioner following a review under s. 34 of the 1997 Act; and s. 123(3) of the Residential Tenancies Act 2004 provides for an appeal on a point of law to the High Court by any of the parties in respect of a determination of a Tribunal of the Private Residential Tenancies Board. The principles applicable to the scope of such appeals have been summarised by McKechnie J. in John Deely v. The Information Commissioner [2001] 3 IR 439, which concerned an appeal under s. 42 of the Freedom of Information Act, 1997, where he said at p. 452:
“There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:-
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;
(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;
(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;
(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision…”
6.12 Thus, at least part of the purpose of subsection (3) must be designed to define the type of appeal which can be pursued to the High Court. In that context, it might be argued that the phrase “no further appeal” is simply designed to limit the scope of appeal to the High Court rather than to preclude what would otherwise be a constitutionally conferred right of appeal to this Court.
6.13 If this were simply a matter of straightforward construction of the relevant statute, then I might well have come to the conclusion that the proper interpretation of subsection (3) was such as would have excluded a right of appeal to this Court. However, as is clear from the authorities to which I have referred, the constitutional status of the right of appeal to this Court is such that an exception to that right requires clear and unambiguous wording. On balance, I have come to the view that the wording of subsection (3) is insufficient to meet that high constitutional test. It is not free from ambiguity.
6.14 For those reasons, I am not satisfied that the language used is sufficient to exclude an appeal to this Court and, on that basis, it is appropriate to proceed to consider the merits of the appeal. However, it seems to also follow that the appeal permitted to this Court is limited in the same way as the appeal from the Circuit Court to the High Court. In other words, the appeal to this Court can only be “on a point of law” in accordance with the well established jurisprudence as to the scope of such appeals. An appeal from the High Court to this Court must be based on an assertion that the High Court judgment and order was wrong in some respect. The only basis on which the High Court is permitted, when itself conducting an appeal “on a point of law”, either from a statutory body or from the Circuit Court, to overturn the first instance decision is if a sufficient error of law is identified. The only issues which can properly arise on an appeal to this Court concern whether the High Court has correctly decided that such an error of law exists. Thus, the jurisdiction of this Court is limited in precisely the same way as the jurisdiction of the High Court.
6.15 I would make one final observation on the question of appeals generally. There may very well be sound reasons of policy why parties should ordinarily be confined to one hearing on the merits and one appeal. But there are also sound reasons why important legal issues should be capable of being brought to the highest court.
6.16 Having concluded that an appeal lies, the first issue which logically arises is the question of whether the claim brought on behalf of John Stokes before the Director of the Equality Agency was out of time. Therefore, I will address that question first.
7. Is the Claim out of time?
7.1 As noted earlier, no question concerning the issue of whether the claim was out of time was raised on behalf of Clonmel High School when the matter was before the Director. The issue was raised for the first time before the Circuit Judge, who concluded that the case was not out of time. McCarthy J. came to a different conclusion.
7.2 There are, potentially, two separate issues. The first is as to when time began to run. Is it, as was argued on behalf of John Stokes and as was accepted by the Circuit Judge, when the s. 29 appeal was concluded in early May 2010? Or is it, as McCarthy J. held, when Clonmel High School’s internal appeals process concluded on the 12th February, 2010?
7.3 However, there is a second, and perhaps logically anterior, issue as to whether it is now open to Clonmel High School to rely on the time issue. In that context, it is important to note that s. 21(3) of the 2000 Act provides an express authority to the Director to extend time in an appropriate case. It seems to me that, in the light of the fact that additional procedures, in the form of a s. 29 appeal to the Department of Education, were being pursued, a cogent case could have been made on behalf of John Stokesto seek to persuade the Director to extend time if the point had been taken by Clonmel High School at that stage.
7.4 It seems to me that a party cannot be deprived of the opportunity to seek an extension of time by reason of the fact that its opponent does not raise the time issue at all before the body, in this case the Director, on whom the power to extend time is conferred. It is clear that the time bar in this case is not an absolute one, because it is capable of being extended by the Director. It is not, therefore, a barrier which goes to jurisdiction as such. Rather, it is a measure which may, in the absence of a successful application to extend time, lead to a claim not being able to proceed on the merits.
7.5 However, it seems to me to follow that it is incumbent on a respondent to a claim before the Director to make any point concerning time which may be open to them so as to put the claimant on notice that there is a time issue, and to afford the claimant an opportunity to seek to persuade the Director to extend time. Against that background, it seems to me that a failure to raise the time question before the Director may lead to a legitimate conclusion that a respondent is, thereby, precluded from raising the point thereafter. It must be acknowledged, however, that there may be cases where a failure to raise a time point might not be decisive. For example, there might be cases where a respondent would be able to argue that it was, through no fault of its own, unaware of aspects of the factual matrix against which the question of possible reliance on a time bar would have to be considered. However, no such circumstances appear to have arisen on the facts of this case. To now rule that Clonmel High School is entitled to rely on a time bar, and thus to deprive John Stokes of the opportunity to persuade the Director to extend time would, in my view, be to countenance a manifest injustice. In those circumstances, it seems to me that Clonmel High School is precluded from raising the time bar issue. It follows that it is unnecessary, therefore, to consider any other aspect of that issue, or to determine when time began to run on the facts of this case.
7.6 On that basis, it is appropriate to turn to the substantive matters on the merits of the case, which arise on this appeal. As already noted, there are, in substance, two legs to the question of whether indirect discrimination has been established. The second leg, which is concerned with justification, only arises in the event that the first leg, as to whether particular disadvantage has been established, is made out. Therefore, it follows that it is necessary to first consider the question of “particular disadvantage”, for if the appeal against the decision of the trial judge in respect of that aspect of the case is not successful, then the question of justification does not arise.
8. Particular Disadvantage
8.1 Under this heading, it is important to start by recalling that both the Director and the Circuit Judge found themselves satisfied that particular disadvantage had been made out. It was McCarthy J. who, for the reasons already cited, came to a different conclusion. Therefore, the starting point has to be to consider whether the view expressed by McCarthy J. as to the meaning of the term “particular disadvantage” is correct. The reasoning of McCarthy J. was that the potential discrimination which John Stokes might suffer as a member of the Travelling Community was no different from the disadvantage which any other person, not a member of the Travelling Community, who could not qualify for an automatic place, would likewise suffer. Thus, McCarthy J. saw no distinction between John Stokes and another non-Traveller applicant who, for example, did not have a father who attended secondary school.
8.2 I have come to the conclusion that McCarthy J. was mistaken in that approach. The starting point of any analysis must be to note that indirect discrimination only arises where disadvantage can be said to occur in respect of persons by reference to one of the categories specified in s. 3(2) of the 2004 Act. The fact that a provision or measure may place persons generally at a disadvantage vis-à-vis others, does not, of itself, give rise to a sustainable finding of “particular disadvantage” within the meaning of the legislation. The fact that persons generally who did not have a father who went to secondary school would be at a disadvantage in seeking to obtain a place in a school which applied a preferential rule for children whose parents attended the school is neither here nor there. Discrimination between children whose parents went to secondary school and those whose parents did not is not, of itself, discrimination covered by the 2000 Act, for such categories of children are not specified as being protected as a result of the categorisation of protected groups by reference to s. 3(2). The choice of the categories which have the benefit of such protection was, of course, a matter for the Oireachtas. The Oireachtas has chosen to include indirect discrimination against members of the Travelling Community as a type of discrimination which is not permitted. The fact that similar discrimination, or disadvantageous treatment, might also apply to others in an unprotected category does not affect the question of whether that same treatment, applying to members of the Travelling Community, might not, after proper analysis, be properly regarded as giving rise to a finding of indirect discrimination.
8.3 For those reasons, I am not satisfied that the approach of McCarthy J. was correct. However, that is far from an end to the matter. As pointed out earlier, the appeal which lies to the High Court is one on a point of law. It follows that the appeal to this Court can be no broader, for this Court can only consider whether the High Court was right or wrong. The scope of the appeal to this Court must, likewise, be confined to the question of whether the Circuit Court determination was wrong on a point of law. Unless the High Court correctly determined that the Circuit Court was wrong on a point of law, then it follows that the decision of the Circuit Court judge must stand. Given that I have concluded that the basis on which McCarthy J. came to the view that the Circuit Judge was wrong in his determination on “particular disadvantage” was incorrect, it follows that I must now examine any other basis put forward for suggesting that the determination of the Circuit Judge on that point was incorrect in law. In order to approach that question, it is necessary to consider how it is appropriate, as a matter of law, to consider and determine questions of “particular disadvantage”.
8.4 Counsel for the amicus curiae put forward a simple example which, in my view, is helpful in understanding the concept of indirect discrimination and the question of particular disadvantage. She posited a rule which imposed a qualification requirement for a particular employment of a certain minimum height. As we all know men, on average, are taller than women. In respect of a particular height chosen as a minimum qualifying height, there may well be many more men than women who meet the standard. That is not to say that there would not be some tall women who qualified anyway and some short men who failed anyway. However, the chances of qualifying may be much greater for a man than for a woman. It seems to me that such a rule undoubtedly places women at a disadvantage. Obviously, in respect of any single individual, the question is clear. A woman, just like a man, either is or is not above the requisite height. She either qualifies or she does not. However, s. 3 is concerned with categories of people. It involves, for example, women and men, Travellers and non-Travellers, those of different religious beliefs and those of different sexual orientations. The provision or measure which may fall foul of the indirect discrimination prohibition contained in s. 3 is, by definition, apparently neutral. It makes, therefore, no specific reference to the category of person who might be indirectly affected by it. The postulated height rule, to which I have referred, makes no mention of men or women. It affects some, but not all men, and some, but not all women. Any individual (be they man or woman) either qualifies or they do not. However, it places women at a disadvantage because women are, as a potentially protected category under s. 3(2), placed at a disadvantage vis-à-vis men, as an alternative category. The section operates, in my view, at the level of category rather than at the level of the individual.
8.5 Obviously, in order for a particular individual to have standing to mount a claim, that individual must be affected by the rule in question. In the example given, a woman who happened to be tall enough to meet the height requirement could not bring a claim, for the rule would not have impacted upon her. But that would not mean that the rule would nonetheless not be discriminatory against women generally. It would simply mean that any case seeking to challenge the rule would, as a matter of standing, have to be brought by a woman who was below the relevant height requirement, and thus, a person on whom the rule had an adverse impact.
8.6 I am mindful of the fact that s. 3 requires that “particular disadvantage” be established. It will be necessary to consider what the word “particular” adds to that requirement in due course. However, the starting point has to be that there must be, at least, a disadvantage in the first place. That disadvantage must be considered by comparing the differential effect of the relevant measure on the competing categories of persons. In order for a protected category of persons to be said to be at a disadvantage in comparison to an alternative category (in this case members of the Travelling Community and non-Travellers), then it seems to me that it is necessary to attempt to analyse the effect of the measure on both of those categories respectively. Such an exercise necessarily carries with it some degree of statistical analysis. How, as a matter of law, such analysis is to be properly conducted is a matter to which I will shortly return. However, first it is necessary to consider the meaning of the word “particular”.
9. The meaning of “particular”
9.1 Counsel on behalf of John Stokes accepts the definition of the word “particular” as set out in the Oxford English Dictionary (2nd ed.) and as cited by McCarthy J. in his judgment. However, it is contended that, in interpreting the meaning of the word “particular”, a court must look “to the totality of the definition of indirect discrimination” and not to the meaning of “particular” in isolation. It is said that the High Court erred in interpreting the dictionary definition of “particular” as requiring an “exclusive effect”, rather than a “measurable difference”. Counsel also adopted the submissions of the amicus that a 15% reduction in the chance of getting a place amounted to a disadvantage significant enough to constitute to a “particular disadvantage”. In support of this proposition, the amicus relied on the decision in R. v. Secretary of State for Employment, ex parte Seymour Smith [2000] 1 WLR 435, where a smaller differential in the treatment of men and women was found to be in breach of the relevant UK disadvantage requirement. Clonmel High School submits that “particular” “requires a level of disadvantage which is specific and marked” or means “marked, considerable or appreciable”, and that a 15% loss in opportunity does not meet that high threshold.
9.2 I am satisfied that the use of the term “particular” brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable. It does not seem to me to be simply a question, as the Circuit Judge put it, of applying a rule such as de minimis non curat lex, and thus excluding minimal or trivial distinctions. It must be recalled that the measure under consideration must ostensibly be neutral. Many measures will have some degree of differential impact between one group and another. It will, in many cases, be possible to produce some analysis which suggests that one protected category or another may be slightly disadvantaged by a measure. However, if it had been intended that such slight disadvantage could give rise to a finding of indirect discrimination, then it does not seem to me that the words “particular” would have been included in the section. A requirement of a finding of disadvantage alone would have sufficed.
9.3 The Oireachtas has not chosen to adopt any quantifiable measure of the extent of the disadvantage which must be established in order that it can be properly said, as a matter of law, to be a “particular disadvantage”. That is left to the judgment of either the Director or, on appeal, of the courts. However, a starting point must, necessarily, be to conduct an appropriate analysis of the extent of any disadvantage. In passing, it should be noted that such an analysis is required for two purposes. Firstly, the scale of any disadvantage must be known in order to determine whether, in all the circumstances, it can be said to place the relevant protected group at a “particular disadvantage”. Secondly, the scale of any disadvantage may well be relevant in assessing whether any objective justification meets the “appropriateness” test. A provision or measure, which places a protected group at a highly significant level of disadvantage, and which only contributes in a very marginal way to a legitimate aim, might very well fail the appropriateness test. On the other hand, a measure which creates a much lesser degree of disadvantage (although just about sufficient to meet the particular disadvantage test), but which contributes to a very great extent to an important, legitimate objective, might meet the appropriateness test. An analysis of the degree of disadvantage may, therefore, be necessary not only to determine whether the level of disadvantage is sufficient to be properly described as a “particular disadvantage” but also to form an important component in the analysis of whether justification has been made out.
9.4 Therefore, it follows that, as a matter of law, the Director, or a court considering whether particular disadvantage has been established, must carry out a proper analysis of the extent of any disadvantage at which a protected group has been placed by reason of the ostensibly neutral measure in order, to determine whether that level of disadvantage is sufficient to meet the particular disadvantage test. As noted earlier, such analysis necessarily requires some statistical consideration. I, therefore, turn to the question of the proper approach to the analysis of disadvantage.
10. The Analysis of Disadvantage
10.1 There is, of course, a material extent to which an assessment of the degree of disadvantage is a matter of fact to be determined either by the Director or by the Circuit Judge in the event of an appeal. To an extent, such matters do not involve any point of law, but rather are an assessment of the facts on the evidence. There is, therefore, a limitation on the extent to which such matters can be revisited in a form of appeal which is, as already noted, one limited to an appeal on a point of law. However, the proper overall approach to the assessment of the degree of any disadvantage is, in my view, a matter of law, even though the application of that approach to the facts of an individual case may not be. It is in that context that it is necessary to analyse what the proper approach should be, and to determine whether it was applied by the Circuit Judge in this case.
10.2 Obviously, the manner in which it is necessary to approach the question of disadvantage will, at least to a material extent, be dependent on the nature of the measure or provision which is said to be discriminatory, and on the category of persons said to be discriminated against. In the course of this judgment, I will use the term “qualifying”, or cognate words, to refer to persons who may not be adversely affected by a measure. Obviously, such terminology is entirely appropriate in a case such as this where the issue is as to whether pupils qualify for automatic places or not. Other language may, of course, be more appropriate in different circumstances. However, the broad principles are likely to remain the same.
10.3 I propose to start by addressing some specific issues, which arose on this appeal concerning the proper approach to the analysis of the facts of this case. Some of those issues are peculiar to the issues, although some are potentially of much greater general application. I propose to address those points in turn.
10.4 The first concerns the question of whether it was appropriate to consider solely the figures for one year’s set of applicants to Clonmel High School, as both the Director and the Circuit Court judge did. It must be recalled that the basis for analysing whether there is disadvantage must be to compare the relevant protected group with its counterpart. Whether it is sufficient to analyse the consequences for those to whom a particular provision or measure might be applied over a narrow timeframe, in order to provide an adequate analysis of the true extent (if any) of disadvantage, will depend on all the circumstances of the case. Not all measures or provisions apply in such a discreet way as those which govern entrance to a school. Such entrance is, almost always, conducted on a once off annual basis. Other types of measures may apply continuously, for persons may be affected by them at all times, and not merely when some form of recruitment or entrance process is conducted on a one off or periodic basis. If, for example, large numbers of persons were continuously affected by a challenged provision or measure, then it might well be enough to analyse the differential effect of that measure on the protected and the alternative group over a relatively short period of time, provided there was no reason to believe that the conclusions reached by so doing would distort the overall analysis. If, for example, there was no special reason to believe that the figures would come out much differently taking one three month period with another, then a sufficient analysis of the differential effect of the challenged measure on those affected by it in a three month period might well be enough.
10.5 But it is important to emphasise that statistical analysis is notoriously capable of giving rise to inaccurate indications when very small numbers are involved. To give an example, if, out of 50 persons who might potentially be affected by a measure, one only examines the extent to which it adversely affects two or three, then the risk of those two or three being unrepresentative of the group as a whole is extremely high. To take an extreme example, a measure, such as the one under consideration in this case, even if one looks at it from the narrow perspective of the parental rule alone, is a measure which either affects someone adversely or it does not. If only one individual from a particular group is looked at, then that person will either be affected or they will not. However, knowing whether that one person was adversely affected or not does not really tell one anything about the extent to which the measure affects the category as a whole.
10.6 The important point to emphasise is that a proper analysis of disadvantage will normally require sufficient numbers to make that analysis meaningful. Any one individual either qualifies or does not qualify. Looking at the position of a single individual does not really add very much to the analysis of disadvantage. It is necessary, in that context, to identify the group to whom it can reasonably be said that the challenged provision or measure applies, and to conduct an analysis of a sufficiently large number of persons to form a realistic view as to whether the protected group is truly at a measurable disadvantage by reference to its counterpart. Whether looking solely at the intake for the relevant academic year for a comparison between the effect of the rule on, members of the Travelling Community and non-Travellers respectively was sufficient to meet the requirement of sufficient analysis is a question to which I will return.
10.7 A second, specific point which arose in the course of argument was the extent to which it is appropriate to look at the parent rule in isolation, or whether it is necessary to look at the cumulative effect of the overall admission policy of Clonmel High School. In argument, counsel for the amicus curiae suggested that a discriminatory measure cannot be justified by reference to the fact that there may be some other measure which, to a greater or lesser extent, ameliorates the effect of the discriminatory measure. At the level of principle, it is possible that there may well be some merit in that argument.
10.8 However, it seems to me that there is an anterior question. What is “the provision” which can be said to give rise to disadvantage? At the level of principle, where a number of alternative means are provided for complying with a qualifying measure, and where it is only necessary to qualify under one heading, then “the provision” must mean the totality of the alternative measures available. Where there are alternative means of qualification, then it does not seem that one can sever one possible means of qualification without having regard to all of the others. This is apparent for at least two reasons. First, it is in the nature of a provision, which may give rise to a disadvantage, that an assessment of that disadvantage must have regard to any alternative means of qualifying within the same provision. Second, and perhaps of equal importance, it is, for the reasons already analysed, necessary to have regard to the extent of any disadvantage in order to determine whether it can be said to be a particular disadvantage within the meaning of the legislation. It is impossible to measure the extent of any disadvantage without also having regard to any alternative means of qualifying. I should emphasise that these comments are concerned solely with measures which involve alternative means of meeting whatever criteria may be established. Where cumulative requirements, as opposed to alternative requirements, are imposed, then it is appropriate to look at each one individually. Here, the second aspect of the qualification criteria can be met where either the applicant pupil has a sibling who attended or is in attendance at the school, or where the parental rule is met, or where the applicant has close family ties with the school. Any one of those criteria allows the second leg of the test to be met. Therefore, it seems to me that the second leg of the test, as a whole, is the “provision” which must be considered. The proper basis of analysis should, therefore, have been to consider whether, and if so to what extent, that second leg as a whole placed persons from the Travelling Community at a disadvantage.
10.9 The next point which requires some comment concerns the argument put forward on behalf of Clonmel High School concerning a difficulty in providing accurate information about Traveller applicants or potential applicants. The point made was that the question of whether a person is in fact a member of the Travelling Community is not necessarily one which would be known to school authorities unless the applicant or a parent of an applicant declares that fact. As counsel suggested, many of the other protected categories are fairly obvious. At least in the vast majority of cases, it is fairly clear that persons are either male or female.
10.10 I do not doubt that some level of difficulty might well have arisen for the production of accurate figures as a result of the problem which counsel identified. That does not, however, mean that an attempt could not have been made. It is clear that the onus of establishing particular disadvantage rests on the person claiming indirect discrimination. The Director is, of course, entitled to seek such information as might be considered relevant and necessary to a proper determination of the question. Any difficulties in compiling relevant information would need to be properly taken into account, and would need to be assessed by the Director in order to determine whether the onus of proof had been met. Like considerations would clearly apply in the case of an appeal to the Circuit Court. There is no requirement that any figures relied on are unimpeachable. Any analysis is open to difficulty in compiling figures. The fact that the figures may not be perfect does not prevent either the Director or a Circuit Judge on appeal from nonetheless being satisfied that the onus of proof has been met. However, that does not mean that there can be any diminution in the obligation to ask the right question. The fact that the information available to allow that question to be answered may not be perfect is another matter altogether. The information may, in some cases, be so imperfect that the onus of proof may not be met. However, the information may, in the judgment of either the Director or a Circuit Judge, be sufficient to allow an appropriate conclusion to be reached despite its imperfections. Subject to a test of irrationality on O’Keeffe principles, those are matters for the fact finder, be it the Director or the Circuit Judge. However, whether the correct question was asked in the correct way is a matter of law capable of being reviewed on appeal to either the High Court or to this Court. The fact that the information, which might have been produced had the correct question been asked, could have fallen short of complete, for reasons such as those advanced by counsel, would, of course, have been a matter which the decision maker could have to have taken into account in assessing whether the onus of proof had been met. But it is not a reason for not asking the right question in the first place.
10.11 Finally, there is the question of identifying the relevant group of persons, from a geographical perspective, for the purposes of assessing any differential effect on members of the Travelling Community, on the one hand, and non-Travellers, on the other, so as to assess whether, and to what extent, disadvantage has been established. In my view, a realistic assessment of those who might potentially be affected by any provision sought to be challenged must be engaged in. It is, prima facie, a matter for the decision maker, whether Director or Circuit Judge, to form a view as to the appropriate group to be assessed. The High Court (or this Court) considering an appeal on a point of law, must accord significant deference to an assessment made by the decision maker as to the respective groups to be assessed. In this case, one might look at only those who sought a place in Clonmel High School, or those who are within a geographical area where it might be expected that they might wish to apply. It is always necessary to consider, in cases which involve persons making an application in order to qualify, that one of the effects of a potentially discriminatory measure might be that people do not even apply in the first place, thus distorting any figures generated by reference solely to those who apply. However, within the bounds or rationality, it is prima facie a matter for the decision maker to be satisfied that those who are assessed for the purposes of conducting a comparative analysis of the effect of the challenged provision on the protected group and its counterpart are realistic. There may not necessarily be only one appropriate answer to the question of the precise definition of those groups. Provided that the decision maker identifies a set of sustainable, comparative groups, neither the High Court nor this Court should interfere.
10.12 But it is important to recall that school admission is, at least to a very large extent, a local phenomenon. With the exception of boarding schools, the vast majority of secondary school students come from a reasonably identifiable catchment area.
10.13 Some types of measures may, of course, involve the entire country. Recruitment, for example, to An Garda Síochána or the Defence Forces, is open to persons from all areas. An analysis of an allegedly indirectly discriminatory measure in the context of such recruitment would require an analysis on a country-wide basis. Just how deep that analysis would need to be would, prima facie and within the bounds of rationality, be a matter solely for the decision maker. A regional sample, for example, where there was no particular reason to believe that it was unrepresentative, might well be sufficient. However, here the Court is concerned with what is undoubtedly a local phenomenon. However the precise boundaries of the catchment group might be described, it is clearly a group based in or around Clonmel.
10.14 In that context, it must be emphasised that it does not necessarily follow that a measure applicable to an educational institution in one area of the country necessarily has the same effect as an identical rule in another part of the country. If, for example, a point in time was reached where it was clear that, in a particular catchment area, children of the Travelling Community were every bit as likely to have a parent who attended a particular school as non-Traveller children within the same area, then indirect discrimination against members of the Travelling Community on the basis asserted in this case could not be established. The fact that a different situation might exist in a different part of the country could quite legitimately lead to a conclusion that an identical measure could give rise to indirect discrimination somewhere else. Where the effect of the challenged provision or measure is necessarily confined and local, it remains open to the possibility that an identical measure may place a protected group at a particular disadvantage in one part of the country, but not in another. This may be so simply because the effect of the measure on the group in question may itself vary from one part of the country to another owing to relevant characteristics of the group not being identical in those different parts.
10.15 Based on that analysis, it seems to me that it is appropriate to address the issue of the proper question which should be asked in order to determine whether there is a disadvantage, in a case such as this, between a protected group and its counterpart, and for the measurement of the extent of that disadvantage.
11. The Proper Question
11.1 It is important to start by emphasising that the issue of the proper question which a decision maker (be it, on the facts of this case, either the Director or a Circuit Judge) should ask, is a question of law. Therefore, if it can be shown that the decision maker did not ask the right question, the decision cannot stand.
11.2 In that context, it is important to distinguish, at least to some extent, between the overall question which the relevant law requires the decision maker to ask in order to reach a final conclusion, and subsidiary or intermediate questions which may need to be addressed for the purposes of reaching such an overall conclusion. The overall question is a matter of law. Whether the decision maker asked the proper overall question must be reviewed on the basis of correctness. However, depending on the facts of any individual case, it may well be that some reasonable discretion must be left to a decision maker as to the intermediate or subsidiary questions which need to be asked in order to reach a proper overall conclusion. In reviewing that aspect of the decision making process, it will be necessary, before overturning a decision, to be satisfied that the subsidiary or intermediate questions asked were outside of the bounds of those which might reasonably lead to a proper answer to the overall question.
11.3 In the context of the issues which arise in this case, being whether, and if so to what extent, disadvantage has been demonstrated, the overall question seems to me to be clear: Has it been shown that a member of the Travelling Community is at a disadvantage compared with a non-Traveller as a result of the measure under challenge? For the reasons which I have already sought to analyse, I am satisfied that the measure or “provision”, the effect of which must be assessed, is that containing the variouscomponents of the second leg of the rule adopted by Clonmel High School, for each of those components are alternatives. Thus, the cumulative effect of those alternative qualifying requirements on a potential applicant for a place in Clonmel High School must be assessed. It is clear that no analysis of that question was, in fact, carried out. Insofar as any analysis was conducted, it was primarily of the effect of the parent rule alone, with the only exception being that the Director also examined the sibling rule, but did so on an alternative rather than on a cumulative basis.
11.4 The result which an analysis of the “sibling or parent or close connection” rule would have delivered is something on which one can only speculate. It was suggested in evidence before the Circuit Court, on behalf of Clonmel High School, that a policy of inclusiveness in relation to members of the Travelling Community had been pursued in the past. The possibility, therefore, that the sibling element of the rule might have positively affected the overall extent to which potential applicants for places in the school who came from the Travelling Community might have been disadvantaged is by no means fanciful.
11.5 There were reasonably good figures for the effect of the sibling or parent rule (the close connection aspect of the rule does not appear to have had a significant effect) on the population of the Clonmel catchment area taken as a whole. The number of those who met either the parent or sibling requirement, and the number of those who did not, was capable of fairly ready calculation. However, there was no real calculation of the likelihood of a member of the Travelling Community satisfying the second leg of the test by qualifying under either the sibling or parental aspects of the rule. In order to attempt such a calculation, it would have been necessary to at least seek to obtain information about the number of members of the Travelling Community who met either of those criteria. In order for the results of any such analysis to be meaningful, it would have been necessary to look at figures over a sufficient number of years to be able to reach a reasonable conclusion on the extent of the effect of the rule as a whole (involving both its sibling and parental components) on relevant members of the Travelling Community. It would also have been necessary to determine whether, and if so to what extent, its effect was more severe on members of the Travelling Community than on non-Travellers. In that context, it should be recorded that a reasonable degree of discretion would necessarily have to be allowed to a decision maker as to what scale of numbers would need to be considered in order to provide any meaningful analysis.
11.6 The one thing that seems clear is that simply analysing the effect on members of the Travelling Community by identifying that John Stokes, as the sole applicant member of that community affected in the year in question, did not qualify under the parental rule alone, fell a long way short of complying with the necessary analysis. Likewise, in assessing the extent to which the measure might have an effect on respectively members of the Travelling Community and non-Travellers, a decision would have to be made as to the appropriate overall group to be considered. While it might have been preferable to attempt to extend the group beyond those who applied for a place in Clonmel High School (for the reasons already analysed as to the potential discouragement created by potentially discriminatory measures), nonetheless a reasonable level of discretion must be left to a decision maker as to the group to be considered, provided that there was a reasonable basis for taking the view that the group assessed gave an accurate picture of those potentially affected by the rule under challenge. In all the circumstances, it seems to me that selecting as such a group those who applied for a place in Clonmel High School was within the range of groupings which a decision maker was entitled to select. I make that latter point subject to one caveat, which is to the effect that if the number of members of the Travelling Community assessed was, as a result of choosing both the catchment group and the time period at which that group was to be looked at, too small to warrant an appropriate inference on disadvantage, then it might have been necessary to extend the scope of the matters examined under one or both criteria so as to provide meaningful statistics.
11.7 In addition, it is important to say something about the statistics, for Traveller participation in secondary education in the country as a whole, on which some reliance was placed both by the Director and the Circuit Judge. There may, of course, be circumstances in which it is both possible and appropriate to draw an inference from national figures for the effect of a measure on a protected category in a local area. There may be no reason to believe that there would be any significant variation from one part of the country to another. Unless, returning to the previous example, there was some reason to believe that there was a significant difference in the respective heights of men and women in different parts of the country, then it would be appropriate to infer that a height requirement, which applied to a local measure, affected men and women respectively in exactly the same way in that area as it would in the country as a whole.
11.8 The figures produced clearly demonstrated that the likelihood of a typical potential secondary school pupil from the Travelling Community nationwide having a parent who attended any secondary school was very substantially less than that applicable to a non-Traveller. It seems to me that extrapolating from those figures, without further analysis, that such a situation applied in the context of Clonmel High School, was an inappropriate inference. The correct question is not whether a typical member of the Travelling Community as a whole is less likely to have a parent who went to secondary school than a typical non-Traveller. Even if the appropriate analysis was to be applied to the parental rule alone, this would not be an appropriate means of analysis. In addition, therefore, to adding in to the analysis a consideration of the effect of the sibling rule, it was also necessary that some attempt should have been made to apply the national figures to the context of Clonmel, and in particular to the context of Clonmel High School and its history of previous Traveller pupils.
11.9 In summary, therefore, I am not satisfied that either the Director or the Circuit Judge asked the correct question or carried out an appropriate analysis to answer that question. The appropriate starting point was to determine the differential effect of the combination of the sibling and parental rules on potential Traveller applicants to Clonmel High School and potential non-Traveller applicants respectively. That question was not addressed at all because of the failure to have regard to the alternative means of qualification by virtue of having, or having had, a sibling in the school. Entirely apart from that, and allowing for some reasonable discretion as to the definition of the group to which the analysis should be applied and the period of time over which the phenomenon should be examined, the analysis did not really address the question of the effect of the rule on a typical applicant or potential applicant for Clonmel High School. The analysis of the effect on potential non-Traveller applicants was, in my judgment, adequate. The analysis of the effect on potential Traveller applicants, confined as it was, in substance, to the one case of John Stokes, fell a long way short of being adequate. There was simply no evidence or material on which any realistic assessment could have been made as to the question of the chances of a typical potential Traveller applicant for a place in Clonmel High School meeting even the parental rule by itself, let alone meeting the combination of the sibling and parental elements of the overall rule.
11.10 That analysis seems to me to be sufficient to lead to the conclusion that it was not open to the trial judge in the Circuit Court to conclude that any disadvantage, let alone a particular disadvantage had been established. That is not to say that the answer to the question of whether there is a particular disadvantage potentially present in respect of a combined sibling and parental rule, so far as Travellers are concerned might not be answered in the affirmative. The difficulty is that the evidence and materials to allow such a conclusion to be reached on the facts of this case were just not present.
11.11 In the light of that finding I am satisfied, although for very different reasons, that McCarthy J. was correct to overturn on point of law the decision of the Circuit Judge on the question of particular disadvantage. Lest this matter arise again, there is one further point which arose in argument on which I think I should comment. That is the question of the effect of failing to qualify under the sibling or parental rule. It is, of course, the case that applicants were not excluded from the school simply because they did not so qualify. Rather, they went into a draw for places. The effect of the measure was, therefore, that qualification meant that one certainly got a place, but lack of qualification meant that one had only a chance of getting a place. Counsel for Clonmel High School argued that such a risk of not obtaining a place was not the sort of measure which could give rise to indirect discrimination. I turn to that question.
12. Is risk relevant in indirect discrimination?
12.1 As I understood it, the argument put forward on behalf of Clonmel High School at the appeal before this Court centred on the concept of the creation of a risk of disadvantage rather than an actual disadvantage. On the basis of that argument, it was said that, at least so far as indirect discrimination is concerned, a risk of disadvantage was not sufficient because the legislation requires that a party be at “a particular disadvantage” and not at a risk of such disadvantage.
12.2 I am not satisfied that that argument is well founded. There is a very real sense in which the type of disadvantage which is spoken of in the legislation is all about risk. A measure which impacts disadvantageously on a protected category, in comparison with its alternate does not necessarily affect all of the members of the protected group adversely, just as it does not necessarily affect the entire alternate group positively. The disadvantage is, at least in many cases, all about the probability of the measure impacting on the respective groups and the disparity between those respective probabilities. A measure which has the effect of significantly reducing the chances of a person from a protected group of qualifying in some way (or, to put it another way, increases the chances of such a person not qualifying) places that person at an actual disadvantage. If the level of that disadvantage is sufficiently large or appreciable, then the person will have been placed at a particular disadvantage and thus will meet the statutory test.
12.3 Indeed, on the facts of this case, it seems to me to be important to emphasise one aspect of the proper analysis of the question of disadvantage. Once a member of the Travelling Community went into the draw for one of the remaining places (on the basis of not having qualified for an automatic place), then the chances of that member of the Travelling Community getting a place was exactly the same as any other person in that draw. There was no doubt about that fact. The area where potential disadvantage arose in the context of a member of the Travelling Community was in relation to qualification for an automatic place (because such members might have had a lower chance of so qualifying) rather than arising from the random selection of those who did not automatically qualify.
12.4 An overall analysis of the level of disadvantage suffered by a member of the Travelling Community would have required two matters to be calculated. First, it would have been necessary to determine the chances of a member of the Travelling Community of qualifying under the parent or sibling rule for automatic enrolment entitlement. For the reasons which I have already analysed, I am not satisfied that there was sufficient information before either the Director or the Circuit Court to enable any proper analysis or approximation of that probability to have been calculated. Second, it would have been necessary to calculate the chances of a member of the non-Travelling Community so qualifying. There was sufficient information to allow that calculation to be done, and it was, in fact, done correctly within the bounds of the entitlement of the respective decision makers to define the parameters of their enquiry.
12.5 In addition, however, it would have been necessary to calculate the extent of the disadvantage caused by failing to obtain automatic qualification, and to factor that into an overall assessment of the degree of disadvantage. The fact that there was no certainty about not getting a place even if one did not qualify for an automatic enrolment required to be taken into account.
12.6 An overall assessment of the disadvantage, which may have been suffered by members of the Travelling Community by the operation of the parent or sibling rule, would require taking into account both of those factors. In order to fail to gain a place it was necessary that one non-qualification for an automatic place and losing out in the process of random application of the remaining places. The overall calculation of the likelihood of a member of the Travelling Community obtaining a place requires both of those factors to be brought into account because the overall chance of obtaining a place is the addition of the chance of obtaining an automatic place and the chance of obtaining a randomly selected place. Likewise, the overall calculation of the likelihood of a child from a non-Traveller background obtaining a place requires both factors to be properly taken into account. If those calculations were properly carried out in respect of both Traveller and non-Traveller children, then it would have been possible to compare the overall chances, respectively, of a child from the Travelling Community and a of child from a non-Traveller background, obtaining a place. It follows that any difference between those probabilities or chances should be readily apparent on foot of that type of analysis and could be assessed as to whether it demonstrates a particular disadvantage as that term is used in the legislation.
12.7 However, for the reasons set out earlier in this judgment, I am not satisfied that any sustainable calculation of that type was conducted, or was capable of being conducted, on the evidence and materials before both the Director and the Circuit Court.
12.8 I should emphasise that there is, of course, no reason in principle why particular disadvantage cannot be established by statistical analysis. Indeed, in many cases it may well require statistical analysis to assess whether a provision gives rise to a particular disadvantage in respect of a protected group. The very fact that the provision which may be found to give rise to indirect discrimination is ostensibly neutral makes this likely. However, the fact that indirect discrimination can be established by proper statistical analysis emphasises the need that such analysis be sufficiently robust to sustain a determination of the extent of disadvantage which the impugned provision creates.
12.9 As the onus of proof lay on John Stokes it follows that the absence of sufficiently robust statistical materials or analysis in this case means that the decision of the Circuit Judge to find that there was particular disadvantage was wrong in law due to an absence of sufficient evidence as well as by virtue of the Circuit Judge having failed to identify the “provision” correctly.
12.10 Having concluded that this case should have failed before the Circuit Court on the question of particular disadvantage by reason of the absence of adequate evidence to allow a proper analysis to be carried out, it follows that it is unnecessary, and in my view inappropriate, in all the circumstances of this case, to go on to consider whether the provision might be considered to be objectively justified. I come to that conclusion not least because of the view expressed earlier that the extent of any disadvantage suffered may be relevant in considering whether a provision, sought to be justified as achieving a legitimate aim, is “appropriate and necessary”. In the absence of a sustainable finding concerning the degree of disadvantage, the exercise of attempting to assess appropriateness or necessity would be fraught with danger.
13. Conclusions
13.1 It follows that, in my view, McCarthy J. was incorrect in his approach to the question of the meaning of the term “particular disadvantage”.
13.2 However, for the reasons which I have sought to analyse in some detail, I am not satisfied that there was sufficient evidence and materials either before the Director or the Circuit Court to enable a proper assessment to be carried out as to whether there was, in fact, particular disadvantage. The existence of such evidence and materials, and the approach adopted to their analysis, are essential matters to enable a sustainable decision of particular disadvantage to be made. The absence of sufficient evidence, materials and analysis gives rise to an error of law, which requires the decision of the Circuit Judge on particular disadvantage to be overturned. Asking the right question and going about seeking to answer that question in the right way is, in substance, a matter of law. A failure so to do, therefore, requires that a decision made as a result of such a process be overturned in an appeal on a point of law.
13.3 I would, therefore, but for very different reasons, agree with McCarthy J. that the decision of the Circuit Judge in this case on the question of the establishment of particular disadvantage must be overturned. I would add that, as I have pointed out earlier, it by no means necessarily follows that a conclusion to the effect that there was particular disadvantage, in the case of the application of a sibling or parental rule of the type under consideration in this case, could not be properly and sustainably made after proper analysis.
13.4 Having concluded that the decision of the Circuit Judge to the effect that particular disadvantage had been established must be overturned, it does not seem to me that it is either necessary or, in the circumstances of this case, appropriate to go on to consider, in the abstract, whether the Circuit Judge was correct to conclude that the impugned provision was nonetheless justified notwithstanding that it created a particular disadvantage. As to the overall result of this appeal it is clear that I ultimately agree, although as pointed out for very different reasons, with McCarthy J. that the final result determined on by the Circuit Judge, being to dismiss the claim, was correct. In those circumstances I would dismiss this appeal.
DEC-S2004-017 Full Case Report
McDonagh, v Navan Hire Limited
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 4 October, 2001 under the Equal Status Act, 2000. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000, the Director then delegated the case to 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 Act, 2000.
1. Dispute
1.1 The dispute concerns a claim by Mr. Martin McDonagh that he was discriminated against by Navan Hire Ltd on the ground that he is a member of the Traveller Community. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(i) of the Equal
2 Background
2.1 The complainant’s case is that the respondent refused to hire out a sander to him on 1 August 2001. He believes that the refusal of service was due to the fact that he is a member of the Traveller community. The respondent submitted that the complainant was not discriminated against on the ground that he is a Traveller. He was unable to hire the sander to the complainant on the day in question because the mechanic, having checked out the machine, discovered a fault and the other sanders in the shop had been pre-booked by other customers. The complainant was advised to hire a sander elsewhere or to come back the following day and a sander would be available. The respondent also submitted that the company has a policy of not hiring to customers who have not got a permanent address. He does not regard a halting site as a permanent address and for that reason he would not hire to a customer living on a halting site.
3 Summary of the Complainant’s Case
3.1 The complainant stated the following:
That he is a member of the Traveller community and was living in Navan on a halting site on 1 August, 2001. He had purchased a new house in Mullingar and he was decorating the house prior to moving in to live there. He wanted to hire a sander to sand the wooden floors.
At about 10:30 am on 1 August, 2001 he went to Navan Hire Ltd to hire the sander which he intended to take to Mullingar to do the job. He spoke to the shop assistant (Mr. Chris Baxter) and explained that he had a three bedroom house and intended to sand the floors. Mr. Baxter came from behind the counter and showed him 4 sanders on the floor and recommended the type of sander that he needed.
The sander would not fit into the complainant’s car. The complainant left the shop and returned later with a jeep.
The complainant said that on his return to the shop Mr. Baxter remembered him. He came from behind the counter and picked out one of the sanders from the floor and enquired of the complainant if he ever worked one before. Mr. Baxter showed the complainant the controls, how to adjust the handles and how to attach the sanding disks. He then plugged in and turned on the sander and showed the complainant how to use it. The sander was working at that stage.
Mr. Baxter then unplugged the machine and the complainant understood it was then ready for him to hire. Mr. Baxter went back behind the counter and started to fill out hire form. He asked the complainant for his name and telephone number. The complainant gave his land line, a mobile telephone number and his address at the halting site. The complainant said that Mr. Baxter hesitated and did not write down his address at first. He eventually wrote down the address and asked if that was the address the sander was going to and the complainant then explained that he had a house in Mullingar and gave him the address of that house also.
The complainant said that Mr. Baxter was then called by a woman from behind a door which was ajar behind the counter and was asked to take a telephone call from a woman who wished to hire something. Mr. Baxter went through the door and closed it. He returned in a few seconds through another door and went straight on to the floor of the shop and removed the sander he was about to hire and brought it behind the counter.
Mr. Baxter told the complainant that the sander was not working and he was going to have a mechanic look at it. He then took the sander through the door behind the counter and when he returned he said that the machine was broken and a mechanic was going to look at it.
The mechanic then came out to the complainant and told him that he tested the machine and that it required a part which he needed to order. The complainant indicated to the three other machines on the floor and the mechanic said he could not have any of them as they were hired out. Mr. Baxter confirmed to the complainant that these sanders were already reserved.
The complainant said that he was not told when the sanding machine would be fixed. He was not advised to come back the following day.
The complainant said that it was quiet clear that once he gave his address that the sander would not be hired out to him. He said that his address, which is an official halting site, is about a mile from the town of Navan and it is well known to non-Travellers as a halting site. The complainant said that he has lived on the site, which was awarded to him by the Council, for 3 years.
4 Summary of the Respondent’s Case
4.1 Mr. Brendan Donegan proprietor of Navan Hire denied that the complainant was discriminated against on the Traveller community ground and submitted the following evidence:
Mr. Donegan said that he hires machines to everyone who meets the criteria for hiring. They are required to give the registered number of the vehicle they are driving, a permanent address and a land line telephone number. If a person is not a regular customer the respondent would usually ask for a photograph. He also only hires to people living in the locality and he would not hire to someone outside the locality without first checking them out.
Mr. Donegan said that he would not hire to anyone living in a halting site as his understanding is that a halting site is not a permanent address. He said that he had never hired to anyone living on this particular site where the complainant lived.
He submitted that when the complainant sought to hire the sander it was broken. The fault was discovered by the mechanic who checks the machines before they are allowed out for hire.
Mr. Donegan said that he has video evidence which would show that the complainant’ version of events was incorrect.
I adjourned the hearing to allow Mr. Donegan to provide the video evidence and any other documentary evidence in relation to hire of sander and to give Mr. Baxter an opportunity to give evidence. Mr. Donegan was not present in the shop on the day in question.
At the resumed hearing Mr. Donegan showed the security video and also brought along a diary. Mr. Baxter has left the employment and was not available to give evidence.
5. Video and Diary Evidence
5.1 I observed the following:
The video showed the complainant entering the shop at about 10:30am and after speaking to Mr. Baxter he left. The complainant returned at 12:39 and again had a conversation with Mr. Baxter at the counter. Then Mr. Baxter came from behind the counter and showed the complainant a sanding machine on the floor. Mr. Baxter appeared to show the complainant how to use the machine and attach sanding disks to same. Mr. Baxter than brought the machine towards the counter and disappeared off the camera, it appears he may have taken the machine off the shop floor. The video shows the complainant standing at the counter but Mr. Baxter at this stage is not shown on the tape and there is no indication that he is filling out any form. The video camera then switches to the door and the video shows the complainant leaving the premises about 7 minutes later. Two other sanders were visible on the floor of the shop after Mr. Baxter took away the other sander.
The diary which contained entries concerning the hire of machines showed that one sander was hired out for 11 am and another was hired out for 1:20pm.
6. Conclusions of the Equality Officer
6.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a), 3(1)(c) and 3(2)(i) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, 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: “On any of the grounds specified… (in this case the Traveller community ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two
persons, the discriminatory grounds … are … that one is a member of the Traveller community and the other is not.”
6.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as: “Evidence which in the absence of any convincing contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred.”1 Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In more recent employment discrimination cases the Labour Court has applied the test and stated: “The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination”.2 1Dublin Corporation v. Gibney EE5/1986 And in another case stated:
“…the claimant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the claimant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”3
6.3 I have identified the key issues for decision as follows:
(i) is the complainants covered by the discriminatory ground? (in this case is he a member of the Traveller community?)
(ii) was the complainant refused a service by the respondent on 1, August, 2001?
(iii) is there evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances?
6.4 I am now going to examine issues I have identified above and consider whether the complainant has established a prima facie case. If those elements are established, the burden of proof shifts to the respondent, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases it is not necessary for the complainant to prove that there is a link between the difference in treatment and the membership of the ground, instead the respondent has to prove that there is not. If the complainant succeeds in establishing prima facie case, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6.5 Issue of Traveller Identity
In the Equal Status Act, 2000 the Traveller community ground is defined as follows:
“the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, 2The Rotunda Hospital v. Noreen Gleeson DEE003/2000 3Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011 culture and traditions including, historically, a nomadic way of life on the island of Ireland”.
I am satisfied that the complainant is a member of the Traveller community as defined by the Act.
6.6 It was accepted by both the complainant and the respondent that service was refused, although the reason for the refusal is in dispute, so the second element of the test has been established.
6.7 I am now going to examine the third element of the test to see if the complainant has produced sufficient hard evidence which, in the absence of any convincing contradictory evidence by the respondent, would lead a reasonable person to conclude that discrimination had occurred. The complainant’s case is that the respondent refused to hire him a sander and he believes this occurred because he is a member of the Traveller community. The respondent’s case is that the sander was faulty and the other sanders in the shop had been pre-booked and could not be hired to the complainant. The complainant in evidence stated that Mr. Baxter took the sander into the back of the shop after he filled out the hire agreement form and after he discovered the complainant’s address and it was then he claimed the sander was faulty. The video evidence in my view does not support this version of events. The video camera showed Mr. Baxter taking the sander towards the counter and then Mr. Baxter went out of view. The complainant was standing at the counter apparently waiting for his return. However, the video camera then
changed the angle of the picture and from the alternative view of events, it may well be that Mr. Baxter commenced filling the form shortly afterwards.
6.8 The sander which Mr. Baxter showed to the complainant may have been broken, but from the video it is clear that there were other sanders on display and that the complainant left the shop without hiring a sander. I note that Mr. Baxter did not attend the hearing and that evidence provided by the respondent must be considered as hearsay in relation to the interactions between the complainant and Mr. Baxter. I also note from the diary entry that there were two sanders booked to go out, one at 11 am and the other at 1.20 pm. Likewise I note that the complainant stated he was in the shop at 10:30, that Mr. Baxter knew he wished to hire a sander at that time and Mr. Baxter gave no indication that one would not be available when he returned with the jeep. There has been no evidence to show that the other bookings in the diary were made prior to the complainant coming to the shop. Logic would suggest that the sander which was booked for 11am would have already been hired out at 12:45 when the complainant left the shop without a sander. Therefore, it would seem that only one of the sanders visible in the video on the shop floor
was pre-booked at the time the complainant sought to hire a sander. If the original sander which Mr. Baxter showed the complainant was faulty, I am still satisfied that there was a sander available on the shop floor which could have been hired out to the complainant. As I have stated above, the only direct evidence available to me regarding the availability of a sander for hire in the shop was the evidence provided by the complainant. I conclude therefore that there was a sander in working order available which was not hired to the complainant and I am satisfied if the complainant was not a member of the Traveller community he would not have been refused. I find therefore, that the complainant was treated less favourably than non-Traveller customer would have been treated in similar
circumstances. The complainant therefore has established a prima facie case of direct
discrimination which the respondent has failed to rebut.
7. Indirect Discrimination
7.1 The respondent Mr. Donegan stated during the course of the hearing that the company has a policy of not hiring to customers who do not have a permanent address and he considers that a halting site is not a permanent address and he would not hire to such an address. It is necessary for me to consider if the requirement to have a permanent address is indirectly discriminatory under the Act. Section 3(1)(c) provides: “For the purposes of this Act, discrimination shall be taken to occur where- 12 “
(i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,
(ii) the person is obliged by the provider of a service (within the meaning of section 4(6) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,
(iii) substantially more people outside the category than within it are able to comply with the condition, and
(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.”
7.2 In my view this case should be considered within the above section as the respondent imposed a condition (that is being able to provide a permanent address which is not a halting site address) which substantially fewer Travellers than non-Travellers would be able to satisfy. While the complainant has not produced any statistical evidence to support this
contention it is obvious that halting sites are specifically designed for Travellers and that Travellers are substantially more likely to live on halting sites than non-Travellers. In considering this point concerning statistical evidence, I have referred to the Labour Court decision in an employment case, NBK Designs Ltd v Inoue ED/02/34 Determination No. 0212. In this Decision, the Labour Court held that an expert tribunal like the Labour Court
could take account, even in the absence of specific evidence, matters such as risk of disparate impact on a protected ground under the Act which are well established and are obvious from its specialist experience. In Inoue, the Labour Court held that it was obvious that measures impacting on part-time workers, or on those caring for small children, would impact disproportionately on women. It would be reasonable therefore to infer from this rationale that an expert tribunal, such as the Equality Tribunal, can similarly take account of matters such as the number of Travellers living on halting sites in comparison to the number of non-Travellers, matters which are obvious from the Tribunal’s specialist experience.
7.3 It seems reasonable to accept on the basis that it is obvious, and need not be proved statistically, that Travellers are far more likely than non-Travellers to live on halting sites. The complaint was obliged to comply with the condition (live in permanent accommodation) but was unable to do so to the respondent’s satisfaction. I find that this satisfies the requirements of Section 3(1)(c) and establishes a prima facie case of indirect discrimination.
7.4 The Supreme Court in the case of Nathan v. Bailey Gibson & Others4 set out the tests to be applied in considering cases of indirect discrimination. This was a case under the Employment Equality Act, 1977 concerning indirect discrimination on the grounds of sex and marital status. The Supreme Court stated the following principle which were followed by the High Court in the case of Conlon v University of Limerick5 “In such a case the worker is not required, in the first instance, to prove a casual connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the
complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.”
7.5 Therefore the next question to be addressed is whether the respondent provided a valid defence by showing that the condition was justified as being “reasonable in all the circumstances of the case.” As required by Section 3(1)(c)(iv) of the Equal Status Act, 2000. I agree that it is reasonable within the meaning of Section 3(1)(c)(iv) for a service provider hiring out equipment to require adequate security. However, the condition imposed by the respondent in this case was applied broadly. It is undisputed that the
complainant in fact had bought a house and was willing to provide that address as security for the hire of the sander, as well as to provide other 4Breda Nathan v. Bailey Gibson & Others [1996] ELR vol 7 5Conlon v University of Limerick [1999] ELR vol 10 information requested by the respondent. In the circumstances the respondent’s reasonable requirement for adequate security was satisfied by the complainant. Even with the guarantees the complainant was unable to hire the sander. I conclude that the condition imposed was not only to have a permanent address but also not to live or to have lived on a halting site and this condition “cannot be justified as reasonable in the circumstances of the case.”
7.6 In considering the unreasonable condition imposed I have considered the Supreme Court Decision in the case of An Blascaod Mór Teoranta (& Others) v Commissioner of Public Works (& Others)6. In that case the Supreme Court in upholding the High Court’s Decision in interpreting the validity of an Act introduced by the Oireachtas to compulsory purchase lands from a particular class of landowner held that the Act was unconstitutional
because it breached the Constitutional equality guarantee. The Act in distinguished between landowners who purchased land on the Blasket Island after 1953 and landowners who themselves owned land or were descendants of landowners prior to 1953. The Supreme Court stated that: “In the present case, the classification appears to be at once too narrow and too wide. It is hard to see what legitimate legislative function it fulfils. It is based on a principle – that of pedigree – which appears to have no place, (outside the law
of succession), in a democratic society committed to the principle of equality. This fact alone makes the classification suspect. The Court agrees with the learned trial judge that a Constitution should be pedigree blind just as it should be colour blind or gender blind except when those issues are relevant to a legitimate legislative purpose. This Court can see no legitimate legislative purpose in the present case and has no doubt but that the plaintiffs are being treated unfairly….”
7.7 In applying this principle to the case in hand, I am satisfied that the decision to refuse to hire the sander to the complainant was based on where the complainant resided which identified him as a member of the Traveller 6An Blascaod Mór Teo v. Commissioners of Public Works (No.3) [2000] I IR community. The criterion imposed by the respondent was applied so broadly that it indirectly discriminated against members of the Traveller community and departs from the principle of equality laid down by the Supreme Court in
the above Decision. I find therefore that the respondent has failed to rebut the prima facie case of indirect discrimination established by the complainant.
8. Decision
8.1 On the basis of the foregoing I find that the respondent did unlawfully discriminate against the complainant on the Traveller community ground contrary to Section 3(1)(a), 3(1)(c) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act.
8.2 Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that: “the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances: 1
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
8.3 Under the above Section the maximum amount of compensation I can award is €6,349 but the maximum award would not be appropriate in this case. In considering the amount of compensation which would be appropriate, I have taken into account the effects the discrimination had on the complainant. I order Navan Hire Limited to pay the complainant Mr. Mr. Martin McDonagh the sum of €1,500 to compensate him for the distress, and inconvenience caused to him by the discriminatory treatment.
8.4 I also order the respondent under Section 27(1)(b) to revise his hiring conditions within 3 months of the date of this Decision to ensure that they do not indirectly discriminate against members of the Traveller community. If necessary the respondent should seek advice from the Equality Authority or consult with Traveller representative groups.
__________________
Marian Duffy
Equality Officer
6 February, 2004
DEC-E2010-150-Full Case Report
The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-150
Lazar v Dublin Bus
File reference: EE/2007/663
Date of issue: 10 August 2010
Keywords – Employment Equality Acts – Discriminatory Treatment – Gender – Disability – Race – Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Ms Isabella Lazar that she was subjected to discriminatory treatment by the respondent on the grounds of gender, disability and race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as ‘the Acts’), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 31 December 2007 under the Acts. On 26 January 2010, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes – an Equality Officer – for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 18 May 2010. Additional written information was requested from the respondent which was received on 2 June 2010 and was copied to the complainant. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT’S CASE
2.1 The complainant submitted that she was discriminated against by the respondent when she applied for a job as a Bus Driver. The complainant submitted that she passed the theory test, passed the practical driving test and was called to interview. From the interview, the complainant was referred for a medical examination. At the medical, she was informed that the respondent had a minimum height restriction and that she did not satisfy that height limit. The complainant submitted that a height restriction affects a greater proportion of women than men. Furthermore, the complainant submitted that the respondent employs persons of a similar height to her who are male, white and Irish.
2.2 The complainant, who is Romanian, submitted that she was required to submit her passport and documentation proving that she was entitled to work. The complainant submitted that she was informed by the Department of Justice that she no longer required paperwork to enable her to work in the State. The complainant submitted that the respondent did not accept her assurances and still required her to provide written proof of her right to work in the State.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that one of the grounds cited by the complainant was that of disability but that nothing in her submission supported the allegation.
3.2 The respondent submitted that the complainant was treated in the same manner as any other applicant for the position of Bus Driver. The respondent submitted the complainant’s immigration card was out of date and that, at the time, there were no clear instructions from the Department of Justice as to the entitlement of nationals of recently acceeded EU countries to work in Ireland. The respondent submitted that during what was a transition stage for the State, they required proof of the complainant’s entitlement to work.
3.3 The respondent submitted that other than her medical assessment, the complainant had passed all other tests and pre-conditions to become a Bus Driver. The complainant was directed to attend a medical assessment where she was deemed unfit for the position of Bus Driver on the basis of her height.
3.4 The respondent submitted that the complainant submitted no evidence to substantiate her allegation that the company employs persons of equal height to her who are male, white and Irish.
3.5 The respondent submitted that the driver’s work station in a bus is normally designed in the form of a half open cabin, and that the measurements of the driver’s cabin and the adjustments that can be made to the seat and steering wheel must fall within a range that is applicable to all drivers. The respondent also submitted that the minimum recommended height for a professional Bus Driver is 165cm and that the complainant, at 157cm, falls well short of this minimum requirement. The respondent further submitted that this medical recommendation is based on the relationship of the ergonomics of a back injury and the assessment of the driver’s cab.
3.6 The respondent submitted that it did not discriminate against the complainant on the grounds of gender and that there is objective medical evidence as to why a driver has to be a certain minimum height regardless of his or her gender before being employed as a professional bus driver.
3.7 The respondent referred to Section 25 of the Acts wherein it referred to “a difference of treatment which is based on a characteristic related to the gender ground in respect of access to employment … shall not constitute discrimination … where (a) the characteristic constitutes a genuine and determining occupational requirement for the post and (b) the objective is legitimate and the requirement proportionate.” The respondent submitted that a minimum height is the relevant characteristic in this instance.
3.8 The respondent also submitted that Section 22 (1) (a) of the Acts defines indirect discrimination as occurring “where an apparently neutral provision puts persons of a particular gender … at a particular disadvantage in respect of any matter other than remuneration compared to other employees of their employer … unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The respondent submitted that the minimum height requirement is an objectively justified provision with the aim of preventing injury to the Bus Driver.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Ms Isabella Lazar in relation to access to employment on grounds of gender, disability and race, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In relation to the disability ground, the complainant confirmed that she did not consider that this ground applied to her and made no further submissions on this ground. Accordingly, I find that this element of the complainant fails.
4.4 The complainant stated that she was treated differently in relation to her race in that she had to provide proof of the right to work to the complainant, who did not take her statement that she was entitled to work at face value. The respondent stated that it had to ensure that the complainant’s documentation was in order for legal reasons. Having considered the evidence from both sides in relation to this aspect of the complainant, I consider that the respondent was entitled, and obliged, to clarify whether the complainant had the right to work in the State to comply with the legislative framework then in place. I do not find that this amounts to discrimination.
4.5 In relation to the claim that the height restriction amounts to discrimination on the gender ground, the complainant submitted that a minimum height requirement impacts disproportionately on women. The respondent accepted this contention. The respondent submitted that the maximum height requirement impacts in a disproportionate fashion on men also. I note that the Labour Court decision in the case of NBK Designs Ltd. and Marie Inoue (ED/02/34) found that it was not necessary to produce statistical evidence to support its contention and stated, inter alia, that:
“The procedures of this Court are intended to facilitate parties whether they appear represented by Solicitor or Counsel, Industrial Relations Practitioners or unrepresented, alike. It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience.”
4.6 I am also mindful of the provisions of Section 22 (1) (a) of the Acts which defines indirect discrimination as occurring “where an apparently neutral provision puts persons of a particular gender … at a particular disadvantage in respect of any matter other than remuneration compared to other employees of their employer”.
4.7 Having regard to the foregoing, I find the suggestion that a minimum height limit would impact disproportionately on women to be a valid argument . Accordingly, I am satisfied that the complainant has established a prima facie case of indirect discrimination on the gender ground.
4.8 In the circumstances and in order to rebut the presumption of discrimination, I consider that the respondent must show that a particular height (or at least a person falling within a height range) is an occupational requirement for the position of Bus Driver and that any gender disadvantage at the shorter end of the range is objectively justified.
4.9 The respondent called Dr A (an occupational health specialist) and Ms B as witnesses to give evidence regarding the height requirements, their objective justification and the procedures followed in the recruitment process. Dr A outlined how the respondent operated medical examinations and interpreted the height requirements for the job. Dr A indicated that they followed the guidelines of the International Labour Organisation (ILO) in relation to employing Bus Drivers. Dr A claimed that there was a guideline height range from 158 cm to 200 cm which was applicable to the job. She stated that the Chief Medical Officer had guidelines on height but that she was not in possession of those guidelines. The witness was not able to produce a copy of this guideline, to indicate where that guideline was written down, or to indicate whether the guideline was ever considered in the national context. On a number of occasions, Dr A directed the Tribunal’s attention to the website of the ILO in order that it might read up on the height guidelines. She stated that the guideline was not fixed because there may be exceptions to the rule and that people below and above the height range are employed by the respondent, depending on their individual circumstances. When the Tribunal enquired how the respondent ensured consistency, Dr A stated that she and her colleagues would discuss the various cases to ensure consistency.
4.10 The respondent confirmed that there may be male exceptions to the height rule but was not in a position to provide a breakdown of the numbers of persons below or above the guideline heights who were employed by it as Bus Drivers. The respondent also stated that those persons outside the guideline heights suffered from greater than normal sick leave levels.
4.11 Dr A outlined the various ergonomic considerations to be taken into account when considering height requirements and, once again, invited the Tribunal to view the ILO website to familiarise itself with those considerations. When asked, the respondent was not in a position to advise the Tribunal as to the costs associated with designing Bus Driver cabs for other heights.
4.12 I note from the respondent’s communications with the complainant that they informed her that she didn’t satisfy the minimum height standard, without informing her of what that height limit actually was. I further note that the only written note relating to a minimum height limit is a memo dated 13 September 2007 which refers to a minimum height of 165cm (in excess of 5 feet 4 inches). In her evidence, Dr A confirmed that, in her opinion, the average height of a female in the Irish population was 5 feet 4 inches (equating to c162.5cm). Therefore, on the face of it the respondent requires its female Bus Drivers to be above the average height.
4.13 I note that the respondent submitted a report on the which includes in the introduction the following line “this part of ISO 16121 sets out to consider the practical implications for all ranges of driver, but particularly those of heights from 1.58m (small female) to 2.0m (large male).” I find that this does not establish a specified height range to the exclusion of those persons whose height falls outside the relevant range.
4.14 Having considered the arguments put forward by the respondent in defence of this case, I consider that the respondent has established (on the basis of the oral evidence of the occupational specialist) that a height range may be a genuine and determining occupational requirement for the post of Bus Driver. However, in the absence of supporting documentary evidence, I find that the respondent has not established what the range is, or why it should be so, in either the international arena or, more specifically, in the national context.
4.14 In the absence of any clear and defined height range and associated procedures, I find that I cannot consider an apparently arbitrary measure of height (165cm), implemented in a piecemeal fashion, as amounting to objective justification.
4.15 Accordingly, the complainant is entitled to succeed in this complaint.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment in relation to access to employment on the basis of the disability or race ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment in relation to access to employment on the basis of the gender ground has been established and this element of the complaint succeeds.
5.3 In accordance with section 82 of the Acts I award the complainant €6,000 in compensation for the discriminatory treatment suffered. As this does not include any element of remuneration, it is not subject to income tax.
6. RECOMMENDATIONS
6.1 I recommend that the respondent clearly establish what height range amounts to a genuine and determining occupational requirement for the post of Bus Driver, and that they take steps to inform applicants for the position of that information at the earliest possible opportunity in the recruitment process
Conor Stokes
Equality Officer
10 August 2010
DEC-E2010-051-Full Case Report
Employment Equality Acts
1998-2008
EQUALITY OFFICER’S DECISION
NO: DEC-E2010-051
PARTIES
Nowak v The Law Society of Ireland
File references: EE/2007/036
Date of issue: 19 April 2010
File references: EE/2007/036 – DEC-E2010-
Keywords
Employment Equality Acts – Discriminatory Treatment – Race – Membership of certain bodies – Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Blazej Nowak (hereafter “the complainant”) that he was subjected to discriminatory treatment contrary to section 13 of the Employment Equality Acts by The Law Society of Ireland (hereafter “the respondent”) on the grounds of his race. The complainant stated that when he sought to sit the final entrance examination with the respondent he received a letter from The Law Society in January 2007 stating that he had to pay a fee of €65 to make an official application to the Education Committee.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 24 January 2007 under the Employment Equality Acts. This claim was made on the race ground. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer – on 30 November 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 16 March 2010.
2. Case for the complainant
2.1. The complainant, a Polish national, submitted that he applied to the respondent in December 2006 to sit the entrance examination for the Solicitor profession. In January 2007, the complainant submitted, he received a letter from the respondent informing him that he needed to make an official application to the Education Committee in relation to receiving an exemption from the Preliminary Examination. This application is open to foreign graduates, from non-Irish or United Kingdom universities, who wish to be exempted from the preliminary examination. The complainant submitted that the respondent contravened section 13 of the Acts by discriminating him in relation to being asked to pay a fee of €65. This fee, it was submitted, was not required from people who have a degree from a British or Irish university.
2.2. The complainant submitted that he has a degree of Master in Art in law from a Polish University. This, he submitted, made and makes him exempt from the preliminary examination. It was submitted that he had provided a certified copy of his degree certificate and, despite this, he was requested to apply for an exemption from the preliminary examination. The complainant submitted that there was no need for such an application as the respondent was in receipt of his degree certificate. Therefore, the complainant submitted, he has been discriminated contrary to section 13 of the Acts on the grounds of his nationality.
3. Case for the respondent
3.1. The respondent submitted that under the Solicitors Act 1954, section 54 (as substituted by section 40 of the Solicitors (Amendment) Act 1994, a person shall not be admitted as a Solicitor unless he has, inter alia, been bound under indentures of apprenticeship and has duly served under such indentures. Under section 25 of the above Act (as substituted under section 41 of the 1994 Act), a person shall not be capable of being bound under indentures of apprenticeship unless he has, inter alia, passed such examination or examination as may be prescribed pursuant to section 40 of the 1954 Act (as amended by section 49 of the 1994 Act) and has complied with any requirements as may have been prescribed as to admission to apprenticeship, or compliance therewith has been waived as may be prescribed.
3.2. It was submitted that section 40 (4) of the 1954 Act (as substituted by section 49(b) of the 1994 Act) provides that Regulations for the purposes of that section shall provide for the holding at least once in every year of, inter alia, a preliminary examination to be passed by a person seeking to be bound under indentures of apprenticeship who is not otherwise exempted therefrom pursuant to section 41 of the 1954 Act (as substituted by section 50 of the 1994 Act) and section 42 of the 1954 Act.
3.3. It was submitted that section 41 of the 1954 Act (as substituted by section 50 of the 1994 Act) provides for a general exemption from the preliminary examination:
41. – The preliminary examination of the Society shall not be required to be passed –
(a) by a person who holds the degree from any of the universities of Ireland, England, Scotland and Wales, or a degree conferred or recognised by the National Council for Educational Awards under section 3 of the National Council of Educational Awards Act, 1979;
(b) by a person who has passed an examination prescribed as being equivalent thereto, or
(c) by a person who holds the degree of barrister-at-law from the Honorable Society of King’s Inns, Dublin, or other professional qualification prescribed as being equivalent thereto.
3.4. It was submitted that section 42 of the 1954 Act provides for a special exemption from the preliminary examination: the Society may, in special circumstances, exempt a person from the preliminary examination of the Society, or any part thereof, either unconditionally or subject to such conditions as they think fir.
3.5. The respondent submitted SI 616 of 2006 – The Solicitors Acts, 1954 to 2002 (Apprentices’ Fees) (No. 2) Regulations, 2006. It provides, by regulation 5, that a person seeking the consent of the Society to be bound by indentures of apprenticeship to a practising solicitor shall first have passed the preliminary examination, or have been exempted therefrom by reason of , inter alia, holding a recognised degree, or holding a degree (not being a honorary degree) or other qualification which, in the opinion of the education committee of then Society in the particular case, is equivalent to a recognised degree. Furthermore, regulation 3 provides –
3(a) A person seeking an exemption from sitting the preliminary Examination under Regulation 5(a)(ii) of the principal Regulation shall apply in writing to the Committee and shall provide the following:
(i) a copy of the degree or other qualification for which recognition is sought issued by the educational institution concerned and duly certified by that educational institution not earlier than six months before the date of its presentation to the Committee;
(ii) appropriate documented information from the educational institution concerned as to the courses attended by the applicant leading to the applicant obtaining the degree or other qualification in question;
(iii) where requested by the Committee, a translation into the English language of any document not already in English presented to the Committee relating to complying with sub-clause (i) or (ii) of this clause; and
(iv) any fee as may be prescribed.
It was submitted that SI 616 of 2006 specifies the fees payable for various applications to the respondent.
3.6. It was submitted that the above scheme is required by European Union law. Citing case C-313/01 Morgenbesser v Consiglio dell’Ordine degli Avvocati di Genova the respondent submitted that “recognition, for academic and civil purposes, of the equivalence of a diploma obtained in one Member State may be relevant, or even decisive for the enrolment with the bar of another Member State. However, the taking into account of the diploma of the person concerned must be carried out in the context of the assessment of the whole of the training, academic and professional, which the person is able to demonstrate. In that respect, it is the duty of the competent authority to examine whether, and to what extent, the knowledge certified by the diploma granted in another Member State, and the qualifications or professional experience obtained there, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be regarded as satisfying, even partially, the conditions required for access to the activity concerned”.
3.7. It was submitted that the complainant does not hold a recognised degree. Accordingly, in order for him to become a Solicitor and under the statutory scheme regulating the profession, he must either pass the preliminary examination or apply for and obtain an exemption from that examination. This application entails the payment of a fee €65. It was submitted that the complainant has not demonstrated a prima facie case that this requirement puts persons of a particular race, colour, nationality, ethnic or national origin at a particular disadvantage when compared to other persons. It was submitted that the complainant’s claim amounts to a claim of indirect discrimination.
3.8. Furthermore, it was submitted that the requirement that those who do not hold a recognised degree must either pass the preliminary examination or apply for and obtain an exemption from the examination is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. It was submitted, in accordance with Morgenbesser, that the requirement for a formal application and payment of administration fee is an appropriate and necessary means of achieving that legitimate aim.
3.9. It was submitted that the requirement for a formal application and payment of an administration fee is objectively justified by that legitimate aim as staff time involved in processing such an application.
3.10. An additional submission was made in relation to the Tribunal’s jurisdiction to hear this claim. It was submitted that the Tribunal has no jurisdiction to ignore relevant parts of the Solicitors Acts and the related regulations. Citing Minister for Justice v. Director of the Equality Tribunal [2009] IEHC 72 the respondent submitted that the Tribunal does not have the jurisdiction to make a binding legal declaration of inconsistency or insufficiency on a comparison of European and national legislation. It was submitted that this is a function reserved for the High Court.
4 Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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.
4.2. I do not accept that the case before me is not within my jurisdiction. I do have the power to examine this claim within the scope of the Employment Equality Acts. The respondent is covered by section 13 of the Acts. No arguments in reference to inconsistency or insufficiency in relation to European and national legislation were made to the Tribunal.
4.3. It is clear that the complainant has not completed the process of having his Polish examination recognised by the respondent. During the hearing it became apparent that the complainant, who accepted the necessity for the small administration fee (but who had not paid it), was under the impression that even after his degree had been recognised by the respondent’s administration, he would then still need to request that the respondent’s Education Committee recognise his Polish degree. I am satisfied that there is no additional requirement to apply or make a formal request to the Education Committee. However, an application must be accompanied with the relevant fee before it is processed and recognised. The complainant stated that he had submitted his certified degree documents and that this ought to be enough.
4.4. The prohibition against discrimination in the Acts encompasses both direct and indirect discrimination. This applies to section 13. I accept, on the facts of this case, that the requirement set out by the Law Society is not directly discriminatory. For example, in a comparator situation, an Irish person who had studied law in Poland would have to apply for the same exemption from the respondent and pay the same fee as the complainant is asked to pay. It is clear that the requirement appears to be indirectly discriminatory. It is obvious that a Polish person is more likely to have a degree from a Polish university than from an Irish university and therefore that a Polish person who wishes to sit the respondent’s entry examination is at a particular disadvantage when compared with an Irish person in such circumstances. I am, however, satisfied that the reason for this requirement is objectively justified by a legitimate aim. This aim is to ensure that applicants seeking to enter a profession have a minimum standard of relevant education. I am also satisfied that requirement that a certified copy (with supportive documentation and a translation where necessary) of a degree certificate is submitted combined with the minimal administration fee of €65 is appropriate and necessary. Furthermore I find that this practice is consistent with the requirements set out in the primary legislation governing the Solicitor profession. It is also consistent with the principles set out in Morgenbesser.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the respondent did not discriminate against the complainant on the race ground. Therefore, the complaint of less favourable treatment fails.
________________
Tara Coogan
Equality Officer
19 April 2010
Secretary of State for Defence v Elias
[2006] EWCA Civ 1293 (10 October 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1293.html
Cite as: [2006] 1 WLR 3213, [2006] EWCA Civ 1293, [2006] IRLR 934, [2006] WLR 3213 Mummery LJ
Direct race discrimination
Direct race discrimination was at the forefront of the arguments of Mrs Elias in the judicial review appeal.
The judge rejected the contention that the birth link criteria were directly discriminatory “on racial grounds.” On behalf of Mrs Elias, Mr Rabinder Singh QC submitted that she should succeed on both direct and indirect discrimination, or, failing that, on the ground of direct discrimination in preference to the ground of indirect discrimination upheld by the judge. As mentioned earlier, subject to the defence of justification, indirect discrimination has been conceded by the Secretary of State. As for direct discrimination, the thrust of the case for Mrs Elias is based principally on the racially discriminatory purpose of the birth link criteria and on their discriminatory effects.
The obvious importance of the case for direct discrimination is that, if it is made out, the defence of justification is not available to the Secretary of State.
That Mrs Elias was treated less favourably than other comparable persons is undeniable. Her application for a payment under the Compensation Scheme was rejected. Applications by others for compensation were accepted. The critical question is whether her application was rejected “on racial grounds” within the meaning of section 1(1)(a) of the 1976 Act.
The fact is that, although Mrs Elias was, by virtue of the British Nationality and Status of Aliens Act 1914, a British subject at the date of her internment in 1941, she did not have the birth link with the UK required by the eligibility criteria: she was not born in the UK, nor were either of her parents or any of her grandparents. She did not qualify for a payment, because she did not satisfy the condition of payment linked to place of birth.
The judge accepted the submissions of the Secretary of State that Mrs Elias was not discriminated against directly, as the grounds on which compensation was refused were not “racial grounds.” The criteria specified place of birth as determinative: either her place of birth, or the place of birth of either of her parents and/or any of her grandparents. The birth link criteria did not require an applicant to have UK national origins, nor did the UK national origins of an applicant guarantee entitlement.
The judge recognised that a distinction has been established by the authorities on race discrimination between the “national origins” of a propositus and the place of birth of the propositus. In practical terms the use in the Compensation Scheme of criteria relating to the place of birth meant that applicants for compensation were eligible, even if they were not of UK national origin, it being sufficient that their mother happened to be in the UK when she gave birth.
Although these aspects give the criteria an arbitrary and adventitious quality, the Court of Appeal held in ABCIFER that they were not irrational. It does not, of course, follow that they complied with the 1976 Act. It is necessary to examine a different line of authority on the scope of discrimination on “the racial grounds” in the context of national origins and their relationship to place of birth.
Ealing LBC v. Race Relations Board [1972] AC 342, a decision on the Race Relations Act 1968, was cited by Mr Philip Sales for the Secretary of State. Ealing LBC refused to place the name of the applicant, who was a Polish national, on the housing waiting list, as he was not a British subject. This was less favourable treatment, but, according to the House of Lords, it was not treatment “on racial grounds.” “National origin”, a term left undefined in the legislation, meant national in the sense of, or analogous to, race, lineage or descent. It did not mean national in the legal sense of the citizenship (i.e. nationality), which may be acquired by an individual at birth by virtue of parental connection with the country in which birth takes place: see pages 358D-G, 363H-364E and 365D-366E. In distinguishing between national origins and nationality the House of Lords incidentally distinguished national origins from place of birth, which does not by itself determine “national origins.”
The law was amended in section 3(2) of the 1976 Act to include “nationality” in “racial grounds,” but that has not affected the construction placed by the courts on the expression “national origins.” This expression was repeated by Parliament in the 1976 Act, four years after the Ealing case with, it is reasonable to assume, knowledge of the meaning that the House of Lords had placed on it in the earlier legislation against race discrimination. In those circumstances it may be presumed that Parliament intended “national origins” to continue to have the same meaning in the 1976 Act: BBC Scotland v.Souster [2001] IRLR 150 (Court of Session-Inner House) per Lord Cameron of Lochbroom at paragraph 28, applying the principle in Barras v. Aberdeen Steam Trawling and Fishing Company Ltd [1933] AC 402 at 412, 442 and 445 that a word which has received a judicial interpretation must, when used in the same context in a later enactment, bear the same interpretation unless a contrary meaning is indicated.
In this case the birth link criteria related to where Mrs Elias or her ancestors happened to have been born. Mr Sales submitted that this was an adventitious fact that does not operate to determine or identify a person’s “national origins” for the purposes of the 1976 Act.
The reasoning in the Ealing case has been followed in later cases, which have drawn a distinction in race discrimination law between different treatment on grounds of “national origins”, as construed in Ealing, and different treatment on grounds of place of birth.
In Tejani v. Superintendent Registrar for the District of Peterborough [1986] IRLR 502 the dismissal of a claim for direct race discrimination was upheld by the Court of Appeal. The claimant was a British national born in Uganda. He wished to marry. The Registrar asked all people from abroad to produce their passports. Mr Tejani produced his as requested, but later made a claim under the 1976 Act for direct discrimination on the ground of national origins. The court held that the reason why the Registrar took that course had nothing to do with race: it was because the claimant was born abroad. He would have taken the same course with everyone coming to this country from abroad, irrespective of their race or national origins: see the judgment of Slade LJ at p506.
In Naraine v. Hoverspeed Ltd …12 November 1999) Mr Naraine, who was a black Asian Caribbean born in Guyana, complained that Hoverspeed had unlawfully discriminated against him on racial grounds contrary to the 1976 Act by declining to carry him to France. His full British passport had expired. He held a British Visitor’s passport, the holder of which the French authorities refused to admit to France if the document showed that the holder was born outside the UK. The French authorities also fined sea carriers who brought such passengers to France.
The rejection of the claim for direct discrimination was upheld by the Court of Appeal. The reason for the refusal to carry him was that he lacked the travel documents required by the French authorities as a condition of entry and that the French authorities would fine Hoverspeed, if they did carry him. The refusal by Hoverspeed had nothing to do with the “national origins” of Mr Naraine. May LJ asserted an intrinsic distinction between national origins and place of birth in that a person’s place of birth may be entirely fortuitous. It was a distinction recognised in the Ealing case and in Tejani. He pithily pointed out that being born a German and being born in Germany are two different things. See also AG’s Reference (N0 4 of 2004: R v. D [2005] EWCA Crim 889.
Mr Sales accordingly submitted that a criterion that distinguishes between applicants on the basis of the place of birth is not discrimination on the grounds of “national origins.” This is so, even though statistically those who are born in the UK are more likely to have UK national origins than those who are not born in the UK .
He disputed the suggestion that the generous extension of the place of birth criterion in this case to ancestors born in the UK in order to make the birth link criteria more inclusive had the effect of making the criterion so closely related to national origins as to lead in practice to almost the same differentiation as the adoption of national origins would have done. Having UK national origins was neither a necessary nor a sufficient condition of eligibility under the Compensation Scheme.
Mr Sales contended that the CERD, to which particular reference had been made in the case for Mrs Elias for its reference to “descent”, added nothing to her case. The domestic legislation on race discrimination complied with the CERD. As in the case of national origins, the birth link criteria neither excluded applicants of non-British descent nor guaranteed entitlement to applicants of British descent.
The point was discussed by reference to different ways of posing the question of the ground of the treatment of Mrs Elias in refusing her application for compensation. First, there was the “reason why” approach as in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337: why had Mrs Elias received less favourable treatment by being denied compensation? Secondly, there was the “but for” approach, as in James v. Eastleigh Borough Council [1990] 2 AC 751: would Mrs Elias have received the same treatment but for her national origins?
The answers to these questions, Mr Sales submitted, did not lead to the conclusion that Mrs Elias was discriminated against on the grounds of her “national origins.” She was denied compensation because she did not satisfy criteria as to her place of birth or that of her parents or grandparents. The criteria applied irrespective of her national origins. As the judge pointed out, even as someone with non-UK national origins, she might have qualified had a parent or grandparent been born in the UK, whether or not they were of UK national origins. Similarly a person with UK national origins would not inevitably qualify for a compensation payment.
The different ways of putting the crucial question (why was Mrs Elias’s application for payment refused?) produced the same answer: she could not establish that her place of birth or that of her parents or grandparents was in the UK. For that reason she could not satisfy the birth link criteria. It had nothing to do with the racial or national origins of Mrs Elias. Irrespective of her national origins, she could not satisfy the criteria.
The point made by Mr Rabinder Singh QC for Mrs Elias was that, in order to answer the relevant question, it is necessary to look beyond the literal criteria of the place of birth to the central discriminatory purpose of the birth link criteria and to their discriminatory effect in favouring, on racial grounds, one group as compared with another. Direct discrimination on racial grounds can, he argued, occur even where the criteria are not expressly framed to refer to race. The judge had erred in only looking at the outer edges of application of the birth link criteria. The fringe cases had diverted the attention of the judge from the central purpose of the birth link criteria and led him to disregard the descent-based grounds for refusing payment.
Applying the “purpose” or “effect” approach spelt out in Article 1 of CERD Mr Singh submitted that the birth link criteria were deliberately selected for the purpose of identifying and requiring a real, strong and close link between those eligible for compensation and the UK. Descent, parentage and national origins provide the link and they constitute direct discrimination against Mrs Elias.
In practice in the vast majority of cases place of birth and national origins come to the same thing. It does not require statistical evidence or any other kind of evidence to establish that, for the vastmajority of people in the UK, their place of birth and their national origins are one and the same. Birth criteria focus on origins of a national character, which are immutable characteristics acquired or imposed at birth. Further, the national origins in the criteria in this case were reinforced by the fact that they relate not only to the birth place of the applicant but also to the birth place of the applicant’s parents or grandparents. The whole purpose of adopting such criteria was to identify those who could show a concept of “belonging to the UK” or “being British” in a more specific way than simply through being British subjects or civilians. Although it is accepted that place of birth is not identical to national origins, it is so close to it that it should be treated as direct discrimination on that racial ground. The criteria were designed for the very purpose of excluding from payment those of non-national UK origins or alien descent and to make only de facto Europeans eligible for payments under the Compensation Scheme. If her parents or grandparents had been born in the UK she would have qualified. She was treated less favourably because she was not of UK national origins.
Why, Mr Singh forcefully protested, should peripheral cases of UK nationals, who are born outside the UK, and non-UK nationals, who are born in the UK, on which the judge relied, be determinative of whether the grounds on which an applicant is refused compensation under the Compensation Scheme are racial or not? The real reason why Mrs Elias could not satisfy the birth link criteria was because she did not have UK national origins. The refusal of her application was less favourable treatment of her “on racial grounds.”
This is a very pertinent question aimed at throwing real doubt on whether, in cases of this kind, there is a valid distinction between national origins and place of birth and whether there is any meaningful distinction in substance between the concepts of direct and indirect discrimination. What really matters, it is suggested, is whether the difference in treatment can be justified independently of racial grounds.
Certainly, from the perspective of victims of discrimination, there is no difference in substance between direct and indirect discrimination, other than that the former is more open, explicit or obviously offensive racial treatment, which is less excusable than a neutrally worded requirement, condition, provision, criterion or practice applicable equally to persons not of the same race. Whatever the kind of discrimination, direct or indirect, the victim of the discrimination in this case has been subjected to a comparative disadvantage, to which those with UK birth links, who are predominantly of UK national origins, have not been subjected. The legal distinction drawn in the authorities on the interpretation of the 1976 Act between national origins and place of birth might well appear to the victims of race discrimination to be a hair splitting distinction, in which the substance of the matter is obscured by preoccupation with form.
Mr Singh also submitted that overall the arguments advanced by the Secretary of State on the discrimination issue were contradictory and inconsistent. He said that the Secretary of State was impaled on Morton’s Fork
As to direct discrimination the Secretary of State sought to avoid the charge of a racially discriminatory purpose present in the birth link criteria by emphasising their random and adventitious aspects. Place of birth was where the mother of Mrs Elias happened to be when she gave birth. How could this be a racially discriminatory purpose?
As to indirect discrimination, which is discussed in more detail below, the emphasis of the Secretary of State’s submissions on objective justification was not on the fortuitous aspects of the birth link criteria, but on the purpose of requiring close links with the UK at the date of internment. This was a discriminatory purpose, as it was linked to grounds of UK descent or national origins and could not be relied on as a justification of race discrimination.
The powerful submissions of Mr Rabinder Singh raised serious doubts in my mind about the correctness of the judge’s ruling on this point, which, as Mr Singh pointed out, focused more on the edges of the effects of the criteria than on their central purpose or effect. In a general sense, discrimination with a discriminatory purpose, regardless of the particular form it takes, can be perceived as treating a person less favourably “on racial grounds.”
I am, however, clear that, in the present state of the law, the particular form of discrimination matters, even if there are present in the circumstances of the case a discriminatory purpose and discriminatory effects. The 1976 Act, as amended, makes an important broad distinction between two different forms of discrimination. This distinction is consistent with the Directive and this court must observe it.
The discrimination complained of in this case does not take the direct form of treatment “on racial grounds.” The birth link criteria take an apparently neutral form, which applies or would apply equally to all applicants for payments under the Compensation Scheme. It is the application of the neutrally worded criteria which produces the disparate adverse impact and puts persons of the same national origins at a particular disadvantage when compared with other persons. These are the distinguishing features of discrimination in its indirect form.
On this aspect of the case I would make the following particular points.
First, the 1976 Act clearly creates two different causes of action for race discrimination. They are two different statutory torts. The conditions of liability, the available defences to liability and the available defences to remedies differ. So far as remedies are concerned damages for injury to feelings for indirect discrimination were not available in cases of unintentional indirect discrimination contrary to section 1(1)(b): see section 57(3). (This has ceased to matter much in practice since the introduction of section 1(1A) as the defence to damages in section 57(3) has been removed for discrimination contrary to that section: see section 1(1C)).
Secondly, it is well established on authority and in practice that the material facts for the separate causes of action need to be separately pleaded, proved and ruled on. Section 1 of the 1976 Act cannot be construed as collapsing two causes of action into a single cause of action, the ingredients of which are discriminatory purpose and/or discriminatory effects.
Thirdly, the basic differentiation between the two causes of action is plain: it is between one form of discrimination, which focuses on treatment of another person on prohibited grounds and aims at achieving “formal equality” of treatment, and a different form of discrimination, which aims at achieving “substantive equality of results” where the application of apparently racially neutral criteria produces disproportionate adverse racial impact: see the trenchant observations in Secretary of State for Trade and Industry v. Rutherford [2006] UKHL 19 at paragraph 71 per Lady Hale.
Fourthly, the distinction between the two forms of discrimination is recognised in the Directive, as well as in the original and the amended provisions of section 1 of the 1976 Act. It is not just a peculiar feature of UK domestic law.
Fifthly, the availability of the defence of objective justification for one form of discrimination but not for another emphasises the importance of observing the separate nature of direct and indirect forms of discrimination. If the distinction is not observed, the result would be that the defence of justification would become available for direct discrimination. That result would not reflect the provisions of section 1 of the 1976 Act or be compatible with the Directive.
Sixthly, there is a consistent line of authorities since the Ealing case which are binding on this court and are to the effect that less favourable treatment on the ground that you were not born in a particular country is different from less favourable treatment on the ground of “national origins” and that the former falls outside what is prohibited by the 1976 Act as direct discrimination. Although place of birth is not a racial ground, it may be prohibited as an indirect form discrimination, subject to the defence of justification which may be difficult to establish, because, as will be explained later, justification must address the substance and not just the form of the discrimination.
Accordingly the judge was right, indeed bound, to rule as he did on the issue of direct discrimination. So is this court. Although I have continuing reservations, in principle, about the defensibility of a legal distinction between national origins and place of birth when determining whether there is direct race discrimination, I think that this court is bound by authority to dismiss this ground of the appeal by Mrs Elias.
Indirect race discrimination: justification
The Secretary of State conceded that the birth link criteria had an adverse impact on a greater proportion of applicants like Mrs Elias than on applicants who were born in the UK and had UK national origins. In other words the birth link criteria excluded a higher proportion of those with non-UK national origins than those with UK national origins. This is indirect race discrimination, which is unlawful, unless objectively justified.
The issue of objective justification, which has a number of different aspects, is the most difficult point in the whole case. The court heard very lengthy arguments on many points with extensive citation of authorities dealing in generalities, which, like so much in this field, are easier to state in the abstract than to apply in practice to the facts of particular cases.
A number of points fall to be considered: the relevance, if any, of the fact that, as reflected in the declaration under section 71 of the 1976 Act, the Secretary of State did not consider the question of justification at the relevant time because it was not accepted by him that there was any race discrimination; the question whether the justification relied on was “irrespective of race”; the level of scrutiny by the court appropriate to the defence of justification; whether there was a legitimate aim in the birth link criteria; whether there was a wide margin of appreciation or a discretionary area of judgment allowed to the Secretary of State in formulating the eligibility criteria; and whether the birth link criteria were a necessary and proportionate means of achieving a legitimate aim.
Although Mrs Elias was successful overall on the absence of objective justification, she contends that the judge should have decided the case in her favour on a broader basis than he did. He should have held that there was no legitimate aim in seeking to achieve close links to the UK by reference to descent and that such an aim could not be justified by cost considerations or administrative workability.
Failure to address potential race discrimination
This is an important point affecting the court’s overall view of the defence of justification. Mr Sales submitted that the Secretary of State was entitled to assert that the birth link criteria were justified, even though he had not addressed the issue of discrimination or possible justifications for it at the time of formulating the birth link criteria: Schonheit v. Stadt Frankfurt am Main [2004] IRLR 983 at paragraphs 86 and 87. Indirect discrimination may be justified, depending on the circumstances, by reasons other than those put forward when the measure introducing the differential treatment was adopted. What matters is that there are objective reasons for the criteria, which are unrelated to the forbidden grounds of, among other things, national origins and are such as to justify the measure concerned.
While I do not doubt the correctness of the general proposition that in theory ex post facto justification of indirect race discrimination is legally permissible, it does depend on the circumstances. In R (Morris) v. Westminster City Council [2005] EWCA Civ 1184, [2006] 1 WLR 505 at paragraph 49 Sedley LJ referred to the difficulties of relying on the margin of appreciation in cases of attempts to justify discrimination, when it was not appreciated that the measure had a discriminatory impact and so no judgment at all was made as to whether the measure was proportionate or otherwise justified.
There are several legal and practical difficulties in this case in advancing grounds of justification for a form of indirect discrimination that was not even considered when the birth link criteria were adopted and, when raised, was consistently denied down to the hearing of the case.
First, the onus is on the Secretary of State to justify the birth link criteria as a matter of law and of objective fact. The onus is not on Mrs Elias to establish that the birth link criteria are unjustified, because they do not have a legitimate aim or because the means of pursuing a legitimate aim are disproportionate or because the birth link criteria cannot be justified “irrespective of race.” I would also add that the onus is not on the court, as part of the exercise of margin of appreciation or area of discretionary judgment allowed by the court to the State, to search around for a justification of the birth link criteria in order to help the Secretary of State out of a situation of his own making.
Secondly, one important consequence of the failure of the Secretary of State to address the indirectly discriminatory effects of the birth link criteria is the absence of an evidential basis for justifying the birth link criteria or for assessing the comparative discriminatory effects of other possible criteria as a means of confining compensation to those with close links with the UK. I agree that the requirement of close links with the UK would make it practically impossible to avoid some adverse disparate impact resulting from different neutrally worded criteria, such as requirements of residence or domicile. But, if the exercise of formulating the criteria had been properly carried out with due regard to the potentially discriminatory effects of requiring close links with the UK, there would probably have been brought into existence evidence in the form of data and reasons relevant to an informed choice of criteria, which might have had a lesser discriminatory impact than the birth link criteria. The kind of evidential material which ought to be available for deciding the issue of justification does not exist, because the selection of the eligibility criteria by the Secretary of State was carried out without due regard to the race discrimination issue.
Thirdly, this court must give effect to section 71 of the 1976 Act, which placed on the Secretary of State a statutory duty which he has failed to perform. I think that this adds to the difficulties of the Secretary of State in now attempting to justify the imposition of the birth link criteria. He has to justify an act of discrimination committed in the carrying out his functions when, in breach of an express duty, he failed even to have due regard to the elimination of that form of unlawful race discrimination. He has to justify something which he did not even consider required any justification. In these circumstances the court should consider with great care the ex post facto justifications advanced at the hearing. I shall return to this point later.
Legitimate aim
The judge held that the aim of the birth link criteria was in principle legitimate (paragraph 73).The Secretary of State was entitled to limit eligibility to compensation to a category narrower than everyone who was a British subject at the time of internment by requiring the applicant to have close links with the UK.
In formulating a legitimate aim the Secretary of State was entitled to take into account a number of factors: considerations of social and national solidarity; administrative workability; and the cost to the UK taxpayers of funding as part of the definition of the Compensation Scheme and the financial consequences of decisions. The court was referred to Hoogendijk v. The Netherlands (2005) 40 EHRR SE22 189 at 204-205, a case on Article 14 of the Convention in relation to an alleged violation of a violation of rights under Article 1 of Protocol No 1. The case concerned loss of entitlement to disablement benefits. It was held that the control of public expenses by the State is a legitimate aim for the purposes of securing social justice and protecting the State’s economic well-being. In this respect, in implementing social and economic policies, the margin of appreciation enjoyed by the national authorities in determining what is in the general interest of the community is a broad one. The court went on to consider the issue of proportionality and held that, given the wide margin of appreciation enjoyed by Contracting States in implementing social and economic policies, the decision complained of could not be considered disproportionate to the legitimate aims pursued and so there was no violation of Article 1 of Protocol No 1.
As to whether it was legitimate to require applicants for benefits to demonstrate a sufficient connection with the paying state, as they are national in character and express a debt of national gratitude, it was submitted on behalf of Mrs Elias that national solidarity cannot justify a measure which, by requiring a national connection, has disparate impact on persons of a particular race nationality or national origin.
Mr Sales summarised four factors as justifying the aim of narrowing the class of British subjects by requiring close links with the UK. First, the immense size of the “British subject” group, many living in territories that are now independent and not financed by UK public funds. Secondly, the fact that military prisoners of war were the main focus of the compensation payments initially. As they were confined to UK Armed Forces, a similar equivalent connecting factor was sought for civilian claimants. Thirdly, the cost to the public purse. Fourthly, the need for understandable and administratively workable criteria.
He also pointed out that there was no single obviously “right” solution. There was no rule of EC law against “national solidarity” in the distribution of benefits of this kind, such as social security benefits, which were an act of national recognition by particular states to those with genuine links with that state. Ex gratia payments of the kind made under the Compensation Scheme as expressions of national gratitude were an a fortiori case.
A rational attempt had been made to make the criteria more inclusive by extending place of birth from the applicant to parents and grandparents and to relate the requirement of close links with the UK to the position as at the date of internment. It had been held by his court in ABCIFER that this was not an irrational aim with which to start.
Mr Rabinder Singh criticised the judge’s finding of the legitimate aim of the birth link criteria on a number of grounds.
First, as already mentioned, there was no national or social solidarity as a legitimate aim in this case, as the solidarity was judged by national origins/racial descent. He cited Cowan v. Tresor Public …Case 186/87) [1989] ECR 195 at paragraphs 16 and 17, a case on freedom of movement, in support of the proposition that the principle of national solidarity cannot justify a measure relating to the award of compensation which has discriminatory effects on grounds of nationality.
Secondly, economic considerations could never be relied on to justify race discrimination. The curtailing of the cost of the scheme was not a legitimate aim. In this case it was, in any event, an ex post facto consideration and the estimated figures showed that only a comparatively small group was disadvantaged by the birth link criteria.
Thirdly, administrative workability was not a legitimate aim. In this case it was relied on ex post facto. There had been no difficulty in making a large number of payments in February 2001 before the birth link criteria were settled.
I think that the question of legitimate aim has to be looked at in the round. In my judgment the judge was right to conclude that overall the aim of confining the payments to those with close links with the UK was a legitimate one. The real question is not about the end to be achieved but the means by which it was to be achieved and, in particular, whether the birth link criteria were a reasonably necessary and proportionate way of achieving the aim. I would make the following points.
First, I agree with the judge that ends must be distinguished from means. The overall aim sought to be achieved was to require close links of the applicants for compensation with the UK. The birth link criteria were the means chosen to achieve that end. The critical issue is whether they are proportionate means to achieve the end. I shall deal with that point later.
Secondly, national or social solidarity can justify the aim of close links to the State supplying the benefits. I do not think that Cowan v. Tresor Public is authority for such a wide legal proposition as that advanced on this point by Mr Rabinder Singh.
Thirdly, cost is not itself an aim or part of the aim. It is a factor in selecting the means and it falls to be considered as part of the proportionality exercise discussed below.
Fourthly, the same comment applies to the administrative workability of the criteria selected as a means of achieving the aim of close links with the UK.
Standard of scrutiny
In deciding the issue of proportionality there was significant disagreement on the preliminary point of the appropriate level of scrutiny of the birth link criteria.
In the ABCIFER the Court of Appeal rejected the contention that the birth link criteria were irrational. That does not, of course, determine this case. As the issue of race discrimination was not raised the court did not have to consider the question whether indirect race discrimination was objectively justified.
The standard of justification in race discrimination is the more exacting EC test of proportionality. As held by the Court of Justice in Bilka Kaufhaus GmbH v. Weber von Harz [1986] ECR 1607 at paragraphs 36 and 37 the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group. It is not sufficient that the Secretary of State could reasonably consider the means chosen as suitable for attaining the aim.
The judge was criticised by Mr Sales for applying “intense scrutiny” to the birth link criteria. The judge did so, as he regarded the criteria as too closely related to “national origins.”
Mr Sales submitted that there was a broad margin of appreciation or discretionary area of judgment allowed by the courts in areas of social and economic policy, as, for example, in the distribution of social security benefits.
A wide margin of appreciation or discretion was a recurrent theme of the submissions of Mr Sales on the different aspects of justification and it was the main plank for his criticisms of the judge’s ruling on proportionality. He submitted that the judge failed to accord to the Secretary of State in relation to the Compensation Scheme an appropriate margin of appreciation in using “bright line” criteria which were easy to understand and administratively workable.
He relied on Hoogendjik v. The Netherlands …see above) at 205 and 207-208 as showing that a wide margin of appreciation should be accorded to national authorities in a case in which what is impugned is a social policy decision on the basis of discrimination on “a suspect ground.” This approach in earlier decisions was, he argued, re-inforced by the very recent decision of the Strasbourg Court in Stec v. UK … 12 April 2006- Application Nos 65731/01 and 65900/01). It is a case on a state welfare benefits scheme in which the criteria, which were linked to the different pensions ages for men (65) and women (60) directly discriminated on the ground of sex. It was held that the discrimination was justified. The Court said-
“50. The applicants complain of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14.
51. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article …….. A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. …
52. The scope of this margin will vary according to the circumstances , the subject matter and the background ( see Petrovic v. Austria …) As a general rule, veryweighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. …On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. ….Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation.”
Mr Sales submitted that it was sufficient to show that the Secretary of State could reasonably consider that the means chosen were “suitable for attaining the aim”. The judge has misdirected himself by relying on cases of direct discrimination when he had already correctly concluded that this was not a case of direct discrimination.
It was argued that a wide margin of appreciation was appropriate in this case, as it had been recognised that special considerations applied to one-off war payments. There was a one-off moral objective, which had major economic consequences, principally because of the potential impact of the removal of the birth link criteria on the military eligibility criteria if they were extended to include all military personnel who were British subjects when they became prisoners of war.
In my judgment, the judge correctly adopted a rigorous standard in scrutinising the reasons advanced by the Secretary of State in justifying the birth link criteria.
The submissions made by Mr Sales do not meet the point that, although the race discrimination is indirect in form, objective justification must address the particular substance of the discrimination, which flows from the neutrally worded condition or requirement.
Although the birth link criteria are not direct discrimination in the form of treatment on “racial grounds”, as they relate expressly to place of birth, they are in substance very closely related to treatment on “racial grounds.” This is because it is self evident that the overwhelming proportion of applicants born in the UK, or whose parents or grandparents were born in the UK, have UK national origins as compared with the overwhelming proportion of applicants not born in the UK who do not have UK national origins.
Even though UK national origins are not formally specified in the birth link criteria, Mrs Elias’ exclusion from the Compensation Scheme is in substance very closely related to her non-UK national origins. It is that exclusion that has to be objectively justified. A stringent standard of scrutiny of the claimed justification is appropriate because the discrimination, though indirect in form, is so closely related in substance to the direct form of discrimination on grounds of national origins, which can never be justified.
If this is the correct approach, as I think it is, it is difficult for the Secretary of State to rely on a wide margin of appreciation or a broad discretionary judgment. I agree with the judge that the speech of Lord Fraser in Orphanos v. Queen Mary College [1985] AC 761 supports the stringent standard of scrutiny in seeking to justify indirect discrimination, which is closely related to “racial grounds”.
I agree with Mr Rabinder Singh’s point that, at the heart of the Secretary of State’s case, there is a serious contradiction. It does not, in my view, as Mr Singh asserts, make the discrimination direct, but it does make the substance of the indirect discrimination very difficult to justify. The contradiction is that, on the one hand, in order to avoid liability for unjustifiable direct discrimination, the Secretary of State focuses on the happenstance of “place of birth” as where the mother of the propositus just happens to be at the moment of birth, which has no necessary close link with the national origins of the mother or child. On the other hand, when it comes to justification of admitted indirect discrimination, the Secretary of State is at pains to emphasise the legitimate aim of close requiring links of applicants with the UK, which, in substance, involve their national origins and are difficult to justify as proportionate means which are appropriate and necessary to that end.
Proportionality
The judge correctly considered that the proportionality issue was at the heart of the case on justification.
A three stage test is applicable to determine whether the birth link criteria are proportionate to the aim to be achieved: see de Freitas v. Permament Secretary of Ministry of Agriculture, Fisheries and Housing [1999] AC 69 at 80 and R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 at paragraph 27 and 28. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?
The first issue has been covered by the earlier discussion on the legitimacy of an aim requiring the applicant to have close links with the UK. The issue of justification turns on the second and third aspects of the proportionality of measure (the birth link criteria) which is the chosen means of accomplishing the aim.
The judge thought that the birth link criteria were not necessary and proportionate to achieve the legitimate aim of requiring close links with the UK at the date of internment.
He was particularly influenced by two factors: first, the fact that the birth link was “very closely linked to national origins” (paragraph 89) and, secondly, by the consideration that the birth link criteria were by no means the only way in which the Secretary of State could have achieved the legitimate objective of restricting the category of British subjects, such as a period of residence in the UK before internment or criteria based on domicile. There would still be disparate impact, but it would be further removed from the forbidden racial ground of national origins.
This made it necessary to make a stringent assessment of the justification advanced.
This was disputed by Mr Sales. He contended that the judge erred in focussing on the criteria themselves instead of on the particular justification for them. The justification advanced by the Secretary of State was independent of and irrespective of national origins.
States, he said, have a wide margin of appreciation in determining whether policies in the field of social or economic policies are proportionate to a legitimate aim. The means were proportionate if the state could reasonably consider that the means chosen were suitable for attaining that aim. There was a discretionary area of judgment, even where the Secretary of State had failed to consider the issue of justification.
The judge had also failed to consider and compare other means by which the legitimate aim could have been achieved. If this was done, the birth link criteria satisfied the proportionality test. The Compensation Scheme had to identify those who qualified for payment. The criteria for close connection were appropriate. Other states had chosen criteria. It was an inevitable feature of the verynature of the scheme that the criteria are satisfied by a greater number of persons whose origins are those of the relevant country. The means chosen were rationally connected to the aim and could be reasonably considered to be suitable to attain the end. The alternatives of residence or domicile were no more obviously generous to those of non-UK national origins.
In my judgment, the judge was right to find that the means used were not proportionate to the aim. In reaching a decision on proportionality it is important to focus on the particular circumstances of this case rather than on the different circumstances of other cases. I would make the following particular points about this case.
First, the concepts of margin of appreciation and discretionary judgment developed by the Strasbourg Court in relation to Convention rights have to be cautiously applied to this case, which is not dealing with a Convention right or with Article 14 of the ECHR.
Under domestic law implementing the Directive, the Secretary of State was under an express statutory duty not to discriminate on racial grounds. There is an unappealed ruling that he acted in breach of that duty. It is more difficult for the Secretary of State to justify the proportionality of his choice of the birth link criteria as a matter of discretionary judgment when he did not even consider whether or not he was indirectly discriminating on racial grounds. This is particularly so when the indirect discrimination which it is sought to justify is in substance very close to direct discrimination on racial grounds, which can never be justified under the 1976 Act. It must be more difficult to give a wide margin of appreciation to discrimination in these circumstances.
Secondly, it is relevant to take account of the fact that, as the Compensation Scheme was not properly thought out in the first place, the issue of discrimination was not properly addressed at the relevant time and that poor standards of administration were evident. Consequently there was no proper attempt to achieve a proportionate solution by examining a range of criteria as a means of determining close links with the UK and by balancing the need for criteria to achieve the legitimate aim of close links with the UK with the seriousness of the detriment suffered by individuals who were discriminated against.
Thirdly, the birth link criteria produce anomalous or even absurd results, because there is no real match between the end and the means. An applicant who did not have a close connection with the UK would qualify simply because his or her mother was on holiday here at the date of birth.
Fourthly, as there was no proper consideration of whether there were other less discriminatory means of restricting payments to those with a close link to the UK, there is no evidential basis for finding that the birth link criteria were the only criteria that were reasonably necessary and proportionate to achieve the legitimate aim.
I would add three comments on points which I consider to be irrelevant to proportionality. The first is the “numbers” point. The argument that the birth link criteria adopted are justified because they are more inclusive than other possible birth link criteria that could have been adopted, as they include the place of birth of a parent or grandparent, is irrelevant to proportionality. The argument that more people are receiving favourable treatment does not justify treating others less favourably if they are excluded on what are, in substance, racial grounds.
The second point is that when the Secretary of State reviewed the Compensation Scheme and decided to amend the criteria so that Mrs Elias became eligible for compensation by virtue of more than 20 years residence in the UK, he was able to devise criteria for close links with the UK which were not based on the place of birth or the national origins of the applicant, or were even related to links with the UK as at the date of internment of the applicant. The amended criteria have not, so far as I am aware, attracted any challenge on the ground of race discrimination.
The third point is the ex gratia nature of the Compensation Scheme. This is irrelevant to proportionality. I should make it clear that Mr Sales did not submit that it was relevant that the Secretary of State was under no obligation to set up the scheme in the first place. As explained earlier the central point in race discrimination and its justification is the reason for the less favourable treatment or the disparate adverse impact of a requirement, condition, provision and so on. The fact that the compensation supplied by the State is ex gratia does not justify race discrimination.
Fettering common law power : general
In addition, or alternatively, to race discrimination Mr Rabinder Singh contended that the Secretary of State had unlawfully fettered his common law discretionary power to make ex gratia payments. He argued that the Secretary of State erred by rigidly applying the criteria to her case and in declining to consider any exceptional circumstances, in which payment might be paid to those owed “a debt of honour” even though they fell outside the scope of the criteria. Rigid application of self-created, absolute criteria of closeness of connection with UK was not justified. The fact that Mrs Elias did have close links with the UK made it inappropriate to adopt too strict an approach to the way the Compensation Scheme framed. It was an unlawful fettering of power to refuse to make or even consider making exceptions in individual cases according to the circumstances, such as, in her case, her extreme suffering in, and as a result of, internment and her strong links with the UK over many years.
Mr Rabinder Singh referred to documents revealing that, while it was considered that there might be cases that “throw up special circumstances which might merit discretion being exercised in favour of payment,” the Veterans Agency treated itself as wholly unable to disapply the criteria and to exercise discretion to make payments if someone did not meet an element of the entitlement conditions.
He referred to a letter sent to Mrs Elias by the Veterans Agency on 15 April 2004 saying that “we cannot make exceptions to the ruling for individual claims” and that they were bound by the conditions of eligibility laid down by the government, which they could not change. On 28 July 2004 the Agency again refused the application by Mrs Elias following the submission by her of evidence about the highly exceptional features of her internment. No consideration was given to the exercise of a discretion to make an exception to the eligibility criteria because of the particular circumstances of her case.
He relied on the analogy of a statutory public law discretion. In the case of a statutory discretion the decision maker must not fetter his discretion by “shutting his ears” or closing his mind and refusing to listen to reasonable arguments, or by adopting rules, which disable him from exercising his discretion in individual cases. The decision in British Oxygen v. Board of Trade [1971] AC 610 at 625D is a well known example. The same principle applies to common law prerogative discretionary powers of the Crown after Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 in order to ensure that they are exercised lawfully. The common law powers are always available and when the Crown, acting through government, formulates a scheme for their exercise it must remain willing and able to make exceptions to the scheme in appropriate cases.
The case of R v. Secretary of State for the Home Department ex parte Bentley [1994] QB 349 (a case on the prerogative of mercy) was cited for the proposition that a prerogative discretionary power is capable of being exercised in many wide ranging circumstances and that it should not be fettered by an established policy, to which exceptions cannot be made.
A declaration was originally sought that the Secretary of State erred by declining to consider any exceptional circumstances in which payment of ex gratia compensation might be made to those owed a “debt of honour” in the light of their imprisonment by the Japanese, but who fell outside the scope of the scheme by reason of the birth link criteria.
There was placed before the court on the last day of the hearing a proposed alternative form of declaration to the effect that the Secretary of State had acted unlawfully “in not being prepared to reconsider the decision to refuse Mrs Elias payments under the Compensation Scheme and/or had breached his duty to keep the criteria under review from time to time.”
Mr Sales opposed the amendment. In my judgment the court should not allow the amendment. There was obviously a power to amend the Scheme. Mr Sales accepted that there was a duty to keep the Scheme under review in the light of developments. The Secretary of State had now done that. In certain circumstances there might be a duty to reconsider the criteria in the light of experience. There was, however, no such duty here. The criteria had been laid down with full knowledge of the facts and a decision was made as to who should be excluded form the Scheme. In ABCIFER this court had decided that this was a rational and lawful decision. There was no duty to reconsider the criteria on the grounds suggested by Mrs Elias, namely her close connection with the UK after the Second World War and the exceptional degree of suffering undergone by her during internment. In other words the amended declaration is no different from her main case on fettering discretion, namely that it is unlawful to refuse to consider her as an exceptional case.
Although I am prepared to accept, for the purposes of this argument, that there are exceptional circumstances in the case of Mrs Elias, I would not make any of these declarations either on authority or on principle.
I agree with Elias J that the authorities do not assist the case advanced by Mrs Elias on this point. The analogy with statutory discretion, as in British Oxygen, is a false one. It is lawful to formulate a policy for the exercise of a discretionary power conferred by statute, but the person who falls within the statute cannot be completely debarred, as he continues to have a statutory right to be considered by the person entrusted with the discretion. No such consideration arises in the case of an ordinary common law power, as it is within the power of the decision maker to decide on the extent to which the power is to be exercised in, for example, in setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be. If there are no exceptions the decision maker is under no duty to make payments outside the parameters of the scheme. The consequence of the submission made on behalf of Mrs Elias would create problems by requiring every individual case falling outside the scheme to be examined in its individual detail in order to see whether it should be regarded as an exceptional case.
Bentley was decided on the basis that the Secretary of State had fettered his discretion under a misunderstanding as to the scope of the powers available to him. This is not a case of fettering discretion under a misunderstanding of the scope of a discretion exercisable according to individual circumstances. Like R. v. Criminal Injuries Compensation Board ex p Lain [1967] 2 QB 864, Re W’s Application [1998] NI 19 and the ABCIFER case itself, this is a case of a policy decision to exercise a common law power. The intervention of statute was not required. With regard to the Compensation Scheme it was necessary to formulate what Mr Sales called “bright line” criteria for determining who is entitled to receive payments from public funds. Subject to the race discrimination point the criteria implement the policy of the Compensation Scheme. They are not a fetter on an existing common law discretionary power to decide each application according to the circumstances of each individual case. In my judgment, there was nothing unlawful (subject again, of course, to the race discrimination point) in using common law powers to define a scheme to be governed by rules, to make specific provision for general criteria of eligibility and for exceptions and in then refusing to apply different criteria or, by way of exception, to consider or grant applications from those not falling within the published criteria.
The Secretary of State has not unlawfully fettered an existing relevant ordinary common law power (or prerogative power) nor has he acted arbitrarily nor under a mistake as to the nature and scope of his powers by rejecting or refusing to consider or re-consider Mrs Elias’ application as exceptional on the basis of the circumstances of her internment or of the appalling consequences of it for her or of her very strong close links with the UK.
The position of the Secretary of State with regard to the claims of Mrs Elias to be treated as an exceptional case has been within his common law powers and consistent with the objects of the scheme. Of course, he has power to amend the Compensation Scheme that he has propounded by modifying the criteria or by adding exceptions to the general criteria the light of practical experience of its operation. In certain circumstances he might even come under a duty to consider the criteria afresh, if for example he found that relevant considerations had not been taken into account in formulating the criteria. Until the scheme is amended to bring Mrs Elias within in it, the Secretary of State is acting lawfully in insisting that payments are only made under the scheme to those who satisfy the eligibility criteria.
I would dismiss the appeal by Mrs Elias on this ground.
Form of relief in judicial review
Mr Rabinder Singh submitted that the judge’s decision on relief for indirect race discrimination was flawed. Having decided that the birth link criteria were discriminatory and unlawful, he should have ordered the Secretary of State to reconsider the decision against Mrs Elias, which was reached by applying unlawful discriminatory criteria, to re-determine it, leaving out the unlawful criteria, and then to award Mrs Elias £10,000 with interest.
He argued that such an order was required by the duty of the Secretary of State to comply with the provisions of Council Directive 2000/43/EC. Article 14 required courts to ensure that administrative
DEC-S2008-054 – Full Case Report
Jordan v Marsh Ireland Ltd
Complaint ES/2005/0229
Dec-S2008-054
FULL CASE REPORT
Key words
Equal Status Acts 2000 to 2004 – Disability, section 2(1) – Discrimination, section 3(1)(c) – Disability ground, section 3(2)(g) – Provision of goods and services 5(1) and 5(2)(d) – Vicarious liability, section 42(2)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Andrew Jordan referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004 on 14 July 2005. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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. The investigation under section 25(1) of the Acts commenced on 29 February 2008. An oral hearing as part of the investigation was held on 12 May 2008.
2. Dispute
2.1. The dispute concerns a complaint by the complainant, Mr. Andrew Jordan, that he was discriminated against by the respondent, Marsh Ireland Ltd, when he sought to cash in an insurance policy after an accident. The complainant was told by the respondent that he was disqualified from the Payment Protection Scheme because he was not in good health when the insurance commenced two years previously. The respondent was notified of the complaint 23 May 2005.
3. Case for the Complainant
3.1. The complainant broke his wrist on 1 July 2005. At the end of July, the complainant was informed that he would require a second cast for his wrist and that he would not be fit for work until 31 January 2006 (6 months). He contacted his insurance company to claim under a Payment Protection scheme that he had taken out earlier to cover a personal loan.
3.2. The complainant received a letter from the respondent dated 8 April 2005 that stated that: “We regret to advise the medical information available to us indicate that you were not in good health when this insurance commenced on 29 April 2003 and therefore, you were not eligible for inclusion in the Plan”.
3.3. The complainant’s premiums for the previous two years were returned to him despite his objections.
3.4. The complainant states that he has an on-going back problem as a result of a car accident several years ago. It has taken him a long to time to come to terms with this condition and he takes exception to his condition being referred to as an “illness”.
3.5. He maintains that he used his disability allowance book as assurance of his ability to repay the loan. He also uses a crutch to move around. The complainant maintains that the person in Permanent TSB who sold him the insurance was satisfied that he was eligible to sign up for the Voluntary Payment Protection scheme. The complainant objects to the fact that the respondent refers to him having an “illness”. He states that he has lived with his disability as a result of a car crash and that it has taken him quite a long time to come to terms with his condition.
3.6. The complainant works part-time (over 18 hours a week), is over 18 years of age and will be under 65 years of age at the expiry of the loan. He considers himself to be in good health regardless of his on-going back problem.
4. Case for the Respondent
4.1. The respondent, Marsh Ireland Ltd., acts as a third party administrator for the Payment Protection Insurance on behalf of the insurers, Cigna Europe Insurance Company. This means that the insurers delegate authority to Marsh Ireland Ltd. to assess claims on their behalf based on the criteria set by them.
4.2. As the respondent understands the situation, the complainant took out a Payment Protection Insurance Policy with Cigna Europe Insurance Company (Cigna) in conjunction with his Permanent TSB loan.
4.3. In a written submission received from the respondent, they claim that in order for a borrower to join such a scheme they must meet the insurer’s eligibility criteria, namely that the applicant is:
Over 18 years of age and under 65 years at the expiry of the loan agreement;
In good health, and not receiving any medical treatment or advice or aware of any impending hospitalisation or redundancy; and
In full or part-time employment or self-employed for a minimum of 18 hours per week or more.
4.4. The respondent submits that Permanent TSB, as the sellers of these policies on behalf of the insurers, provide a sales brochure to the borrower, which further explains the eligibility criteria, policy terms and conditions and policy exclusions. The borrower then signs a separate application form for the payment protection insurance confirming that she/he meets these eligibility criteria and therefore can join the scheme. The respondent submits that the complainant signed a copy to that effect.
4.5. During the term of an insured loan, according to the respondent, the borrower can claim for the following situations:
hospitalisation for more than three days;
absent from work for longer than 30 days due to medical condition;
compulsory redundancy.
In the event of a claim, the borrower must complete a claim form and forward same to the respondent.
4.6. As part of the claim assessment, the respondent verifies the borrower’s eligibility to join the scheme at the policy inception date.
4.7. The complainant completed a disability claim form on 1 February 2005 for an injury (broken wrist) which occurred on 1 July 2004. The form was received by the respondents on 25 February 2005.
4.8. The respondent then checked the complainant’s eligibility to join the scheme. The respondents received a letter from the complainant’s Consultant Orthopaedic Surgeon dated 31 January 2005 which states that the complainant “has had longstanding back problems for which he does suffer ongoing disablement”.
4.9. Based on the above information, the respondent was satisfied that the complainant has failed to satisfy the eligibility criteria set out by the insurers. This decision was subsequently approved by Cigna Europe Insurance Company (the insurer).
4.10. The respondent submits that any claim made by the complainant would have been declined as the complainant was not eligible for the scheme at the inception of the policy. This includes claims that are not specifically related to the complainant’s current condition.
4.11. The respondent maintains – if the complainant’s events of what happened when he took out the insurance are to be accepted – that the policy may have been miss-sold to the complainant by Permanent TSB. The respondent denies any discrimination on the disability ground in relation to the Payment Protection scheme.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making my decision I have taken cognisance of both written and oral submissions.
5.3. The issue of whether Marsh Ireland Ltd. is the correct respondent to defend the any allegation of discrimination needs to be decided. It was argued by the respondent that Cigna Europe Insurance Company – as the provider of the insurance – is the correct respondent. Marsh Ireland Ltd. submits that they only act as third party administrators to any claims made by insured persons for payment. That is, the respondent is not responsible for the selling of the insurance nor does it collect monies in relation to the premiums. They have no responsibility when it comes to the design of the insurance forms, terms and conditions, etc.
5.4. I had referred to section 42(2) in correspondence prior to the hearing and referred to it again at the hearing. Section 42(2) – which defines vicarious liability – states:
“Anything done by a person as agent for another person, with the authority (whether express and implied and whether precedent and subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person”.
It is clear that the respondent were acting as an agent for Cigna International on 8 April 2005 when they wrote to Mr. Jordan informing him that, based on information they had received from the complainants doctor, he was eligible for inclusion in the insurance plan. It is clear that the respondent had the authority to make decisions concerning the policy holder and was willing to implement the conditions albeit subsequent to the policy having been sold to the complainant. While I accept that Cigna is the actual insurer and, as such, the complainant could have, subject to notification requirements set out in section 21(2), named them as co-respondents in this complaint, I am, having considered the relevant section of the legislation, satisfied that Marsh Ireland Ltd. is a correct respondent for the purposes of this complaint.
5.5. The respondent maintains that the complainant was not in good health as he had an on-going back problem. Having examined the form I note that it does not allow for any disclosure of any material facts. The declaration is designed in such a way that a person must work over 18 hours a week and be of “good health”. I note that in Keating v New Ireland Assurance Company Plc (1989), the Supreme Court found that there are certain principles which should be applied when constructing a contract of insurance. These principles are;-
Parties of full age and competence are, subject to any statutory impediment, entitled to contract as they wish.
Whilst acknowledging the right of parties to express the pre-contract representations as being the basis of the contract, same must be read in the light of the actual terms of the contract subsequently executed. The contract, so to speak, takes over from the proposal.
If insurers desire to found the contract upon any particular warranty, it must be expressed in clear terms without any ambiguity.
If there is any ambiguity it must be read against the persons who prepared it.
Like any commercial contract, such a policy must be given a reasonable interpretation.
5.6. The application by insured person signed by the complainant simply asks that the insured person declares that:
“I confirm that I am over 18 and will be under 65 at the expiry of the loan and I am in good health and actively employed on a full time basis, or part time basis for 18 hours per week or more. I note that if I am opting for cover under Plan A, in order to qualify for Compulsory Redundancy Benefit, there is an additional requirement to be continuously employed on a full time or part time basis for 18 hours per week or more, for at least six months prior to the claim (italics mine).”
I note that the respondent has separated the above criterion into three distinct criteria as outlined in section 4.3. above. I have been presented with no evidence to indicate that the complainant was aware of the more precise definition as outlined in section 4.3.
5.7. I am, however, satisfied that the complainant had read and seen the above more general statement. It is clear that the insurer considers ‘good health’ to be a definition that is unambiguous as there is no elaboration on what this means on the policy form
5.8. I note that the complainant stated that he had shown his disability book to the Permanent TSB official as proof of his ability to repay his loan. He also stated that he is known in the bank and that he always uses the support of a crutch to get around. I appreciate that this is not something the respondent can dispute as the policy was sold to the complainant by another party. I therefore accept that the complainant was not attempting to hide the fact that he had an on-going disability and that he was entitled to assume that the insurer was aware of his condition.
5.9. I accept that the complainant considered himself to be in “good health” in line with the general statement indicated on the form. I accept that the complainant who lives with a chronic back condition can subjectively define himself as being in “good health”. He, like many other people with disabilities, manages his condition and goes about his everyday life.
5.10. Disability is defined in section 2(1) of The Equal Status Acts 2000 to 2004 as:
a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
c) the malfunction, malformation or disfigurement of a part of a person’s body,
d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
e) a condition, disease, or illness which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour.
I accept that the complainant’s condition constitutes a disability within the meaning of section 2(1).
5.11. The Equal Status Acts 2000 to 2004 impose a statutory duty on insurers to ensure non-discrimination in the provision of goods and services (with exemptions).
5.12. Indirect discrimination is defined in section 3(1)(c) of the Acts as:
“Where an apparently neural provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the necessary means of achieving that aim are appropriate and necessary”.
5.13. The word ‘provision’ is defined under section 2 of the Acts as “a term in contract or a requirement, criterion, practice, regime, policy or condition affecting a person” belonging to, in this case, the disability ground. This broad definition is not concerned with intent but whether any such provision has a discriminatory effect in practice. The Acts provide that the provider of the goods and services shall be treated as discriminating against, in this case, the disability ground, unless the provision is objectively justified by a legitimate aim, and that the means of achieving that aim are appropriate and necessary.
5.14. In such a case, a respondent must show that such a provision, justification or criterion is objectively justified by a legitimate aim and that the means of achieving such an aim are appropriate and necessary. ECJ in Bilka – Kaufhaus establishes the three tier test for objective justification used in employment equality cases. According to it, the employer must satisfy the Court that the impugned provision:
1) corresponds to a real need on the part of the undertaking,
2) are appropriate with a view to achieving the objective pursued, and
3) is necessary to that end[1].
When applying the following test to the circumstances of this case, the following emerge as the facts:
Insurers do have a real need to make commercially advantageous decisions when taking on customers;
The insurer, and an agent acting on their behalf, has a right to treat people differently in relation to the assessment of risk in accordance with the defences set out in section 5(2)(d) of the Acts;
It may be essential to limit insurance cover or the conditions of the insurance where reliable actuarial data, statistical data, relevant underwriting or commercial factors effect the commercially advantageous decisions.
While I have not been presented with any evidence of actuarial or statistical data nor of any relevant underwriting or commercial factors, I note that the complainant had a history of an on-going back problem and that his claim for the purposes of this insurance was in relation to a broken wrist. I have been presented with no evidence that the on-going back problem was in any way linked with the acquired injury. Therefore, I cannot find that it is essential for the insurer to exclude the complainant from this insurance plan in the manner in which it has.
5.15. The respondent, as an agent for the insurer, has failed to demonstrate that there were no alternative means, having less discriminatory effect, in which the objective in view could have been achieved. It is clear that no consideration has been given to alternative ways of selling the insurance, although an obvious one immediately presents itself. I cannot therefore be said that there were no alternative less discriminatory means by which the respondent’s objective of making commercially advantageous decisions when taking on customers could have been achieved.
5.16. The respondent in this case clearly states that any pre-existing condition would exclude a person from this insurance. I find that this imposes a blanket ban on any person who lives with a disability as defined under section 2(1) of the Acts. While section 5(2)(d) defences may apply to some of these disabilities I find that the current conditions under which this insurance cover is sold are a step too far. If I were to accept the current wording, and the respondent’s interpretation of them, I would be accepting a condition that excludes any person who lives with a chronic condition, that is, a health related concern that can be managed from any insurance at all. This condition, which may appear to be neutral, puts a person, such as the complainant, at a particular disadvantage compared with persons who live without his condition. I do not find that the provision is objectively justified by a legitimate aim as the insurer has clearly indicated that it refuses to insure any person, regardless of data or any other relevant factors, with any health issues at all.
6. Decision
6.1. Under section 25(4) of the Equal Status Acts I conclude this investigation and issue the following decision:
I find that the complainant has established a prima facie case of indirect discrimination on the disability ground. In accordance of section 27(1)(a) of the Acts I order the respondent to pay the complainant €1000 as redress for the effects of the discrimination.
_____________
Tara Coogan
Equality Officer
September 2008
[1]In Conlon v University of Limerick and the Minister for Enterprise and Employment [1999] McCracken J made it clear that it is insufficient to conclude that a requirement is reasonable, the accepted test is that the requirement be essential.
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC – S2009-015
PARTIES
Thompson v Iarnrod Eireann/Irish Rail
File Reference: ES/2007/0022
Date of Issue: 2nd March, 2009
TABLE OF CONTENTS
Section
1. Summary of Decision
2. Delegation under the Equal Status Acts, 2000 to 2008
3. Dispute
4. Summary of the complainant’s case
5. Summary of the respondent’s case
6. Conclusions of the Equality Officer
7. Vicarious Liability
8. Decision
Page
2
4
4
5
6
7
11
12
Equal Status Acts, 2000-2008
Equality Officer Decision DEC-S2009-015
Sean Thompson
(Represented by Ms. Geraldine Hynes, Solicitor,
The Equality Authority)
-v-
Iarnrod Eireann/Irish Rail
(Represented by Mr. Colm Costello,
Solicitor, Coras Iompair Eireann)
Case Summary
Keywords
Equal Status Acts 2000-2004 – Indirect discrimination, Section 3(1)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1)
Dispute
The complainant maintains that he was discriminated against on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008.
Complainant’s Case
The complainant has a visual impairment and uses a Department of Social and Family Affairs Free Travel Pass on Irish Rail DART services to and from work each day. He is required to queue for a travel ticket for each day of travel and is prohibited from acquiring a ticket in advance, for example the evening before, as other customers who do not avail of the free travel pass are allowed to do. The complainant claims that the “same day only” restriction for the travel tickets used by the holders of Free Travel Passes constitutes discrimination under the Acts and a failure to provide reasonable accommodation to a person with a disability.
Respondent’s case
The respondent denies that it has discriminated against the complainant on the grounds of his disability or that it has failed to provide him with reasonable accommodation in terms of the manner in which he is required to acquire a travel ticket when using his Free Travel Pass. The respondent submitted that the implementation of the requirement for the holder of Free Travel Pass to obtain a ticket on each day of travel is necessary in order to safeguard the company against fraudulent activity and the considerable costs which could arise as a result of such fraudulent activity.
Decision
The Equality Officer found that that a prima facie case of indirect discrimination has been established by the complainant on the Disability ground in terms of sections 3(1)(c) and 3(2)(g) of the Equal Status Acts 2000 to 2008, and that the respondent has failed to rebut the allegation of discrimination. The Equality Officer also found the respondent has discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4 of the Equal Status Acts, 2000 to 2008.
In accordance with section 27(1)(a) of the Acts, the Equality Officer awarded the complainant the sum of €750 in compensation as redress for the inconvenience caused. The Equality Officer also ordered, in accordance with Section 27(1)(b) of the Acts, that the respondent review its policy in terms of the requirement for the holders of Free Travel Passes to present at the ticket office on each day of travel to acquire a ticket in order to ensure that the policy is in full compliance with the terms of the Equal Status Acts, 2000 to 2008.
Keywords
Equal Status Acts, 2000-2008 – Indirect discrimination, Section 3(1)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 20th February, 2007 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 28th January, 2009.
1. Dispute
1.1 The complainant claims that he was discriminated against by the respondent on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 and that he was not provided with reasonable accommodation in attempting to avail of the services that the respondent provided.
2. Summary of the Complainant’s Case
2.1 The complainant has a visual impairment and uses a Department of Social and Family Affairs Free Travel Pass on Irish Rail DART services to and from work each day. The complainant is required to queue for a travel ticket for each day of travel and is prohibited from acquiring a ticket in advance, for example the evening before, as other customers who do not avail of the Free Travel Pass are allowed to do. The complainant is also prohibited from getting a weekly or monthly travel ticket and as a result has to leave his house earlier in order to queue to get his ticket as he is travelling at rush hour in the morning. The complainant claims that customers who do not have a disability can obtain a ticket in advance and thereby avoid delays going to work but he is not permitted to do this. The complainant raised this issue with the respondent on a number of occasions and was informed that because of the very high number of Free Travel Passes in circulation, the security and control of their illegal use was a significant problem for the respondent. He was informed by the respondent that Free Travel Passes were issued by the Department of Social and Family Affairs and a formal contract had been in place for many years which required the holders of Free Travel Passes to present themselves at the booking office on the day of travel as part of this contract. The complainant was also informed that there was a significant problem with the fraudulent use of Free Travel Passes and the practice whereby a pass holder must present himself/herself at the booking office for visual inspections safeguards against this fraudulent activity.
2.2 The complainant rejects the reasons put forward by the respondent regarding the requirement for this policy and he submitted that in order to circumvent the issue of fraudulent activity, when travel tickets issued to Free Travel Pass holders are being checked by an Inspector, the respondent could insist on both the Social Welfare Free Travel Pass ID and the travel ticket being produced. The complainant claims that the condition placed on a customer with a Free Travel Pass to present himself/herself on the day of travel in order to get a ticket makes it unduly difficult for a person with a disability to avail of the service being provided by the respondent. The complainant further submitted that the conditions imposed on disabled passengers in relation to ticket purchase which are the subject of this complaint militate against the active participation in the workforce by people with disabilities. The complainant claims that the ‘same day only’ restriction for the travel tickets used by the holders of Free Travel Passes constitutes discrimination under the Acts and failure to provide reasonable accommodation to a person with a disability.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it has discriminated against the complainant on the grounds of his disability or that it has failed to provide him with reasonable accommodation in terms of the manner in which he is required to acquire a travel ticket when using his Free Travel Pass. The respondent stated that the Department of Social and Family Affairs operates the Free Travel Pass Scheme and under the terms of the Scheme it is obliged to honour the passes that are produced for travel on the train services which it operates, including travel on DART services. There are a number of different categories of persons that qualify to avail of this Scheme with the two main categories being persons who are over the age of 66 years and persons with a disability who meet the qualifying criteria. The free travel concession passes are issued and controlled by the Department of Social and Family Affairs and the terms of the Free Travel Pass Scheme encompasses the requirement for customers in possession of Free Travel Passes to present themselves to the booking clerk on the day of travel and produce their free travel pass for inspection in advance of being issued with the relevant rail ticket. The holder of the Free Travel Pass is issued with a return ticket upon presentation of the pass at the ticket office which can only be used for travel on the date of issue.
3.2 The respondent stated that the restriction on travel tickets for persons under the Free Travel Pass Scheme also applies to people other than those with disabilities i.e. those who are aged 66 years and over. It submitted that these restrictions do not make it unduly difficult or impossible for the complainant to avail of the rail services that are being provided by the respondent. The respondent submitted that there is a very high number of these Free Travel Passes in circulation (circa. 600,000) and it has experienced considerable difficulties with the fraudulent use of these passes in the past. It submitted that the implementation of this policy is necessary in order to safeguard the company against such fraudulent activity and the considerable costs which could arise as a result of such fraudulent activity. The respondent claimed that if the company were to lose this safeguard then it would be at risk of exposing itself to even more serious fare evasion.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
4.2 In the present case, the complainant is visually impaired and I am therefore satisfied that he is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. I note that the facts in this case are largely undisputed and it is accepted by both parties that the complainant, as the holder of a Free Travel Pass, is obliged to comply with the requirement to present at the booking office on each day of travel in order to acquire his ticket. The issue that is in dispute between the parties is whether or not this requirement on the complainant, as the holder of a Free Travel Pass, and the restrictions that are placed on him in terms of the manner in which he is obliged to acquire a travel ticket amount to discrimination on the ground of his disability and/or a failure by the respondent to accommodate his needs as a person with a disability within the meaning of Section 4 of the Acts.
Discriminatory Treatment
4.3 In considering this issue, I note that the Free Travel Pass Scheme is operated and administered by the Department of Social and Family Affairs and the Scheme is available to a number of different categories of persons including persons over the age of 66 years and persons with a disability who meet the qualifying criteria. I am satisfied that the reason the complainant qualified for a Free Travel Pass in the first instance was on the grounds of his disability and therefore, his entitlement to travel on the respondent’s rail services arose as a result of this disability. Under the terms of the Scheme the respondent is obliged to afford access to its DART and rail services to the holder of a Free Travel Pass and it is duly remunerated by the Department of Social and Family Affairs for travel that is undertaken by the holders of the pass. The respondent receives a set amount from the Department for each Free Travel Pass issued irrespective of the amount of travel undertaken by the individual pass holder. It was not disputed between the parties that there are certain requirements placed upon the holder of a Free Travel Pass in terms of the manner in which he/she is required to procure a ticket in order to avail of these services. For example, a non-pass holder who is purchasing a ticket has the option of acquiring a weekly or monthly ticket whereas the holder of a Free Travel Pass is prohibited (under the terms of the Free Travel Pass Scheme) from availing of such options as they must present themselves at the booking office on each day of travel in order to acquire a ticket. It is therefore apparent that the complainant, as the holder of a Free Travel Pass, is being denied access to the full range of ticket travel options which are available to a person who purchases a ticket from the respondent in the “normal manner”.
4.4 I am of the view that the aforementioned requirements which are placed upon the complainant as the holder of a Free Travel Pass and a person with a disability, put him (and other persons within this category) at a disadvantage compared to other customers of the respondent without a disability who do no avail of the Scheme. Section 3(1)(c) of the Equal Status Acts makes provision for indirect discrimination in the following terms:
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”
Accordingly, I find that the implementation of the aforementioned requirement upon the complainant, as the holder of a Free Travel Pass, is sufficient to raise an inference of indirect discrimination (rather than direct discrimination) on the disability ground within the meaning of Section 3(1)(c) of the Acts. In order to successfully rebut an inference of indirect discrimination it is necessary for the respondent to demonstrate that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. I note the respondent has claimed that the restrictions which are imposed upon the holders of Free Travel Passes in terms of the manner in which they are obliged to acquire a travel ticket are required under the terms of the Free Travel Pass Scheme and in order to safeguard against the considerable costs which could arise as a result of the fraudulent use of these passes. The complainant has submitted that the requirements which are placed upon him by the respondent, as the holder of a Free Travel Pass, are neither necessary nor effective to achieve the aims of counteracting fraudulent use of the Passes.
4.5 In considering this issue, I note that the complainant (both in evidence at the hearing and during the course of correspondence with the respondent) has outlined a number of alternative measures which he contends the respondent could implement, other than the requirement that the holder of a Free Travel Pass obtain a ticket on each day of travel, in order to circumvent the fraudulent use of Free Travel Passes, namely:
· When the travel tickets that are issued to the Free Travel Pass holders are being checked by an Inspector, the respondent could insist on both the Free Travel Pass and the ticket being produced. Purple tickets are issued to the customers with Free Travel Passes and it would therefore be easy to implement this procedure.
· The respondent could insist that the Social Welfare Free Travel Pass ID be produced at the same time as the ticket to Inspectors at the gates upon boarding the train.
I am satisfied that the respondent has failed to adduce sufficient evidence to refute the complainant’s contention that the aforementioned measures could be used as an alternative to the present requirements that are placed upon the holders of a Free Travel Pass in order to achieve the aim of counteracting fraudulent activity. I also note that the respondent has not provided any evidence whatsoever in terms of the levels of the fraudulent use involving Free Travel Passes and/or the financial repercussions that accrue to the company as a result of this activity.
4.6 I fully accept that the respondent has encountered difficulties in relation to the fraudulent use of Free Travel Passes and that it is entitled to put appropriate measures in place in order to safeguard the company from such activity. However, having regard to the evidence adduced, I cannot accept that the imposition of the aforementioned requirements by the respondent which put a specific section of its customer base i.e. in the present case persons with a disability (and who are holders of a Free Travel Pass) at a disadvantage compared to other customers are appropriate and necessary in order to achieve the aim of counteracting fraudulent activity. I am satisfied that the imposition of the requirement upon the complainant (and other persons within this category), as the holders of a Free Travel Pass, to present at the ticket office on each day of travel in order to acquire a ticket, in circumstances where other customers without a disability who do not avail of the Free Travel Scheme are not required to do so, amounts to indirect discrimination within the meaning of the Equal Status Acts. In the circumstances, I find that the complainant has established a prima facie case of indirect discrimination on the disability ground and that the respondent has failed to rebut the inference of discrimination.
Reasonable Accommodation
4.7 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question …”.
The question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities. This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate his needs as a person with a disability in terms of facilitating his access to avail of its DART service. Having regard to the wording of Section 4(1) of the Act, discrimination occurs in circumstances whereby the unreasonable refusal or failure of the respondent to provide special measures or facilities makes it “impossible or unduly difficult” for the person to avail of the services on offer. I have noted the complainant’s evidence that the restrictions imposed upon him, as the holder of a Free Travel Pass, result in a considerable amount of hardship in terms of the travelling time that it takes him to get to and from work and that this is exacerbated by the nature of his visual disability. I am satisfied that these restrictions result in a significant degree of inconvenience and difficulty to him as a regular commuter on the respondent’s DART services, and as a person with a disability, who is dependent on this mode of public transport in order to travel to and from work. In the circumstances, I am of the view that the restrictions imposed upon the complainant make it excessively and “unduly” difficult on him to avail of the respondent’s DART service.
4.8 I note that the complainant raised these difficulties with the respondent on a number of occasions prior to the referral of this complaint and consequently, I am satisfied that the respondent was fully aware of the difficulties the complainant was experiencing in terms of his access to the DART services. I have noted the respondent’s evidence that it has on occasions made exceptions to the requirement for the holder of a Free Travel Pass to present at the ticket office on the day of travel in order to acquire a ticket; and by way of example the respondent referred to a situation whereby a senior citizen, who is the holder of a Free Travel Pass, would be permitted to acquire a ticket if he/she presented at the ticket booth the night before the planned journey. The respondent also accepted that there was a certain amount of discretion available to the staff issuing tickets in terms of the operation of this policy. Having regard to the discretion that was available to the respondent, I am satisfied that it could have exercised a degree of flexibility in order to facilitate the complainant in terms of the implementation of the policy; however, based on the evidence presented in this case, the respondent failed to put any such measures in place in order to facilitate him.
4.9 In the circumstances, I am satisfied that the respondent failed to do all that was reasonable to accommodate the needs of the complainant as a person with a disability in order to avail of its DART services. Section 4 of the Acts also provides that where the provision of special treatment or facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable. Having regard to the foregoing, I am satisfied that the issue of nominal cost in terms of the provision of the special facilities which the complainant required was not a factor in this case as these facilities (as referred to above) were already available to the respondent at the time that he raised these difficulties in 2006. In the circumstances, I find that the respondent has failed in its obligation to provide special facilities or measures for the complainant in accordance with the provisions of Section 4 of the Acts.
5. Vicarious Liability
5.1 The respondent has claimed that the Free Travel Pass Scheme is controlled by the Department of Social and Family Affairs and it submitted that a formal contract has been in place for many years between it and the Department which requires the holder of a Free Travel Pass to obtain a ticket on each day of travel. The respondent has therefore submitted that it was obliged to implement this requirement in order to comply with the terms of this contract. In considering whether the named respondent in these proceedings i.e. Irish Rail can be held liable for discriminating against the complainant as a result of the implementation of the terms of this scheme, I have taken cognisance of the provisions of Section 42(2) of the Equal Status Acts which provides:
“Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act as donealso(my emphasis) by that other person”
Therefore, an issue arises as to whether the named respondent in the present case i.e. Irish Rail was acting as an agent for the Department of Social & Family Affairs for the purposes of Section 42(2) of the Acts. I note that under the terms of the Free Travel Scheme the respondent is obliged to afford access to its rail and DART services to the holder of a Free Travel Pass and it is duly remunerated by the Department of Social and Family Affairs for travel that is undertaken by the holders of the pass. I am therefore satisfied that Irish Rail was acting in the capacity as an agent of the Department of Social and Family Affairs within the meaning of Section 42(2) of the Acts. I am of the view that the inclusion of the word “also” in this section of the Acts is significant in terms of determining whether any liability accrues on the part of Irish Rail in the present case. I am satisfied that Irish Rail was providing a service to the holders of Free Travel Passes within the meaning of Section 2(1) of the Equal Status Acts (in accordance with the terms of its contract with the respondent) and in doing so it was implementing the discriminatory requirement which was imposed upon the complainant in the present case i.e. the requirement to obtain a ticket on each day of travel. I therefore find that Irish Rail, being the service provider which implements the discriminatory requirement, is vicariously liable in accordance with the provisions of Section 42(2) of the Equal Status Acts.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that a prima facie case of indirect discrimination has been established by the complainant on the Disability ground in terms of sections 3(1)(c), 3(2)(g) of the Equal Status Acts, 2000 to 2008, and I find that the respondent has failed to rebut the allegation of discrimination. I also find that the respondent has discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4(1) of the Equal Status Acts, 2000 to 2004.
6.2 In considering the level of redress to be awarded in this case, I have taken cognisance of the fact that the complainant was not refused access to the respondent’s DART service. The discrimination to which the complainant was subjected in this case arose as a result of the implementation by the respondent of the scheme which imposes the requirement upon him, as the holder of a Free Travel Pass, to present at the ticket office on each day of travel in order to acquire a ticket, in circumstances where other customers without a disability who do not avail of the Scheme are not required to do so. I am mindful of the fact that although the complainant was inconvenienced by the implementation of this requirement and that it made his access to the service unduly difficult; he was, in fact, able to avail of the service. I am therefore of the view that a high award is not appropriate in this case. In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €750 in compensation as redress for the inconvenience caused.
6.3 I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent review its policy in terms of the requirement for the holders of Free Travel Passes to present at the ticket office on each day of travel to acquire a ticket in order to ensure that the policy is in full compliance with the terms of the Equal Status Acts, 2000 to 2008.
Enda Murphy
Equality Officer
2nd March, 2009
Dec-S2010-048- Full Case Report
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-048
O’Connor v Iarnod Eireann
File Ref: ES/2008/213
Date of Issue: 29 October 2010
Keywords: Equal Status Acts 2000-2008 – Disposal of goods and services, Section 3(2)(f), age ground -prima facie case – indirect discrimination
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 20 November 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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, 2000-2008. On 27th April 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 14 October 2010 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Mr O’Connor (hereafter “the complainant”) that he was and continues to be discriminated against by Iarnod Eireann (hereafter “the respondent”) on the grounds of age in terms of Sections 3(2)(f) of the Equal Status Acts, 2000-2008 by their refusal to allow him (as a pensioner and holder of a Free Travel Pass) to book his train tickets in advance, as all other passengers are entitled to.
2. Summary of the Complainant’s Case
2.1 The complainant is a regular user of the respondent’s train services, primarily between Dublin and Killarney. Prior to receiving his Free Travel Pass around 2006, he had regularly booked his ticket in advance of his travel date and never had any problems. On the October 2006 bank holiday weekend, he had intended to travel to Kerry, but when he presented at the ticket office in Heuston the day before his intended travel, they refused to issue him a ticket. He was informed that holders of the Free Travel Pass may only obtain their tickets on the day of travel. The complainant pointed out that the respondent itself had put advertisements in the newspapers reminding people to book their trains well in advance of the holiday weekend, as all the services would be very busy. The ticket agent said that this did not apply to people with a Free Travel Pass. The complainant was upset because he had arrived at the station at 6.30am in order to ensure that he got a ticket. Over the next several days the complainant initiated a series of phone calls with the respondent, mainly resulting in the respondent insisting that this was a regulation imposed by the (now) Department of Social Protection (who are responsible for issuing the free Travel Pass). The complainant investigated this with the Department of Social Protection who confirmed that the policy did not emanate from them. As a result of the situation, the complainant was unable to travel that weekend. Shortly afterwards he again tried to make travel plans but was unable to book his ticket in advance or reserve a seat either online or at the station.
2.2 In November 2006, following extensive correspondence and phone calls by the complainant, a meeting was arranged between the complainant and the respondent CEO. The complainant raised the following issues concerning him as a Senior Citizen:
– not being able to purchase single tickets in advance,
– not being able to purchase return tickets at all,
– not being catered for in the ticket section on the website and
– not being catered for by the ticket machines at Heuston Station.
The complainant did not find that the issues were addressed by this meeting.
2.3 For the next two years the complainant continued to follow up the issue with the respondent. During this time he was repeatedly told at Iarnod Eireann ticket counters, that due to a “social welfare rule”, he was not allowed to buy tickets in advance, although in practice, some exceptions were made, at the discretion of the ticket officer. In order to demonstrate that this was not a “social welfare rule”, he requested and received a letter from the (then) Department of Social and Family Affairs in April 2007 confirming this point. Additionally he spent considerable time studying in detail the CIE/IE Bye-Laws, Conditions of Carriage, 2008 Timetable and Rail Safety Act 2005, the former of which he was directed to by an employee of the respondent’s. None of these documents provided any evidence that there was in fact a policy preventing Free Travel Pass holders from obtaining tickets in advance. However he continued to be advised at the ticket desks that there was such a policy and that this policy emanated from the (now) Dept of Social Protection. In June 2008 he finally received a letter from the CEO of Iarnod Eireann, confirming that it was their own policy to prevent Free Travel Pass holders from booking tickets in advance and that, for security reasons, they did not intend to change this policy. The complainant was further advised that he could reserve a seat in advance for €3 per journey and then get the ticket itself on the day of travel.
2.4 The complainant tested the system of reserving a seat in advance, but decided that he could not use it because it required him to tell a lie, ie: when he tries to reserve a “seat only”, he gets a warning that he must be in possession of a valid ticket. He accepts that it is possible to use the system from a technological perspective, but since he cannot be in possession of a valid ticket in advance, he would have to tell a lie in order to use it. Therefore he does not use it.
2.5 Regarding the respondent’s website generally, Mr O’Connor also points out that there is no information whatsoever provided for Senior Citizens. Even if the wording of the warning message was changed in order to allow him to reserve a seat, there is still no way for any other Senior Citizens to know that this facility may be used by Free Travel Pass holders.
2.6 Regarding the security issue, the complainant points out that although it is a rule that Free Travel Pass holders are required to have their travel Pass as well as their ticket available for inspection at all times during travel, he has never once in practice been asked to show his Pass either at the boarding gate or on the train itself. Therefore it appears to him that although there is a security measure readily available to the respondent, it is simply not being used.
2.7 After 2 years of attempts to get the issue resolved with the respondent, the complainant took this case to the Equality Tribunal. The specific incident which grounded this case was a refusal on 8 October 2008 by the ticket office at Heuston Station to allow him to obtain an advance ticket. During the oral hearing the complainant pointed out that after 4 years, he has never received a copy of the respondent’s policy on the matter or a proper explanation of the reasoning behind the policy. This has caused him many fruitless trips to the train station and the stress of not knowing whether he will be able to get a ticket at busy times.
2.8 During the hearing Mr O’Connor clarified that the only redress he is seeking in this matter is a change of policy by the respondent in order to end discrimination against senior citizens and allow him to obtain his ticket in advance of travel.
Summary of the Respondent’s Case
3.1 The respondent denies that it discriminates against the complainant on the grounds of age. They state that it is clear from the complainant’s own submission that the reason for the alleged difference in treatment is that he has a free travel pass and not because of his age. Any senior citizen who wants to book in advance (and pay full price for a ticket) can do so by going online and booking in the same way as all other intending passengers. Therefore the respondent submits that it cannot be held that Senior Citizens are discriminated against on the grounds of age.
3.2 The respondent said that the policy in question has been in place since at least 2001 and possibly since the introduction of the Free Travel Pass Scheme. There was no specific written document which they could point the complainant to, but they said it was covered in their staff training.
3.3 The Respondent submitted that the Free Travel Scheme is well recognised as having potential for fraud. The travel Passes which are issued by the (now) Department of Social Protection do not have an expiry date or proper identification and they are not uniform in appearance. Additionally it is easy to counterfeit them and Gardai have uncovered factories producing invalid travel Passes. As there is no legislative basis for the Scheme, there are no grounds to prosecute offenders with invalid cards, and thus there is little or no deterrent against fraud. The respondent points out that there are over 600,000 free travel card holders and the possibility of fraud is a real concern to the company. Therefore the restriction that all Pass holders present themselves to the ticket office on the day of travel is reasonable in the circumstances.
3.4 The respondent said that the security reason for the policy, which requires Free Travel Pass holders to present on the day of travel, is that it ensures a much shorter timeframe between ticket issue and usage. The longer the time period between ticket issue and travel; the greater the opportunity for fraudulently passing or selling on the ticket. It was also suggested that if they could be booked online in advance, then it would be easy to (fraudulently) make tickets to order. Regarding the question of why the Free Travel Pass could not be checked at the boarding gate or on the train or at the exit barrier, the
respondent said that they could consider doing this. However they also said these locations would not necessarily be manned.
3.5 The respondent also points out that in the future they will introduce a Smart Card for integrated ticketing in Dublin and the Department of Social Protection will introduce a new public service card. These measures will allow them to improve services for the complainant and other Senior Citizens. There is no fixed timeframe however for the introduction of either the Smart Card or the public service card.
3.6 Upon questioning, the Respondent sought to distinguish this case from DEC-S2009-15 Thompson v Iarnod Eireann, where the Equality Officer found in favour of the complainant in a similar case on the grounds of disability. The respondent pointed out the two main differences between these two cases; firstly that reasonable accommodation played a major part in the previous case and secondly that there is no comparator in this case.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, presented by the parties.
4.2 Less Favourable Treatment:
In the present case, there is little dispute between the parties in terms of the facts. The respondent operates a policy which prevents the complainant from getting his ticket until the date of travel. The complainant argues that this is less favourable treatment on the grounds of age, because other passengers may avail of more favourable ticketing options, ie: firstly they may purchase their ticket online or at the station, secondly they may purchase their ticket in advance of travel or on the day of travel and thirdly they may purchase return tickets or single tickets. He, on the other hand, may only obtain his ticket at a station ticket office; he can only get a single ticket and he cannot get the ticket in advance. Therefore there are fewer options available to the complainant and these options are less convenient. It is clear therefore that the complainant is subject to less favourable treatment with respect to the ticketing options available to him.
4.3 Direct Discrimination:
The respondent has pointed out that there can be no prima facie case of direct discrimination because the complainant is entitled to purchase tickets in the same manner as all other customers, irrespective of his age. This fact is undisputed and on this basis I accept the respondent’s contention that there is no direct discrimination against the complainant on the grounds of age.
4.4 Indirect Discrimination:
However the next matter to be considered is whether the complainant has been indirectly discriminated against on the grounds of his age. Section 3(1)(c) of the Equal Status Acts makes provision for indirect discrimination:
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
It is generally held that the burden on the complainant in a case of indirect discrimination is a high one. In considering the issue of indirect discrimination, I note that the complainant travels on the basis of his status as a Free Travel Pass holder. The Free Travel Pass Scheme is operated by the Department of Social Protection and it is available to a number of different categories of person, including persons over 66 years of age. In this complainant’s case, his entitlement to the Pass arises as a result of being aged over 66. This Pass entitles him to unlimited travel on the respondent’s Dart and Rail services. The Passes are issued by the Department of Social Protection, who pay a fixed amount to the respondent, irrespective of how much or how little travel is undertaken by the Pass holder. It is agreed by the parties that the holders of Free Travel Passes are subject to different conditions regarding the issuance of tickets, by comparison with non – Pass holders. I have already accepted the complainant’s argument that these different conditions amount to less favourable treatment. Therefore I have formed the view that the requirements placed upon the complainant, as a holder of the Free Travel Pass, put him at a considerable disadvantage compared with other customers of the respondent who are in a different age category and who do not avail of the Scheme. I find that the conditions for members of the Free Travel Scheme fall within the definition of “apparently neutral provisions” referred to in the Acts. I find that the Free Travel Scheme members are predominantly aged over 66 or disabled or both, and therefore the imposition of these unfavourable conditions has a disproportionate effect on these groups.
Therefore I find that the complainant has overcome the high threshold required and raised a prima facie case of indirect discrimination which can only be rebutted by the respondent showing that the less favourable treatment can be objectively justified. If it can be shown to be objectively justified, the respondent must additionally prove that their means of achieving this aim are both appropriate and necessary.
4.5 Objective Justification:
The respondent submits that their reason for treating the holders of Free Travel Passes differently is due to the high risk of fraud, as outlined at 3.3 and 3.4 above. The written evidence provided by the Respondent to support this contention was dated and extremely vague; thus it can only be of limited evidential value. However I note the oral evidence of the respondent’s marketing manager, that there is indeed a significant risk of fraud due to the lack of traceability and accountability for each Free Travel Pass issued. The respondent has no access to the database of Free Travel Pass holders and thus no foolproof way to check for invalid or counterfeit Passes. As a result they are not in a position to monitor suspicious usage in a meaningful way. Based on this evidence I accept that the respondent has a genuine security concern which objectively justifies the taking of some preventative measures.
4.6 Appropriate and Necessary Means:
4.6.1 Having accepted the respondent’s objective justification, the question remains as to whether the actual measures they took were both appropriate and necessary to achieve that aim. The respondent has real concerns about fraud based on the quality and traceability of the travel Passes issued by the Dept of Social Protection. Their response is to oblige all travel Pass holders to obtain tickets in a substantially different way to other customers. During the oral hearing I asked several questions about the origin of this policy and potential alternatives to it. The answer in all cases was that they hadn’t really thought about it and may consider it in the future. Despite the complainant’s 4 years of correspondence with them on the matter and indeed in the oral hearing itself, the respondent’s attitude to the Free Travel Pass Scheme appears to have been to give it minimal possible consideration. According to the respondent’s own evidence there are over 600,000 free travel card holders and yet the respondent’s website does not refer to the entitlements or obligations of these customers. According to the complainant’s unrefuted evidence, Senior Citizens are not catered for, nor even given the briefest mention on the respondent’s website.
4.6.2 The measures which the respondent did point to, in order to show their efforts towards diluting the effects of the less favourable treatment were:
– That it is possible to book seats online in advance of travel.
– That, as a result of the Equality Officer’s order in the Thompson v Iarnod Eireann case, the respondent’s policy has been changed to allow Pass holders to travel on the Dart/local Dublin train service, without obtaining a ticket for every trip.
– That they have initiated a pilot scheme which would allow the complainant to make an advance booking via a centralised point. This central office would have details of the complaint’s Iarnod Eireann account number and the travel Pass number for both himself and his wife. If the complainant wants to book a return seat in advance, he can call this number, verify method of payment and credit card details. Then they will send the tickets to him by post. (However the complainant pointed out that this “pilot scheme” had only come into operation three weeks before the Tribunal hearing, which was remarkable given that he had been in contact with them for 4 years. He also pointed out that it was an extremely time-consuming procedure which seemed unlikely to be sustainable in larger volumes. Additionally he queried how many other testers were testing the “pilot scheme”, but the respondent did not provide details). Therefore it seems fair to infer that while the complainant’s particular situation may be remedied, it is unlikely that all other senior citizens will benefit. Additionally the complainant has no certainty as to how long this pilot scheme will last.
4.6.3 Despite the respondent’s genuine security concerns and their efforts to resolve the issue outlined at 4.6.1, I nonetheless find that the measures undertaken to deal with the security problem are hard on the majority of good faith customers, such as the complainant, who wish to obtain their tickets in advance of travelling, for peace of mind and for convenience. Indeed the complainant himself, made the point during the hearing that he understands and accepts the respondent’s security concerns and therefore he is not necessarily seeking to use the internet to purchase his ticket in advance. He simply wishes to be able to purchase it before he travels and he would be satisfied if the respondent allowed him to present himself in person at the Ticket Office up a week prior to his departure date in order to book the ticket. He believes that this would satisfy their requirement for his travel Pass to be checked by the Ticket Office and allay their concerns about larger-scale fraud on the internet.
4.7 Finding on Indirect Discrimination:
Having considered the means by which the respondent is pursuing its legitimate goal of tackling fraud, I conclude that the measures which are currently in place go beyond what is appropriate and neccessary. I find them to be disproportionate restrictions on a very significant group of passengers, rather than a targeted solution to a specific problem. Therefore I conclude that the complainant, as a person aged over 66 years and therefore member of the Free Travel Pass Scheme, has been indirectly discriminated against, when he was treated less favourably than non-Pass holders in the provision of tickets, and the respondent has failed to show that the means of achieving their legitimate aim are both appropriate and necessary.
5. Decision
5.1 In accordance with section 25 (4) of the Equal Status Acts 2000-2008, I conclude this investigation and issue the following decision. I find that a prima facie case of indirect discrimination has been established by the complainant on the grounds of age and I find that the respondent has failed to rebut the claim of discrimination. In considering the amount of redress to be awarded, I note that the complainant has not been denied access to the service itself and I am of the view that a high award is not appropriate. Additionally the respondent has made some attempts to rectify the complainant’s particular situation. Therefore I award the complainant a sum of €500 as redress for the inconvenience caused.
5.2 More importantly, I also order, in accordance with Section 27 (1)(b) of the Acts, the respondent to review its policy, in terms of the requirement that holders of Free Travel Passes may obtain their ticket only on the day of travel, in order to ensure that this policy is in full compliance with the Equal Status Acts 2000-2008. I further order that this review be completed within 6 months of the date of this decision.
5.3 In addition to this policy review, I recommend that the respondent should immediately update its website to communicate clearly to Senior Citizens, Disabled Passengers and other members of the Free Travel Pass Scheme comprehensive details about their entitlements and obligations as passengers.
Elaine Cassidy,
Equality Officer
29 October 2010
DEC-S2009-083 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2009-083
Fitzgerald v Dairygold Co-Operative Society Limited
(represented by Ms. Rosemary Mallon B.L.
File Reference: ES/2007/0076
Date of Issue: 1st December, 2009
Equal Status Act 2000-2008
Equality Officer Decision
DEC-S2009-083
Paddy Fitzgerald
-v-
Dairygold Co-Operative Society Limited
(Represented by Ms. Rosemary Mallon B.L.
on the instructions of Arthur Cox Solicitors)
Keywords
Equal Status Acts 2000-2008 – Direct discrimination, Section 3(1)(a) – Indirect Discrimination, Section 3(1)(c) – Age Ground, Section 3(2)(f) – Victimisation Ground, Section 3(2)(j) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 16th July, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 11th November, 2009.
1. Dispute
1.1 This dispute concerns a claim by the complainant, Mr. Paddy Fitzgerald, that he was discriminated against by the respondent, Dairygold Co-Operative Society Limited, on the grounds of his age in terms of Sections 3(1), 3(2)(f) and 3(2)(j) of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008.
2. Background to the Complaint
2.1 The respondent is a society registered under the Industrial and Provident Societies Acts, 1893 to 1978. It was formed upon the amalgamation of Ballyclough Co-Operative Creamery Limited and Mitchelstown Co-Operative Agricultural Society Limited in 1990. It’s business includes the manufacture of dairy based food ingredients and the provision of farm inputs to its customers through its Agri-Trading division. The respondent currently has over 9,000 members (shareholders) who are divided into four categories, namely A1 members, A2 members, A3 members and A4 members. For the purposes of the present complaint it is the A1 and A3 categories which are relevant and they may be described as follows: an A1 member shall be inter alia (a) a milk supplier to the respondent, or (b) a purchaser of feed, fertilizer and qualify farm requisites and an A3 member shall be a member of the respondent who has not supplied milk to the respondent nor purchased feed, fertilizer or qualifying farm requisites from the respondent for five or more calendar years.
2.2 The rules which govern the respondent provide that the net surplus available for allocation shall each year be applied in such manner as the members at the Annual General Meeting may decide but may not exceed the allocations as may be recommended by the Board. The rules also provide that the members, upon recommendation of the Board, may apply any part of the annual surplus, or any amount standing to the credit of a reserve account of the respondent, to the allocation of fully paid up bonus shares in the respondent to members of the respondent, including the allocation of bonus shares related to trade. A resolution to allocate bonus shares to members of the respondent in consideration for their trade with the respondent during the previous year has been considered and approved at each AGM since the formation of the respondent. Accordingly, these bonus shares have been issued to members based on their trade with the respondent during the previous year. The rationale for the issue of bonus shares is to recognize the fact that the annual surplus/reserves of the respondent has been generated by trade conducted by the respondent with it’s members and others and to incentivise A1 members to continue to trade with the respondent.
3. Summary of the Complainant’s Case
3.1 The complainant, who is aged 71 years, is a retired farmer and he has been a member and shareholder in the respondent company since it’s formation in 1990. The complainant ceased to trade with the respondent in 1996 and as a result the category of membership which he held has been re-classified from A1 to A3 in accordance with the rules of the Society.
3.2 The complainant stated that this re-classification of his membership means that he is no longer entitled to receive bonus shares and consequently, it has resulted in a dilution of his shareholding in the respondent on each occasion that the respondent makes an allocation of bonus shares to the A1 members. The complainant submitted that farming is a physical occupation and that as a farmer progresses in age his level of farming activity reduces which means that he is not is a position to conduct the same volume of trade with the respondent as a younger farmer. He submitted that an older farmer (such as himself) is therefore more likely than a younger farmer to be categorised as an A3 member of the Society. The complainant claims that he is being discriminated against by the respondent on the grounds of his age on the basis that as an A3 member he no longer trades with the respondent and is therefore not entitled to be allocated bonus shares. The complainant also stated that his voting rights, as an A3 member, on issues concerning the Society are restricted and he claims that he is not allowed to vote on issues such as the allocation of bonus shares. He submitted that the main purpose of the rules which restrict the voting rights of A3 members is to prevent older people from voting to protect their interests in the Society. The complainant also claims that he has been subjected to victimisation by the respondent.
4. Summary of the Respondent’s Case
4.1 The facts of the case as outlined in paragraphs 2.1, 2.2 and 3.1 above were not disputed by the respondent.
Issue of jurisdiction
4.2 The respondent raised an issue of jurisdiction that the alleged discrimination in this case i.e. the issue of bonus shares by the respondent to it’s members clearly does not come within the definition of a “service” within the meaning of section 2(1) of the Equal Status Acts. The respondent stated that the complainant would appear to be claiming that shares come within the definition of “goods” as defined in section 2(1) of the Acts i.e. “any article of moveable property”. However, the respondent also submitted that this definition of “goods” within the Acts does not include shares. It was therefore submitted that the Tribunal does not have the jurisdiction to investigate the present complaint.
4.3 Without prejudice to the foregoing, the respondent submitted that while section 5 of the Equal Status Acts prohibits discrimination on the age ground in relation to the disposal of goods, it explicitly provides that those selling goods may require that consideration be provided in return for the goods. It was submitted that the respondent requires trade with it in order to qualify for the issue of bonus shares and accordingly, trade with the respondent is the consideration required by it for the issue of bonus shares. It was submitted that there has therefore been no discrimination contrary to section 5 of the Acts, since the complainant, as an A3 member or non-trading member is not in a comparable situation to members, who provide to the respondent, consideration by way of trade which, in turn, contributes to the respondent’s surplus and reserves out of which the bonus shares are allocated. The respondent submitted that the age of a member is not a qualification criterion for the categorisation of members or the receipt of bonus shares. The respondent therefore rejects the allegation that it has directly discriminated against the complainant.
4.4 The respondent also rejects that it has indirectly discriminated against the complainant on the grounds of his age. It denied that the requirement to trade with the respondent is a requirement which an older person would find more difficult to satisfy than a younger person. The respondent submitted that it has a number of members who are older than the complainant and who are actively seeking to buy milk quotas in order to extend their milk supplies to, and trading levels with the respondent. The respondent also submitted that in the event the Tribunal were to decide that the requirement to trade with the respondent constitutes a requirement which an older person would find more difficult to satisfy than a younger person that such a requirement may be objectively justified by a legitimate aim where the means of achieving that aim are appropriate and necessary. The respondent stated that the aim of its requirement for trade with its members in return for the issue of bonus shares is to provide a reward to A1 members for their trade with it during the previous year and to provide an incentive to A1 members to continue to trade with it. The respondent submitted that the allocation of bonus shares to members is an appropriate and necessary means of achieving that aim. The respondent stated that the complainant is not in a comparable situation to the active members, as he as an A3 member is not providing consideration for the issue of these bonus shares by trading with the respondent. The respondent also denied that it has subjected the complainant to victimisation within the meaning of section 3(2)(j) of the Equal Status Acts.
5. Conclusions of the Equality Officer in relation to the issue of jurisdiction raised by the respondent
5.1 I will first consider the issue of jurisdiction that have been raised by the respondent because, if I find in favour of the respondent on these issue, I am therefore precluded from considering the substantive complaint. The respondent has submitted in the course of it’s arguments that the alleged discrimination in this case i.e. the issue of bonus shares by the respondent to it’s members clearly does not come within the definition of a “service” or “goods” within the meaning of section 2(1) of the Equal Status Acts.
5.2 In considering this issue, I note that a “service” is defined in section 2(1) of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… “. There follows an illustrative list of examples among which are a professional or trade service. The respondent in the present case is a society registered under the Industrial and Provident Societies Acts, 1893 to 1978. The definition of an entity which may be registered as a society under these Acts is outlined at section 4 of the 1893 Act i.e. “A society which may be registered under this Act (herein called an industrial and provident society) is a society for carrying on any industries, businesses, or trade specified in or authorised by its rules, whether wholesale or retail, and including dealings of any description with land”. Having regard to this definition, I am satisfied that a society which is registered under this legislation is an entity that engages in trade and/or provides facilities for trading on behalf of and for the benefit of it’s members.
5.3 It is clear from the “Objects of the of the Society” which are contained at page 9 of the Rules of Dairygold Co-operative Society Limited that the respondent is such an entity which provides the aforementioned facilities for and on behalf of its members. It is the case that the members of the respondent are shareholders and the rules of the society make provision for the distribution of a net surplus or reserves at the end of a trading year among its members (in the form of an allocation of bonus shares). The aim of this allocation of bonus shares is to provide a reward to members (albeit those in the A1 category) for their trade with the respondent and to provide an incentive for these members to continue trading with the respondent. I am of the view that the relationship which exists between the members of the society and the respondent (which includes the distribution of profits in the form of an allocation of bonus shares), in the circumstances of the present case, is covered by the broad definition of “service” contained within the Equal Status Acts. Having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainant in the present case.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Direct or Indirect Discrimination
6.2 The question arises in the present case as to whether the alleged discrimination should be considered under the provisions of the Equal Status Acts that deal with direct or indirect discrimination. In considering this issue, I note that the complainant claims that he has been subjected to discrimination on the grounds of his age on the basis that, as an A3 member of the society, he is no longer entitled to receive bonus shares which the respondent allocates to A1 members from it’s net surplus and reserves as a reward for their trade during the previous trading year. The complainant claims that the allocation of bonus shares to A1 members in consideration for their trade has the effect of diluting the value of his shareholding in the respondent society. The complainant further claims that an older farmer (such as himself) is less likely to be in a position to conduct trade with the respondent than a younger farmer due to the physically demanding nature of the trade. He, therefore, submits that he is being placed at a disadvantage as compared to the A1 members in terms of the allocation of bonus shares which he claims has the effect of diluting the value of his overall shareholding in the respondent society.
6.3 In considering this issue, I note that it is only the A1 category of members who are entitled to benefit from an allocation of bonus shares out of the respondent’s net surplus or reserves. The rules that govern the respondent provide that in order to qualify as an A1 member a person must be a milk supplier to the respondent or a purchaser of feed, fertiliser and qualifying farm requisites. The rules also provide that an A3 member shall be a member of the respondent who has not supplied milk nor purchased feed, fertiliser or qualifying farm requisites for five or more calendar years. It is therefore clear that in order to be categorised as an A1 member there is a requirement to conduct a certain minimum level of trade with the respondent. Given the physically demanding nature of farming as an occupation, I am satisfied that as a farmer progresses in age it becomes increasingly difficult for him/her to engage in the required level of trade with the respondent which would preserve his/her status as an A1 category member. I accept that the respondent has a number of members in the A1 category who are over the age of 65 years (there are 4,300 members in the A1 category and the respondent could only provide information of the age in relation to 800 of these members of which 109 members were aged 65 years or over). Having regard to the statistical evidence presented by the respondent it would appear that the vast majority of farmers in the A1 category are under the age of 65 years (i.e. 13% are aged 65 or over whereas 87% are under the age of 65 years). Section 3(1)(c) of the Equal Status Acts makes provision for indirect discrimination in the following terms:
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”
Having regard to the foregoing, I am satisfied that the requirement to conduct trade with the respondent in order to attain and preserve A1 category membership (and therefore be entitled to receive an allocation of bonus shares) constitutes an apparently neutral provision which places an older farmer at a particular disadvantage compared to a younger farmer within the meaning of section 3(1)(c) of the Acts. I therefore find that the complainant has succeeded in raising an inference of indirect discrimination (rather than direct discrimination) on the age ground under the Equal Status Acts.
Objective Justification
6.4 In order to successfully rebut an inference of indirect discrimination under the Equal Status Acts, it is necessary for the respondent to demonstrate that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. In considering this issue, I note that the respondent has argued that the aim of it’s requirement for trade with it in return for the issue of bonus shares is as follows:
– to provide a reward to A1 members for their trade with the respondent in the previous year, and
– to provide an incentive to A1 members to continue trading with the respondent.
The respondent is a profit orientated entity and therefore its commercial success or failure is largely dependent on the levels of trade which it conducts with its members. I am of the view that the aim of rewarding shareholders and providing them with an incentive to continue trading constitutes a legitimate aim for a commercial entity such as the respondent. I am therefore satisfied that respondent has succeeded in establishing that the requirement to trade with it in return for the allocation of bonus shares can be objectively justified by a legitimate aim.
6.5 However, in accordance with the provisions of section 3(1)(c) of the Acts, I am also obliged to consider whether the means of achieving that aim are appropriate and necessary. In the present case, the means by which the respondent achieves the aim of rewarding members for their trade and of providing an incentive to continue to trade with it is by way of distributing its net surplus and reserves among shareholders at the end of a trading year (which manifests itself through the issue of bonus shares to A1 members). It is only the members in the A1 category that contribute towards the generation of the net surplus and reserves through the trade which they have conducted with the respondent in the previous trading year. I am therefore satisfied that it is entirely appropriate and totally legitimate for an industrial and provident society such as the respondent to reward these members (in accordance with the rules of the society) by distributing any net surplus by means of an allocation of bonus shares.
6.6 I also note that the complainant has argued that the allocation of bonus shares to only the A1 category members has the effect of diluting his shareholding in the respondent. In considering this issue, I have taken cognisance of the judgement of the Supreme Court in the case of Kerry Co-Operative Creameries Ltd. and Patrick O’Connell -v- An Bord Bainne where it was held that “assets acquired by an industrial and provident society are the property of the society and no shareholder has a legal right to any specific portion thereof. Such a society is also free to issue shares to new members or to allot new shares to existing members even though the effect is to reduce the fractional interest of existing members in the capital of the society. There is no implied term in the contract between a shareholder and the society of which he is a member that the fractional interest he has in the society’s share capital will remain constant”. I accept that the judgement in this case was not delivered in the context of a dispute under the equality legislation or equality related issues. However, I am of the view that the conclusions reached in the foregoing part of the judgement are persuasive in terms of my reaching a decision in the present case that the respondent has established that the aforementioned means of achieving the aim were appropriate and necessary. Based on the foregoing, I am satisfied that the respondent has established that the provision in question i.e. the requirement to trade with it in return for the allocation of bonus shares is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. Accordingly, I find that the respondent has succeeded in rebutting the inference of indirect discrimination on the age ground within the meaning of the Equal Status Acts.
7. Victimisation
7.1 The complainant has also claimed that he was subjected to victimisation by the respondent. However, having regard to the evidence adduced, I find that I have not been presented with any evidence from which I conclude that either the complainant in the present case has been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts, 2000 to 2008. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.
8. Decision
8.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima case of indirect discrimination on the age ground in terms of Sections 3(1)(c), 3(2)(f) of the Equal Status Acts, 2000 to 2008 and that the respondent has succeeded in rebutting the inference of indirect discrimination. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
1st December, 2009
DEC-S2010-001 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2010-001
O’Keeffe v Irish Life & Permanent PLC t/a Permanent TSB
File Ref: ES/2007/110
Date of Issue: 6th January, 2010
Keywords:
Equal Status Acts 2000-2008 – Indirect discrimination, section 3(1)(c) – Gender ground, section 3(2)(a) – Disposal of goods and provision of services, section 5(1) – Temporary worker – application refused for credit card.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 18th October 2007. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 on the 11th December 2008. The hearing of the case took place on the 1st October 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Ms. Margaret O’Keeffe, where she claims that she was discriminated against by the respondent, Irish Life & Permanent PLC t/a Permanent TSB, on the gender ground in terms of sections 3(1)(c) and 3(2)(a) and contrary to section 5(1) of the Equal Status Acts in relation to the respondent’s refusal of her application for a visa card because she was not working in permanent employment.
3. Summary of the Complainant’s Case
3.1 The complainant, Ms. Margaret O’Keeffe, claims that she applied to the respondent for a permanent TSB ICE Visa Card via the internet in and around July 2007. She claims that she was a temporary worker at the time, employed through a (named) employment agency. She claims that she filled out the application form online and subsequently was asked for, and sent on, additional information to the respondent including a letter from the employment agency detailing her employment details. Ms. O’Keeffe claims that on the 4th September 2007 she received a letter from the respondent advising her that her application for a credit card was not accepted. She claims that she telephoned the respondent and was informed that although she had an excellent credit rating and a regular income she was being refused a credit card because she did not work on a permanent contract basis.
3.2 The complainant explained that she returned to Ireland from the United Kingdom in late 2006, where she opened an account with the respondent and had a regular permanent income coming into this account on a monthly basis prior to July 2007 and an additional sum of money once she started to work in Ireland from then on. She claims that she held a credit card with a bank in the United Kingdom however, as she was living in Ireland, she decided to apply for a credit card to the Permanent TSB as this was the bank that she had been banking with. She claims that both herself and her husband would have had an excellent credit rating and the bank should have noted that. She claims that she chose to register with the employment agency for work as an office temporary worker in early July 2007 and has a constant flow of work since then.
3.3 The complainant claims that the respondent refused to accept her application for a credit card on the basis that she did not have a permanent contract of employment. She claims that the criteria for granting a visa card therefore, is indirectly discriminatory against her because, as a woman, she is more likely to work on a temporary basis rather than on a permanent basis, in order to balance work with family commitments. The complainant maintains that the respondent should assess applications on the customers ability to meet repayment and their credit rating.
3.4 Ms. O’Keeffe claims that from her experience working in an office administration environment in the United Kingdom she had first hand experience dealing with temporary office staff, and these staff were predominately if not always female.
4. Summary of the Respondent’s Case
4.1 The respondent acknowledged that it received the application for a TSB Ice visa card from the complainant via the internet and it produced a copy of the internet application form as evidence. It claims that as part of its prudent assessment of any credit card application, Permanent TSB considers the applicants credit history or credit rating and the likelihood of the applicant to repay the credit in the future. It claims that Ms. O’Keeffe had indicated in her visa application form that she was in her current employment for just one month, consequently, it wrote to the applicant and requested her to supply information from her employer in relation to the permanency of her employment. The complainant wrote back and enclosed a letter from the recruitment agency which stated that Ms. O’Keeffe was registered with it since July 2007, and that “This role has the potential to go permanent” and “We will continue to facilitate Margaret with work for as long as she is available”. The respondent claims that this failed to confirm the permanency of Ms. O’Keeffe’s working arrangement and it refused to grant the visa application accordingly.
4.2 The respondent said it has to evaluate each visa application received based on a set of criteria on an assessment of risk to it including the applicant’s employment position, income levels, frequency of payment and credit rating so as to determine if a visa card could be granted and the credit limit to be allowed. It claims in the complainant’s case that she was not employed by the named agency at the time, she was only registered with it for work for when it became available. The respondent claims that there was no legal entitlement on the agency to provide Ms. O’Keeffe with regular, constant work as she did not have a contract on that basis. The respondent claims that it has to consider the risk in each situation and accordingly in the complainant’s situation where she had a regular income, but no legal entitlement to work in the future against a less risky comparator where the applicant would have a constant permanent income which is a binding contract in law.
4.3 The respondent claims that its visa application form sought information about whether the applicant was a permanent worker, on a full or part time basis, or a non-permanent worker. It claims that as part of its prudent assessment this information is taken into account to determine whether the applicant has the ability to meet future repayments. It claims that it is normal practice for the respondent to establish whether the applicant can meet future repayments, and it denies any discrimination on the gender ground.
4.4 The respondent disputes the claim Ms. O’Keeffe made that the majority of workers on temporary work were women workers. It claims that no evidence was presented to support that position and from its anecdotal evidence it was of the opinion that in 2007 when one considers the IT, Construction, Technical and Agri-business sectors, which would be of a temporary/contract working arrangement, the majority of these workers were male rather than female. Accordingly, it disputes the claim made by the complainant particularly since no evidence was presented to support her claim.
5. Conclusions of the Equality Officer
5.1 In making my decision, in this case, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Indirect Discrimination – Gender Ground
5.2 The complainant submitted that the respondent’s stated practice of treating applicants for its credit card differently when they are not in permanent employment is indirectly discriminatory against people not in permanent employment and as women are more likely not to be in permanent employment that this is “an apparently neutral provision” which would put women at a particular disadvantage compared to men. The complainant claims that this is not a justifiable condition for the assessment of risk and is therefore unlawful discrimination. Section 3(1)(c) of the Equal Status Acts states:
“3.- (1) For the purpose of this Act, discrimination shall be taken to occur –
(c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”
In considering whether the complainant was subjected to indirect discrimination in the present case, I have noted the evidence presented by the respondent regarding the criteria that it took into consideration when assessing visa card applications. In this regard, I note the evidence of the respondent that the need for the applicant to be in permanent employment is a main factor when assessing a visa card application. I have also noted that they claim that this credit assessment is based primarily on evaluating risk to ensure that the individual has the capacity to meet the repayments in the future.
5.3 In considering the provisions of Section 3(1)(c) of the Equal Status Acts, I am of the view that in order for a person to establish a case of indirect discrimination, it is necessary for that person to demonstrate that the apparently neutral provision, which is referred to in this section, puts that person at a particular disadvantage, in effect, compared to other persons. If the person succeeds in this regard, it is then a matter for the respondent if it is to successfully rebut the allegation of indirect discrimination, to prove that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. In applying this reasoning to the present case, I am of the view that in order for the complainant to establish a case of indirect discrimination, she must demonstrate that the “apparently neutral provision” i.e. the requirement to be in permanent employment places her, a women, at a particular disadvantage compared to men in terms of the respondent’s decision to refuse her request for a credit card.
5.4 In considering this issue further, I have noted the complainant has not presented any evidence in support of her position that a higher proportion of women were likely to have worked as agency/contract workers at that time, not to mind that a higher proportion of women are likely to have worked on temporary contracts. In this case, I am satisfied that the correct category of workers that the complainant must show are at a particular disadvantage, is not limited to just contract/agency workers but rather to the broader temporary category workers, as per the respondents assessment criteria. Again, no evidence was presented to support the claim that a significant proportion of workers in this category of worker in 2007 were women.
5.5 I have noted the respondent’s submission that it would rely on the defences of section 3(1)(c) in relation to objective justification of its policy and section 5(2)(d) in relation to the need for the respondent to make an assessment of risk, should I find that the complainant establish a prima facie case of discrimination. However, based on the evidence presented, I am satisfied that the complainant has failed to establish that the “apparently neutral provision” i.e. the requirement to be in permanent employment has put her at a particular disadvantage on the grounds of her gender. Accordingly, I find that the complainant has failed to establish a prima facie case of indirect discrimination in terms of Section 3(1)(c) of the Equal Status Acts, 2000 to 2008.
6. Decision
In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, 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 ground in terms of sections 3(1)(c) and 3(2)(a) of those Acts. Accordingly, I find in favour of the respondent in this case.
______________________
James Kelly
Equality Officer
The Equality Tribunal
6th January 2010
DEC-S2010-004 – Full Case Report
The Equality Tribunal
Equal Status Acts 2000 – 2008
Decision DEC-S2010-4
Murray v Irish Life and Permanent TSB
File ref ES/2009/075
Date of Issue: 18 January 2010
Key words
Equal Status Acts 2000-2008 – Section 3(1) – Direct discrimination, Section 3(1)(a) – Disability Ground, Section 3(2)(g) –- Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000 – 2008
On 7 October 2009 in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director has delegated the complaint to myself, Elaine Cassidy 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.
The assignment of the complaint was expedited due to the complainant’s personal circumstances. A hearing was held on 20 November 2009 and a stenographer’s report of the hearing was provided by the respondent to the Equality Officer and the complainant on 5 January 2010.
Summary of claim/dispute
This dispute concerns a complaint by Mr Murray that he was discriminated against by Permanent TSB in being refused a motor loan on 2 April 2009 because of his disability.
The claim was notified to respondent on 2 April 2009 and it was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 – 2008 on 29 June 2009.
1.0 Summary of Complainant’s Case
1.1 Mr Murray is suffering from terminal cancer and is receiving treatment for his illness primarily at University Hospital Galway. As Mr Murray lives in Sligo, this requires him to travel back and forth to Galway on a regular basis to receive treatment. In order to facilitate this, Mr Murray applied to the HSE for a Motorised Transport Grant of 75% of the cost, up to a value of 5020 Euros. On 2 March 2009, Mr Murray’s application was provisionally approved, subject to the submission of the following documents (and they being in order): driver’s licence, car invoice marked “paid”, Vehicle Registration Certificate, and Insurance Certificate. This meant that he was required to purchase the car, before he could receive the grant. In order to purchase the car, he intended to put approx 1500 of his own funds towards the car and use the HSE grant for the rest of the cost.
1.2 On 13 March 2009, Mr Murray applied to the Permanent TSB for finance of 5000 Euros which would enable him to purchase the car. To support his application Mr Murray presented, inter alia, the following information to the bank:
· his provisional written approval from the HSE for a grant of up to 5020 Euros
· advice that the average waiting period for the HSE to pay out the grant was 2-3 weeks from presentation of the documentation
· the name and contact number of the HSE finance official who could confirm the above
· his claim to be a debt-free, exemplary customer for over six years
· evidence of his disabled status
In his submissions and during the hearing Mr Murray provided details of his family’s weekly budget in order to show the respondent that they could have afforded the loan.
Between 13 March 2009 and 2 April 2009, there was verbal and written correspondence between Mr Murray and PTSB regarding the loan. He initially spoke with the assistant branch manager by phone and was sent a quotation to show the cost of the proposed loan. The loan value on this letter were incorrect and caused Mr Murray some confusion. Mr Murray then attended the branch in person on March 25th to complete the relevant forms.
1.3 The final outcome of the application was a letter from the respondents dated 2 April 2009 refusing the loan application. No further details were provided. Mr Murray submits that the reason for the refusal of the application was due to his disabled status.
As a result of the respondent’s refusal to provide a loan, Mr Murray had to raise the money by private means. He had less funds, so he had to buy an older car than he had intended, and it also meant that he could not avail of the full grant offered by the HSE.
Additionally in his submission and during the hearing Mr Murray provided details of the discomfort and distress which were caused to him during the time he was without a car. On 11 occasions, he was obliged to travel by bus to and from Galway which took him over eight hours each time. The combination of the travel and the cancer treatment were exhausting for him.
Finally Mr Murray submitted that the waiting period between his initial application and his final refusal caused him a great deal of distress and anxiety.
2.0 Summary of Respondent’s Case
2.1 In summary, the respondent submitted that Mr Murray’s application fell outside their permitted lending criteria, which apply irrespective of the status of the applicant under the Equal Status Acts.
2.2 Regarding the events leading up to the refusal, the respondents submitted that during their initial discussion with Mr Murray by phone, the first option they discussed was traditional car finance in the form of hire purchase. However they quickly ruled that out, as they believed that it would be too expensive for his situation (He would have been obliged to pay the full interest for the entire term, even if he only took the loan for a few weeks.) Therefore they recommended that the complainant make an application for an ordinary term loan and they sent him a follow-up quotation to show the cost of such a loan. The complainant then visited the branch and completed the applications as requested. The branch manager did not remember the specific loan application, but stated that the normal process for all applications is that he reviews them on a almost daily basis together with a small committee of three or four others. The bank were unable to provide any notes from the review meeting where Mr Murray’s application would have been discussed.
2.3 The basis for the review meeting is the PTSB Credit Policy for Consumer Current Account and Term Loan Facilities (hereafter the “lending policy”). Following this committee review, the application is either accepted, rejected or referred to the next level. The respondent submitted to the Tribunal a copy of this lending policy, the details of which remain confidential for commercial reasons. However in general summary it stipulates that special requirements must be applied where the loan applicant is a tenant. (This is because the bank assess tenants as higher risk than home-owners). It says that tenants must have an income above a specified threshold and they must be in continuous employment for a specified number of years. In the current case, the bank submitted that the complaint (who is a tenant) had an income below the level indicated and had not been in continuous employment for the requisite time. Therefore he fell outside the lending criteria which was authorised at branch manager level. During the hearing I asked the Branch Manager whether he was permitted any discretion in applying these guidelines. He explained that his only discretion is to decide whether the application should be passed to the next level, which is a centralised corporate lending unit. In order to pass the application to the next level, the Branch Manager submitted that he would have to have at least three or four strong reasons in favour of the applicant, before he would even consider sending it to the next level. He also submitted that the central lending unit could still refuse, even in cases where he personally believed the application was strong.
In the case of Mr Murray, the Branch Manager submitted that there was simply no way he would have passed his application up to the next level. Based on the completed application forms, which showed that he was outside their normal lending criteria, he could see no strong reason to process it any further. He gave examples of reasons which might be used to strengthen an application – a personal guarantor, or some piece of financial security. When asked about the HSE provisional grant approval, the branch manager was adamant that this document was not sufficiently secure for the bank. He pointed to the fact that the payout of the grant was subject to the production of documents over which the bank had no control. He said that the current lending environment was extremely risk averse and that they would not accept a provisional grant approval, notwithstanding the fact that it came from a State organisation. Therefore the result of the term loan application was a letter of refusal on April 2nd 2009.
2.4 The Branch Manager additionally confirmed during the hearing that Mr Murray would also not have qualified for hire purchase, even he had had chosen this option.
3.0 Conclusions of the Equality Officer
3.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts 2000- 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
3.2 The complainant is suffering from a terminal illness and his disability status was not contested by the respondent. The basic facts surrounding the application and refusal are not in dispute. Therefore the disputed issue is whether the refusal of the loan by PTSB was connected with Mr Murray’s disability. In making his loan application, Mr Murray did make it very clear that he was a person with a disability. He also provided a document from the HSE, which he believed would provide sufficient security for the bank. Despite considerable communication between the parties, the final answer which the complainant received was a flat refusal without giving reasons. Therefore in my opinion, the complainant has established a prima facie case. The onus therefore shifts to the respondent to rebut the inference of discrimination raised.
3.3 The respondent defends the claim on the basis that the loan application was reviewed strictly within the terms of their lending policy and without any reference to the claimant’s disability. It is very clear from the bank’s lending policy that the complainant fell outside the standard criteria for granting any form of loan.
3.4 The next issue which arises is whether the application ought to have been referred to the next level within the bank. During the hearing, the issue of the provisional HSE grant was discussed at length and the branch manager was credible in his explanation that the conditions precedent, as set out by the HSE, created too much risk for him. He was also questioned about why he did not accede to the complainant’s request to call the HSE for a reference. The bank manager credibly outlined his position with respect to the referee request and explained that in his opinion, any discussion with the HSE finance manager would not have altered those risks as set out. Finally the branch manager’s reasons for not using his discretion to refer the application to the next level were routine and straightforward. Therefore I accept that the bank applied their lending policy without reference to Mr Murray’s disability.
3.5 The issue of indirect discrimination was not raised by the complaint who was unrepresented. The respondent, for completeness, contended that their policy does not indirectly discriminate and there is no lending condition which applies disproportionately to disabled people. They stated that there is no evidence that disabled people are more or less likely to be tenants, to be in receipt of an income below the threshold or to be in continuous employment for less than three years. In the absence of any data, I cannot comment further on the issue of indirect discrimination.
3.6 I have taken into account all the evidence, written and oral, before me. Accordingly, I am satisfied tthat Permanent TSB did not discriminate against the complainants on the disability ground contrary to the provisions of the Equal Status Acts 2000 – 2008.
3.7 As a final note, Mr Murray stated on a number of occasions that the bank ought to have considered the “special circumstances” arising from his extremely severe illness, and shown some “humanity and integrity” in their decision-making. While I find their decision-making process to have been reasonable and non-discriminatory, I do consider that their treatment of the complainant was somewhat offhand; They initially gave Mr Murray the wrong quote, they did not give their response to his application until he followed up and they did not give any reasons for refusal or provide a personal contact. All of this distressed the complainant further. These were all customer-facing opportunities where Mr Murray’s vulnerability might have been taken into account and the issue resolved amicably, without violating the bank’s lending rules.
4.0 Decision
4.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts. However I find that respondents have successfully rebutted the allegation of discrimination. Accordingly, I find in favour of the respondents in the matter.
Elaine Cassidy
Equality Officer
Date: 18 January 2010
DEC-S2010-046-Full Case Report
Equal Status Acts, 2000-2008
Decision No. DEC-S2010-046
A Separated Complainant v A Hospital
Key words
Equal Status Acts – Section 3(2)(b), Marital Status ground – Section 3(2)(c), Family Status ground – Section 3(1)(c), indirect discrimination – Separated Person – Consent in relation to a minor – Provision of information relating to minor – Custodial parent – Guardianship of Infants Act – Order under Section 27(1)(b)
1. Delegation under the relevant legislation
1.1. On 10th January, 2008, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On 18th January, 2010, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on 24th June, 2010. Additional documentation was also sought from the respondent after the hearing and this was provided on 2nd July, 2010.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the marital status and family status grounds contrary to the Equal Status Acts in terms of Sections 3(1)(a), 3(1)(c) and Sections 3(2)(b) and 3(2)(c) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated him less favourably by failing to obtain his consent in operating on his daughter and in requesting him to go through a solicitor in order to obtain information relating to his daughter.
3. Summary of the Complainant’s Case
3.1. The complainant is the father of a child, Z, and is separated from Z’s mother (hereinafter referred to as “the Mother”) by way of an order of Judicial Separation.
Submissions in relation to consent and ancillary matters
3.2. The complainant submitted that Z had a tonsillectomy performed by a consultant, (“the Consultant”), at the respondent hospital. He submitted that this operation was carried out without his knowledge, approval or consent. He stated that the Mother signed a consent form which he was not asked to sign. He submitted that as a married (sic) father he should have been consulted prior to the operation as his consent is required under s.6 of the Guardianship of Infants Act 1964. He stated that his position as legal guardian and to act on Z’s behalf was denied to him and was, therefore, an act of discrimination. He submitted that by allowing the performance of a tonsillectomy on Z without his consent, the respondent discriminated against him on the grounds of family status, as a parent of a child, and on the grounds of marital status, as a separated father.
3.3. At the hearing, the complainant also stated that the policy and practice of seeking consent from one parent only was also discriminatory. In that regard, following a question from the Tribunal, he clarified that he was claiming indirect discrimination on that basis.
3.4. The background to the complaint is that the complainant stated he was told in October 2007 that Z had been brought to hospital for an operation for a tonsillectomy. He said that he only found out that the respondent hospital was the location for the operation after discovering Z’s medical bracelet from the time she had the operation, some two weeks later, as the Mother refused to provide him with that information. The complainant submitted that he later discovered that the Consultant had accepted Z as a patient and operated on her in the respondent hospital without a written referral from a GP. He stated that he contacted the Consultant who told him what had happened in relation to the operation, and how Z had presented to him. The complainant said that the Consultant was under the impression that Z had been referred by a particular G.P. but that this G.P. confirmed that she had not made any such referral and neither had Z’s actual G.P.
3.5. The complainant submitted that the Consultant indicated that the Mother had informed him that Z had been having problems with severe snoring and choking at night. However, the complainant submitted that Z displayed no such symptoms while she stayed with him. He submitted that if the respondent had sought his consent, it would have obtained information vis-à-vis Z, through her actual G.P. which, the complainant submits, would have had an influence on their practice in relation to her. In support of his case, the complainant submitted to the Tribunal guidelines recently adopted by the HSE following a complaint he made with regard to an unrelated incident involving Z and a separate organisation.
3.6. The complainant also submitted that a form had been signed by the Mother in which she agreed to the retention of organs from Z for future testing without his consent. In his submissions, he referred to the “scandal where the failure to seek consent of parents for the retention of their children’s organs by Public Hospitals caused outrage”. He contended that this was also an act of discrimination.
3.7. The complainant also submitted that the policy of seeking consent from one parent only was indirectly discriminatory in accordance with Section 3(1)(c) of the Acts. He stated that this policy puts a non-custodial separated parent at a disadvantage by not being consulted over issues relating to the welfare of their child. He submitted that his status as a father meant his consent should have been required and that he should have been treated equally in that regard. He said that married couples are joint guardians of their children, and that by seeking the consent of one parent only, the respondent was discriminating against him because he was separated. He referred to the Supreme Court judgement of B -v- B and stated that the policy was flawed in that it was based on principles of UK law, and not Irish law.
Submissions in relation to provision of information
3.8. The complainant submitted that, subsequent to his inquiries with the Consultant, he asked the Chief Executive Officer (“the CEO”) of the respondent hospital for copies of all documentation in relation to Z’s operation and admission. The complainant stated that, in a letter dated 26th November 2007, the CEO refused to give him access to the records sought and advised him that copies of the records requested would be forwarded on receipt of a request from his solicitor. A copy of this letter was provided to the Tribunal. In later correspondence, the complainant said that the CEO wrote to say that he had made this request in order to establish the complainant’s identity. However, he stated that he had received records from numerous other named health care institutions on production of copies of his children’s birth certificates and his marriage certificate. He submitted that the CEO directed him to seek an unnecessarily expensive remedy and that this was an act of discrimination based on his marital status in that he would have received the records in question if he had not been separated.
4. Summary of the Respondent’s Case
Issues relating to consent
4.1. In relation to the complainant’s case that it should have sought his consent, the respondent stated that, as consultants are not its employees, it could not be held responsible for this aspect of the complainant’s case. It stated that its only responsibility in this respect was to ensure that its policy in relation to consent is in line with best practice. In response to a question from the Tribunal, it did accept that the Consultant was acting under its instructions in terms of seeking consent.
4.2. The respondent added that the matter of whether there had been a proper referral from a G.P. was a matter between the Consultant and the complainant and/or the Mother. It also submitted that, in so far as the issues the complainant raises relate to clinical symptoms, they are a matter for the Consultant to decide upon and it understood he made the appropriate assessment which deemed a tonsillectomy was in the best interests of Z.
4.3. The respondent refuted the claim of indirect discrimination. In the first instance, it objected to my consideration of the matter as it had not been raised prior to the hearing. In any event, it stated that it adheres to best practice in line with the policy on consent followed by similar hospitals, and in accordance with HSE best practice and its legal obligations. In that regard, it refuted the complainant’s contention that it was following UK law in its policy on consent. It stated that its policy requires consent from one parent only in all situations. In explaining how consent is sought, it stated that the Consultant would sit down with the parent(s), usually also with the child present, and would go through the consent form, asking if they understood it and if they had any questions. It stated that if the parent(s) are happy with this, they are then asked to sign it – if both parents are present, then it is a matter for the parents to decide who should give consent. It stated that it is not required to ask about the marital status of either parent and does not do so.
4.4. The respondent said that the document provided by the complainant were guidelines adopted by the H.S.E. Community Care Section in January 2009 and were not appropriate for hospitals. It submitted that issues arising from the difference in these guidelines to the ones they used was a matter for the HSE.
4.5. With regard to the issue raised by the complainant concerning Z’s organs, the respondent stated that the consent form referred to by the complainant was a standard practice where a surgical procedure if performed. It stated that “tissue samples” may be sent for histology examination which is deemed best clinical practice. In this particular case, no tissue sample was taken.
Request for information
4.6. The complainant also denied that it acted in a discriminatory in relation to its response to the complainant’s request for information. It submitted that its request for him to go through a solicitor was to establish his identity.
4.7. The respondent stated that its normal procedure in relation to providing such information to parents is that the parent in question is asked to write in, if they first make the request by phone. Either way, they are also asked to provide identification such as a driving licence or passport. It stated that the record is then pulled and reviewed by one of the senior nursing staff and by the relevant consultant. It is then recorded, photocopied and sent out. It said that normally it would not ask for further information from the parent making the request. It stated that it had introduced a new form for seeking this information since the present complaint was made but that this was brought in as a result of a review of all its policies and procedures and not as a result of the complaint.
4.8. Finally, the respondent stated that the marital status of the complainant was unknown to the hospital until the complainant made contact with it. It stated that it attempted to clarify the position in a letter it sent to the Mother on 20 December 2007, but this letter went unanswered. It said that a note of a subsequent phone call from the CEO’s office indicates that the Mother stated she had sole custody of Z. On request from the Tribunal, the respondent provided, inter alia, a copy of this note. The respondent said that it thought it had received a phone call to the hospital from the complainant and, at the Tribunal’s request, later provided a copy of a note of that conversation. In any event, it confirmed that it corresponded with him from November 2007 on. It stated that the CEO had made the decision to request the complainant to go through a solicitor because there was a separation agreement and questions of guardianship involved, and in order to establish the identity of the complainant. It stated that it also did so in the interests of confidentiality and Data protection. It added that it also took into account that there was a question of sole custody involved.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. I am conscious that the issues at stake in this case are particularly sensitive ones, given that family law matters, and, in particular, the welfare of a child, Z, are at the heart of these issues. From that perspective, I have been particularly anxious to publish herein only those matters of relevance to the case at hand in order to further protect the privacy of all parties, for which reason the decision in its entirety has also been anonymised. Nevertheless, I have a decision to make, and in that context, it is necessary to reflect to some degree on some of the more sensitive issues raised.
Issue of consent
5.3. The decision of the Consultant to carry out the tonsillectomy on Z, and the issues relating to whether there was a proper referral from a G.P. or not, are not matters for me to consider as they do not involve any treatment of the complainant, less favourable or otherwise. Additionally, the question of whether the respondent was in breach of the Guardianship of Infants Act is not a matter for this Tribunal. What is at issue here is the decision and/or policy of the respondent, before carrying out the operation in question, to obtain the consent of the Mother only, and whether in doing so it discriminated against the complainant. In that respect, it attempts to absolve itself of responsibility by claiming it was the Consultant’s decision. However, while it is accepted that the Consultant is not an employee of the respondent, it is clear that, in seeking the consent of the Mother, he was acting as an agent for the respondent. In that regard, I note that the Consultant, who works in other hospitals, would have to take a different approach to seeking consent at another hospital if, as seems quite possible, it had a different policy in relation to seeking consent in such cases.
5.4. However, the question is whether the treatment of the complainant in this respect was less favourable than someone of a different marital or family status to him would have received in the same or similar circumstances. Clearly, any such person would have to have a child. By definition, then, the complainant could not have been discriminated against on the family status ground vis-à-vis such a comparator as they would have the same family status as the complainant.
5.5. As regards marital status, I am satisfied that the complainant was not treated less favourably than someone of a different marital status as it is clear that consent is sought from only one parent in all circumstances, irrespective of the marital status of the relevant parent, and even if the other parent is present when the consent is sought. Indeed, it is clear that the agent for the respondent seeking the consent often does not know the marital status of the parent from whom they are seeking that consent. I would add that for such a person to ask any question that sought to obtain such information would not be advisable in the context of the Acts as it could, depending on the circumstances, be a discriminatory question in and of itself.
Indirect Discrimination in relation to consent
Issue of jurisdiction
5.6. The complainant also argued that the policy of the respondent to seek the consent of only one parent was discriminatory against him as a separated person. The respondent questioned the jurisdiction of the Tribunal to consider this submission on the basis that it was not put on notice of this argument in advance of the hearing. However, it is clear from the submission of the complainant, and indeed his initial complaint and notification forms, that he took issue with the policy of the respondent in relation to consent. While he does not mention indirect discrimination per se, the implication is clear. Therefore, I am satisfied that the complainant did not make any argument which he had not made in advance.
5.7. While the provision of the Acts that applied to the case the complainant was making was crystallised at the hearing, this is a normal part of the procedure in fora such as the Tribunal, where there is regular attendance by parties who are unrepresented and unclear in their own minds as to matters of interpretation of the Acts. In addition, once the provision in question was identified, the respondent was given ample opportunity to consider and make arguments in relation to the matter before the hearing concluded. It is part of the role of an Equality Officer in such cases to clarify those matters at the hearing, and, provided no party is set at a disadvantage, this is in keeping with natural justice and fair procedures.
5.8. In short, the complainant did not seek to adduce new evidence or raise new issues at the hearing. I cannot see how, in such circumstances, the respondent was set at a disadvantage and I am satisfied that no question of jurisdiction arises in relation to this matter.
Substantive Matter
5.9. Section 3(c) of the Acts states that discrimination on any of the grounds occurs: –
“where an apparently neutral provision puts a person [on any of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
The complainant must, in the first instance, show that the policy of the respondent to seek consent from one parent puts him at a particular disadvantage because he is separated. However, as already stated, it is clear that the policy is to seek consent from whichever parent is readily available. Single parents, married parents, separated parents, divorced parents and widowed parents are all treated exactly the same in that respect and it is clear that the policy in question does not put a separated person at a particular disadvantage.
5.10. The complainant also sought to argue that the policy puts non-custodial parents at a disadvantage vis-a-vis custodial parents, because the person from whom the consent is sought is invariably the parent with custody of the child. He argued that this was particularly relevant to the issue of organ retention, as the consent provided by the parent who signs for it effectively overrides the wish of the other parent to prevent the child’s organs being retained, as the case may be. However, the question of whether the policy favours custodial parents over non-custodial parents is related to the custodial arrangements in place with regard to the relevant children rather than to the marital status of the relevant parties. In any event, they will generally be of the same marital status (i.e. separated or divorced).
5.11. Therefore, the complainant has failed to establish a prima facie case of less favourable treatment in relation to the respondent not seeking his consent to carry out an operation on Z.
Provision of information
5.12. I now turn to the question of whether the respondent’s decision to request the complainant to go through a solicitor to obtain information relating to Z was discriminatory on either ground. Again, any person in the same or similar circumstances would have to have a child and so the complainant could not have been discriminated against on the family status ground vis-à-vis such a comparator as they would have the same family status as the complainant. However, I must still consider whether there was less favourable treatment on the marital status ground in this respect
5.13. It is clear that if the complainant was not separated he would have been granted his request for information without any difficulty once he presented identification to show that he was who he said he was. He certainly would not have been asked to go through a solicitor, and the respondent did not adduce any evidence that the welfare of Z was at issue in refusing to provide the documentation in question. Indeed, the respondent stated at the hearing that the reasons for requesting the complainant to go through a solicitor included because there was a separation agreement in place. Not least for these reasons, I do not accept the respondent’s principal submission that the reason why it asked the complainant to go through a solicitor was in order to establish his identification. Finally, in this respect, the complainant was eventually provided with the documentation in question but only after he had made his complaint to the Tribunal. In any event, this does not absolve the respondent with respect to its insistence that he go through a solicitor in the first instance.
5.14. Therefore, I am satisfied that the complainant was treated less favourably because he was separated with respect to this aspect of his complaint and he has established a prima facie case of discrimination in that regard on the marital status ground.
Respondent’s rebuttal
5.15. The respondent sought to rebut this aspect of the claim by stating, in the first instance, that it was required to make him go through a solicitor because of Data Protection issues. However, it was unable to point to the provision of the Data Protection Act that required it to do so. I am satisfied that no such requirement exists.
5.16. The respondent also stated that it had issues relating to guardianship and custody. In that regard, I note that the respondent told the Mother that once the complainant provided proof of legal guardianship over the child that they were obliged to send the material to him. Not least for that reason, the issue of custody is irrelevant. Furthermore, and in all the circumstances of the present case, if the reason for the respondent’s less favourable treatment of the complainant related to the establishment of guardianship, then it is clear that a request for the birth certificate of Z would have resolved the matter. (In that regard, I note that other hospitals to which the complainant referred similar requests provided the information to him on foot of Z’s birth certificate.) Instead, the complainant was told that the information would only be provided if he made a request through his solicitor. I do not consider that such a heavy-handed approach is consistent with a relatively simple matter of establishing whether the complainant had guardianship of his daughter or not.
5.17. Therefore, I am satisfied that establishing whether the complainant had guardianship of Z was not the only reason for the difference in its treatment of the complainant, if it was a reason at all. As the respondent has failed to provide evidence of any other legitimate reason for the less favourable treatment of the complainant by it in this respect, it has failed in its rebuttal of the prima facie case established by the complainant with respect to the provision of the information in question.
Final Comments
5.18. It should be noted that the complainant sought to adduce evidence as a separated father. However, I note that he did not take a complaint on the gender ground. Consequently, I have no jurisdiction to consider the matter from that perspective and have only been able to consider this complaint from the standpoint of the complainant as a separated person. (The complainant was informed of this when he sought to adduce this evidence at the hearing.)
5.19. In relation to the order to be made in this case, I have considered the extent to which the breach of the Acts had a direct effect on the complainant: viz., in short, that because of his marital status, the respondent required the complainant to procure the services of a legal practitioner in order to access records relating to his daughter, Z, when he had a legitimate right to obtain these records, at least as far as the Acts are concerned. It is also clear that the emotional and psychological impact of the discrimination on the complainant was significant and that he was clearly angered and upset by that discrimination. I am also restricted by the limits on the redress for which a decision under the Acts may provide. I have taken these factors into account in my decision as regards the orders that follow.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground in terms of Sections 3(1)(a) , 3(1)(c), 3(2)(c) and Section 5(1) of the Equal Status Acts.
6.3. I find that the complainant has failed to establish a prima facie case of discrimination on the marital status ground in terms of Sections 3(1)(a) , 3(1)(c), 3(2)(b) and Section 5(1) of the Equal Status Acts with respect to the respondent’s policy in relation to seeking consent from one parent only and its decision not to seek his consent in relation to the procedure in question that was carried out on his daughter.
6.4. I find that the complainant has established a prima facie case of discrimination on the marital status ground in terms of Sections 3(1)(a), 3(2)(b) and Section 5(1) of the Equal Status Acts with respect to the respondent’s decision to request the complainant to go through a solicitor to obtain information relating to his daughter, Z. I find that the respondent has failed to rebut this prima facie case.
6.5. Accordingly, I order the respondent to pay to the complainant the sum of €2,000 for the effects of the discrimination.
6.6. In accordance with Section 27(1)(b) of the Equal Status Acts, I also make the following order: that, in consultation with an appropriate person(s) and/or organisation(s) expert in the areas of law of relevance to such a review, the respondent carry out a review of its procedures with regard to the provision of information to parents and/or guardians of minors in relation to whom the respondent has records, to ensure that these procedures are in compliance with the provisions of the Equal Status Acts and other relevant legislation. This review must, within twelve months of the date of this decision, result in the publication of a written document in that regard to be made readily available to all such parents and/or guardians who wish to make such a request.
_____________
Gary O’Doherty
Equality Officer
17 September 2010
DEC-S2010-056-Full case report
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-056
A Mother (on behalf of her son) v School
and
The Department of Education and Skills
[Represented by Mr Conor Dignam B.L. instructed by the Chief State Solicitor]
File Ref: ES/2010/073, 075
Date of Issue: 7 December 2010
Keywords: Equal Status – Membership of Traveller community, Admission to educational establishment – indirect discrimination – Whether appeals under section 29 of the Education Act 1998 subject to Equal Status Acts – Whether preferential treatment in admission of siblings of current or former pupils or children of former pupils indirectly discriminatory – Burden of proof – Equal Status Acts 2000 to 2008 ss.3 (1) (c), 3 (2) (i), 3 (3A), 5, 7, 14(b), 34 – Education Act 1998 s. 29.
1. This complaint was referred to the Director of the Equality Tribunal on 22 July 2010 under the Equal Status Acts, 2000-2008 (hereinafter “the Acts”). On 13 October 2010 I, Niall McCutcheon, Director of the Equality Tribunal decided to take responsibility myself for the investigation, hearing and the issue of a decision, and the exercise of all my other powers and functions under the Employment Equality Acts 1998 – 2008 and the Acts, in relation to this case. The same day, for the purpose of enabling me to exercise my functions under Part III of the Acts, in accordance with section 34 of the Acts, I wrote to all the parties seeking information which, in my opinion, was relevant. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 9 November 2010 and all parties were in attendance. Further information sought at the hearing was received by me on 10 November 2010.
2. Dispute
This dispute concerns a claim by the complainant, A Mother on behalf of her son (hereinafter “the complainant”) that he was discriminated against by A School (hereinafter “the High School”) on the Traveller community ground in terms of section 3(2)(i) of the Acts by being refused admission as a student to the School, contrary to section 7 (2) (a) of the Acts. The complainant also claims that the Department of Education and Skills (hereinafter “the Department”) discriminated against him by not upholding an appeal under section 29 of the Education Act 1998 against the decision of the High School.
3. The facts
The School is a Roman Catholic Voluntary secondary school for boys only under the trusteeship of the Christian Brothers.
The complainant is a member of the Traveller community as are his mother and father. He is Roman Catholic as are his parents. He attended a local primary school, a feeder school to the School. He is the eldest of seven children, three boys and four girls. The complainant applied for admission to the School in November 2009, on or prior to the closing date. The number of applications greatly exceeded the number of places available.
The Admissions Policy of the School (dated November 2009) sets out the following Enrolment Policy that applies when places are oversubscribed:
“First Round
The school will examine all applications received on or prior to the closing date in the first round review to determine which applicants have maximum eligibility in accordance with the school’s selection criteria mentioned in this policy and the mission statement and the ethos of the school.
“Second Round
All or any remaining places not allocated in the First Round shall be allocated in accordance with the Lottery Procedure mentioned below.
“Rationale
The rationale of the admissions policy is to fairly and transparently allocate the available places in accordance with the mission statement, the guidelines and recommendations of the Patron and the Department of Education and Skills (DES) where arising, and the selection criteria and lottery referred to below.
“The School’s goals generally
The primary goal of the School is to fulfill its mission statement in accordance with the law, Patron or DES guidelines and the resources currently available to it. The Admissions Policy is intended to reflect that primary goal and in this context the school aims to:
– Provide a fair system of enrolment for boys
– Make reasonable provision and accommodation for students, including students with a disability and special educational needs in accordance with relevant legislation, with due regard to the efficient use of resources provided by the DES.
– Allow for full participation by all students, subject to resources being available and allowing for Health and Safety implications
– Transparently allocate those limited places in accordance with its Mission Statement and the Selection Criteria mentioned below.
“The School’s Goals on dealing with Admissions
When dealing with Admissions where there are a limited number of places, the School seeks to fulfil the above goals in the following manner, namely to allocate the number of places available:
– firstly on the basis of its Mission as a Roman Catholic school;
– Secondly on the basis of supporting the family ethos within education by providing education services for the children of families who already have, or have recently had, a brother of the applicant attend the School for his post primary education;
– And thirdly to make reasonable provision and accommodation for boys within its own locality or demographic area, including students with disability and special educational needs, in accordance with the resources provided by the DES and otherwise available to it.
“Selection Criteria
First Round criteria:
In the first round the School shall firstly select from all of the applications submitted that have maximum eligibility in accordance with the following criteria:
The application is made on behalf of a boy:
– whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school;
The School may also allocate some places to take account of:
– families who have located to Clonmel through work
– the urban/rural balance on a proportional basis in the context of the allowed number of applicants
– exceptional circumstances
– students (living in the catchment area) who are diagnosed with ASD (Autistic Spectrum Disorder).
Second Round
With respect to all or any remaining places not allocated in the First Round the School shall run a Lottery to determine the order in which same shall be filled.
Because the School can only provide a limited number of places for boys, in the event of one or more appeals, a corresponding number of places from the lottery cannot be confirmed pending determination of the relevant Appeal(s), starting with the last place to be filled by the lottery and proceeding accordingly.”
The complainant applied on or prior to the closing date in November 2009 for admission to the School in autumn 2010. The complainant met two of the three First Round Selection criteria , namely:
– whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
– who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school;
The criterion he did not meet was as follows:
– who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School.
The complainant therefore did not have maximum eligibility under the First Round criteria. His application was placed in a Lottery along with those who, like him, applied in time but did not have maximum eligibility, as well as four other applicants who applied late but had maximum eligibility. The complainant was not successful in the lottery. He was placed on a waiting list. As of the date of the hearing he is fourth on the waiting list. One of the boys ahead of him on the waiting list applied late but was entered into the Second Round lottery.
Three boys were awarded places in the First Round under the “exceptional circumstances” rule because of loss of a parent or ill-health. No places were awarded in the First Round under the other exceptional criteria, namely
– families who have located to Clonmel through work
– the urban/rural balance on a proportional basis in the context of the allowed number of applicants
– students (living in the catchment area) who are diagnosed with ASD (Autistic Spectrum Disorder).
90 places were awarded in the First Round. 84 names were entered into the Second Round Lottery for 47 places.
The complainant appealed the refusal internally and was unsuccessful. The complainant subsequently appealed to the Secretary General of the Department of Education and Skills under section 29 of the Education Act 1998 who referred the matter to an Appeals Committee. The Appeals Committee heard the appeal on 23 April 2010. It decided not to uphold the appeal for the following reason:
“The Board of Management of the School were fair and reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the places available.”
The Appeals Committee made a Recommendation as follows:
“The Appeals Committee are of the view that the clause in the Admissions Policy relating to “exceptional circumstances” merits review by the Board of Management of the School in order to make it more inclusive.”
The Appeals Committee also added the following comment:
“The Appeals Committee noted that in dealing with late applications the Board of Management did not strictly adhere to its policy. This did not materially affect the outcome.”
4. Summary of complainant’s case against the School.
The complainant argues that the only criterion he did not meet was having a brother who attended or is in attendance at the School, or being the child of a past pupil, or having close family ties with the School. He is the eldest child in his family. Therefore he could not have a sibling who attended the school. The complainant’s father never progressed to second level education. He therefore could not have a parent who attended the school. As a member of the Traveller community, his father (and the rest of his extended family) is statistically much less likely to have attended second level education than the settled population. This criterion of having a family member who attended the school therefore disproportionately affects members of the Traveller community and amounts to indirect discrimination. The School failed to take this into account under the “exceptional circumstances” clause in their Admissions Policy.
The complainant claims that empirical evidence suggests that historically Travellers have suffered “extreme educational deprivation” specifically at second level education. The Report of the Travelling People Review Body 1983 estimated that only half of Traveller children of school going age attended school and very few remained after reaching the age of 12 years. The Report stated that only 10 per cent of Travellers who finish primary school continue to attend school and most of these drop out after one or two years.
This contrasts with the experience of the rest of the population at that time. In 1982, 66.4 per cent of all children who entered second level education completed their secondary schooling. These data correspond with the approximate time period in which the complainant’s father and other family members would have been of a school going age which proves as a further example that members of the Traveller community were statistically less likely to attend second level education.
The Department of Education and Science Guidelines on Traveller Education in second Level Schools 2002 has categorically stated that “school policies should facilitate Traveller enrolment” and has acknowledged that “some schools enrolment policies at second level have not been designed with Travellers in mind and can therefore indirectly act as a barrier to access.” The 2002 Census indicated that 2 per cent of all Travellers who entered second level education completed the senior cycle compared to 23 per cent completion by the general population. To combat this injustice the Department stated that “enrolment policies must therefore take into account the particular needs and lifestyles of Traveller families”. However the attitude and actions of the School are in flagrant breach of the Department’s guidelines. According to the School’s reply [to the complainant] of 29th July 2010 “the fact that a person is a member of the Travelling community is not considered an exceptional circumstance by the Board of Management”. In the complainant’s view, the School has failed in its duty to take into account “all guidelines, regulations and programmes currently made available by the DES” as required by its own admissions policy.
5. Summary of Complainant’s case against the Department.
The Department failed to find against the School at the appeal stage. The Department further failed to ensure that its own guidelines (referred to above) were adhered to during the course of the appeal hearing.
6. Summary of the High School’s Case
The School denied any claims of discrimination, direct or indirect.
The complainant referred his complaint to the Department under a section 29 appeal and the Appeals Committee determined that the Admissions Policy was fair and had been applied correctly.
The complainant was not treated less favourably on the Traveller community ground. He was treated in the same manner as all other applicants to the school. At all times during this process the school treated the complainant in a fair and appropriate manner and in accordance with its policy. The complainant has failed to establish a prima facie case of discrimination in that he has not produced evidence that the treatment he received was less favourable than the treatment someone who is not a member of the Traveller community would have received in similar circumstances.
On the question of indirect discrimination, the High School responded to the allegation that the criterion of having to have a family member who attended the school disproportionately affects members of the Traveller community because Travellers are statistically less likely to have attended secondary school as follows:
The criterion applied is not that a family member has attended second level education but that a family member is attending or has attended the School. This is a standard criterion in admission policies. It is entirely justifiable that the school should have a procedure to follow in cases of oversubscription.
The school has an excellent record of working with students who are members of the Traveller community. There were 5 members of the Traveller community enrolled in the school in 2010. All Travellers who applied for admission in both 2007 and 2008 were accepted. No Travellers applied in 2009. The complainant is the only Traveller to have been unsuccessful in his application to date.
The complainant has argued that the “exceptional circumstances” clause in the school’s admission policy should have been applied to him by reason of his membership of the Traveller community. The School states that the application of this clause was fully explained to all parents i.e. that it applied only in narrowly defined circumstances where an applicant had lost a parent or suffered from ill-health. The complainant therefore was fully aware of its narrow scope. This is evidenced by the fact that on his application form the complainant made no request in this regard.
7. Summary of Department’s case.
The Department contends that it does not own, govern or control the School. The Department cannot direct the School as to its enrolment policy. The claim against the Department is misconceived as the Department is an inappropriate respondent. The matters complained of fall outside the scope of the Equal Status Acts. The Department and more particularly the section 29 Appeals Committee are not “education establishments” within the meaning of section 7 of the Acts. The Department contends that section 7 is the only provision of the Acts which governs discrimination in the education sphere. Therefore the Department and the section 29 Committee fall outside the scope of the Acts. Even if it was contended that the Department was subject to section 5 of the Acts as a service provider, the activities of adjudicative bodies are not “services” within the meaning of the Acts. Even if it was considered that adjudicative bodies were subject, in principle, to the Acts, the section 29 Appeals Committee is limited in the scope of the review it can carry out. The Oireachtas did not intend to grant the Minister for Education and Skills an entitlement, through the section 29 Appeals Committee, to give directions to schools as to how they accept pupils. The jurisdiction of the section 29 Appeals Committee, as interpreted by the Court , is limited to, in effect, a judicial review type role of determining whether the board of management correctly and lawfully applied its enrolment policy, having regard to the facts of the case at the date of board’s decision.
8. Preliminary Issue
I address first the question, does the claim of discrimination made against the Department fall within the jurisdiction of the Equality Tribunal? The complainant claimed that the Department discriminated against him when it failed to find against the School at the appeal stage and that the Department further failed to ensure that its own guidelines were adhered to during the course of the appeal hearing. There is no dispute that the decision of the School not to admit the complainant is subject to the Equal Status Acts. The question is, is the Secretary General of the Department and/or the section 29 Committee, in carrying out their statutory appellate functions subject to the Equal Status Act? If the Secretary General or the section 29 Appeals Committee had discretionary power to substitute for the decision of the School their own decision on the merits of an individual application or had discretionary power to amend the terms of the enrolment policy, they would be taking decisions in relation to the admission or the terms or conditions of admission of a person as a student to an educational establishment. In such a case they might be subject to the Equal Status Act. It is clear, however, from the legal authorities opened to me, that the Secretary General and a section 29 Appeals Committee do not have power to carry out a merits-based review of a decision to refuse an application. Ms Justice Irvine found that
“the powers of the appeals committee under section 29, in the opinion of this Court, was one intended to be confined to a right to review the lawfulness and/or reasonableness of a board’s decision to refuse enrolment.”
Therefore the Department, in exercising its powers under section 29 of the Education Act 1998 cannot substitute its own view on the merits of an individual application for the decision of the school. Neither can it strike down or amend the enrolment policy of a school. It can only quash a decision in relation to the admission or the terms or conditions of admission of a person as a student to an educational establishment if the decision is unlawful or unreasonable. Therefore, in reviewing the decision of the School the Department and the section 29 Committee are concerned not with the decision but with the decision making process. They are not acting as an educational establishment within the meaning of section 7 of the Equal status Act in this instance. Neither are they providing a good or service within the meaning of section 5 of the Equal Status Act in this instance. I find therefore that I have no jurisdiction to consider the claim of the complainant that the Department discriminated against him by not upholding his section 29 appeal. As regards the claim that the Department failed to ensure that its own guidelines (regarding access for Travellers) were adhered to during the course of the appeal hearing, the Acts (at section 14 (b)) certainly permit an educational establishment or a service provider to give preferential treatment or to take positive measures to promote equality of opportunity for persons, such as Travellers, who are disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons. However the Acts do not put an obligation on educational establishments or service providers to do so. Therefore I have no jurisdiction to consider that element of the claim against the Department.
9. Indirect Discrimination:
Indirect discrimination is defined in section 3 (1) (c) of the Acts as:-
“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) [i.e. covered by one of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
Section 3 (3A) of the Acts provides that in any proceedings statistics are admissible for the purpose of determining whether indirect discrimination has occurred.
The complainant claims that the following criterion in the enrolment policy of the High School indirectly discriminates against him:
“who already has a brother who attended or is in attendance at the School, or is the child of a past pupil, or has close family ties with the School.”
It is for the complainant to prove, on the balance of probabilities, that this criterion puts a Traveller at a particular disadvantage compared with non-Travellers. If he succeeds in this, the burden of proof shifts to the High School to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. Under section 3 (3A) of the Acts, the complainant can use statistical data as an evidential tool to prove a particular disadvantage and so shift the burden of proof. It is possible to establish a case where statistics are inadequate or non-existent, if the complainant can prove that a provision is intrinsically liable to affect his group [in this case Travellers] more that others and there is a consequent risk that it will place his group at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of Travellers. It is sufficient that it is liable to have such an effect.
Once the complainant has proved that the criterion puts a Traveller at a particular disadvantage, it is for the High School to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The High School must prove each element of the defence [objective justification, legitimate aim, appropriateness and necessity]. To permit a criterion which puts a group at a particular disadvantage to be maintained is a derogation from the principle of equal treatment. According to settled case-law, in determining the scope of any derogation from an individual right such as that of equal treatment, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued.
There are four sub-criteria to the impugned criterion. They are:
1. Has a brother who attended the School in the past, or
2. Has a brother who is currently in attendance in the School, or
3. Is the child of a past pupil, or
4. Has close family ties with the School.
The 4th element above is understood to mean only that the applicant is the child of a current member of staff. No one was admitted to the School on this basis in the current year. It is not relevant therefore to this case.
The School informed me that of the 90 boys given offers of places after the first round, 33 were brothers of boys currently in the school, 16 were brothers of former pupils without a brother currently in the school and 36 were the sons of former pupils who did not have a brother currently in the school.
10. Siblings of existing and former pupils.
The complainant, as the eldest son, claims that he is put at a particular disadvantage in that he cannot by definition benefit from the priority given to siblings of current or former pupils. While this is true, his disadvantage arises from his being an eldest son and not from his being a Traveller as such. The complainant further argues that giving priority to brothers puts Travellers at a particular disadvantage in that, due to historic low participation by Travellers in secondary education, an older Traveller sibling is much less likely than a non-Traveller to have attended or completed secondary school. Census figures show that 66 per cent of Travellers over 15 years old who had completed full-time education had not progressed beyond primary school. The equivalent figure for the general population is 21 per cent.
In 1988, according to the Department’s figures, fewer than 100 Travellers were enrolled in post-primary schools. The corresponding figures for 1999 were 961, 2003: 1,714 and 2008: 2,874. It is clear therefore that Traveller enrolment in post-primary schools has risen in the last decade from a very low base. The complainant has also emphasised that the retention rates for Travellers in post-primary schools is significantly lower than for the general population. He argues therefore that the likelihood of a Traveller having an elder brother who is or was enrolled at the High School is significantly lower than for a non-Traveller.
Against this, however, it must be noted that Traveller family size is on average double that of the general population. According to the 2006 Census, the average number of children in Traveller households with children is 4.2 compared to 2.0 among the general population. The chances of a Traveller boy having a male sibling are therefore much greater than that of a non-Traveller boy. Priority for siblings can therefore favour Travellers. It is argued that giving priority to siblings of former pupils would particularly disadvantage Travellers in that the rise in Traveller participation in post-primary education is very recent. The older the brother the less likely he is to have attended secondary school. On the other hand, given the very high drop-out rates of Travellers in post-primary schools, particularly in the senior cycle, priority for brothers of former pupils (as opposed to brothers of existing pupils) would favour Travellers whose brother dropped out early.
On the balance of probabilities I cannot conclude that giving priority to brothers of either existing or former pupils in enrolment is intrinsically liable to put Travellers at a particular disadvantage compared with non-Travellers.
11. Sons of former pupils.
The complainant argues that giving priority to the sons of former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers since Travellers of the complainant’s father’s generation (those who would have been of post-primary school going age in the 1980’s) were most unlikely to have attended post-primary school. Figures supplied by the Department show that less than 100 Travellers in the entire country in 1988 were enrolled in post-primary schools. Therefore the chances that a Traveller of the complainant’s father’s generation was in fact at post-primary school is extremely remote. The School argue that the criterion applied is not that a family member has attended second level education but that a family member is attending or has attended the School. The School produced no evidence that any Travellers attended the school during the 1980’s. The School in oral evidence explained that prior to 20 years ago (before 1990) entrance to the School was determined by competitive written examination. This would certainly have acted as a serious barrier to Travellers securing admission since the academic standard achieved by Travellers in primary schools at that time was on average very low.
The operation of this policy of giving priority to the sons of former pupils therefore appears to disadvantage Travellers more than non-Travellers. It is necessary to establish whether or not the complainant was put at a particular disadvantage. Under the enrolment policy, once a child applied on time, was a Roman Catholic and attended a designated feeder school, the child needed to met one of the three following sub-criteria to be offered a place:-
1. Has a brother who attended the School in the past, or
2. Has a brother who is currently in attendance in the School, or
3. Is the child of a past pupil.
All children of past pupils who applied in time and who did not meet the sibling criteria were successful, 36 in all. The chances of an applicant like the complainant who did not meet any of these criteria being successful in the second round was 55 per cent, that is, he was one of 84 applicants in a lottery for 47 places. If the third sub-criterion (being a child of a past pupil) was not a priority, then those places awarded to the sons of past pupils who did not meet the sibling criteria (36 in all) would have been added to the number to be allocated by lottery under round two. That would have increased the complainant’s chances in the second round to 70 per cent., that is he would have been one of 120 applicants in the second round lottery for 83 places. Therefore, I conclude on the balance of probabilities that the policy of giving priority to children of past pupils puts the complainant as a member of the Traveller community at a particular disadvantage compared with non-Travellers.
The question I must now consider is this: has the School proved that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The goal or aim of the criterion, according to the published Admissions Policy is:-
On the basis of supporting the family ethos within education by providing education services for the children of families who already have, or have recently had, a brother of the applicant attend the School for his post primary education.
This may justify giving priority to siblings but does not, on its face, state an aim which requires as a means to achieving that aim giving priority to the children of former pupils. In oral evidence the School stated that it had as its aim the strengthening of family loyalty to the school, by rewarding those fathers who supported the school by assisting in various ways. I accept that strengthening bonds between the parents, as primary educators of a child and the school is a legitimate aim. However, I do not consider that giving a blanket priority in admission to children is appropriate (i.e. proportionate) or necessary, for the following reasons:
1. The priority applies to the children of all past pupils, irrespective of the actual level of current engagement of the father with the school. In many cases therefore, the means would not achieve the aim.
2. There are other ways of achieving this aim which would not disadvantage children whose fathers did not attend the school, such as organising a past pupils’ union, by the activities of a parents’ association etc.
3. The impact on Travellers is disproportionate to the benefit of the policy.
I find therefore that the School has not proved that the priority given to the children of former pupils is appropriate and necessary.
12. Conclusions
I find that I don’t have jurisdiction to consider the complaint of discrimination against the Department of Education and Skills.
I find that the complainant has not proved that the priority given to siblings of current or former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers.
I find that the complainant has proved that the priority given to the sons of former pupils puts members of the Traveller community at a particular disadvantage compared with non-Travellers and that the School has not proved that this criterion is objectively justified by a legitimate aim and is appropriate and necessary.
13. Redress
In general the appropriate redress is to put the complainant in the position he would have been in but for the discrimination. If the school did not give priority to the sons of former pupils, the chances of the complainant succeeding in the second round lottery would have been significantly greater. It is impossible to re-run the lottery under revised criteria. In the circumstances I order:
1. That the School immediately offer a place to the complainant.
2. That the School review its Admissions Policy to ensure that it does not indirectly discriminate against pupils on any of the grounds covered by section 3 (2) of the Equal Status Act. This is without prejudice to its status as a Roman Catholic voluntary secondary school for boys only.
Niall McCutcheon
Director
7 December 2010
Christian Brothers High School Clonmel -v- Mary Stokes
[2011] IECC 1 (25 July 2011)
URL: http://www.bailii.org/ie/cases/IECCA/2011/CC1.html
Cite as: [2011] IECC 1Judgment of His Honour Judge Thomas Teehan delivered on 25th July 2011
1. The Appellant School had 140 places for new students at the beginning of the academic year 2010/2011. There were 174 applicants. A small number of students with exceptional needs, and a larger number of applicants with a brother or brothers already in the school, were automatically given places at, as it were, the head of the queue. This was in accordance with the Admissions Policy of the school.
2. The next – and final – category of applicant catered for by means of being automatically accepted for a place in the school was those boys whose fathers were past pupils of the High School. This again was in accordance with the Admissions Policy. This meant that 83 places were filled.
3. The next stage was to fill the remaining places by means of a lottery involving the boys who had not yet been selected for places. (There is a reference in the decision of the Equality Officer to the fact that four applicants who had maximum eligibility, but who had applied late, were added to the list of those taking part in the lottery; I do not recall hearing evidence of this on the appeal hearing before me, but it seems likely that convincing evidence to this effect was given at the earlier hearing). Among these was John Stokes, a member of the Travelling Community. He was deemed an appropriate applicant, by reason of his parents’ intention to submit their son to a Roman Catholic education in accordance with the Mission Statement and Christian ethos of the school, and of his having attended one of the recognised feeder schools at primary level (and who also, presumably, applied on time), but he was one of the unsuccessful candidates when the draw was made.
4. Some of the criteria for priority selection were not material in relation to the selection of students for the school year 2010/2011.
5. The evidence before me was that 36 students were admitted under the “parental rule”. None of these was a member of the Travelling Community. This was in accordance with the evidence which was that, historically, very few members of that community have undergone second level education (the evidence in this case was that a number of Traveller children attended the High School over the past 20 to 30 years, but they formed a tiny proportion of the school population). It is the contention of the respondent that this rule thereby discriminates against that community, and thus runs counter to the provisions of the Equal Status legislation and the legislation pertaining to education.
6. The High School is one of only two secondary schools for boys in a town with a population of 24,000. The other is the Vocational School; like many parents in the town, Mrs Stokes was unwilling to have her son attend this school, although I have no reason to believe that such bias is in any way warranted.
7. John having failed to secure a place in the school, his mother appealed the decision. This was unsuccessful. An appeal pursuant to section 29 of the Education Act 1998 was lodged; the secretary-general of the Department of Education and Skills referred the matter to an Appeals Committee; the ruling of that body was to disallow the appeal, determining that the Board had been “fair and reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the places available”.
8. It is argued on behalf of the respondent that this Court can make findings against the Appellant on the basis of alleged breaches of statutory duty under the Education Acts. I can not accept that argument for two reasons: the principle of finality in litigation requires that matters determined under section 29 of the Act of 1998 can not be revisited; and proceedings pursuant to the Equality Legislation can only succeed where a breach of duty under that legislation – as opposed to other enactments – has been established to the satisfaction of the court. Nonetheless, the court’s view of the matters which are in dispute must necessarily be informed by statutory provisions which have specific reference to those issues, and in particular to sections 6 and 15 of the Education Act 1998.
9. Mrs Stokes grew up in Limerick. She was one of a large family. Unusually, within the Travelling Community, she and all of her sisters and some of her brothers received secondary education. Neither her husband nor any of his family went beyond primary school. Mrs Stokes made a very favourable impression. She is the mother of seven children, is very properly ambitious for John and for her other children, and was spoken of very highly by other witnesses on both sides of the case.
10. For his part, Mr. Bannon, the Principal of the school, impressed me also. As the head of such a large school, he obviously has to grapple with many complex problems on a daily basis. He has been involved in education for many years, during the last 20 of which he has been Principal of the High School. He outlined to the court the history of the school’s Admissions Policy, and the difficulties which different approaches had thrown up. I am satisfied he is acutely aware of the deep disappointment and, indeed, hurt experienced by many families (including the Stokes family) over many years on finding that there was no place available in the school for their son. I am also satisfied that he has a deep commitment to the school and its students, and that he regards the issue of inclusivity in education as being of very high importance. His bona fides, and those of the Board, were not challenged, nor was it alleged that there was an overt or a deliberate policy on the part of the school to exclude traveller children.
11. When the lottery took place, John Stokes had a 55% chance of being selected for a place in the school; had the “parental rule” not been in place, he would have stood a 70% chance of being successful.
12. The issues which require determination are: is the Appellant in breach of its duty to the Respondent and her son under the provisions of the Equal Status legislation; and, if so, is the difference between a 55% chance and a 70% chance of such little materiality that that it is governed by the maxim “de minimis non curat lex”?
13. It might be suggested that the second issue should be looked at first, in view of the fact that a positive answer would make the first issue moot. I am satisfied, however, that it would be unjust to all concerned to take such course.
14. The first issue can be broken into two parts:
(i) having regard to the provisions of the Equal Status Legislation, is the “parental rule” discriminatory against Travellers? And
(ii) if so, can it be objectively justified by reference to a legitimate aim, the means to the achieving of which could be deemed both appropriate and necessary?
15. The evidence from the Respondent’s witnesses painted a very stark picture of members of the Travelling Community availing only in minuscule numbers of access to secondary education over the last few decades. By contrast, while there was no specific evidence in relation to this, it is notorious that, since the advent of free secondary education in the late 1960s and the raising of the school leaving age to 16, the overwhelming majority of students in the general population have attended secondary school to at least Junior Certificate level. Accordingly, it can be stated unequivocally that the “parental rule” – an ostensibly neutral provision as provided for by the amended section 3 (1) (C) of the Equal Status Act 2000 – is discriminatory against Travellers. Of course, the Respondent must be shown to be at a particular disadvantage, but I am satisfied that groupings such as members of the Travelling Community (and also the Nigerian Community and the Polish Community, for example, where parents of boys were most unlikely to have attended the school previously) are particularly disadvantaged by such rule.
16. That having been established, the onus is on the Appellant
(A) to objectively justify that there was a legitimate aim;
(B) to prove that the measure was appropriate; and
(C) to establish that such measure was necessary.
17. With regard to the question of the legitimacy of the aim, the Respondent has adverted in argument to the school’s Admissions Policy, and the lack of any direct correlation between the stated aims and the “parental rule”. Dealing with “Goals”, one of the criteria referred to is “supporting the family ethos within education”. While this goes on to justify the “sibling rule “, with no reference to parents, I find that the overall aim of the Board in introducing the “parental rule” is entirely in keeping with this goal and the “characteristic spirit of the school”, a concept to which it must have regard in accordance with section 15(2) (b) and (d) of the Education Act 1998. The Appellant has thus objectively justified to the satisfaction of this Court that the aim of the Board in this regard was wholly legitimate.
18. As to whether the measure was appropriate, the evidence of Mr. Bannon concerning the history of the admissions policy is of importance. In all but two years in recent times, there have been more applicants than places for incoming students. At one time, priority was given to students where there were “exceptional circumstances”. This led to a situation where almost all applicants sought to come in under this heading. Prior to that, the lottery applied to all applicants, while at one time entry was by means of an assessment test. These policies were at opposite ends of the spectrum and each, for obvious reasons, was highly unsatisfactory. The current policy falls somewhere between these extremes. This in itself does not mean that the policy is appropriate, but it is one which is reviewed annually and I am satisfied that, having regard to all the many relevant considerations of which the Board must take account, it strikes the correct balance and is, therefore, appropriate.
19. In relation to the necessity test, Mr. Bannon gave evidence at some length concerning the links between the school and the community in Clonmel. In the 19th century, the people of Clonmel invited the Christian Brothers to set up a school in the town. The resultant bond has been strong. There is an active past pupils’ union which incentivises high achievement by pupils at the school; former students have been active in providing mentoring, bursaries for sports and financial assistance for the sons of impoverished parents; and the activities of such former students in the very difficult but necessary task of bridging the shortfall in funds provided by the Department and the outgoings of the school would most probably be considerably less were such strong bond not in place. Mr. Bannon spoke of “a sense of ownership about the school where people have attended”, and gave very concrete examples of this in the course of his evidence. Mr. Ó Dulacháin, in argument, has made reference to the fact that parents of past pupils “may more likely be employed or in higher positions of responsibility”; he goes on to argue that through this evidence, Mr. Bannon thus sought to introduce “opaque criteria” referring “either to wealth or standing”. In fact, there was no evidence to the effect that past students of this school – a non-fee-paying school – hold a disproportionate amount of wealth or standing in the community, and the matters canvassed in the course of Mr. Bannon’s evidence in this regard are manifestly important considerations in the formulation of school policies. In the light of all this (and, in particular the highly important issue of funding) I find — and not without hesitation — that the inclusion of the “parental rule” was a necessary step in creating an admissions policy which is proportionate and balanced.
20. It may be that the Oireachtas should look (or look again) at the issue of providing a mandatory requirement for positive discrimination in schools’ admissions policies. In the instant case, however, it is common case that our legislators — who must, like the courts and, indeed, school boards who frame admissions policies, seek to strike a balance between legitimate competing interests – have not enjoined such measure.
21. Having made such findings, the “de minimis” issue does not arise for consideration.
22. I would therefore allow the appeal, and set aside the order of the Equality Officer.
Bailey & Ors, R (on the application of) v London Borough of Brent Council & Ors
[2011] EWCA Civ 1586 (19 December 2011)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1586.html
Cite as: [2011] EWCA Civ 1586
Pill LJ
Indirect Discrimination
For definition of the scope of indirect discrimination, Miss Rose relied on the decision of the European Court of Justice in O’Flynn v Adjudication Officer [1998] ICR 608, on which it appears that UK legislation has been based. It was held that migrant workers were entitled to enjoy funeral payments under the same conditions as national workers. The migrant worker may “on the death of a member of the family, have to arrange for burial in another member state, in view of the links which the members of such a family generally maintain with their state of origin.” The condition imposed on payment of the benefit that burial or cremation takes place within the United Kingdom was intrinsically liable to affect migrant workers more than national workers, to the disadvantage of the former. It constituted indirect discrimination, unless objectively justified. The court stated, at paragraph 20:
“A provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage.”
Miss Rose submitted, and I agree, that to establish indirect discrimination it is not necessary to show that all Asians suffer a disadvantage.
In Secretary of State for Work and Pensions v Bobezes [2005] EWCA Civ 111, Lord Slynn with whom Pill LJ and Buxton LJ agreed, confirmed that:
“. . . the Commissioners and the court are entitled to take a broad approach and to find that indirect discrimination is liable to affect a significant number of migrant workers on the ground of nationality without statistical proof being available.”
“It was enough in cases of discrimination based on nationality that the effect of the provision is ‘essentially’ ‘intrinsically’ ‘susceptible by its very nature’ ‘by its own nature’ liable to be discriminatory.”
Indirect discrimination may be established without sociological or psychological evidence as to why Asians like using libraries, it was submitted. The word “intrinsic” was used in O’Flynn because the link between migrant workers and burying members of the family in other countries was intrinsic, that is by its own nature, and did not need statistical evidence to establish it.
Miss Laing, adopting the expression “intrinsically liable” in O’Flynn, submitted that there was no intrinsic or inherent link between being Asian and library use. The appellants needed to establish such a link before indirect discrimination can arise. It was Miss Rose, in her opening submissions, who had submitted that the council should have conducted a study as to why Asians made considerable use of library facilities and whether, for example, it was because of overcrowding in Asian homes.
In the present case, the statistics did not establish racial discrimination, Miss Laing submitted, and there was, in any event, no intrinsic relationship, to adopt the expression in O’Flynn, between race, the protected characteristic, and library use.
Miss Rose submitted that to establish indirect discrimination, it was not necessary to establish a link between race and a wish to read books or make other use of libraries. That would be to misread the statute, O’Flynn and subsequent cases. The concept of indirect discrimination had broadened since its inception. Statistical evidence is not necessary but when available, as in Gibson & Ors vSheffield City Council [2010] ICR 708, can provide a compelling case. In Gibson there were “clear and compelling statistics” establishing a “sexual taint” and, subject to justification, the case was established (Pill LJ at paragraphs 12, 51 and 52). Smith LJ, at paragraph 54, and Maurice Kay LJ, at paragraph 75, agreed with that conclusion.
In her comments at paragraph 63 of Gibson, Smith LJ was canvassing the possibility, considered in Armstrong v Newcastle Upon Tyne NHS Hospital Trust [2006] IRLR 124, that there may be circumstances in which an employer can demonstrate that what might appear, for example from statistics, to be a disadvantage to women arises from factors wholly unrelated to gender. Smith LJ contemplated that an employer had “the opportunity to demonstrate that what might appear to be a disadvantage to women arises from factors wholly unrelated to gender.” That is a different point, Miss Rose submitted, from Miss Laing’s submission that the word “intrinsic” requires a link to be established between race and an interest in reading books. Smith LJ’s point has no application in the present context, it not being suggested that differential use of libraries by Asians was due to anything other than the racial characteristic.
In O’Flynn, statistics were not relied on. Discrimination was held to have arisen because migrant workers were more likely to have to arrange for burial of family members in their state of origin. The provision of national law thereby was intrinsically liable to affect migrant workers more than national workers. It does not, in my judgment, follow that an intrinsic link between being Asian and using libraries is necessary to establish indirect discrimination. It is capable of being established on evidence that the impact on Asians of a particular policy puts them at a particular disadvantage when compared with persons of other races.
I agree with Miss Rose’s proposition that, to establish indirect discrimination in the present context, subject to justification, which does not arise, it is sufficient to show an adverse impact of the proposal on the Asian community as compared with non-Asian communities. I also agree with her submission that Smith LJ’s concern at paragraph 63 of Gibson is not material for present purposes. These findings are, however, only one aspect of conclusion as to whether there has been a breach of duty in this case.
The Pool
In their belated submissions to the judge, the appellants appear to have adopted users of libraries as the appropriate pool for analysis but it is now submitted that the appropriate pool is the entire population of the Borough so that the 46%/28% split, recited at paragraph 24 above, is claimed to be the relevant one. Miss Rose submitted that the claimants before the judge had not irretrievably committed themselves to a users’ pool but, in any event, it is the duty of this court to consider the material now before it and to decide whether there has been a breach of section 149.
In Secretary of State for Trade & Industries v Rutherford (No.2) [2006] ICR 785, an issue arose as to the pool of employees to be chosen in considering the disparate impact of a proposal and whether the entire workforce should be chosen. The applicants were male employees dismissed when they were over 65. It was held that the provisions applied to the same proportion of women in that group as men and there was no indirect sex discrimination. Baroness Hale of Richmond, with whom Lord Scott of Foscote and Lord Rodger of Earlsferry agreed, stated, at paragraph 77:
“But in my view one should not be bringing into the comparison people who have no interest in the advantage in question.”
Baroness Hale added, at paragraph 82:
“The common feature is that all these people are in the pool who want the benefit – or not to suffer the disadvantage – and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question. If it were, one might well wish to ask whether the fact that they were not interested was itself the product of direct or indirect discrimination in the past.”
That approach justifies the adoption of library users as the appropriate pool for analysis in this case, Miss Laing submitted.
In Grundy v British Airways PLC [2007] EWCA Civ 1020, a sex discrimination case under the Equal Pay Act 1970, the court considered the application of Rutherford. Sedley LJ, with whom Waller LJ and Carnwath LJ agreed, stated, at paragraph 31:
“Rutherford (No 2) seems to me to be a striking illustration of Lord Nicholls’ proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic. In discrimination claims the key determinant of both elements is the issue which the claimant has elected to pose and which the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested. Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen. We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of “looking at” a smaller pool for some unspecified purpose short of determining the case.”
A discretion in pool selection is thereby recognised as are the problems facing a decision maker, including one under the 2010 Act, in deciding upon the scope of his investigation in a context where “due regard” is required.
Ground 2
It was submitted that the duty under section 149 of the 2010 Act applied throughout the decision-making process and that the council was in breach of the duty in failing to have regard to the requirements of the section until too late a stage.
Miss Rose submitted that the duty to have due regard requires due regard to be had at the formative stage. Reliance is placed on the judgment of Moses LJ sitting in the Administrative Court in R (on the Application of Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 Admin Racial discrimination was alleged. Moses LJ stated, at paragraph 27:
“The essential procedural failures . . . turned on the failure of Ealing to carry out the necessary racial equality impact assessment at a stage when it was formulating the criteria according to which it would offer grants to those providing services to victims of domestic violence. Throughout the process leading to its decision it failed to assess the impact on black minority ethnic women . . .”
It was submitted that there was a failure to consider the present issue “throughout” the procedure because a proposal that six specified libraries should be closed had been tabled before an EIA was conducted.
In written submissions on behalf of the Equality and Human Rights Commission, Miss Monaghan QC underlined that compliance with the public sector equality duty applies at each stage of a decision-making process. It cannot be put to one side pending an ultimate decision as to the adoption of a policy. It must be addressed at the formative stage of any policy proposal. If policy has been closely formulated without the duty being addressed, there is a real risk that any consideration will be too late to secure effective compliance. The opportunity to consider alternative proposals, which might mitigate the impact of the proposal, might have been lost.
The judge dealt with the issue at paragraphs 120 and following. At paragraph 122 the judge stated:
“The formative stage at which the duty must be performed, in the sense meant by the guidance and decisions, is not one or all of the earlier stages when the officers or Council are contemplating and working up various options. It must be performed before the decision is made and be part of the decision-making process, rather than as a justification for the decision after it has been taken. The issue has to be addressed in the exercise of the functions, using the statutory language rather than judicial exegesis. The point at which the Council here exercised its functions under s.7 was when it decided, at the April 2011 meeting, that the LTP should proceed, including the six closures ….”
The judge said at paragraph 123 that the issue was very much bound up with the contention that the council approached the issue of equality and closures in April 2011 with a closed mind; and, having referred to the absence of evidence to support that contention, he continued:
. . . Nor is there anything in the EIA itself to support it since, whatever criticisms the Claimants may make of it, it is on its face a conscientious and thorough effort to grapple with the duty in s149, in substance and with rigour. It set out to ask and answer the relevant questions which library closures give rise to in relation to the equality duty. The EIA was genuinely in my judgment a core part of the decision-making process. It cannot fairly be said that the decision to adopt the LTP and to close six libraries, and which ones, had already been taken; there really was no factual basis for that submission, which ran as a leitmotif through many of Ms Mountfield’s points.”
Miss Laing supported the judge’s conclusion. She submitted that the section 149 function (like the section 7 function) was exercised when the decision was taken and that due regard was had to the relevant requirements at the time of that decision; but that if one needed to look at an earlier stage, then the council had due regard at that stage too, as is clear from its realisation that equality issues had to be addressed and its decision to carry out the EIA for the purpose.
The judge’s approach reflected that he had taken, at paragraph 90, on the consultation issue raised before him:
“I see no conflict between the Council keeping an open mind and its consulting on the preferred route identified by officers and approved by the executive for consultation in November 2010. I accept Ms Laing’s submission that the Council was entitled to consult on the proposals which it had approved for consultation, rather than on a series of options which it did not propose. A lawful consultation process does not require that all the anterior phases in the selection of a preferred course be formally and specifically opened to consideration. There was no evidence that the Council was unwilling to reconsider its proposals in the light of the consultation process if a strong enough case had been made.”
Ground 3
As to section 7 of the Act, Miss Rose submitted that to discharge the duty, a reasonable investigation was necessary. The investigation had failed to have regard to the needs of Asians, very young children and children who attended schools at which the school library had closed.
The claim is freestanding and is not parasitic on the section 149 claim, it was submitted. Particular needs had not been investigated. While it was recognised that younger people may have to travel further to a library, the council’s claim that “affordability will not necessarily be a major issue as bus travel is free for under 5s, 5-15 year olds . . .” was a false point, it was submitted. The accompanying adults would have to pay fares. Local schools were asked about class visits to libraries but their poor response went unremarked in the Report.
The judge referred, at paragraph 111, to mitigation measures:
“The mitigation measures addressed the problems. The accessibility of the nearest open libraries was described. Specific measures for children and young people, including those with disabilities were set out to address both accessibility, and for those who could not use free public transport to get to the nearest library, other measures were proposed such as enhanced outreach, virtual homework help, and outreach services to schools. The specific problems at Preston which a local school used as its school library and at Barham Park which was used as a children’s centre were known to the Council and covered by its general mitigation proposals for outreach to schools, and indeed to homes as well.”
These mitigation measures were insufficient to satisfy section 7, Miss Rose submitted.
Having referred to other measures, the judge concluded, at paragraph 113:
“I have no doubt that there is room for legitimate debate about the effectiveness of these measures, and whether every point raised has been addressed, but that is not a measure of the lawfulness of the needs assessment.”
Ground 4
The council invited alternative proposals from community groups but did not, it was submitted, tell them the criteria by which their proposals would be judged. That, it was submitted, amounted to an error of law. The seven criteria used were:
“Viability of the group making the proposal
Viability of the proposals
Quality of the proposals
Extent to which proposal promotes inclusion and diversity
Ability to meet the Council’s savings targets
Acceptable contract terms and transfer of risk
Risks to the Council the context of procurement legislation”
The judge found, at paragraph 91 of his judgment, that there was nothing in the point. He stated:
“The second point concerns the use of the seven factors or criteria for a robust business case, which were not declared to the public in the consultation process. This is untenable as a basis for asserting the consultation to be unlawful: it is obvious that such a case will include the nature and experience of the group in running such a venture, the financial resources available to such a group, the cost to the Council in the light of its warnings that there was no financial support if the savings envisaged were to be made, and its prospects of delivering a worthwhile contribution to the library service. The factors or criteria are not, save for one, more than an elaboration of the test which was fully notified to consultees, and of which I accept any group capable of making a worthwhile contribution would have been aware, without it having to be spelled out to them. The goalposts were not moved. The contribution to diversity and inclusion is not one of which the need to promote a robust business case would necessarily have forewarned a group looking to make a contribution to running a library. But the Claimants should have been aware that any failing in the public sector equality duty, such as that with which they charge the Council, would have been a failing on their part as well. No proposal failed on that one ground anyway: they failed because they were not a viable proposal run by viable groups. Considerable detail on the process whereby groups sought and were provided with information which they sought for their proposals was set out in the documents and brought together in a speaking note from Ms Laing, along with detail on the basis for the rejection of the alternative proposals in Appendix 6 to the April 2011 report. They contend that had they known that the groups needed to show that they were capable of running a library, they would have been able to demonstrate that. I am satisfied that any group wishing to run a library, whether at its own expense and even more so if at public expense to some degree, should have realised that its experience and financial capability was an issue to be addressed in the consultation process.”
Miss Rose took two of the community responses to illustrate her submission. Mr Erik Pollock was concerned with Cricklewood library. In his statement, he said that a charity with which he was concerned, Cricklewood Homeless Concern (“CHC”), were told that they needed to produce a business case to put to the Executive Committee. The council’s written response to CHC’s proposal, which was in great detail, acknowledged that it came “with the backing and experience of an established and experienced group.” Cogent criticisms were, however, made in the response: “key commercial assumptions needed better evidence” : it was “not clear how the library service will work.” The “realism/viability of the business module” was questioned.
Mr David Butcher, whose concern was with Kensal Rise, stated that “there was quite a bit of speculation about what was needed at this stage.” Kensal Rise Friends Group made clear that their proposal was “an outline proposal.” There were meetings with representatives of the council and some further information was provided by the council, but not enough, it was submitted.
In an equally detailed response on Kensal Rise, the council stated that it was not clear what the roles of proposed staff members would be, or their relationship to the volunteers. It was stated that “the proposal is silent on a number of key issues relating, for example, to staffing, public liability, insurance etc.”
In her statement, Ms Harper referred to extensive correspondence between officers and members of the groups in question and gave examples of information provided. A robust business case was required.
The time within which community proposals had to be submitted was comparatively short, as circumstances required, but I do not accept that there was a risk that those submitting them were unaware of what was required. I am impressed by the detailed consideration given to each of the proposals received. The reasons for rejecting them appear to me to be cogent and persuasive. The decision was for the council and no error of law is established. I say now that I agree with the judge’s approach and conclusion on ground 4.
R (Harris) v London Borough of Haringey
Since the hearing, the court has received written submissions on the decision of this court in R (Harris) v London Borough of Haringey [2010] EWCA Civ 703, a decision which the court drew to the attention of the parties. The case was concerned with the equality duty in section 71 of the Race Relations Act 1976. There was no EIA in that case, no specific reference in the decision maker’s deliberations to section 71 and no specific reference to the substance of the duties it contained. Giving the leading judgment, I stated, at paragraph 27:
“I find it impossible . . . to find any focus on the substance of the section 71 duty when the complex issues to be decided by the council’s committee are set out and debated.”
In Harris, the council’s stance was that section 71 considerations were effectively built into the decision-making process because the development brief for the area and the relevant planning policies themselves reflected section 71 considerations. That submission was rejected by the court.
What was underlined in Harris was the need to analyse the material before the council in the context of the duty (paragraph 40), which in this case, is the duty to have due regard to the need to eliminate discrimination. The court cited the decision of Davis J in R (Meany) v Harlow District Council [2009] EWHC 559 (Admin), at paragraph 74, a “conscious directing of the mind to the obligations.”
I confirm that approach. When preparing policies and making decisions, decision makers must always keep in mind their duties under the 2010 Act. I do not, however, consider that the Harris approach assists the appellants in the present case. There can be no doubt that the duty was in mind. An EIA was conducted and the duty is fully described in the April Report, including a reference at appendix 1 to possible “differential impact”.
The point taken in this case is a different one, that is that it should have been obvious on the available statistics that the proposals did have a discriminatory impact upon Asians. The council rely on the submission, already considered, that it was far from obvious, and, indeed, on analysis it is not established.
Conclusions on grounds 1, 2 and 3
It is not suggested that there was an error of law in Brent reducing its expenditure on public services. The decision to do so followed Government and local decisions properly taken, decisions which were, as Miss Rose properly accepted, primarily for democratically elected bodies. There was evidence before the judge that the then current pattern of service was not sustainable and that new methods were required in any event. That does not, however, avoid the requirement to comply with section 7 of the 1964 Act and section 149 of the 2010 Act.
Given the scale of the spending reductions the council was required to make, and the information available following earlier studies, a decision that the library service should bear a share of the reduction was not, in my judgment, unlawful. There is no reason to doubt that the council was aware of its statutory duties, including those in relation to race discrimination which preceded the 2010 Act. Duties under the statute are set out in detail in the April Report as are implications, for example in relation to disability.
Further, this aspect of the claim has only fully emerged before this court. The need to economise in this whole area was not plainly challenged before the judge. I do not find that surprising because evidence of the need to economise, across the board and including library services, would have been available. It is, in my judgment, fanciful to suggest, taking the best view one can of the appellants’ evidence, that it was so obvious that library provision, as distinct from other services, had discriminatory effects upon the Asian community that it needed to be a significant factor in fundamental decisions as to apportionment of resources.
The decision as to which libraries to close was carefully considered by the council. The quotations I have made from very detailed Reports serve to demonstrate that. Cogent reasons were given in the Reports for the decisions taken, and the factors to be taken into consideration. A full consultation was conducted and fully reported to the decision makers.
Having regard to the duty under section 149 of the 2010 Act to have due regard to the need to eliminate discrimination, I do not consider that the council was in breach of duty in failing to give further consideration to the racial dimension, in so far as it affected the Asian community in relation to other communities. The council was not plainly confronted either on behalf of the Asian community, or otherwise, with the issue now said to exist. Undoubtedly there were serious concerns, across the communities, about library closures and the council was made aware of them fully and forcefully. Factors were rightly and rationally considered when making the decisions as to which libraries should be closed and decisions were explained in the Reports. I do not accept that a racial dimension rendered the choice unlawful. The section 149 duty to have due regard did not require further consideration and analysis of that dimension when the decision was taken.
Analysis of the available information, when the point was raised before Ouseley J and subsequently, has confirmed that. I accept that an adverse effect on the Asian population, as distinct from other racial groups, was capable of creating a breach of section 149 of the 2010 Act, read with section 19. It was legitimate to take, as the council did at that stage of the argument, the pool of library users rather than a pool comprising the entire population of the Borough, in making an assessment. Adopting that pool, the figures accepted by the judge at paragraph 147 of his judgment do not support a claim that there was indirect discrimination.
I repeat what I said in Harris when considering, at paragraph 40, the “due regard” duty in section 71 of the Race Relations Act 1976. There must be an analysis of the material “with the specific statutory consideration in mind.” The thought processes of decision makers need to include having regard for the duties in the 2010 Act. The section 149 duty must be kept in mind by decision makers throughout the decision-making process. It should be embedded in the process but can have no fixed content, bearing in mind the range of potential factors and situations, as Miss Laing aptly submitted in submissions summarised at paragraphs 37 to 40 above. What observance of that duty requires of decision makers is fact-sensitive; it inevitably varies considerably from situation to situation, from time to time and from stage to stage. In my judgment, there was no breach of the duty in this case.
As to ground 2, in my judgment the council exercised its functions in this case with due regard to the requirements under section 149. To put forward a reasoned proposal for closures was a reasonable reaction in the circumstances, including the urgent need to economise. It was not necessary for an EIA to be conducted before the formulation of the proposals on which the public were to be consulted. I accept that the council had s.149 properly in mind from an early stage and for that reason decided to carry out a full EIA for consideration together with the results of the consultation. Factors under section 149 were in mind at each stage. The council did not put the relevant requirements to one side until the ultimate decision was taken but had regard to them as an integral part of the decision-making process.
As to ground 3, the duty under section 7 of the 1964 Act was also in mind and the council aware of the duty specified. Decisions as to closures were taken with that duty in mind, the proposals including improved ways in which the expectations of users might be met. Mitigation measures were proposed in this regard. The appellants have drawn attention to detailed matters which, even if they were not expressly considered, do not create a breach of section 7. The section contemplates flexibility in meeting the needs of users and detailed consideration has been given to those needs.
I would dismiss this appeal.