General Issues
Cases
de Burca v. Attorney General
[1976] I.R. 38
O’Higgins C.J. S.C.
“ The plaintiffs are women and citizens of Ireland. In August, 1971, both were arrested and charged with offences under s. 38 of the Offences Against the Person Act, 1861. Having pleaded not guilty in the District Court and having elected to be tried by jury. on the 21st December, 1971, both plaintiffs were sent forward for trial to the Circuit Criminal Court. While awaiting trial, the plaintiffs commenced in the High Court this action in which they call into question the manner in which, under existing procedures, a jury for their trial would be convened and selected. They allege that the Juries Act, 1927, is inconsistent with and repugnant to the Constitution on various grounds which are set forth in detail in their statement of claim.
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The plaintiffs’ main submission before the trial judge, and in this Court, was to the effect that the Act of 1927 was inconsistent with the provisions59 of Article 40 of the Constitution because it provided for a property qualification60 for jury service and exempted all women from service and, further, that the operation of such discrimination and restriction on service would deprive the plaintiffs of a trial by a jury freely selected at random from amongst all citizens as is guaranteed by Article 38, s. 5, of the Constitution.
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Article 40 permits the State to have regard in its laws to differences of capacity, physical and moral, and of social function. It does not seem incongruous or inappropriate for the State, under this Article, to temper or cushion obligations generally imposed in so far as they affect women. In particular, one would expect this to be done under a Constitution which expressly recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved: see s. 2 of Article 41. Where, therefore, as in the case of jury service, the State imposes on all citizens an obligation to serve, the discharge of which necessarily takes the citizen concerned away from his occupation and his home, special provisions must obviously be made in respect of women. In my view. such special provision is permissible under the second sentence of s. 1 of Article 40 and is almost mandatory under s. 2 of Article 41. Such special provision could be made by putting all women citizens of the prescribed ages on the jury lists, and by providing that each of them must serve on being duly called unless she applies to have her name removed. In the Act of 1927 special provision has been made by providing that no woman citizen shall appear on the jury list unless she applies for inclusion. In either case there is a recognition of the woman’s right to serve, but there is also a recognition that for many women jury service could be a severe burden and handicap. The State. therefore, while recognising and safeguarding the right, permits each woman to decide for herself, in accordance with her own circumstances and special responsibilities, whether service on a jury is a right she ought to exercise or a burden she ought to undertake. I cannot see how this can be regarded as an invidious discrimination. In my view, it is not invidious, unjust, or unfair having regard to the Constitution as a whole. The important feature of such special provision s that the decision is left to the woman herself, and the right to serve is preserved for her.
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The operation of such a qualification means, in effect, that the vast majority of male citizens in each jury district are excluded from jury service. If service be regarded as a right, then this means the exclusion of many thousands of citizens merely because they do not possess a particular type of property. On the other hand, if service be regarded as a duty, these provisions mean that the obligation to discharge this duty is confined to a particular section of citizens not because they are property owners but because they have a particular interest in a particular type of property. Without question, this is not holding all citizens as human persons to be equal before the law, such as would be the case with an age discrimination, generally applied. I cannot see that this discrimination can be excused or condoned by the second sentence of s. 1 of Article 40. This is not a question of having due regard to the differences of capacity, physical or moral, or of social functions, because it is based on a particular type of property qualification. Therefore, it appears to me that the inclusion in s. 3 of the Act of 1927 of a minimum rating qualification is not consistent with the provisions of Article 40, s. 1, of the Constitution.
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For these reasons, I would allow this appeal, and I would decide that the plaintiffs are entitled to a declaration that the Juries Act, 1927, to the extent that it provides that a minimum rating qualification is necessary to make a citizen qualified and liable to serve as a juror, is inconsistent with the Constitution and, therefore, is of no force or effect.
Walsh J.
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Section 1 of Article 40 of the Constitution provides that “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” The scope and meaning of this provision has already been considered by this Court: see The State (Nicolaou) v. An Bord Uchtala 72; The State (Hartley)v. The Governor of Mountjoy Prison (21st December, 1967); Quinn’s Supermarket v. The Attorney General 73; O’Brien v. The Manufacturing Engineering Co. Ltd. 74 and O’Brien v. Keogh. 75 Briefly stated, the effect of these cases is that Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances but it forbids invidious or arbitrary discrimination. It imports the Aristotelian concept that justice demands that we treat equals equally and unequals unequally.
The property qualification in the Act of 1927 has been impugned as being inconsistent with the provisions of Article 40. It is true that for a long time before the foundation of the State, and since then, jury service was based upon a property qualification. So also was the franchise in other periods. Up to comparatively recent times, the franchise in local-government elections in this State was based upon a property qualification. The fact of the existence of property qualifications in such circumstances, now or in the past, is not a valid argument to rebut a claim of inconsistency with the provisions of Article 40 of the Constitution. The property qualification undoubtedly discriminates between those citizens who have the qualification and those who have not and does so solely upon the basis of the amount of the poor-law valuation of property in a particular district. This property qualification could not conceivably be said to refer to the physical or moral capacity of a prospective juror. Can it seriously be suggested that a person who is not the rated occupier of any property, or who is not the rated occupier of property of a certain value, is less intelligent or less honest or less impartial than one who is so rated? The answer can only be in the negative. Can such a discrimination be based on social function? Just as a man’s intelligence and honesty is not directly or at all proportionate to the poor-law valuation of his house or lands, which seems to be the underlying assumption of the property qualification, so it cannot be said that such a qualification marks him out as having a social function which makes him more fitted for jury service than anotherif. indeed, it does in any way constitute a social function within the meaning of Article 40, s. 1, of the Constitution.
If a case could be made for having a property qualification, it could not reasonably be confined to one particular type of property. It would be just as rational to suggest that jury service should be confined to the owners of motor cars exceeding a certain horse-power. or motor cars of more than a certain value. This particular type of property qualification totally ignores the realities of wealth. A man may be a most highly-qualified person for jury service and may be a very wealthy man and yet he may not be the rated occupier of any property. On the other hand, the rated occupier of property may be illiterate and poverty stricken; he may even be a person of unsound mind. For the reasons I have stated, I am of opinion that such discrimination as is created by the distinction between the rated occupier of property of a certain value and everybody else is one that is inconsistent with and violates Article 40, s. 1, of the Constitution and, therefore, is a distinction which could not be validly the subject of legislation by the Oireachtas. That being so, it must follow that any legislation to that effect in force at the date of the coming into operation of the Constitution was necessarily inconsistent with it and was not carried over by Article 50 of the Constitution. I am of opinion that the plaintiffs are entitled on this ground to a declaration that the provisions of the Juries Act, 1927, that import the property qualification complained of are no longer part of the law of the State and have not been part of the law of the State since the coming into force of the Constitution.
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Within the terms of Article 40, s. 1, of the Constitution, the reference to social function, as well as the reference to physical and moral capacity, is applicable to both sexes. The evidence in this case indicates that a very small number of those women who are eligible for jury service have volunteered for jury service, or have succeeded in serving when they volunteered. Even assuming that the vast majority of women does not wish to serve on juries, in itself that is not a good ground for legislative discrimination in their favour. From one viewpoint, jury service may be regarded as a privilege but from another an exemption from jury service may be regarded as a privilegejust as liberty to avoid any obligation or duty which falls on other people may be regarded as a privilege. The question is whether the “privilege” is of a type which can be validly conferred by statute. There can be little doubt that the Oireachtas could validly enact statutory provisions which could have due regard, within the provisions of Article 40, to differences of capacity both physical and moral and of social function in so far as jury service is concerned. For example, it could provide that all mothers with young children could be exempt from jury service. On virtually the same considerations, it could provide that all widowers, husbands with invalid wives, and husbands deserted by their wives would be entitled to a similar exemption if they were looking after their young children. It might also provide exemptions for the proprietors of one-man businesses who have no assistance, whether the proprietors be men or women. It could provide that certain occupations, such as a general practitioner in the medical profession (whether man or woman), be exempt because of the importance of the social function fulfilled by persons of such occupation.
However, the provision made in the Act of 1927, is undisguisedly discriminatory on the ground of sex only. It would not be competent for the Oireachtas to legislate on the basis that women, by reason only of their sex, are physically or morally incapable of serving and acting as jurors. The statutory provision does not seek to make any distinction between the different functions that women may fulfil and it does not seek to justify the discrimination on the basis of any social function. It simply lumps together half of the members of the adult population, most of whom have only one thing in common, namely, their sex. In my view, it is not open to the State to discriminate in its enactments between the persons who are subject to its laws solely upon the ground of the sex of those persons. If a reference is to be made to the sex of a person, then the purpose of the law that makes such a discrimination should be to deal with some physical or moral capacity or social function that is related exclusively or very largely to that sex only.
Part II of the first schedule of the Act of 1927, which describes the people who are exempted but entitled to serve on a jury on application. does so in respect of eleven categories. Ten of these categories are referable solely to the occupation or profession of the persons comprised in those categories. While I am not offering any view on the validity of any or all of those exemptions, at least it can be said of them that they are all referable to a social function. The eleventh category in Part II, and the sole exception to the vocational or functional nature of the exemption, is comprised in the first reference which has the single word “Women.” To be of either sex, without more, is not per se to have a social function within the meaning of Article 40 of the Constitution. To be an architect or a doctor, for example, is to have a social function. but the function does not depend upon the sex of the person exercising the profession. Clearly some social functions must necessarily depend upon sex, such as motherhood or fatherhood. In the proper context, due recognition may also be given by the law to the fact that certain social functions are more usually performed by one sex rather than by the other. The essential test in each such case is the function and not the sex of the functionary.
For these reasons I am of opinion that the discrimination contained in the Act of 1927 in favour or against women depending on one’s point of view is not consistent with the Constitution and was not carried over as part of the law following the coming into force of the Constitution.”
Article 26 and the Employment Equality Bill 1996, In Re
[1997] IESC 6; [1997] 2 IR
Supreme Court
“1. This is the decision of the Supreme Court on the Reference to it by the President of the Employment Equality Bill, 1996 (hereinafter referred to as the Bill) pronounced pursuant to Article 26, Section 2, sub-s 1 of the Constitution of Ireland.
The Reference
By order given under her hand and seal on the 3 April 1997, the President, Mary Robinson, after consultation with the Council of State, referred, in pursuance of the provisions of Article 26 of the Constitution, the Bill to the Supreme Court for a decision on the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.
The long title of the Bill states that it is:-
“An Act to make further provision for the promotion of equality between employed persons; to make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies; to make further provision in connection with Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and the Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; to make further provision with respect to harassment in employment and in the workplace; to change the name and constitution of the employment equality agency; to repeal The Anti-Discrimination (Pay) Act, 1974 and to amend the Employment Equality Act, 1977; and to provide for related matters.”
As is apparent therefrom the purpose of the Bill is to make further provision for the promotion of equality between employed persons, the prohibition of discrimination between persons, to deal with harassment in employment and in the workplace and to provide for the implementation of the said Council Directives. It is a long and detailed Bill containing seventy four sections and impacting on the thirty three Statutes referred to in the Bill.
Practical Problems posed by the Reference
THE AGE GROUND
Under the heading “personal rights”, Article 40.1 of the Constitution provides that —
“all citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
The nature of the guarantee provided in this Article was explained as follows by Walsh J, speaking for the majority of this court, in Quinns Supermarket v Attorney General [1972] IR 1 at p 13.
“The provisions of Article 40, s 1, of the Constitution were discussed in the decision of this court in the State (Nicolaou) v An Bord Uachtala [1966] IR 567. As was there decided, this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequality grounded upon an assumption, or indeed a belief, that some individual or individual or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.”
The enactment by the Oireachtas of a measure which discriminates between groups of persons in the community is, accordingly, not of itself a violation of the guarantee of equality contained in Article 40.1: see the observations of Finlay CJ giving the judgment of this court in DPP v Quilligan (No 3) [1993] 2 IR 305 at p 321. The Article itself expressly allows for the recognition in legislation of differences of capacity, physical and moral, and of social function.
Article 40.3 provides that:
“(1) The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
(2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
It has been held in several cases in the High Court and in this Court that, among the unenumerated personal rights guaranteed by this article, is the right to work and the right to earn a livelihood. (See Murtagh Properties v Cleary [1972] IR 330; Murphy v Stewart [1973] IR 97.) It is also clear that certain rights associated with these rights, such as the right to a pension, gratuity or other emolument or the right to the advantages of a subsisting contract of employment are property rights which the State is obliged to protect, so far as practicable, from unjust attack: see the decision of this Court in Cox v Ireland [1992] 2 IR 503.
These rights are not absolute rights: the State in its laws may impose restrictions on their exercise where that is required by the exigencies of the common good. (See the observations of Finlay CJ in Cox v Ireland at p 522).
It will be clear from the foregoing summary of the relevant constitutional provisions that the enactment by the Oireachtas of legislation such as that now under consideration intended to promote equality between employed persons necessitates the balancing by the legislature of different constitutional values, specifically, the guarantee of equality and the protection of the citizen’s right to work and earn a livelihood and of his or her property rights. That difficult exercise is peculiarly within the province of the Oireachtas, but as was made clear by the judgment of this Court in Tuohy v Courtney [1994] 3 IR 1 at p 47:-
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Article 40.1, as has been frequently pointed out, does not require the State to treat all citizens equally in all circumstances. Even in the absence of the qualification contained in the second sentence, to interpret the Article in that manner would defeat its objectives. In the present context, it would mean that the State could not legislate so as to prevent the exploitation of young people in the work place or, at the other end of the spectrum, to make special provision in the social welfare code for the elderly. The wide ranging nature of the qualification which follows the general guarantee of equality before the law puts beyond doubt the legitimacy of measures which place individuals in different categories for the purposes of the relevant legislation. In particular, classifications based on age cannot be regarded as, of themselves, constitutionally invalid. They must, however, be capable of justification on the grounds set out by Barrington J in Brennan v AG [1983] ILRM 449 as follows:-
“The classification must be for a legislative purpose . . . it must be relevant to that purpose, and . . . each class must be treated fairly.”
The provisions of the Bill now under consideration have, of course, as their objective the elimination, so far as practicable, of discrimination on the ground of age in employment. It is urged on behalf of the Attorney General that, since the Bill thus affords statutory protection against discrimination on the ground of age which is not otherwise available, it necessarily follows that the qualifying provisions, which are impugned as being themselves discriminatory, do not in fact encroach on any existing rights of the citizen.
In support of that proposition, it was suggested that the requirements in Article 40.1 that all citizens be held “equal before the law” was essentially a prohibition against unjustifiable discrimination in legislation. It followed, it was said, that a Bill which, far from introducing any form of discrimination was expressly designed to prohibit such, could not be said to violate Article 40.1, because (as was argued by counsel assigned by the court) its qualifications were themselves seen to be impermissibly discriminatory.
The Court is satisfied that this submission goes too far. The guarantee of “equality before the law” is in its terms not confined to the State in its legislative role. It is unnecessary, in the context of the present case, to consider to what extent, if any, the provisions of the Article may be applicable in the area of private law. It is sufficient to say that the Article, in common with the other Articles of the Constitution which are concerned with fundamental rights, does not confer a right on any person which, in the absence of the Constitution he would not in any event enjoy as a human being. As Walsh J said, speaking for this court in The State (Nicolaou) v An Bord Uchtala, Article 40.1 is:
“An acknowledgement of the human equality of all citizens and that such equality will be recognised in the laws of the State.”
The forms of discrimination which are, presumptively at least, prescribed by Article 40.1 are not particularised: manifestly, they would extend to classifications based on sex, race, language, religious or political opinions.
Discrimination based on age would not seem, at first sight, so clearly within the ambit of Article 40.1. It is noteworthy, in this context, that the Supreme Court of the United States in Massachusetts Board of Retirement Et Al v Murgia [427 US 307] declined to treat a classification based on age as “suspect” within the terms of its then jurisprudence. However, the comments of Marshall J in the course of his dissenting opinion in that case are also of relevance to the present enquiry:
“Whether older workers constitute a “suspect” class or not, it cannot be disputed that they constitute a class subject to repeated and arbitrary discrimination in employment . . .
Of course, the court is quite right in suggesting that distinctions exist between the elderly and traditional suspect classes such as Negroes, and between the elderly and “quasi-suspect” classes such as women or illegitimates. The elderly are protected not only by certain anti-discrimination legislation, but by legislation that provides them with positive benefits not enjoyed by the public at large. Moreover, the elderly are not isolated in society, and discrimination against them is not pervasive but is centred primarily in employment. The advantage of a flexible equal protection standard, however, is that it can readily accommodate such variables. The elderly are undoubtedly discriminated against, and when legislation denies them an important benefit — employment — I conclude that to sustain the legislation appellants must show a reasonably substantial interest and a scheme reasonably closely tailored to achieving that interest . . .”
It will be seen that the test adopted by Marshall J in the closing paragraph is not in essence different from that adopted by Barrington J in Brennan v Attorney General.
The aged are thus entitled as human beings to protection against laws which discriminate against them, unless the differentiation is related to a legitimate objective and is not arbitrary or irrational. The young are also so entitled, although the need for protection may be less obvious and pressing in their case. There is no question but that the Bill under consideration in seeking to eliminate such discrimination from the work place so far as practicable is designed to meet an important objective which is enshrined in the Constitution itself.
In precisely the same manner, however, as the wide ranging constitutional guarantee of equality necessarily envisages the recognition by the State in many contexts of inequality, so too must legislation of the nature now under scrutiny. The law cannot require an airline company to employ a child or a nonagenarian as an airline pilot. The Bill attempts to meet this difficulty by the various provisions already referred to, which relieve employers from the obligation not to discriminate on grounds of age in a number of different circumstances. No criticism has been advanced in argument of those provisions since they clearly envisage that the employer will not be able to escape responsibility, unless on an objective assessment he or she can be regarded as coming within the exemption in question. It was, however, urged, that, where the exemptions are based on specific age thresholds, they are inescapably discriminatory and in breach of Article 40.1.
It may, of course, be argued that, in the case of s 6(3), the age limit could have been fixed at a higher age than 65 or a lower age than 18. Once, however, it was conceded that the protection against discrimination on the grounds of age cannot be unqualified, it becomes a matter for the Oireachtas to determine at what level the exemptions should begin to operate. Since the age limits chosen, of 18 and 65 respectively, reflect the thresholds at which a significant number of the population enter or leave the working place, their choice could not plausibly be characterised in the view of the court, as irrational or arbitrary.
The Bill, in seeking to ensure that its objective of reducing discrimination on the ground of age does not adversely affect measures intended to alleviate the problem of the long-term unemployed, has, as already noted, removed such measures from the ambit of the Bill where they are designed to facilitate the integration into employment of persons over the age of 50. No doubt in this instance the age limit chosen does not correspond to any recognised threshold. Where, however, as here, the Oireachtas was dealing with a specific problem in ensuring that its legislative goal of equality of employment did not unnecessarily frustrate another objective of eliminating or reducing long-term unemployment, it was entitled, as a matter of social policy, to choose between fixing the relevant age at what was an appropriate level or employing another and more flexible, but it may be a less practicable, yardstick, such as the length of time an individual is registered as being one of the long-term unemployed. While it is possible to argue that the Oireachtas has made the wrong choice, that cannot amount to a finding that the classification for which they have adopted is irrelevant to the objective intended to be achieved or unfair or irrational.
It might be, at first sight, more difficult to defend on constitutional grounds the wide-ranging exclusion from the Bill’s provisions of employment in the Defence Forces, the Garda Siochana or the Prison Service. Once, however, it is accepted that discrimination on the grounds of age falls into a different constitutional category from distinction on grounds such as sex or race, the decision of the Oireachtas not to apply the provisions of the Bill to a relatively narrowly defined class of employees in the public service whose duties are of a particular character becomes more understandable. It must be emphasised again at this point that a provision of this nature in this particular Bill does not have as its consequence a shielding from judicial scrutiny on constitutional grounds of legislation fixing age limits for any of the employments in question. The right of persons affected by such legislation to advance a challenge to compulsory retirement at a specified age without any testing to determine individual fitness for the post in question, such as was unsuccessfully advanced in the United States case of Murgia, remains. Given the distinctive requirements associated with these branches of the public service and the particular importance of ensuring a high level of physical and mental fitness, it can hardly be said, in the court’s view, that the decision of the Oireachtas to remove them from the am bit of this particular measure, whether correct or not, is unrelated to a permissible legislative objective or irrational or unfair.
There remains to be considered the submission that these provisions are an unfair and disproportionate interference with the rights of employers to earn their livelihood and with their property rights. The court is conscious of the difficulties which legislation of this nature creates for employers in the private sector. Thus clearly, the smaller the firm, the correspondingly more onerous will be the burden of this form of regulation. At the same time, it must also be recognised that, in the various provisions already referred to, the legislature has sought to ease the burden to the extent that it deemed practicable. Once it is accepted that the Oireachtas was entitled to enact measures intended to eliminate so far as practicable unjust discrimination in employment on the grounds of age, the manner in which it sought to balance the conflicting interests of the employees and potential employees on the one hand and employers on the other was a matter for them. Where, as here, the result, objectively viewed, cannot be regarded as arbitrary or irrational, they must be upheld as constitutionally valid.
The Court is satisfied that it has not been established that the provisions relating to the age ground are repugnant to the provisions of the Constitution.
THE RELIGION GROUND
The Sections of the Bill relevant to this issue viz Sections 12 and 37 have already been set forth in the course of this decision and it is unnecessary to repeat them.
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Relevant Constitutional Provisions
Article 40 s 1 of the Constitution provides as follows:-
“1. All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
Article 44 is entitled “Religion” and reads as follows:-
“1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
2. 1o Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
2o The State guarantees not to endow any religion.
3o The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
4o Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.
5o Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
6o The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”
Some of the provisions of Article 42 (dealing with education) may also be relevant to the present discussion. Article 42 provides, inter alia, as follows:-
“1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
3. 10 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.
2o The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation . . .”
Conclusions of Court on Religion Ground
It will be noted that while, in the preamble the “People of Eire” humbly acknowledge their obligations to our Divine Lord Jesus Christ, Article 44 imposes certain duties upon the “State”. These duties are more general and less specific than the obligations acknowledged by the People in the preamble. The duty of the State is to respect and honour religion though no specific religion is identified. The Constitution then goes on to guarantee freedom of conscience and free profession and practice of religion “subject to public order and morality” to every citizen.
It is clear from Article 42 that the State acknowledges that the primary and natural educator of the child is the family. The State accordingly guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. The State may, as guardian of the common good, require that children receive a certain minimum education, moral intellectual and social. The clear implication is that the religious education of the children is primarily a matter for the parents and parents are free to provide this education in their homes or in private schools or in schools recognised or established by the State. The State shall however endeavour to supplement and give reasonable aid to private and corperative educational initiative and, when the public good requires it, provide other educational facilities or institutions with due regard for the rights of parents especially in the matter of religious and moral formation. Legislation, however, providing State aid for schools, must not discriminate between schools under the management of different religious denominations and every religious denomination is to have the right to manage its own affairs and to maintain institutions for religious or charitable purposes.
It is quite clear therefore that the State is entitled to support denominational schools though it is forbidden to discriminate between schools under the management of different religious denominations. It is also clear that Articles 42 and 44 of the Constitution reflect the system of denominational education which in fact existed in Ireland at the date of the coming into operation of the Constitution.
This system does not involve the endowment of any religion. The endowment of a religion implies the selection of a favoured State religion for which permanent financial provision is made out of taxation or otherwise. This kind of endowment is outlawed by Article 44 s 2 subsection 2 of the Constitution. The Constitution does however expressly authorise State aid for schools but forbids the State to discriminate between the schools under the management of different religious denominations or to pass any legislation which would affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. The provision of such State aid across the board to schools maintained by the various religious denominations cannot be regarded as the endowment of any one religion.
Institutions for Religious or Charitable Purposes
Article 44 s 2 subsection 5 provides that every religious denomination is to have the right to maintain institutions for religious or charitable purposes. One can get a clearer picture of what is meant by “religious denomination” if one looks at two subsections of the Constitution which were deleted by the fifth amendment to the Constitution in 1972. Section 1 subsection 2 (now deleted) of Article 44 referred to the special position of the Holy Catholic Apostolic and Roman Church as Guardian of the faith professed by the great majority of the citizens. Subsection 3 (also deleted) went on to provide as follows:-
“The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.”
The term “religious denomination”, was therefore intended to be a generic term wide enough to cover the various churches, religious societies or religious congregations under whatever name they wished to describe themselves.
These various religious denominations may control religious, educational or medical institutions, whether directly or through a board of guardians or trustees and it appears to the Court that these are the religious educational and medical institutions referred to in subsection 1 of Section 37 of the Bill and that they are also governed by the phrase “institutions for religious or charitable purposes” referred to in Article 44 s 2 subsection 5 of the Constitution.
The Court rejects the submission that a private hospital could be a medical institution within the meaning of s 37 subsection 1 of the Bill without being an institution for charitable purposes referred to in Article 44 s 2 subsection 5 of the Constitution. The Court accepts the submission of Counsel for the Attorney General that the term “institutions for religious or charitable purposes” is at least broad enough to cover the four categories of legal charities adopted by Lord Macnaghten in Commissioners of Income Tax v Pemsel [1891] AC 531 and approved by the former Supreme Court in Barringtons Hospital the Commissioners of Valuation [1957] IR 299 and by Keane J in In re Worth Library [1995] 2 IR 301. At p 583 of the report Lord Macnaghten stated that:-
“How far then, it may be asked, does the popular meaning of the word “charity” correspond with its legal meaning? “Charity” in its legal sense comprises four principal divisions: Trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The Trusts last referred to are not less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly.”
Religious Discrimination
The central submission of Counsel assigned by the Court in relation to the religion ground is that Article 37 contravenes the guarantees of freedom of conscience and the free profession and practice of religion contained in Article 44 s 2 subsection (1) and the ban on imposing any disabilities or making any discrimination on the ground of religious profession, belief or status contained in Article 44 s 2 subsection (3). Alternatively, they maintain that the Oireachtas has failed to preserve a proper balance between the rights of members of the various religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. Consequently they allege the relevant provisions of the Bill, if enacted into law, would constitute an unjust and disproportionate attack on the rights of these other citizens.
This Court accepts that it is not generally permissible to make any discrimination, or even to make any distinction, between citizens on the grounds of religious profession, belief or status.
This Court has also had to accept that occasions may arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. This problem first arose in Quinn Supermarket Limited v Attorney General [1972] IR p 1 where the Court had to accept that certain distinctions should be made in favour of the Jewish congregations arising from the fact that the Jewish Sabbath fell on a Saturday and not on a Sunday. In the course of his judgment, delivering the majority opinion of this Court, Walsh J stated (at p 24 of the report) that:-
“Section 2, subsection (1) of Article 44 of the Constitution guarantees freedom of conscience and the free profession and practice of religion in terms which do not confine these to Christianity and Judaism. It appears to me, therefore, that the primary object and aim of Article 44, and in particular the provisions of section 2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person so practising religion or holding those beliefs to any disabilities on that account, or permit distinctions on the ground of religious profession, belief or status between persons in the State who are free to profess and practice their religion. If however, the implementation of the guarantee of free religion and the practice of religion requires that a distinction should be made to make possible for the persons professing or practising a particular religion their guaranteed right to do so, then such a distinction is not invalid having regard to the provisions of the Constitution. It would be completely contrary to the spirit and intendment of the provisions of Article 44 section 2, to permit the guarantee against discrimination on the grounds of religious profession or belief to be made the very means of restricting or preventing the free profession or practice of religion. The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.”
Walsh J returned to the same theme in Mulloy v the Minister for Education [1975] IR p 88 where he stated (at p 96 of the report) —
“As explained in the judgment given in this Court in Quinn Supermarket v the Attorney General [1972] LR p 1, it is not permissible to create differences between persons or bodies or to distinguish between them on the ground of religious profession, belief or status irrespective of whether the difference is to their benefit or to their disadvantage — save where it is necessary to do so for the implementation of the constitutional right to the full and free practice of religion.”
In McGrath and O’Ruairc v The Trustees of Maynooth College [1979] ILRM 166, Henchy J expressed similar views at p 187 of the report where he stated:-
“The constitutional provision invoked here (Article 44.2.30) must be construed in the terms of its purpose. In proscribing disabilities and discriminations at the hands of the State on the ground of religious profession belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to a sapping and debilitation of the freedom and independence given by the Constitution to the doctrinal and organisational requirements and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.”
It is interesting to note that the American Federal Supreme Court has had to face a similar problem. The American Civil Rights Act of 1964 outlawed religious discrimination in employment. But paragraph 702 of the Act exempted religious organisations from this prohibition. The Plaintiff in the case of the Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v Amos 4 83 US p 327 was a building engineer employed for some 16 years by the Mormon church to work in a gymnasium. He was dismissed because he failed to produce a certificate that he was a member of the Mormon church and eligible to attend its temples. The Court upheld the constitutionality of paragraph of 702 as not violating the guarantees of freedom of religion contained in the first amendment to the American constitution. The reasoning in the concurring judgment of Brennan J is relevant to the present discussion. At p 342 of the report he says:-
“For many individuals, religious activity derives meaning in large measure from participation in a large religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organisations religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organisations often furthers individual religious freedom as well.
The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on a subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital, that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.”
It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar — but only insofar — as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.
Proportionality
Section 37, subsections (1) and (2) and section 2 of the Bill are an exception to the general rule against discrimination on the religious ground set out in s 6. It is admittedly a balancing between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one’s livelihood on the other. Counsel assigned by the Court however submit that the Oireachtas has got the balance wrong in that section 37, in particular, unduly favours the right to free profession and practice of religion at the expense of the other rights named.
No serious criticism can however be advanced against section 37 subsection (2) which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. The attack has been directed more against subsection (1) which entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee “where it is reasonable to do so in order to maintain the religious ethos of the institution” or to take action “which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution”.
The use of the words “reasonable” and “reasonably necessary” implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis.
Counsel assigned by the Court point to the use of the word “ethos” in subsection (1) and submit that the religious institution or denomination will state in each case what its “ethos” is and that the test will in fact become subjective. It is true that “ethos” is a vague term and is nowhere defined in the Bill. Chambers English Dictionary gives, inter alia, the following meaning to the word “the distinctive habitual character and disposition of an individual group”. It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the Court and the Court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.
Section 12
This deals with vocational training and is justified in the same manner as section 37 subsection (1). It first outlaws discrimination and then for the purpose of ensuring the availability of nurses for hospitals and teachers for primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools provides that the prohibition of discrimination on the religion ground is not to apply in respect of:-
“(a) The nomination of persons for admission to the school of nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970, (section 76) (Adelaide and Meath Hospital, Dublin incorporating the National Childrens Hospital) Order 1996 or
(b) Places in a vocational training course specified in an order made under subsection (5).”
Subsection 5 provides that:-
“Where an educational or training body applies to the Minister for Health, in the case of hospitals, or to the Minister for Education, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health or the Minister for Education, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health or the Minister for Education, as the case may be, to meet the purposes set out in subsection (4).”
Again, and for the reasons already discussed in relation to Article 37 section 1, it appears to the Court that s 12 represents a reasonable balancing between the principle of equality before the law on the one hand and the principle of the free profession and practice of religion on the other hand.
For these reasons the Court rejects the challenge to the Bill based on the religion ground.
THE DISABILITY GROUND
The provisions of the Bill relevant to the consideration of this issue raised by Counsel assigned by the Court are Section 6(2)(g), Section 16 and Section 35.
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In considering these submissions, the court considers it necessary to set out in extenso the provisions of Article 43 of the Constitution. It provides that:
“1. 1o The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
2o The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
2. 1o The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
2o The State, accordingly, may as occasion requires, delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”
It has been clear since the decision of this court in Blake v Attorney General [1982] IR 117 that this Article prohibits the abolition of private property as an institution but at the same time permits, in particular circumstances, the regulation of the exercise of that right. It does not deal with the citizen’s right to a particular item of property: those items are, however, protected from unjust attack by the provisions of Article 40.3.1.
The Court is satisfied that the provisions under consideration constitute a delimitation of the exercise by employers of a right protected by that Article, ie the right to carry on a business and earn a livelihood. It is also satisfied that these limitations have been imposed by the Oireachtas with a view to reconciling the exercise of the rights in question with a specific aspect of the common good ie the promotion of equality in the workplace between the disabled and their more fortunate fellow citizens. The issue which the court has to resolve is as to whether the abridgement of those rights effected by these provisions constitutes an “unjust attack” on those rights in the case of individual employers, having regard to the manner in which it has been effected.
It is clear that, in determining whether the absence of any provision in the legislation under consideration for the payment of compensation constitutes such a “unjust attack”, the court may have regard to whether the restriction, in the form in which it was imposed, is consistent with the requirements of “social justice” within the meaning of Article 43.2.1.
In reading Article 43 of the Constitution it is important to stress the significance of the word “accordingly” which appears in Article 43 S 2 ss 2. It is because the rights of private property “ought” in civil society to be regulated by “the principles of social justice” that the State may, as occasion requires, delimit their exercise with a view to reconciling it with the “exigencies of the common good”. It is because such a delimitation, to be valid, must be not only reconcilable with the exigencies of the common good but also with the principles of social justice that it cannot be an unjust attack on a citizen’s private property pursuant to the provisions of Article 40 S 3 of the Constitution (see judgment of Walsh, J in Dreher v Irish Land Commission 1984 ILRM 94).
Needless to say what is or is not required by the principles of social justice or by the exigencies of the common good is primarily a matter for the Oireachtas and this Court will be slow to interfere with the decision of the Oireachtas in this area. But it is not exclusively a matter for the Oireachtas. Otherwise, as was pointed out in the Sinn Fein Funds case, Article 43 would appear, with Article 45, in the section of the Constitution devoted to the directive principles of social policy the application of which by the Oireachtas in the making of laws is withdrawn from the consideration of the Courts (see Buckley and Others v Attorney General and Others [1950] IR 67 at p 83).
The Bill has the totally laudable aim of making provision for such of our fellow citizens as are disabled. Clearly it is in accordance with the principles of social justice that society should do this. But, prima facie, it would also appear to be just that society should bear the cost of doing it. It is important to distinguish between the proposed legislation and legislation to protect the health and safety of workers. It is entirely proper that the State should insist that those who profit from an industrial process should manage it as safely, and with as little danger to health, as possible. The cost of doing the job safely and in a healthy manner is properly regarded as part of the industrialist’s costs of production. Likewise it is proper that he should pay if he pollutes the air the land or the rivers. It would be unjust if he were allowed to take the profits and let society carry the cost. Likewise it is just that the State, through its planning agencies, should insist that the public buildings and private buildings to which the general public are intended to have access for work or play should be designed in such a way as to be accessible by the disabled as well as by the able-bodied.
But the difficulty with the section now under discussion is that it attempts to transfer the cost of solving one of society’s problems on to a particular group. The difficulty the Court finds with the section is, not that it requires an employer to employ disabled people, but that it requires him to bear the cost of all special treatment or facilities which the disabled person may require to carry out the work unless the cost of the provision of such treatment or facilities would give rise to “undue hardship” to the employer.
There is no provision to exempt small firms or firms with a limited number of employees, from the provisions of the Bill. The wide definition of the term “disability” in the Bill means that it is impossible to estimate in advance what the likely cost to an employer would be. The Bill does provide that one of the matters to be taken into consideration in estimating whether employing the disabled person would cause undue hardship to the employer is “the financial circumstances of the employer” but this in turn implies that the employer would have to disclose his financial circumstances and the problems of his business to an outside party.
It therefore appears to the Court that the provisions of the Bill dealing with disability, despite their laudable intention, are repugnant to the Constitution for the reasons stated.
In view of what is said above it is not necessary for the Court to deal with the exemption of “employment” in the Defence Forces, the Garda Siochana or the Prison Service from the disability provisions of the Bill. The Court does however find it difficult to understand why the clerical or civilian members of these services should be exempt.
VICARIOUS LIABILITY
Re: Sections 14 and 15 of the Bill
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It is nowhere provided in the legislation that the actual perpetrator of an act of discrimination or victimisation is to be guilty of any offence. It is only a person who procures or attempts to procure another person to do something which constitutes discrimination or victimisation who can be guilty of an offence: s 14 Such a person must be proved in the ordinary way to have had mens rea ie an intention to commit the offence. It is strange and anomalous that the chief perpetrator of the act is guilty of nothing; it is only the person who procures or attempts to procure the deed who is to be arraigned. But just because a provision is strange or anomalous does not render it repugnant to the Constitution. It is, for example, only a civil wrong to trespass on another’s land but if there is a conspiracy to commit a trespass on another’s land that makes the conspirators guilty of a criminal offence. The Court concludes that s 14 is not repugnant to the Constitution.
Coming to s 15, the first enquiry that has to be made is whether it applies to criminal as well as to civil proceedings. It should be said that as regards the fixing of civil responsibility on an employer, s 15 is unexceptional and accords with well established principles of fixing vicarious responsibility on employers for the wrongs of their employees. Counsel for the Attorney General submitted that the section does apply to criminal proceedings and invited the Court to say that if that submission is wrong, the provision might be saved under the “double construction” rule. cf Kelly, The Irish Constitution, 3 Edition, p 458 et seq.
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However, what is sought to be done by this provision is that an employer, devoid of any guilty intent, is liable to be found guilty on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years, or both such fine and imprisonment, and to be tainted with guilt for offences which are far from being regulatory in character but are likely to attract a substantial measure of opprobrium. The social policy of making the Act more effective does not, in the opinion of this Court, justify the introduction of so radical a change to our criminal law. The change appears to the Court to be quite disproportionate to the mischief with which the section seeks to deal.
In the course of his speech in Sweet v Parsley (HL(E)) [1970] AC 132 at p 150, Lord Reid — the case dealt more with the concept of strict liability as opposed to vicarious liability, but what he had to say is equally pertinent to what the Court has to consider — referred to “the public scandal of convicting on a serious charge persons who are in no way blameworthy”. Of course, the English courts would have to recognise that if parliament decreed that a person should be found guilty in those circumstances, then the legislation might be upheld because parliament in the British system is said to be supreme.
Our situation, however, is totally different. We are governed by a Constitution with the separation of powers as its fulcrum and the two houses of the Oireachtas are precluded from enacting any legislation which is in any respect repugnant to the Constitution.
The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and, therefore, contrary to Article 38.1 of the Constitution and also repugnant to the provisions of Article 40.1 of the Constitution.
SECTION 16(4)
Section 16(4) provides that nothing in the legislation shall be construed as:-
“. . . requiring an employer to recruit, retain in employment or promote an individual if the individual is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.”
It is clear that the Bill provides that none of its provisions requires an employer to recruit, or promote an individual if the employee has a past criminal conviction for unlawful sexual behaviour or it is considered on the basis of reliable information that he engages in, or has a propensity to engage in unlawful sexual behaviour.
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Whether particular information is “reliable” or whether a person has such a “propensity to engage in” the conduct to which s 16(4) applies will, in the event of dispute, fall for resolution by the relevant tribunal or court and it may be taken as accepted that they will apply the well established standards of constitutional justice and fair procedures.
No doubt, the Houses of the Oireachtas conscious of the higher dangers of recidivism with regard to sexual crimes as well as the addictive character of certain sexual offences involving minors and so as to avoid a situation where persons convicted of such offences or with a clear propensity to engage in such behaviour could secure access to employment on an equal footing with other types of employees, provided by s 16(5) that:-
“Without prejudice to the generality of s 16(4) that sub-section applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable.”
The Court is of the view that it is concerned here with something that is clearly one of policy which the Houses of the Oireachtas are entitled to enact so as to afford employers a certain protection and this is justifiable on the grounds of prudence and safety. However, it should be observed that it is not every idle word that should be heeded by an employer. The employer in each case where a person’s suitability is called in question will need to make a proper value judgment having regard to all the circumstances; but if that judgment is exercised bona fide the employer should not be faulted just because it turns out to be wrong”.
Donnellan -v- MJELR & Ors [2008] IEHC 467
McKechnie J.
“Issue No. 2: The Directive Challenge:
60. The second major issue in this case arises from Council Directive 2000/78/EC of the 27th November 2000, ‘establishing a general framework for equal treatment in employment and occupation’. This Directive was incorporated into domestic law by the Equality Act 2004. In short, it is submitted on behalf of the plaintiff that the 1996 Regulations are inherently incompatible with the Directive, a form of “per se” inconsistency, and accordingly cannot be relied upon to terminate his employment on his 60th birthday. In this context, though in precisely what way remains unclear, reference has also been made to the said Act of 2004 as being in itself an Act against which the Regulation should be measured. I will return to the point later in this judgment.
61. This Directive, adopted on the basis of Article 13 of the EC Treaty, contains the following recitals which should be outlined:-
“(4) The right of all persons to equality before the law and protection against discrimination constitutes a [recognised] universal right …
(6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination…
(9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential. …
(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.
(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community…
(14) This Directive shall be without prejudice to national provisions laying down retirement ages. …
(18) This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services. …
(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate…
(25) The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.” (Emphasis added)
62. The following Articles of the Directive must also be referred to:
i) Article 1 of the Directive states that its purpose is “to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”
ii) Article 2, headed “Concept of Discrimination”, provides:
“1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless… that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary…” (Emphasis added)
iii) Article 3, delineating the scope of the Directive, states that it “shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to… (c) employment and working conditions, including dismissals and pay…”
iv) Article 6, which is headed “Justification of differences of treatment on grounds of age”, at sub-article (1), reads:
“Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.” (Emphasis added)
63. The Directive, by virtue of Article 20, became directly applicable in this jurisdiction on 2nd December 2003.
64. Before dealing substantively with the instrument, a preliminary issue which arises thereunder, must be resolved. As will be considered more thoroughly in the next part of the judgment, Recital 14 of the Directive reads “this Directive shall be without prejudice to national provisions laying down retirement ages”. It is the plaintiff’s case that, notwithstanding this recital, any relevant provision of national law must still be compatible with the Directive. On the other hand the defendants argue that by its plain meaning, once there is in existence such a national measure, it is immune from Directive compatibility.
65. In Félix Palacios de la Villa v. Cortefiel Servicios SA, (Case C-411/05) [2007] ECR I-08531 (16th October 2007), the European Court of Justice expressed a view on this Recital. In that case Spanish law, under certain conditions, permitted freely negotiated collective agreements between workers and employers to contain provisos dealing with compulsory retiring ages. On a challenge to the provisions contained within one such agreement, the Court at para. 44 of its judgment had this to say on Recital 14:
“It is true that, according to recital 14 in its preamble, Directive 2000/78 is to be without prejudice to national provisions laying down retirement ages. However, that Recital merely states that the Directive does not affect the competence of the member states to determine retiring age and does not in any way preclude the application of that Directive to national measures governing the conditions for termination of employment contracts where the retirement age, thus established, has been reached.”
66. The defendants seek to distinguish that decision by pointing out that the retirement age was not “laid down” by any domestic law, and therefore there was no direct establishment on the part of the national authority. In addition, a lengthy passage from the opinion of Advocate General Mazak, delivered on 15th February 2007, was opened in which, at paras. 64 and 65, he opines that Recital 14 should be read in a manner which immunised from Directive scrutiny national measures containing retirement ages. It was thus urged upon this Court that effect should be given to the primacy of the plain and unambiguous language of Recital 14.
67. I am afraid that I cannot agree with this submission; even, if uninfluenced by case law, I would hold, relying upon first principles, that such a construction would be inherently incompatible with the whole purpose, thrust and tenor of the Directive. Given the significance of furthering the principle of equality and noting the steps taken at community level to implement this, it would seem almost self-defeating, to allow member states to disregard the Directive, by such simple means as fixing compulsory retiring ages. It would matter not at what particular age the threshold was set, or whether there was any or any legitimate justification therefor. Once on the statute books the effect would be to bypass the Directive. I could not hold that this was either the intention of the Directive or indeed its effect.
68. In addition, I entirely disagree that the Palacios decision can be distinguished in such a manner so as to neutralise the effect of para. 44 of the Court’s judgment. In my view the real challenge in the case was to a compulsory retiring age which was both recognised and enforceable in the domestic laws of that state. The fact that its foundation lay directly within the collective agreement does not in any way take from the primacy of the point. I therefore believe that Palacios is a direct authority on Recital 14 and, since it accords with my own interpretation as to the placement of that Recital, I would respectfully follow it. Therefore, having regard also to the next succeeding paragraph, I am satisfied that the Directive applies to the Regulations under review in this action.
69. There can be no doubt in my view but that members of An Garda Síochána serving within that force are covered by the Directive (and the 2004 Act). That the Directive applies is, in my opinion, self-evident from the Employment Equality Act 1998, as amended by the 2004 Act; this because of the definitions given to “employee”, and “contract of service”, and because of the express provisions of s. 2(3) which specifically deem a member of An Garda Síochána to be an employee of the State under a contract of service. In addition it is significant to note that in its original form s. 37(4) of the 1998 Act applied its provisions to members of the Defence Forces, An Garda Síochána and the Prison Service. In its amended form, by virtue of s. 25 thereof, application of the Act is continued only in respect of members of the Defence Forces. These circumstances, as well as the provisions of s. 37(3) and (4), as amended, make it inescapably clear that the provisions of the Directive apply to the plaintiff in this case.
70. That being so, it inevitably must follow that the provision of the 1996 Regulations, which had the effect of terminating the plaintiff’s employment at age 60, constitutes direct discrimination within the meaning of Article 2 of the Directive; in that the plaintiff is treated less favourably than another Assistant Commissioner who has not reached the age of 60. Therefore it falls squarely within the prohibition on direct discrimination. This conclusion of course equally applies to the Equality Act 2004. Consequently it is incumbent upon the member state to justify this difference of treatment on the grounds of age. It can do so under the provisions of Article 6 if it can establish that, within the context of national law, the differences in such treatment are “objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour, market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary” (see paras. 61 – 62 supra. for the relevant Directive provisions).
71. The effect of the Directive, in these circumstances, can thus be summarised:-
i) In pursuit of its purpose to implement the principle of equal treatment in employment and occupation, it prohibits direct and indirect discrimination on any of the discriminatory grounds which include age.
ii) “Direct discrimination” for this purpose occurs where by reason of age one person is treated less favourably than another in a comparable situation (Article 2).
iii) If a national law provides for differences in treatment between comparable persons on the grounds of age, such inequality will not necessarily be prohibited if the differences are objectively and reasonably justified, by reference to a legitimate aim such as legitimate employment policy, labour markets and vocational training objectives, and if the means used are appropriate and necessary (article 6).
iv) Member States have a broad discretion in their choice of identifying the aim(s) to be pursued and the means or measures to implement such (Recital 25). These can be identified by reference to political, economic, social, demographic and budgetary considerations, provided overall the effect of the Directive is not put in peril: Mangold [2005] ECR I-9981.
v) Member States shall, without prejudice to the Directive, have the power to fix retiring ages (Recital 14).
vi) Member States are not obliged under the provisions of the Directive to recruit, or maintain in employment, persons in the police, prison or emergency services who lack the capacity to perform the required service: this derogation supports the legitimate objective which a Member State may have in preserving the operational capacity of these services (Recital 18).
72. Having come to the conclusion that the Directive is applicable to the current situation, it must still be determined if and how the national laws relating to the compulsory retirement of Assistant Commissioners at age 60, fall foul of the Directive.
73. It is settled in the case law that in order to avail of the Directive’s protection the complainant must show that he is being treated differently to someone who is in the same position as him, or that someone who is in a different position is being treated the same as him (see Article 2(2)(a)). This person, hypothetical or otherwise, is referred to as the “comparator”.
74. In the context of age, it has been recognised that this comparator requirement may be difficult to define with specificity. Unlike other areas such as sex discrimination, where it can be readily apparent that two comparable people are being treated differently on that basis (as in Lindorfer v. Council of the European Union Case C-277/04: re: Community pension regulations, where in calculating pension amounts, account was taken of a person’s sex on the basis that women lived longer: this was illegally discriminatory), age presents a particular problem. The European Commission paper on Employment & Social Affairs entitled “Age Discrimination and European Law”, (Colm O’Cinneide, 2005), (hereinafter “the Commission paper”) notes that the fluid nature of a person’s age, and the uncertain and shifting nature of “age groups”, as well as the changing expectations which accompany changes in age, even between persons of similar ages, made the application of the comparator test difficult in this context.
75. Reference was made to the decision of the Irish Equality Tribunal in Perry v. Garda Commissioner DEC-E2001-029. In that case the Equality Officer found that provisions governing voluntary retirement were discriminatory, since if the retirement scheme was considered by reference to two hypothetical employees, one aged 60 plus 1 day old, and another aged 60 minus 1 day, the result leads to a disparity between the resulting gratuity payments. This could not be explained with reference to “clear actuarial or other evidence … presented by the respondent which would make such discrimination permissible in the context of the [Employment Equality Act 1998].” However, the applicant ultimately lost because of transitional measures allowing for age-related pay to continue for three years after the entry into force of the Employment Equality Act 1998.
76. The difficulty of finding a suitable comparator in relation to age discrimination was also highlighted in the Opinion of the Advocate General in Palacios, where Advocate General Mazák felt that:
“So far as non-discrimination on grounds of age, especially, is concerned, it should be borne in mind that that prohibition is of a specific nature in that age as a criterion is a point on a scale and that, therefore, age discrimination may be graduated. It is therefore a much more difficult task to determine the existence of discrimination on grounds of age than for example in the case of discrimination on grounds of sex, where the comparators are more clearly defined.”
77. Once a difference in treatment is shown to exist with a relevant comparator, it is then necessary to show that such is due to age; or put another way, that age is a “material factor”. Such discrimination may be obvious on its face, as was seemingly the case in Perry, or else it may be more covert; referring to factors that are essentially “age proxies”, for example if an employee was dismissed for “being around too long” or was denied a promotion for being “overqualified”, when the decision was essentially based on age. As the Commission paper states, such “age proxies” constitute direct discrimination “as age will actually be a ‘material factor’ in the decision-making process.”
78. It is worth noting that under Article 10(1) of the Directive, if a claimant can establish a prima facie case that age was a material causal factor in the decision, then the burden of proof shifts to the respondent to show that age was not such a factor, or else that it was justified. The fact that one candidate is preferred over another of a different age will clearly not be enough to shift the burden. However, if, for example, a job was granted to a younger person who was less qualified than an older applicant then this could indicate the presence of age bias. The Commission Paper, p. 24, refers to a Slovakian District Court case (2003 No. 7C 190/02-309) where the court found discrimination on the basis that a research worker with more than 20 years experience, had been excluded from the position of coordinator (even though she had been involved in developing, and had been mentioned in, an initial project proposal), in favour of a younger less qualified researcher, where no justification could be established.
79. Nonetheless, as I have previously said, it is clear that the imposition of mandatory retirement age is discriminatory, per se, under the Directive, in that it places one person at a disadvantage to another, who would otherwise be in the same situation, on the grounds of age alone.
80. It must thus be determined whether such discrimination is saved by one or more of the justifications under the Directive. As enunciated, these justifications include:
i) That the measure is a “genuine and determining occupational requirement” (“GOR”);
ii) That the measure is aimed at “preserving the operational capacity” of the Gardaí;
iii) That the measure is justified by a legitimate aim, in this case employment policy; or,
iv) That the measure is “objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary” – the proportionality requirement.
81. Turning to the first potential justification, namely that of a GOR, Article 4 permits discrimination where age is “a genuine and determining occupational requirement for the position in question, and it is proportionate to apply this requirement in the particular circumstances.” This Article only applies where the characteristic of age itself, goes towards an applicant’s ability to perform a particular job. The Commission paper states that “it is difficult to see many circumstances where such a blunt characteristic such as age would be required as a ‘genuine occupational requirement’” and notes that the UK government’s consultation paper on implementation of the Directive suggests that there will be “very few cases where age is genuinely a requirement.” But there will be some, however few, such as acting, or modelling clothes aimed at a particular age group. As stated earlier, there may be cases where characteristics acting as proxies to age might be employed in relation to a genuine occupational requirement. The Commission however has serious reservations about the practical application of the saver, noting that age should not be used as a proxy for characteristics such as incapacity, ill-health or immaturity, since:
“[A]ge is not a sufficiently precise indicator for any of these characteristics for it to be possible to normally use it as a substitute for a ‘real’ GOR…”
This would be so even if age could be statistically linked to trends in those characteristics. Nonetheless there may be circumstances where the assessment of individual work is impossible or excessively onerous, and where age can in some way be linked to the possession of a GOR. In those circumstances age discrimination may be a “necessary shorthand” to differentiate between different groups of works. However, in the opinion of the Commission:
“[T]he use of such age limits will have to be shown clearly necessary: even a pressing legitimate aim such as public safety cannot justify the sweeping use of age limits where individual assessment is possible.”
82. From the Canadian case of Law v. Canada (Minister of Employment and Immigration) [1989] 1 SCR 143 and the Australian case of Qantas v. Christie (1998) 152 ALR 1295 two questions can generally be asked in this context:
“a) are the characteristics that are cited to justify the act of discrimination legitimate and justifiable grounds for distinguishing between two people, b) is age an effective and reliable proxy for the relevant characteristics or a necessary differentiating tool for determining whether an individual possesses those characteristics.”
83. This test, which was applied in another Canadian case of MacDonald v. Regional Administrative School Unit No. 1 (1992) 16 CHRR D/409, lead to the conclusion that a state-wide mandatory retirement age of 65 for school bus drivers was justifiable, given the number of drivers involved. In relation to protecting public safety, the Commission paper cites “the US Supreme Court case decision in Western Airlines v. Criswell No.83-1545, where the Court emphasised that employers would have to demonstrate that the use of an age limit was ‘necessary’ and individual assessment was not possible, even where public safety was an issue.”
84. Recital 18 of the Directive which allows, in relation to the armed forces and the police, prison or emergency services, discrimination “with regard to the legitimate objective of preserving the operational capacity of that service” should be read in light of the exemption for genuine occupational requirements. Age in the context of such services would seem to be a form of genuine occupational requirement, since it is obvious that such services require a great degree of physicality and that the age of the people “on the ground”, so to speak, would indeed inhibit their efficiency. However, where such a restriction is in place in relation to the armed forces or police services, there would still be a requirement that such is for the purpose of preserving the operational capacity of the force, and/or, as a genuine occupational requirement; any such measure should also be proportionate. Although in this regard the perils of using age as a proxy for other characteristics should of course be borne in mind.
85. What constitutes “preserving the operational capacity” of the Gardaí? One can readily understand why such a saver was placed in the Directive. Were this provision not in place, it would be open to a member of a police force, army or other such service, to claim that it was an illegitimate discrimination to have different retirement ages as between what one might call the “troops on the ground”, or “bobbies on the beat”, and those members of a force who have a more administrative, managerial or operational role. In the case of the Gardaí this was the situation until the most recent regulations which now bring in line the retirement ages of all members (excluding the Garda Reserves), irrespective of rank to aged 60. Prior to this there was a difference as between the lower ranks, who could be seen to be doing the more physical work, and the higher ranks, including the Commissioner ranks, who had a more operational role. That such a distinction should be allowed may well be justified, since it is obvious that a Garda on the beat will need to be more physically able than one behind a desk. Nevertheless, were the aforementioned saver not included, such discrimination might be open to challenge given that the correlation between age and physical fitness for duty is not a given, and will inevitably vary as between individual members.
86. In any event I am satisfied that the Regulations under consideration herein, could not be said to be aimed at “preserving the operational capacity” of the force. Nor could it be said that the age of the Assistant Commissioner formed part of the “occupational requirement”, of that position as it could be of a job like child modelling. There is nothing inherent about the age used in the Regulations which would mean that a person of a certain age was required for the job.
87. The above two potential justifications thus seem aimed at very specific circumstances which would otherwise be discriminatory. The following two are wider in their potential application and seek to regulate the use of age discrimination where it is required for broader social purposes and where it is proportionate.
88. An issue which arose during the trial was the question of whether, in looking at the reasons and justification offered, one should do so by reference to the context in which the Regulation was made, or in the context of changed circumstances since that time. Given my conclusions on this particular matter, it should be noted that the following comments strictly speaking are obiter. If I was deciding this matter solely on administrative law grounds I would feel bound, in general, only to consider the justification question in light of the situation at that time. It is at this time when the “reasonableness” of a decision should be tested. To otherwise review such matters would be to look towards the merits of the decision in light of changing circumstances; in the presenting situation this is not the purpose of judicial review. The question in judicial review is whether there was an error in the way in which a decision was arrived at. This question is fixed in time; either the matter was properly decided at the time, or it was not. Changing circumstances do not render a prior decision improper merely because, under new conditions, the legitimate justifications of the decision-maker no longer hold true.
89. However, in circumstances where the Court is reviewing a matter not purely as to the “reasonableness” of a decision, but in relation to whether its continued existence is in compliance with a Directive (especially in circumstances where the Directive post-dates the Regulation), I am satisfied that the Court may also inquire as to whether at the current date the Regulations in questions can be justified. This makes sense given that some measures may be temporally or circumstantially justified, but once the reason for their original inception has passed, they would clearly no longer be so. For example if movement restrictions were put in place to curb the spread of an infectious disease which had long since ceased, or if restrictions were placed on certain organisations because of their composition or aims, which had long since changed. In both situations the justifying purpose no longer exists and so the once legitimate aims were now moot, thereby no longer justifying their purported compliance with the Directive.
90. Much evidence was led by the Defendants in attempting to justify the 1996 Regulations. Such justifications, as outlined herein, it was contended, were as relevant today as when the Regulations were introduced. I would agree with this proposition, insofar as I agree that the particular justifications advanced by the Defendants, if they were legitimate at all, would be so regardless of whether they were judged at the time of the making of the 1996 Regulations or today. It is therefore unnecessary, and I do not propose, to distinguish between whether the justifications were or still are relevant. That is not to say that justifications may not cease to be legitimate with the passage of time, but in the present circumstances I can see no real difference as between then and now with regards to their legitimacy.
91. The next proposition to deal with is thus whether the justifications advanced by the Defendants relate to a “legitimate aim”, in particular a “legitimate employment policy” or like aim; the list of examples given in the Directive is not an exhaustive one, given the use of the word “including”; nor should it be taken that where a justification falls under one of the headings in Article 6(1) that it will not be scrutinised as to whether the distinction in question is objectively justified. Such an interpretation is supported by the Opinion of Advocate General Sharpton in Birgit Bartsch v. Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH (delivered on 22nd May 2008), para. 110. She states at para. 112 of her Opinion that:
“The only logical conclusion to be drawn is that Directive 2000/78 expressly permits particular kinds of differential treatment based directly on grounds of age, provided that they are ‘objectively and reasonably justified by a legitimate aim … and if the means of achieving that aim are appropriate and necessary’. This analysis of the text is borne out by the Court’s judgment in Palacios de la Villa…”
92. In Palacios the ECJ considered whether the national law in that case had a “legitimate aim”. The Court held, at para. 62, that:
“[P]laced in its context, the … provision was aimed at regulating the national labour market, in particular, for the purposes of checking unemployment.”
The respondents argued in the circumstances that the legislation, which allowed for compulsory retirement ages in accordance with collective agreements, had the legitimate aim of “regulating the national labour market, in particular, for the purposes of checking unemployment”. The court accepted this as a legitimate aim, stating that:
“64. The legitimacy of such an aim of public interest cannot reasonably be called into question, since unemployment policy and labour market trends are among the objectives expressly laid down in the first subparagraph of Article 6(1) of Directive 2000/78 and, in accordance with the first indent of the first paragraph of Article 2 EU and Article 2 EC, the promotion of a high level of employment is one of the ends pursued both by the European Union and the European Community.
65. Furthermore, the Court has already held that encouragement of recruitment undoubtedly constitutes a legitimate aim of social policy (see, in particular, Case C-208/05 [2007] ECR I-181, paragraph 39) and that assessment must evidently apply to instruments of national employment policy designed to improve opportunities for entering the labour market for certain categories of workers.”
93. The Commission paper, in considering what constitute legitimate aims, noted that concern had been expressed by Eurolink Age and other NGOs that the very broad and vague wording of the examples might encourage a loose approach. However, the Commission paper states that the examples should only be seen as broad guidelines; it then cites examples of legitimate aims considered in a UK Department of Trade and Industry Consultation Paper, “Equality and Diversity: Age Matters” (London: DTI, 2003). These included:
“a. health, welfare and safety – for example, for the protection of younger workers;
b. facilitation of employment planning – for example, where a business has a number of people approaching retirement age at the same time;
c. the particular training requirements of the post in question – for example, air traffic controllers…
d. encouraging and rewarding loyalty;
e. the need for a reasonable period of employment before retirement – for example, an employer who has exceptionally justified a retirement age of 65 might decline to employ someone a few months short of 65 if … the applicant would not be sufficiently productive in that time.”
94. In the context of considering the legitimate aims advanced, the paper further notes that it is obviously necessary for the person advancing that aim to have a subjective belief as to its validity. Furthermore:
“[T]he less pressing and immediate the legitimate aim concerned, the greater may be the degree of scrutiny of the objective justification of an age distinction: a discriminatory scheme justified on public safety grounds will generally require less clear-cut justification than one based on economic reasons.”
95. In this case the relevant justifications would be that the alteration in the retirement ages was required to:
i) maintain motivation within the force and senior ranks, by preventing the blocking of the Commissioner ranks;
ii) bring the retirement age of the Assistant / Deputy Commissioners in line with that of the Commissioner and the Superintendents ranks;
iii) create a competitive pool of candidates from which the Commissioner
might be chosen;
iv) implement the new regional command structure, with a greater operational focus.
96. Before continuing I would note that it is firmly established that where justification is sought, and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim.
97. The efficient and effective running of the Gardaí is certainly an “aim of public interest”, as put in Palacios. It is likely that such an aim would fall under the heading of “employment policy”. However the required extent that such a policy would need to become one of the inclusive examples under Article 6(1) is unclear. Nonetheless, I am content to conclude that the justifications advanced in this case constitute a prima facie legitimate aim, namely “employment policy” within the Gardaí.
98. As noted above, even where a measure is shown to have been enacted with a legitimate aim it must still show itself to be appropriate and necessary. This is the test of proportionality; the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way.
99. The ECJ considered Article 6(1) in Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. That case concerned a German law which permitted employers to conclude, without restriction, fixed-term contracts of employment with workers over the age of 52. The Court noted the purpose of the legislation as being to promote the vocational integration of unemployed older workers, insofar as they encounter considerable difficulty in finding work. Such public interest objectives could not be doubted; it was an objective and reasonable justification for different treatment on the ground of age. Nonetheless, it still fell to be considered whether the means to achieve that legitimate objective were appropriate and necessary, noting that Member States enjoy a broad discretion in this regard. The Court, taking a pragmatic view, stated that in reality the provision had lead to a situation in which all workers who had reached the age of 52, “without distinction, whether they were employed before the contract concluded and whatever the duration of any period of unemployment” would be offered fixed-term contracts, which could be renewed indefinitely. This meant that a significant body of workers, determined solely on the basis of age, were in danger of being excluded from the benefit of stable employment. The Court thus concluded that:
“In so far as such legislation takes the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is objectively necessary to the attainment of the objective … it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued. Observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as is possible, the requirements of the principle of equal treatment with those of the aim pursued (see, to that effect, Case C-476/99 Lommers [2002] ECR I-2891, paragraph 39). Such national legislation cannot, therefore, be justified under Article 6(1) of Directive 2000/78.”
100. The question of whether a measure which was objectively justified was nevertheless implemented by means which were appropriate and necessary, that is proportionate, under Article 6(1), was also considered in a decision of the U.K. Employment Tribunal: Hampton v. Lord Chancellor and Ministry of Justice (Case No.: 2300835/2007). It that case the claimant held the judicial office of Recorder. Service as a Recorder is generally regarded as a prerequisite for appointment to a salaried position on the Circuit or High Court bench. In 1998 the retirement age for Recorders was reduced from 70 to 65. In 2000 a standard retirement age was introduced for all new judicial appointments, however in 2002 this was reversed and the age was increased back to 70 for all fee paid judicial office holders, except for Recorders and Deputy District and High Court Judges, since the lower retirement age had affected the operational viability of certain Tribunals. The applicant complained that the different retirement ages between Recorders and other judicial office holders was discriminatory, although he accepted that some retirement age needed to be set so as to ensure judicial independence. The Ministry having conceded that the applicant had been subjected to less favourable treatment on the ground of age, the sole issue was thus whether the policy of retiring all Recorders at 65 could be objectively justified.
101. The Ministry argued that the retention of Recorders from age 65 to 70, who would not be in the pool for appointment to full-time judicial office, prevented the recruitment of younger recorder who would be in such a pool. Furthermore it argued that the presence of Recorders over the age of 65 would reduce the availability of more challenging cases, and thus necessary experience, for those who would be in the pool for next appointment. The Tribunal, however, rejected these arguments. It found that there was no evidence to support the assumption that all Recorders over the age of 65 would remain in the post until 70. Nor did it consider that the reduction in the number of younger Recorders, which would result from increasing the retirement age to 70, would have any effect on the production of suitable candidates for judicial appointment. It also felt that, contrary to the submissions of the Ministry, a reduction in the number of vacancies would increase competition and in fact lead to an increase in the quality of those appointed. Further, it noted that steps could be taken to ensure that those who had the potential to be promoted to a judicial post were allocated the right types of cases so as to gain the appropriate experience. For these reasons, the Tribunal did not accept that the policy of retiring Records at 65 was a proportionate means of achieving the admittedly legitimate aim of ensuring a reasonable flow of new appointments into the judiciary.
102. Both Mangold and Hampton in my view are clearly distinguishable from the present case. In Mangold the provisions in question had a wide ranging reach, affecting every person over the age of 52. It was clear that in practice this was causing indirect discrimination against this age group. In contrast the provisions here are of a specific and defined character. Hampton, similarly, is distinguishable. It was clear in Hampton that there was a very large pool of Recorders, well over a thousand, from whom Judges could be appointed. The Tribunal thus felt that there was no real evidence that keeping the age at 65 could be justified on this ground. Nor could it be proportionate where, in the circumstances, all of the problems identified by the State could have been overcome by much less invasive methods than having a compulsory retirement age. Again in the instant case there are but a dozen persons in the Assistant and Deputy Commissioner ranks from whom a Commissioner might be chosen. Even if it was to be accepted, as was advanced by the Plaintiff, that a Commissioner could be appointed from the Chief Superintendent ranks, the pool would still not be anywhere near the size of the one considered in Hampton. These two cases are therefore readily distinguishable from the present situation. Finally I should say that the possibility of an appointment from the Chief Superintendent rank does not in any way diminish the importance of having a quota available at the higher rank. It is having a choice from the most senior group that is the point.
103. The means in this case were the introduction of a Regulation which reduced the age of retirement for Assistant Commissioners from 65 to 60. However this reduction is still subject to regulation 6(b) of the 1951 Regulations which allows the extension of a member’s service for a period of up to five years where the Commissioner is satisfied that, because of some special qualification or experience, it is in the interests of the efficiency of An Garda Síochána to do so. Mr. Donnellan did in fact make such a request to the Commissioner for such an extension, but this in fact was refused.
104. The fact that individual assessment is possible is an important consideration. Where there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics. As stated in the Commission paper:
“A person’s health, maturity, ability to learn, experience, skill, willingness to work may often be ascertained by normal vetting procedures, individual assessments and good job specifications. A 50-year old secretary, for example, could be assumed to have certain types of experience not held by a 20-year old, but this alone should not justify automatic selection for the older applicant without an assessment of the merit of the 20-year old. The use of maximum entry ages for the police in many member states may for example be very questionable. In a Dutch case, a number of referees successfully challenged the age limits of 47 and 49 used by the Royal Dutch Football Association (KNVB) on the basis that individual assessment of each referee’s capability for the job of referee was entirely possible, and it was a breach of proportionality to set a fixed age limit.
[Further,] [a]ge limits may be necessary in particular industries to ensure a ‘turnover’ of workers and to encourage recruits into a profession: the Dutch Supreme Court has upheld the imposition of a compulsory retirement age upon airline pilots for this reason… [H]owever, the use of age limits that intended to simply shift the age profile of the company or which unreasonably narrow the age spread of new recruits may face great difficulties in showing objective justification.”
105. The Dutch Supreme Court case referred to as 16 pilots v. Martinaur Holland NV and the Association of Dutch Pilots, Hoge Raad [Dutch Supreme Court] (8th October 2004 – Nr. C03/077HR) should be noted. That case was taken by 16 pilots against Martinair Holland NV and the VNV (Dutch Airlines Association). A compulsory retirement age of 56 had been set for pilots. The court noted that in the 1970s the original justification for this would have related to traffic safety and health, since in the past flying could take a high physical toll on pilots. However, nowadays the primary purpose of the measure was to facilitate and to enhance a regular and predictable flow of pilots within the corps. Both the Cantonal and Supreme Court ruled that this rationale formed an objective justification. It should be observed that this conclusion was influenced by the fact that a pilot’s career was structured in such a manner that it was possible to reach the highest seniority before retirement.
International Jurisprudence:
106. Some flavour of the international jurisprudence relative to the special position of age as a ground for discrimination was also offered.
107. Attention was drawn by the Supreme Court of the U.S. in Massachusetts Board of Retirement et al. v. Murgia 427 U.S. 307 (1975) to the fact that:
“While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a ‘history of unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.”
Thus the U.S. Supreme Court felt that the aged did not constitute a “suspect class” for the purposes of equal protection. Nor did they constitute a:
“‘discrete and insular’ group… in need of ‘extraordinary protection from the majoritarian political process.’ Instead, it marks a stage that each of us will reach if we live out our normal span.”
108. The court, in that case, went on to consider the rational-basis of a mandatory retirement age of 50 for uniformed state police officers, whose functions were to protect persons and property and to maintain law and order. They were in effect the operational face of the force. The court felt that the mandatory retirement of officers rationally sought to protect the public by assuring “physical preparedness” of its uniformed officers. However, Marshall J. dissented from this position strongly criticising the “two-tier” test for equal protection which looked at law with “strict scrutiny and mere rationality” since it did not realistically represent the way the court did or should go about the consideration of equal protection. He contended that the use of “strict scrutiny” in relation to “suspect classes” results in almost all statutes subject to such scrutiny being struck down, and thus leads to a great reluctance on the part of the court to extend the categories of “suspect classes”. However, he says, this results in too much legislation being dropped to the bottom tier and being measured by mere rationality, which leads to the opposite result of almost all legislation being upheld. He strongly dissented to the court’s conclusion in the above case stating:
“There is simply no reason why a statute that tells able-bodied police officers, ready and willing to work, that they no longer have the right to earn a living in their chosen profession merely because they are 50 years old should be judged on the same minimal standards of rationality that we use to test economic legislation that discriminates against business interests.”
109. The U.S. jurisprudence on issues of equality is, I feel, of limited persuasiveness. The courts in the U.S. are very slow to interfere with legislative intent. Further, their considerations are based on far broader, amorphous considerations of a general right to equality before the law, whereas in this case we are looking at a positive piece of law, Directive 2000/78/EC, which lays out specifically what is required of legislation which purports to treat specific groups of people in different ways; it must be objectively justified and proportionate. Such a proportionality argument is peculiarly European; no such consideration is given to the idea that legislation might achieve a similar objective in a different and less restrictive way in the U.S. case law.
110. In the more recent case of Kimel et al. v. Florida Board of Regents et al. 528 U.S. 62 (2000) the court held that:
“States may discriminate on the basis of age without offending the Federal Constitution’s Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest; the rationality commanded by the Amendment’s equal protection clause does not require states to match age distinctions and the legitimate interests they serve with razorlike precision; under the Amendment, a state may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the state’s legitimate interest, as (1) the Constitution does not preclude reliance on such generalisations, and (2) that age proves to be an inaccurate proxy in any individual case is irrelevant…”
111. As discussed above, this is wholly inconsistent with the line taken by the ECJ. Reliance on age-proxies must be proportionate, and even where there are legitimate aims for differences in treatment, such aims must still be necessary and appropriate.
112. The U.S. treatment of legitimate aims would also not be sufficient under the Directive. The Court in Kimel also held that:
“When conducting rational basis review under the equal protection clause the Federal Constitution’s Fourteenth Amendment, the United States Supreme Court will not overturn government actions unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the actions were irrational; in contrast, when a state discriminates on the basis of race or gender, the court requires a tighter fit between the discriminatory means and the legitimate ends they serve; because an age classification is presumptively rational, the individual challenging its constitutionality bears the burden of proving that the facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision-maker.”
113. Under the Directive, the burden of proof, once a prima facie case of direct discrimination is made out, is borne by the respondent who must justify the distinction. This burden equally applies to age discrimination as it does to race, gender and disability. Although there is a difference between different types of discrimination, such will go towards the justifiability of the discrimination; where it will be easier to justify differences in treatment on grounds of age, since these are inherently more likely to have a rational basis, compared, for example, to race. The Directive in no way states that discrimination on the ground of age is presumptively rational.
114. Although not as extreme as the U.S. case law, the jurisprudence from Canada and Australia are equally distinguishable on the ground that they are considering constitutional rights, rather than specific legislative protection, and thus the question of discrimination on the grounds of age is considered in a more generalised way.
115. Notwithstanding this however, it is worth noting in the Canadian context that s. 32(1) of the Canadian Charter of Rights and Freedoms confines the Charter’s operation to government actions. The Canadian Supreme Court in McKinney v. University of Guelph [1990] 3 SCR 229 found that it is deliberately so confined, and its purpose is as a check against government powers over the individual, and not as a tool to be used against private individuals. This is not the case with equal treatment under the Directive; the private sector is specifically included under Article 3(1).
116. There are two decisions from the U.K. which should also be mentioned: R (Carson) v. Work and Pensions Secretary and R (Reynolds) v. Work and Pensions Secretary, both reported at [2006] 1 AC 173. The facts of Carson were that the applicant was a pensioner living in South Africa. She had paid all the necessary contributions, continuing to make voluntary payments after emigration. When she turned sixty, she started to receive the same pension she would have received if she had been living in the United Kingdom. On 9th April 2001 the basic pension for United Kingdom pensioners was increased to reflect the rise in the United Kingdom cost of living. However pensioners ordinarily resident abroad are not entitled to these annual increases. The applicant thus continued to receive the basic pension. Nonetheless, despite acknowledging that she was being treated in a different way to those ordinarily resident, the Court found that she was in a “materially and relevantly” different position to a person resident in the UK. Once such a difference was apparent Parliament were entitled to treat such a person differently; indeed the Court noted it could have legitimately refused to pay her any pension at all. This particular case is, however, of limited relevance. It is clear that Ms. Carson was not being discriminated against on the ground of age, rather because of her status as a non-resident, or expatriate.
117. The Second case is more on point. The applicant, Ms. Reynolds, complained that because she was under the age of 25, she was paid jobseeker’s allowance and then income support at the reduced rate of £41.35 a week instead of the full rate of £52.20. She argued that Article 14 of the ECHR entitles her to be treated equally with people over the age of 25. Once again the Court found that since there were material differences between older and younger persons, in particular the expenses of older people were necessarily higher, that was sufficient to justify the difference in treatment.
118. In any event, the cases in Carson and Reynolds were not considered under the Directive, but under the UK Human Rights Act 1998. They are thus of limited persuasiveness. Before leaving them, however, I would like to comment on the following passages from the speech of Lord Walker. At p. 193 of the report he said:
“Age is a personal characteristic, but it is different in kind from other personal characteristics. Every human being starts life as a tiny infant, and none of us can do anything to stop the passage of the years. As the High Court of Australia said (in a different context) in Stingel v. The Queen (1990) 171 CLR 312, 330: ‘the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness.’”
This continues;
“There is nothing intrinsically demeaning about age. It may be disheartening for a man to be told that he cannot continue in his chosen job after 50 and it is certainly demeaning for a woman, air hostess, to be told that she cannot continue as a cabin crew member after the age of 40.”
119. There is no doubt but that age has been treated in a way different from other discriminatory grounds. This has been acknowledged in several Commission papers, as it has been in many judicial decisions. However I would be hesitant to come to the view that age, as a matter of policy or common acceptability, should be relegated to a form of doubtful importance within the overall family of discriminatory grounds. Whilst I acknowledge that the contrary view has strong support, nonetheless I think that context is critical when evaluating this issue. By context I mean the type of discrimination involved, the broad and historical societal background in which it takes place, the cultural and ethnic history of the relevant area, the protective provisions of, and access to, the legal system etc. As appears from para. 7 of the Massachusetts case, the reasons why certain discriminatory grounds have been elevated into a suspect class are because they were:
“Saddled with such disabilities or subjected to such a history of purposeful, unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the political process.”
If one was asked to provide a comparable context in this jurisdiction, I firmly believe that in respect of most if not all of the recognised discriminatory grounds, the resulting product in its composition would be very different to that which I have just quoted. So for my part, I would not be an enthusiast of compartmentalising grounds of discrimination, some of which may attract greater scrutiny than others. For all individuals who suffer discrimination, a thorough evaluation and, if necessary, a clear vindication, by appropriate measures is required.
120. Thus, for the above reasons, the international case law on age discrimination is of limited persuasiveness or application in the context of age discrimination in employment under the Directive.
Conclusions: The Directive:
121. With regards to compliance with Directive 2000/78/EC, firstly although the Regulation, by setting up a system of mandatory retirement, is prima facie direct discrimination, it can be said that the overall aim of the scheme is a legitimate one. In particular, given the peculiar structure of An Garda Síochána (paras. 34, 50 and others supra.), the aims of ensuring motivation and dynamism through increased prospect of promotion, the creation of the most useful pool of candidates possible for appointment to the position of Commissioner, are both rational and legitimate. These rationales were considered and outlined in more detail in relation to reasonableness, but my comments in relation thereto apply equally to this aspect of the challenge, being whether or not they are rational and legitimate in the context of the Directive. I thus note that the justifications advanced are sufficient to overcome the rationality challenge.
122. Secondly, nonetheless, in the context of the Directive these aims must be proportionate. As stated an important consideration in considering whether a measure will be proportionate is whether individual assessment would be possible in a given case, such that using an age-proxy would not be legitimate. In this regard I would place particular emphasis on the ability of, inter alia, the Assistant Commissioner to request an extension of his tenure in office. Such a request under Regulation 6(b) of the 1951 Regulations must I feel be viewed as a form of individual assessment. It must be presumed that when considering such a request the Minister will take into account the individual circumstances of the petitioner, for example his/her service record and skill set, as well as the needs of the force as a whole. The retirement age of 60, set by the 1996 Regulations, may therefore be seen as an activator for such a request, and consequently this type of individual assessment; at age 60, a person may apply to the Commissioner for a continuance, and the Commissioner should consider each application on an individual and case-by-case basis. In effect, despite the Plaintiff’s accumulated skill, his desire to continue and his grievance at the force losing his 40 years experience, the Commissioner did not consider these to be sufficient to ground an extension. Although a continuation was refused in this case, the procedure under Regulation 6(b) of the 1951 regulation serves to temper the severity of what would otherwise be an absolute retirement age; thereby rendering it, in my opinion, proportionate. It cannot therefore be entirely equated with a blanket policy type position.
123. Furthermore the structure of a Garda’s career is such that he can attain the highest office within his term of service and hold that position for a reasonable period. Moreover, and I know of no other employment position where this is possible, a member can retire after 30 years of service with a full pension at age 50. Thus, in addition to the financial package, which in this case is significant (see para. 9 supra.), a member’s age of retirement is such that the prospect of a second career is very much open.
124. Counsel for the Plaintiff put forward the suggestion that a fixed term contract might serve better for the rank of Assistant Commissioner, and that this would alleviate the problem of “blocking”, caused by Assistant Commissioners holding their position for upwards of ten years. Although this might be a more preferable option it is not for this Court to determine the employment policy of the Government in this regard, and as such it is a matter for the Minister and An Garda Síochána to decide. I thus do not propose to otherwise comment in this regard. I have thus come to the conclusion that the 1996 Regulations are proportionate.
125. I should also say that although much reference was made to the position of the Equality Act 2004 and it was suggested, albeit somewhat indirectly or even opaquely, that that Act in itself should be a yardstick against which the Regulation should be measured, this point was never fully explored and its correct place in contextual terms was never finalised. I therefore do not intend to deal with this matter individually. Instead I would merely note that any conclusions in relation to the Directive apply mutatis mutandis to any question of whether the 1996 Regulations are also compatible with the 2004 Act.
126. Before finishing, I must say that comments as to the legitimacy of the measures utilised in this case, as is usual, turn wholly on the specific facts of the case and such comments should not be taken as supporting the general legitimacy of all mandatory retirement or appointment ages. As noted, national measures relating to compulsory retirement ages are not excluded from consideration under Directive 2000/78/EC. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.
127. For the above-cited reasons I therefore dismiss the Plaintiff’s case.”
Mark Kehoe v. Convertec Ltd
DEC-E/2001/034
“Facts
The complainant was recruited by the respondent on probation for a period of six months. The complainant alleged that he had informed the respondent of his disability at the job interview. The respondent denied this. Although the complainant started off well, his performance levels did not reach acceptable levels for employees without a disability. At meetings between the complainant and the company to discuss his poor performance, the comlainant explained that his performance was affected by his disability. The complainant was subsequently dismissed for poor performance. The complainant alleged that the respondent expected a higher level of performance from him where there was no set performance levels in the respondent company and in circumstances where the respondent was aware of the disability of the complainant.
The dispute was referred to the Director of Equality Investigations on the basis that the respondent discriminated against him on the disabililty ground in contravention of section 6(2)(g) and section 8 of the Employment Equality Act 1998 .
The Equality Officer concluded:
(1) The respondent had discriminated against the claimant in terms of section 6(2)(g) and of section 8 of the Employment Equality Act 1998 by failing to examine the options available to accommodate the needs of the complainant given his disability.
(2) This decision covered the period up to, but not including, the dismissal.
……………….
Conclusions of the Equality Officer
This claim concerns whether or not the company discriminated against the complainant in terms of section 6(2)(g) of the Employment Equality Act 1998 and in contravention of section 8 of that Act by subjecting him to discriminatory treatment on account of his disability. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
The complainant was employed by the respondent company as a general operative following an interview which was held on September 26, 2000. He commenced employment on October 11, 2000 on the basis that the first six months were on probation. It is the complainant’s contention that he informed the company at interview that he had a disability and he produced documentation in that regard but the company manager who carried out the interview did not look at this documentation. According to the complainant he also informed the receptionist of his disability when he handed in a ‘Back to Work’ form some days before he commenced employment. The complainant also says that he informed his supervisor of his disability on appointment. For its part the company denies that the complainant informed the company manager of his disability at the interview or, indeed, produced documentation in that regard. The company also denies that the complainant informed the receptionist and his supervisor of his disability. It is the company’s contention that the complainant’s supervisor spoke to him about his poor performance on November 29, 2000 and in response the complainant informed her that ‘he was a slow learner, he had a slow hand on account of his disability’ . According to the company the complainant did not tell his supervisor the nature of his disability. At the hearing of this claim the company indicated that it was not because of the complainant’s disability but because of his poor performance that it had to eventually dismiss the complainant who was still on probation. The company notes that the complainant did perform well when initially employed but that his performance deteriorated through time instead of improving as would be expected.
In this claim there is a dispute between the parties as to the facts. It is unclear when the company became aware of the complainant’s disability but the company does accept that it was aware that the complainant had a disability on November 29, 2000. According to the company it was not aware of the nature of the disability at that time, but the company did know that the complainant’s disability adversely affected his hand. It is irrelevant when the company became aware of the fact that the complainant had a disability. What is important is the fact that the company did become aware of the complainant’s disability. Consequently what needs to be examined is the way the company treated the complainant after it became aware of his disability.
The company says that the complainant’s performance was of concern not his disability. In this regard the company noted that it had in its employment a number of people with disabilities, e.g. epilepsy, diabetes, deaf and dumb, etc. In relation to the complainant’s performance the company produced a printout showing the complainant’s efficiency level for each week of his employment. Efficiency levels were determined by the length of time taken to complete tasks. A standard time was allocated for each task and employees knew the length of time which it should take to complete the various tasks. Completion of a task within the time allocated for that task resulted in a 100% efficiency level. Completion of a task in a longer time period than the time allocated for the task resulted in an efficiency level which was lower than 100%. In the complainant’s first week of employment his efficiency level was at 41% which, according to the company, would be acceptable for a new employee to the company. His efficiency level rose to 54% in his third week of employment but fell subsequently to a low of almost 22% at the end of the year (2000) and rose again somewhat in the new year. The complainant never exceeded an efficiency level of 54% (which he attained in week three of his employment). It is the complainant’s submission that the adverse affect of his disability on his hand meant that his hand would get tired and hence he was unable to function at a consistently fast level. The union, on behalf of the complainant, argued that the company failed to acknowledge the complainant’s disability as it had the same expectations of him, in terms of performance, as it had of any other employee without a disability. It is noteworthy that the company, in employing the complainant, was satisfied that he was qualified to do the job.
I note that the company held a number of meetings with the complainant to discuss his poor performance with him. It is noteworthy that it was during the latter half of his employment with the company (i.e. when these meetings were taking place) that the complainant’s performance levels were at their lowest. It could be argued that the pressure on the complainant to improve his performance had the effect of adversely impacting on his performance.
At the hearing of this claim the company stated that employees attend the company doctor for a medical examination within their first six months of employment. For the duration of the complainant’s employment with the company I note that he had not attended the company doctor for his medical. While the company says that the decision to dismiss the complainant was based on his poor performance it must be noted that the complainant’s poor performance resulted from his disability. On becoming aware of his disability the company could have had the complainant attend for a medical. I find, therefore, that the company made no effort to establish the impact of the complainant’s disability on his performance.
Under section 6(1) of the Employment Equality Act 1998 discrimination shall be taken to occur where:
one person is treated less favourably than another is, has been or would be treated.
Section 6(2) sets out the discriminatory grounds and section 6(2)(g) specifically provides as follows:
that one is a person with a disability and the other either is not or is a person with a different disability.
In this case the complainant had a disability which adversely affected the movement in his hand unlike his co-workers who did not suffer this disability.
Section 16 of the Employment Equality Act 1998 sets out the obligations of employers. Section 16(1) states, as follows:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(a) will not undertake … the duties attached to that position or will not accept … the conditions under which those duties are, or may be required to be, performed, or
(b) is not … fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
The complainant, in this case, demonstrated both his willingness and his ability to undertake the duties of the position. He had the necessary qualifications and he undertook the tasks assigned to him. However one of the conditions attaching to these duties was that he perform the tasks with an 80% efficiency level. The complainant, because of his disability, was unable to meet this condition.
Section 16(3) of the Employment Equality Act 1998 provides as follows:
(a) … a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
The complainant did not require any special facilities, in terms of equipment, to carry out the job. However, he was unable to work to the same speed as his co-workers, who did not have his disability.
The company submitted a detailed daily breakdown of the length of time taken by the complainant to complete each task undertaken. According to the company it is clear, from this detailed information, that the complainant had the ability to complete tasks within the specified time allocated to these tasks and in some instances he had the tasks completed in a shorter time than the time specified. I have examined these records and note that the complainant had an efficiency level (i.e. the completion of tasks in the time specified) in excess of 100% on four occasions in a 15-week period during which time he had completed 228 tasks in total. While it took the complainant longer than the specified time to complete the remaining 224 tasks his efficiency level for 50 of the tasks was between 50% and 100%. Hence for the remaining 174 tasks the complainant recorded an efficiency level under 50%. It is also worth noting that his efficiency level disimproved during his latter weeks with the company which was during the period when his performance was being questioned by the company.
At the hearing of this claim the complainant pointed out that the variations in the time taken by him to complete tasks was a factor which could be attributed to his disability. On account of the problem with his hand it would get tired and hence it would take him longer than normal to complete a task. The company stated, at the hearing, that staff were expected to have an overall 80% performance potential. The union, on behalf of the complainant, stated that an overall performance potential of 75% was laid down as standard by the ILO. Based on the details of the complainant’s performance I am satisfied that he was achieving half the performance potential on average of other co-workers who did not have his disability.
While the Employment Equality Act 1998 does not require an employer to employ any person who is not competent to carry out the duties attached to the position having regard to the conditions attaching to that position (section 16(1) refers) an employer must have regard to section 16(3) of the Act. Under this section an employer must do all that is reasonable to accommodate a person with a disability unless such a provision would give rise to a cost, other than a nominal cost, to the employer. I find that the company, in this claim, could have arranged for the complainant to attend a medical examination for the purposes of ascertaining what he could do consistent with his disability. In terms of reasonable accommodation the company could also have considered the provisions of section 35(1) of the Employment Equality Act 1998 and employed the complainant on the basis of his lower rate performance and it could have paid him accordingly.
Decision
In view of the foregoing I find that Convertec Ltd discriminated against Mr Mark Kehoe in terms of section 6(2)(g) of the Employment Equality Act 1998 and in contravention of that Act by failing to examine the options available to accommodate the needs of the complainant given his disability. This decision covers the period up to, but not including, the dismissal.
In accordance with section 82 of the Employment Equality Act 1998 I hereby order the respondent to pay Mr Kehoe the sum of £8,000 by way of compensation for the stress suffered as a result of the discrimination.”
A Complainant v An Employer
DEC – E2008 – 068
“1. Background
The complainant referred a claim to the Director of the Equality Tribunal, received on 30th March 2006, under the Employment Equality Acts 1998-2004 on the disability ground. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, on 18th April 2008 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a hearing was held on 9th July 2008. Information submitted following the hearing was received on 15th September 2008 from the respondent. This was copied to the complainant who was afforded an opportunity to respond.
2. Summary of the Complainant’s case
In January 2006 the complainant saw an advertisement inviting applications for the position of Graphic Designer (Part-Time) and he lodged an application on 1st February 2006. He saw a call coming in on his phone on 7th February and as he is deaf he texted the caller asking them to text him with the content of their message. This they did, indicating that he was requested to attend for interview the next day with the respondent company at 11:30am. The complainant indicated that he would attend the interview and contacted the Cork Deaf Society, Mr. P, attempting to organize an interpreter for the interview. This did not prove possible and Mr. P called the respondent to discuss matters. It became apparent that the respondent intended to hold the interviews on the following day only. As an interpreter was not available Mr. P indicated that the complainant would not attend for interview. Subsequently, the complainant suggested to Mr. P that perhaps the interview could take place with the aid of a computer. This was put to the respondent who replied that it would not be possible as the interviewer was not computer literate. The interview slot originally assigned to the complainant was reassigned to another applicant. While Mr. P felt that things were still open at that stage he was also clear that the complainant had missed the interviews.
3. Summary of the Respondent’s Case
Mr. A was the interviewer for the respondent company. At the relevant time of year he is normally busy attending trade shows in Asia. The interview date was selected as he would be in Ireland on that date. He selected a number of CVs that looked promising and asked his brother Mr. B to make the arrangements for the interviews. The vacancy had arisen as a result of talks with another business when they decided to create the post and share the cost between the businesses. At that time neither Mr. A or Mr. B were capable of undertaking an interview by computer. The complainant was known to Mr. B as a result of a delivery to the complainant’s home some years previously. While Mr. P indicated, at the hearing, that in his opinion the matter was somehow still open Mr. B said that they made it clear that the interviews were only available on one day. The respondent argued that as the complainant was known to Mr. B and he was still offered an interview there can be no suggestion that he was denied an interview because he was deaf. The claim is therefore misconceived. If however, the claim is well founded any breach of the Act can not be considered a serious matter given the circumstances because this is a small company and the matter is trivial in the extreme. The matter concerning the use of a keyboard/computer is something the Tribunal need not be concerned with. The interviews had to be held that day and it is difficult to identify other special treatments that might have been offered in terms of Section 16(3) dealing with reasonable accommodation.
4. Conclusions of the Equality Officer
It is agreed that the complainant applied to the respondent for the post, was called for interview the day before they were due to be held, and that his attendance at the interview was pointless without the aid of a sign language interpreter. It is also agreed that the respondent was not prepared to defer the interview and that they were unable to conduct the interview with the aid of computers. What has to be decided is whether or not the complainant’s disability impacted in any way on the interview process and if so, whether
· This amounts to discrimination on the disability ground in terms of Sections 6, and 8 of the Act,
· The respondent was required by statute to provide reasonable accommodation,
· Reasonable accommodation was provided.
In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
Section 85A of the Employment Equality Acts provides as follows:
Where in any proceedings facts are established by or on behalf of the complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
This requires the complainant in the first instance to establish facts from which it can be inferred that he was treated less favourably because of his disability. If this is achieved the burden shifts to the respondent to rebut the presumption of discrimination raised.
Section 8 states :
…………..
The respondent made arrangements for the interviews to take place on one assigned day. All applicants selected for interview were required to attend for interview on that day. The complainant was unable to attend for the interview as no sign language interpreter was available. Attendance without an interpreter would have been unproductive and the interview could not have proceeded. The respondent applied the same requirement to all interviewees, that is all interviewees were required to attend on the same day at very short notice. However, the complainant was in a different situation in comparison to the other interviewees as he required an interpreter to proceed with his interview. This requirement is directly linked to the complainant’s disability The Labour Court has addressed this issue as follows:
Further, it is trite law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations (see Case C-279/93 Finanzamt Koln-Altstadt v Schumacker [1995] E.C.R. I-225, and Campbell Catering Ltd. V Aderoke Rasaq [2004] 15 ELR 310). [1]
The matter of providing for a delay in an interview process for a person with a disability was also addressed in the same Labour Court Determination as follows:
“However, where, as in the instant case, a disabled candidate could attend if a reasonable deferment of the interview were granted, a refusal to grant such a deferment must constitute discrimination.”
In relation to the length of deferment the Court stated :
“The Court does not suggest, nor could it be seriously contended, that an employer must defer the filling of a job indefinitely in order to accommodate a candidate who is ill and unable to attend for interview. Candidates for employment or promotion are generally interviewed within a time frome in which the post must be filled. Candidates with a disability are entitled to no more than that.”
This Determination actually referenced Section 8(8) in relation to a person who was already an employee but I am satisfied that it applies equally to Section 8(5) and in that regard I note the reference to “Candidates for employment or promotion” in the extract above.
The Determination goes on to say that an employer has not fulfilled its duty “by offering a disabled employee an opportunity that is illusory in the circumstances of their disability when a reasonable alternative would be of real utility.” I am satisfied that this also applies to a prospective employee.
I am satisfied that the respondent’s refusal constitutes less favourable treatment when a reasonable deferral would have allowed the complainant to take part in the interview and have a real opportunity to access the employment. This establishes a presumption of discrimination in accordance with Section 85A. I find that the complainant has established a prima facie case of discrimination in terms of Sections 6 and 8(5)(a) on the disability ground.
The respondent was asked at the hearing to produce evidence in support of the contention that the interviewer was out of the country or otherwise unavailable during the period surrounding the interview date. As nothing was received a letter issued to the respondent’t representative on 22nd July clarifying the information required. On 8th September a reminder was issued. A response was received on 15th September 2008 in which it was indicated that the respondent would endeavor to obtain evidence from Aer Lingus but this has not been received. Neither has a contemporaneous diary or any other evidence been presented. In addition, no evidence has been presented in support of the assertion that any delay in the appointment of a person to the post was unacceptable. Therefore, the respondent has presented no supporting evidence to the assertion that the interviews had to be completed on the one day, notice having been given to interviewees the previous day. With regard to such evidence the Labour Court stated:
“Firstly, since the facts to prove an explanation can only be in the possession of the respondent, the Court should expect cogent evidence to discharge the burden of proof (see Barton v Investec Henderson Crosthwaite Securities[2003] IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others IRLR 258).” [2]
In the absence of any such evidence I find that the respondent has failed to rebut the prima facie case of discrimination.
The deferral of the interview, as discussed above, required the employer to passively respond to the situation and do nothing other than allow the complainant time to procure an interpreter. The interview could then have been conducted in the normal way. Caselaw suggests, as above, that this constitutes less favourable treatment in terms of Sections 6 and 8. The use of a computer for communication at an interview, however, would have required an active response from the respondent in that they would have had to conduct the interview in a different way. The requirement to provide treatment that goes beyond what is provided to the majority of people, in order to bring people with disabilities to the same starting line, is normally addressed in terms of Section 16 (3).
Section 16 (as amended) provides that:
……………..
The Equality Act 2004 amended the Employment Equality Act 1998 to implement, inter alia, Directive 2000/78, otherwise known as the Framework Directive. [3] Article 5 of the Framework Directive provides as follows:
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”
The interpretation of national law in the light of EU law was addressed by Hamilton CJ in Nathan v Bailey Gibson [4] as follows:
“It is also well established that national or domestic courts in interpreting a provision of national law designed to implement the provisions of a directive, should interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result envisaged by the directive.”
………
“This Court is in the same position and under the same obligations as any other national court to interpret the provisions of s.29c) and s.3 of the Act, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the directive…..
The European Court of Justice has also addressed the matter in Von Colson and Kamann v Land Nordrhein-Westfalen[5]
“However the member states’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows, that in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive no 76/207 national courts are required to interpret their national law in the light of the wording and purpose of the directive in order to achieve the results referred to in the third paragraph of Article 189.”
As the 2004 amendment of the Act was designed to implement, inter alia, the Framework Directive, it should be interpreted in a manner to achieve the result envisaged by the Directive. I am satisfied that this Article creates an independent requirement to provide reasonable accommodation where it is needed in a particular case. In order to give unfettered effect to Article 5 of the Directive subsection 16(3)(b) of the Acts must be considered to create an independent cause of action without the need for a respondent to rely on the defence in subsection 16(1). I shall apply subsection 16(3)(b) of the Act accordingly.
Section 16(3) has been addressed at length by the Labour Court for example in such cases as An Employer v a Worker (Mr. O), EDA0419, A Government Department and a Worker, EDA0612, and more recently Bus Eireann and Mr. C, EDA0811. However, the cases cited above relate to incidents occurring before the amendment of the Act.
Section 16, as amended, was considered by the Equality Officer in decision DEC-E2006-058. In that case a prospective employee whose vision was impaired attended for interview and asked to do the technical test, which formed an intrinsic part of the selection process, electronically. He was not afforded that opportunity. He also claimed that the interview process was tainted by discrimination. The Equality Officer was not satisfied that the process was so tainted and that part of the claim failed. However, the Equality Officer found that the complainant was not afforded the opportunity to take the test as other candidates were.
“I am satisfied that this failure arose from the complainant’s vision impairment and that he was treated less favourably than the other candidates as a consequence.
……
– the Act places an obligation on the employer to provide reasonable accommodation to prospective employees at recruitment stage unless it gives rise to a disproportionate burden – and it should have made further enquiries as to the complainant’s needs in that regard.
……
the provision of the test in electronic format could not, in any sense, be considered as imposing a disproportionate burden on the respondent and it cannot therefore rely on the defence at section 16(3) of the Acts.”
This decision was appealed to the Labour Court but not in respect of reasonable accommodation. I adopt the Equality Officer’s reasoning in my approach to the instant case.
The complainant initially accepted the interview time allocated to him. He later sought, through his contact, a postponement to facilitate the procurement of the services of an interpreter. This was refused. He then sought, through his contact, permission to do the interview with the aid of a computer. This was also refused. I am satisfied that the respondent did not investigate what this latter request might have entailed or required and refused it out of hand as the interviewer was not computer literate. I find that this was a failure to provide reasonable accommodation in terms of Section 16(3)(b).
I am also satisfied that the respondent cannot rely on the argument that such a facility would have created a disproportionate burden for them. The computer communication could have been as basic or elaborate as they chose, beginning with using a simple MS Word document to type questions and answers or choosing more elaborate communications software. Neither could ensuring the availability of a person with typing skills for the duration of the interview be taken as creating a disproportionate burden on the respondent. I am satisfied that the respondent cannot rely on the defence in subsection 16(3)(c).
Decision DEC-E2008-068
Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant was discriminated against in terms of sections 6 and 8(5) of the Acts on the disability ground, when a deferral of his interview was refused. I find that the respondent failed to provide reasonable accommodation in terms of Section 16(3)(b) to the complainant when they failed to consider or provide the opportunity to undertake the interview with the aid of a computer.
Redress
In accordance with Section 82 (1)(c) I hereby order the respondent to pay the complainant €8000 for the effects of the discrimination.”
X v A Third Level Educational Establishment
EE/2005/409
“1. DISPUTE
1.1 This dispute concerns a claim by Mr X that he was discriminated against by the A Third Level Educational Establishment in relation to the provision of training under Section 12; was subjected to harassment as outlined in Section 14A; and that the respondent failed to provide reasonable accommodation as provided for in Section 16 of the Employment Equality Acts 1998 – 2007 on the grounds of disability in terms of section 6(2) and contrary to section 8 of those Acts.
1.2 The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 22 December 2005 under the Employment Equality Acts 1998 – 2007. On 19 March, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned 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 1998-2008 on which date my investigation commenced. Submissions were sought and received from the parties, and as required by Section 79(1) and as part of my investigation, I proceeded to hearing on 18 September 2008.
2. SUMMARY OF THE COMPLAINANT’S CASE
2.1 The complainant submitted that he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was seven years of age. He received accommodations throughout his educational career in the form of extra time and a quiet room apart to sit examinations. In October 1999 he commenced training as a medical doctor with the respondent.
2.2 The complainant submitted that he revealed his disability to the respondent in Autumn 2002, when he requested reasonable accommodation for written examinations. The complainant stated that he was referred for independent assessment at the behest of the respondent and that his request for accommodation was supported by the nominated doctor.
2.3 The complainant submitted that since his disclosure of his disability, he has been engaged in a long and difficult campaign with the respondent authorities to secure reasonable accommodation to complete his examinations. The complainant submitted that the respondent failed to provide appropriate reasonable accommodation to enable him to complete his examinations.
2.4 The complainant further submitted that he was subjected to incidents of harassment and has met with hostility and resistance from members of the respondent administration and faculty in his efforts to secure reasonable accommodation.
2.5 The complainant submitted that he was prevented from qualifying as a doctor and securing an internship within the usual timescale and that he has been disadvantaged in his career on that account.
2.6 The complainant submitted that the fact that he failed his examinations in the summer of 2005 was as a consequence of a cumulative disadvantage as a result of the discrimination against him on the part of the respondent.
………………….
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. X on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts, whether it harassed him in terms of Section 14 and whether it failed to provide appropriate measures in accordance with Section 16 of those Acts.
4.2 I note from the written submissions made by the respondent prior to the hearing that it accepts that the complainant has a disability, that it further accepts that the course pursued by the complainant constitutes vocational training within the meaning of Section 12 of the Acts, and that the respondent also accepts that the provisions of Section 16 of those Acts places an obligation on the it to take appropriate measures.
4.3 Section 85A of the Employment Equality Acts 1998 to 2008 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 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.
4.4 The complainant has outlined a history of seeking appropriate measures to enable him to complete vocational training in his chosen field. This claim was substantiated by the submissions of the respondent. In 2004, the respondent granted the request and retrospectively granted reasonable accommodation to the complainant for written exams.
4.5 From the submissions made at the oral hearing, the main issue to be resolved centres around the OSCE examinations. This examination consists of two components: the Data OSCE – a predominantly written based component, and the Clinical OSCE – a more practical based component. These components are usually held together and parts of each are interspersed. For marking purposes, the components are marked as one examination. Therefore the entirety of the exam does not amount to a written exam. In 2004 and in the repeat examinations in October 2005 this arrangement remained in place for the holding of this exam. However, in May 2005 the data component and the clinical component were examined separately in order to accommodate the larger numbers sitting the exam. The components were examined on two separate days. Accordingly, the written element was not interspersed with the practical clinical OSCE element. In those circumstances, I find that the data component of the OCSE examination in May 2005, in the format as administered on that occasion, constituted a written examination and that appropriate measures were not provided to the complainant. Accordingly, I find that a prima facie case has been established by the claimant and that the onus has shifted to the respondent to rebut the inference of discrimination raised.
4.6 The respondent relied on its insistence that the data element of the OSCE examination was not a written examination and further submitted that it is obliged to test candidates in a manner that approximates a real world scenario. Having regard to my finding concerning the data component of the OSCE examination, I am satisfied that the refusal to provide appropriate measures in the May 2005 exam amounts to discriminatory treatment.
4.7 The complainant sought appropriate measures for all written examinations, i.e. a quiet room and extra time, including for the October exams. The OSCE examination in October 2005 reverted to the previous format, thereby removing the necessity to provide appropriate measures to the complainant. The complainant was not informed about the format of the OSCE exam until he sat the repeat exam and accordingly I consider the failure to provide appropriate measures continued up to the commencement of the October 2005 round of exams.
4.8 Although the complainant submitted that he was subject to harassment in the manner in which he was treated generally, including the delay in providing appropriate measures to him when he first sought them, I do not find that the this treatment amounts to the definition of harassment as outlined in the Section 14A of the Acts.
4.9 In response to queries regarding the internship, the respondent submitted that it funded the internship in light of the difficulties the complainant would face in obtaining a suitable internship following a November graduation. It was submitted that this was an exceptional measure which would not happen every year. It was agreed by both sides that the funding for this measure amounted to €40 – €50,000.
4.10 The complainant submitted that as the respondent funded his internship, he should be considered an employee of the respondent for the duration of the internship and that under Section 82(4) of the Acts, the maximum amount of redress is equal to 104 times his weekly salary. The respondent in response submitted that although it funded the internship, the employer was the hospital where the internship was served. Details were given that the complainant worked overtime and was paid more than the funding provided by the respondent. Having considered the submissions from both parties on the application of Section 82(4) of the Acts, I find that the complainant was not an employee of the respondent during his internship and accordingly the limit of €12,697.38 provided for in Section 82(4) applies in this matter.
4.11 I note from the respondent’s submissions that it appointed an Access Officer in October 2005 and that it introduced, inter alia, written policies covering disability and the right to the provision of appropriate measures.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the respondent discriminated against Mr. X on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts and that it failed to provide reasonable measures as provided for in Section 16 of the Acts.
5.2 Having regard to the foregoing, I award the complainant €1,000 by way of compensation for the discrimination suffered.”
A Complainant v A Health Board
DEC-E2004-010
“1.1 This dispute concerns a claim by a complainant that he was discriminated against by a health board on the ground of race, contrary to the provisions of section 8 of the Employment Equality Act, 1998, when he was unsuccessful at an interview for a permanent Team Leader post. He also claimed that he had been harassed on the race ground, contrary to section 32 of the Act, and that he was victimised by the respondent, contrary to section 74. As some matters of a sensitive nature arose in the course of this investigation, this decision does not contain any details which would identify the parties.
2. SUMMARY OF THE COMPLAINANT’S CASE
2.1 The complainant, who is British, holds a Master’s Degree in Social Work and has four years’ post-qualification experience in social work. In January 2000 he obtained a temporary position as a child protection social worker with the respondent Health Board. He claimed that he was subjected to inappropriate remarks from a Senior Social Worker and his Team Leader about his background, that his nationality was a factor in his failure to be appointed to a permanent Team Leader post, that his contract was prematurely terminated in August 2000 because of bias against him and that he was victimised by unsubstantiated allegations of professional misconduct made against him to frustrate an internal investigation of his claims of discrimination.
2.2 The complainant said that in February 2000 he approached the Senior Social Worker regarding concerns he had with a client assigned to him. The client required supervision of his visits with his children, and his extradition was being sought by UK police in connection with offences against children. The complainant had been warned that he was a predatory paedophile and dangerous, and he was concerned when he discovered the client had moved to the small town in which the complainant and his family lived. The complainant asked that another colleague supervise the access, and he claimed the Senior Social Worker responded along the lines that “In Ireland we have to live and work in dangerous conditions and [the complainant] would have to get used to that.”
2.3 The complainant said that he had subsequent exchanges with the Team Leader in which concerns were expressed about the complainant’s ability to integrate and the Team Leader said “differences in culture between Ireland and England would inhibit easy integration.” Unhappy with these comments, the complainant approached the Senior Social Worker, who arranged a meeting to discuss the surrounding issues. Contrary to the complainant’s expectations, the meeting evolved into a speech from the Senior Social Worker describing different ways of doing things in Ireland as opposed to England and telling the complainant he would have to learn to fit in.
2.4 On 12 May 2000, the complainant was interviewed for the position of permanent Team Leader by an Interview Board which included the Senior Social Worker. The Record of Interview included a comment added by the Senior Social Worker that “The candidate needs to orientate himself to the legislative and cultural framework in which he is working.” The Senior Social Worker was also a member of an Interview Board attended by the complainant on 8 June 2000, this time for the position of acting Team Leader. On this occasion, a comment was added to the Record of Interview that said “[The complainant] needs more experience in Irish statutory childcare services.”
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
Time limit
4.2 The respondent argued that the claim was out of time because it related to a period of employment which concluded on 18 August 2000 and was not referred until 8 February 2002, contrary to the provisions of the Act. However, the claim included an allegation of victimisation related to the investigation of the complainant’s assertions of discrimination. The Investigation Team reported on 19 September 2001, and the report was forwarded to the complainant on 12 October 2001. Section 77 (6) states that “…a claim for redress in respect of discrimination or victimisation may not be referred…after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence…”. As the claim was referred less than six months after the report of the Investigation Team, I find that it was within time. The investigation was the most recent occurrence of a sequence of discrimination and victimisation being claimed in the referral, so I am satisfied that most of the complainant’s allegations form part of my investigation.
4.3 The only matter excluded is the complainant’s assertion that his dismissal was discriminatory on the ground of race. Section 77 (2) of the Act quite specifically provides that such claims may be brought to the Labour Court and shall not be brought to the Director. This matter is therefore outside my jurisdiction.
Burden of proof
4.4 In a recent claim of discrimination on the disability ground taken under the 1998 Act, the Labour Court said “It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities.” (Customer Perception Ltd and Leydon [EED0317]). I am satisfied that the same procedural rule should be applied in this claim.
4.5 It is unacceptable that the respondent was not represented at the hearing by any individual involved in any of the matters complained of. Under the provisions of section 95 of the 1998 Act, the Director, and an Equality Officer by delegation, has the power to require any person who appears to have relevant information to attend before him or her for the purpose of furnishing that information. I did not exercise that power in this instance, as it appears to me that it is a matter for a respondent to provide any witnesses it considers relevant to its case. The situation would have been different of course if I felt the complainant’s claim was compromised by the absence of these witnesses.
4.6 I did have access to several documents, including the Team Leader’s note of a conversation he had with the complainant on 17 April 2000, the Senior Social Worker’s written record of his conversation with the complainant on 3 August 2000, when the complainant was informed his contract was being terminated, the Records of Interview for both the May and June 2000 interviews, the report of the Investigation Team and the respondent’s grievance procedure.
4.7 From the written communications of both the Team Leader and the Senior Social Worker, it is clear that issues of assimilation, integration and cultural differences were raised by both men as problems for the complainant to address. Contrary to the respondent’s assertions, the comments do not appear to be solely jobrelated. If the complainant had been advised that he required more experience, this would have been understandable. The constant references to differences in culture, however, appear designed to mark out the complainant as “different”. I can find no other reason for the ongoing comments made by the two supervisors than discrimination on the ground of race.
4.8 The Senior Social Worker’s note of 8 August 2000 stated “[The complainant] enquired if I would give him a reference for Social Work and I informed him that I would not be in a position to give him a reference for statutory Social Work in Child Protection in the Irish setting…I further advised [him] that he might seek employment within the Child Care field in a voluntary body or alternatively in Social Work outside of child care.” This was a clearly illogical statement. If the complainant was unsuitable for statutory child protection work, he would also be unsuitable for such work in the voluntary sector. The absence of any contrary evidence means I must consider this comment as further evidence of discrimination. I am also satisfied that the refusal of the Senior Social Worker to provide the complainant with a reference constituted unfavourable treatment.
4.9 The interviews in May and June 2000 were both marked in the same way, by way of a maximum of twenty marks awarded under six selection criteria to which different weightings were given depending on the importance of the criterion. In May 2000 interview the complainant was marked as follows:
Selection Criteria Marks Weighting Total Marks
Education/Qualifications 10 x1 10
Experience 9 x2 18
Professional Knowledge 9 x1 9
Leadership/Motivation/Assertiveness Skills 9 x3 27
Interpersonal/Communication Skills 10 x2 20
Organisational Skills 10 x2 20
The remark of the Interview Board said “Candidate needs to orientate himself to the legislative and cultural framework in which he is working”. The job specification for the Team Leader post provided that knowledge of relevant childcare legislation and regulations was an essential requirement under the heading of Professional Knowledge. It will be noted that the heading was given a weighting of 1, indicating that it was one of the least important elements. Nothing in the specification gave any assistance in determining what may be intended by “cultural framework”.
4.10 In the June interview, the complainant was marked as follows:
Selection Criteria Marks Weighting Total Marks
Education/Qualifications 10 x1 10
Experience 20 x2 40
Professional Knowledge 12 x1 12
Leadership/Motivation/Assertiveness Skills 11 x3 33
Interpersonal/Communication Skills 11 x2 22
Organisational Skills 13 x2 26
The Interview Board remark on this occasion was “[The complainant] needs more experience in statutory Irish child care services”. However, it will be noted that the complainant received the maximum marks available under the criterion Experience, and also that he received more than twice the marks he had received less than a month before in the same category.
4.11 As the complainant obtained another temporary post as a child protection social worker almost immediately after his dismissal, was made permanent in January 2001 and was subsequently promoted to the position of Team Leader, it is clear that his competence cannot be disputed. The tenor of both comments, in the absence of any other evidence to the contrary, again suggests that the complainant was seen as an outsider in some way. It is noteworthy that the Senior Social Worker, who had previously stressed the complainant’s different cultural background, was a member of both Interview Boards.
4.12 In investigating the complainant’s allegations, the Investigation Team interviewed the complainant, and forwarded its record of his comments to the Senior Social Worker and the Team Leader. Both men were then interviewed together about the allegations. The complainant was critical of the fact that he was given no opportunity to see their responses before the Investigation Team reported, and his representative union argued that this breached the respondent’s grievance procedures.
4.13 While I have no jurisdiction to investigate the complainant’s dismissal, I note from the investigation report that the Senior Social Worker said that he terminated the complainant’s employment because he failed to share work practices, he refused to carry out tasks, he believed he was always right, he failed to follow through on agreed procedures and he was reluctant to share information at a case conference. The Senior Social Worker’s note of 8 August 2000, however, said that he was terminating the contract because the post was to be filled from the permanent panel set up following the interview. It is true that the note included references to certain practice issues which had arisen, as did the Team leader’s note of the 17 April conversation, but all of these references revolved around the assimilation and integration problems already referred to. The reasons for termination given to the Investigation Team constituted new and potentially serious allegations regarding the complainant’s professionalism, which he was never given an opportunity to address. I am satisfied that the fact that these allegations were accepted as fact constituted victimisation of the complainant.
4.14 I cannot find that the Investigation Team’s methods breached the respondent’s grievance procedure, because I was unable to find any reference to such investigations in the grievance procedure. The document dated from 1994, and contains no reference to the Employment Equality Act, 1998. Reference is made to complaints of sexual harassment, citing the provisions of the Employment Equality Act, 1977, which was repealed by the 1998 Act. The respondent, therefore, has no provisions for dealing with complaints of discrimination on any of the seven new protected grounds introduced by the 1998 Act, nor does it have procedures for complaints of harassment or victimisation on these grounds.
4.15 The complainant said at the hearing that he was merely seeking recognition of his mistreatment. He would accept a letter from the respondent’s Chief Executive Officer acknowledging this fact, and the removal of the Investigation Team Report from his personnel file. He made it clear that he was not seeking other redress. It was obvious at the hearing that the situation had caused him considerable distress and professional concern, and I consider that some financial compensation for this would be appropriate in this case. However, since the complainant’s attitude was unambiguous, I must respect his wishes in this regard.
5. DECISION
5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of race, contrary to the provisions of the Employment Equality Act, 1998, in the way in which his two interviews were evaluated. I also find he was harassed by the nature of the comments addressed to him by the Team Leader and the Senior Social Worker, and that he was victimised by the procedures and conclusions of the Investigation team.
5.2 I hereby order that the respondent:
(i) provide the complainant with a letter formally acknowledging the discrimination against him;
(ii) remove the Investigation Team’s report from the complainant’s personnel file;
(iii) devise a new grievance procedure, in consultation with staff representatives, to deal with all issues arising from the introduction of the 1998 Act, circulate to all staff and ensure proper training in all its aspects.”