Goods & Services
Cases
DEC-S2010-034-Full Case Report
Equal Status Acts, 2000-2008
Decision No. DEC-S2010-034
Martin v Esplanade Hotel
Key words
Equal Status Acts – Section 5 or Section 6 – indirect discrimination, Section 3(1)(c) – particular disadvantage – legitimate aim – reasonable and necessary – prima facie case rebutted – internet only rates – online booking
1. Delegation under the relevant legislation
1.1. On 27th February, 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 5th February, 2010, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, on which date my investigation commenced.
1.2. Submissions were sought from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Monday, 19th April, 2010. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was indirectly discriminated against by the respondent on the age ground contrary to the Equal Status Acts (hereinafter referred to as “the Acts”) in terms of Sections 3(1)(a) and Section 3(1)(c) of the Equal Status Acts and contrary to Sections 5(1) and/or Section 6(1) of the Equal Status Acts in that the respondent treated him less favourably by refusing to quote him a room rate over the phone, which he submitted puts him at a disadvantage relative to younger persons and that this refusal was not objectively justified by a legitimate aim and the means of achieving that aim were not appropriate and necessary.
3. Summary of the Complainant’s Case
3.1. The complainant is 83 years of age. He submitted that he phoned the respondent on 29th August, 2008 with a view to booking the respondent hotel for a visit to Bray (where the hotel is located) which he intended to make the following month. He submitted that he asked for the nightly room rate from Mr A, the staff member who took the call. He said that Mr A told him that it wasn’t possible to provide the required information and that he would have to go online to obtain this information. He submitted that he informed Mr A of his age and that he did not have a computer and did not know how to use one. He said Mr A then told him that he should get someone else to do it for him, to which the complainant replied he was not comfortable with getting someone else to take care of what he considered to be his personal business.
3.2. The complainant said that Mr A refused to provide him with information about the room rates requested. He denied that Mr A provided him with a room rate of €109 B&B, as alleged by the respondent, and that the documentary evidence he provided showed this. He did state that Mr A told him that he could come along on the day in question and pay whatever the rate was on that particular day, plus any additional charges that might apply. He said he was distressed and irate at what had happened and was of the view that, once he mentioned his age, “that was the end of the story”, although he agreed there was no overt remarks about his age. He also noted that he was present to give evidence but Mr A was not, and his evidence therefore carried greater weight.
3.3. The complainant submitted that when he made his visit to Bray, staying in another hotel, he collected a comment card from the reception of the respondent hotel and that this card provided “by phone” as an option for booking the hotel. He said the hotel was not busy and had a placard outside its door indicating a room rate for that particular night, although he could not recall what that rate was. He also quoted an ad from a newspaper which, he said, stated that special offers can be taken over the phone.
3.4. The complainant submitted that he is not familiar with modern IT technology and does not have access to it. He presented in evidence reports from the Central Statistics Office and Work Research Centre (WRC)/Age Action Ireland to show that, while IT and accessing services via the internet have become the accepted norm for most age groups in society, for older people this is not the case. He submitted that a significant percentage of the 65+ age group cannot or do not have access to online facilities. While this research did not deal specifically with the 80+ age group, he submitted that it appears clear from that research that the discrepancy would be more pronounced among that age group. In short, he stated that use and literacy with regard to computers reduces significantly with age and that there is a clear distinction between age brackets in this regard.
3.5. The complainant submitted that, in refusing to give him details of its overnight rate, the respondent indirectly discriminated against him on the age ground, in terms of Section 3(1)(c) and in light of Section 42 of the Acts which made it responsible for the actions of Mr. A. He stated that the requirement to access this information over the internet put him at a particular disadvantage compared with younger service users and that the respondent was appraised of the complainant’s age and difficulty accessing the internet from the outset. He said that he had not been given a quote, but even if he had, it would still be discriminatory to have the package in question quoted only online. He further submitted that the requirement to use the internet to access the information has not been objectively justified by a legitimate aim which has been achieved through appropriate and necessary means, particularly when other means can be used to achieve the aim in question. In any event, he did not accept that the aim was a legitimate one as the stated purpose, achieving maximum occupancy, was not achieved in this case and this was backed up by the fact that there were vacancies at the time the complainant sought to book.
3.6. In short, the complainant submitted that the respondent as a service provider (in the context of Section 5(1) of the Acts) and accommodation provider (in the context of Section 6(1) of the Acts), has indirectly discriminated against the complainant on the age ground in the provision of its service and in the provision of accommodation and/or any services or amenities related to accommodation.
4. Summary of the Respondent’s case
4.1. The respondent stated that Mr A no longer worked for it and so was not able to give evidence on its behalf. It accepted that this meant it only had his word for what was said. However, it submitted that Mr A did offer the complainant a per night rate in the course of the telephone conversation in question, viz. €109 and €25 for dinner. It said that it was sufficient that they had given a quote and that no-one who rings up would not be given a quote. The respondent did not dispute the complainant’s evidence in relation to the comment card or that the hotel was not busy on the day he stayed in Bray. It said it imagined that there were people staying in the hotel that night who had booked by phone, but did not know for certain. It could not say what rate these people would have been given as rates fluctuate every day.
4.2. The respondent said that its policy is to merely direct potential customers online to avail of better rates and that it would never refuse to take a booking over the phone. It stated that the internet offers in question are cheaper because there is no advertising cost worth talking about and no labour cost; thus, the discount arising can be passed on to the customer. It stated the purpose of the policy is to maximise occupancy as it gives people more buying power. It stated that approximately 30% of its bookings are made online and 70% are from other means, so online bookings are not the only channel for selling rooms. Nonetheless, it accepted that an error had been made in relation to the handling of the phone call from the complainant and that Mr A should have taken the complainant’s number and asked the Manager to ring back to deal with the problem. While it said this was a customer service issue rather than a discrimination issue, it said it gave a fulsome apology to the complainant in the course of its correspondence with him.
4.3. In relation to the newspaper ad referred to by the complainant, the respondent stated this was an ad from a later time (June 2009) than the time the complainant booked, that business had changed in the meantime and special rates are now quoted online and by phone, depending on availability.
4.4. The respondent rejected the complainant’s assertion that it discriminated against him on the ground of age. It stated that the majority of its tour business on any given year is made up of senior citizens who are valuable clients and it has not received any other complaints of discrimination against older customers. In that regard, it said it had been running since 2003 without complaint. In short, it submitted that the issue was one of customer service not discrimination as the way the complainant was dealt with was as a person and not as an 83-year old man.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Applicable Provision of Acts
5.2. I note the respondent submitted that both Section 5 and Section 6 are applicable in this case. However, this is precluded by the provision of Section 5(2) as, if Section 6 applies, Section 5(1) does not. The service or facility at issue in this case is clearly the use of an hotel for recreation or leisure purposes. I am satisfied that, as such, it is a matter that is properly considered under Section 5 of the Acts. In that regard, I note that other complaints involving a similar service have been dealt with by this Tribunal under Section 5.
Neutral Provision
5.3. The complainant submitted that the practice/requirement to access room rate information over the internet, and in particular in refusing to give the complainant the details of the overnight rate, is discriminatory on the age ground within the meaning of Section 3(1)(c). This provision states that discrimination on any of the grounds occurs: –
“where an apparently neutral provision puts a person [on any of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
5.4. The respondent submitted that its policy in general was to make available, through the internet, special discounted rates which were not made available through other methods of booking the use of its facilities. It submitted that most telephone customers were provided with the room rate for the time for which the booking was sought; where no date was indicated, as in this case, they were provided with the room rate at the time the inquiry was made. Either way, the respondent submitted that they were informed about and encouraged to avail of the discounted rates that could be obtained through the internet. I am satisfied, based on the totality of the evidence, that the policy employed by the respondent in relation to internet rates is as thus described by it. In short, I am satisfied that the respondent provided room rates to persons booking by phone but had discounted rooms available for sale over the internet and that, as far as Section 3(1)(c) is concerned, this is the neutral provision that is at issue in this complaint.
5.5. The question I must consider, then, is not whether Mr A acted in a discriminatory fashion in failing to provide a room rate, but whether the respondent’s general policy of providing discounted room rates over the internet was discriminatory. If Mr A did fail to provide the complainant with a room rate, he was failing to properly implement this policy. In that case, his treatment of the complainant in the course of this phone call is, as submitted by the respondent, a customer service issue, as I am satisfied that it had nothing to do with his age. It is therefore not a matter for me to consider.
Section 3(1)(c)
5.6. I must now consider whether the respondent’s policy was indirectly discriminatory, within the meaning of Section 3(1)(c). It is clear that the policy in question puts the complainant at a disadvantage vis-à-vis other persons because he does not have the computer skills necessary to avail of discounted internet offers provided by the respondent. I am also satisfied that, in this jurisdiction, persons of the complainant’s age are significantly less familiar with modern information technology than other persons, particularly in relation to usage of the internet. The documentary and statistical evidence provided by the complainant clearly shows this to be the case; indeed, it showed that the vast majority of such persons consider they do not have the knowledge and skills necessary to use the internet. In that context, and in all the circumstances of the present complaint, it is clear that the neutral provision at issue puts the complainant at a particular disadvantage compared with persons of a different (younger) age.
5.7. I am satisfied that the complainant has established facts from which it may be presumed that prohibited conduct has occurred in relation to him and he has established a prima facie case of indirect discrimination on the ground of age. However, the respondent can successfully rebut this prima facie case if it can show that the neutral provision in question is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
5.8. In that regard, the respondent submitted that the aim of the policy in question was to increase occupancy; the complainant submitted that it failed in this aim because the hotel was not busy when he went to investigate the matter on the night he planned to stay there. I note the Acts require only that the aim in question is legitimate, it does not necessarily have to be successful. I note that the proliferation in usage of the internet as a sales tool for anything from purchasing airline tickets to buying a bucket show that this is an enormously well-established and effective business practice. In any event, I am satisfied that, at least in the respondent’s case, there was a reduction in administrative costs associated with using the internet as a method for booking accommodation and other services from it. The respondent was able to pass on this reduction in costs to potential customers by offering discounted rates to them, and I am satisfied that this could potentially increase and/or maximise occupancy. Therefore, I am satisfied that the aim was a legitimate one.
5.9. The fact that the aim in question is legitimate is insufficient on its own to justify the existence of the respondent’s policy in the context of Section 3(1)(c): the means used to implement this policy must also be appropriate and necessary to achieving the stated aim. If the internet had been the only method available for booking rooms with the respondent, that would have had the effect of denying the complainant access to the respondents services without assistance from someone who could use a computer and would not have been appropriate in that context. In short, those unable to avail of such offers are not precluded from availing of the respondents services. In that regard, I note that the majority of the respondent’s customers did not book using the internet.
5.10. The policy in question was to provide discounts to persons who availed of the respondent’s services by using the internet rather than other methods of booking. Providing the same rates through other methods as through the internet would make a nonsense of the strategy required to implement this policy. Therefore, it is perfectly reasonable and necessary for the respondent not to offer the discounts in question to other customers in such circumstances as this, and where it has already been established that the aim in question was legitimate.
5.11. In short, the complainant has established a prima facie case of indirect discrimination as the respondent’s policy to provide discounted rates over the internet set him at a particular disadvantage because of his age. However, the respondent has successfully rebutted this as I am satisfied that this policy was put in place to achieve a legitimate aim viz. increasing occupancy in the respondent hotel, and the means of achieving that aim were appropriate and necessary.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has established a prima facie case of discrimination on the age ground in terms of Sections 3(1)(c), 3(2)(g) and Section 5 of the Equal Status Acts, and that the respondent has successfully rebutted the allegation of discrimination.
6.3. Accordingly, I find in favour of the respondent in this case.
_____________
Gary O’Doherty
Equality Officer
6th July 2010DEC-S2008-119 – Full Case Report
DEC-S2009-041 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC–S2009-041
PARTIES
A v A Childcare Facility
File Reference: ES/2007/0072
Date of Issue: 29th June, 2009
Equal Status Act 2000-2008
Equality Officer Decision
DEC-S2009-041
Mrs. A (on behalf of her son, B)
-v-
A Childcare Facility
(Represented by P.J. O’Driscoll & Sons Solicitor)
Keywords
Equal Status Acts 2000-2008 – Direct discrimination, Section 3(1)(a) – Family Status Ground, Section 3(2)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Discrimination by an Educational Establishment, Section 7(2)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 17th July, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 10th June, 2009.
1. Dispute
1.1 Mrs. A claims that her son was discriminated against by the respondent on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Section 7(2) of the Equal Status Acts, 2000 to 2008 on the basis of its refusal to enrol him in its childcare facility unless he was assisted on a full-time basis by a personal assistant. Mrs. A. also claims that the respondent has discriminated against her on the grounds of her family status in terms of Section 3(2)(c) of the Acts.
2. Summary of the Complainant’s Case
2.1 The complainant’s son has moderate Cerebral Palsy which affects him physically and as a result he is unable to walk without aids or to move about independently. However, intellectually he is on a par with other children his age. The complainant, Mrs. A, sought to secure a place for her son in the respondent’s crèche in March, 2007 when he was aged 20 months for three full days each week i.e. from the hours of 9:30 a.m. to 5:00 p.m. She spoke with the respondent on the telephone on two separate occasions and during the course of these conversations she provided information to the staff member regarding the nature of her son’s disability. Following these telephone conversations, the complainant visited the crèche with her son for a pre-arranged meeting at the premises on 23 March, 2007. On this occasion the complainant met with Ms. X, Crèche Manager, and she was provided with a comprehensive tour of the premises and its facilities. During the course of these discussions, Ms. X informed the complainant that a place would not be available for her son in the crèche until he was two years of age. Ms. X also informed the complainant that the respondent had recently adopted a policy whereby it could not accept a child with special needs into the crèche without a full-time personal assistant.
2.2 The complainant advised Ms. X that she had already been in contact with the Health Service Executive prior to this meeting and it was likely that her son would be provided with a personal assistant in order to assist him at the childcare facility for 5 hours per week. The complainant informed Ms. X that her son would not require a personal assistant on a full-time basis in order to attend the crèche; however, Ms. X responded that the crèche would not accept him for any hours where he did not have a personal assistant. The complainant stated that the Health Service Executive does not provide a full-time personal assistant for any child with her son’s specific needs and she submitted that the cost to her of funding a personal assistant for the additional hours, in addition to the crèche fees, would have been totally prohibitive. The complainant claims that the respondent failed to carry out any objective assessment or to seek an external professional assessment of her son’s specific needs when coming to the decision that he would require a full-time assistant in order to attend the crèche. It was submitted that the respondent is maintaining a “blanket” policy for children with special needs in terms of the requirement that it will only accept such a child with a full-time assistant regardless of the nature of the individual child’s needs. The complainant claimed that this policy is discriminatory and that it presents serious barriers to any child with special needs who may wish to attend the crèche. The complainant stated that her son was subsequently enrolled at another childcare facility which he attends for three full days each week and where he is assisted by a HSE funded personal assistant for 9 hours per week. She stated that her son is very happy in this crèche and that this childcare facility did not invoke any requirement that her son should be assisted on a full-time basis in order to attend.
3. Summary of the Respondent’s Case
3.1 The respondent’s crèche was established in October, 2006 and it catered for approx. 30 children at the time of the alleged incident of discrimination in March, 2007. The respondent stated that it caters for all children, including those with additional and special needs, and it works in close partnership with parents, special needs assistants and professional organisations to ensure that these children are fully integrated into the life of the crèche. The respondent submitted that it accepts children on the basis of availability in the crèche and the ability to meet each child’s requirements while ensuring compliance with its statutory obligations under the Child Care Act, 1991 and Child Care (Pre-School Services) Regulations, 1996 (as amended). These Regulations set down the staff to child ratio requirements to ensure that an appropriate level of care is provided to all children in a childcare facility which at the time of the alleged incident of discrimination were as follows:
Under 12 months – 1:3
1 to 2 year olds – 1:6
2 to 3 year olds – 1:6
The respondent submitted that a childcare facility must also take into consideration each individual child’s needs and if a child has additional needs, the childcare unit must satisfy itself that the above ratios do not leave any child with less than the appropriate level of care required. Where one child requires extra attention, it is not sufficient to maintain the above ratios as all other children in the room would not receive the appropriate care.
3.2 The respondent accepts that the complainant sought a place for her son in its crèche in March, 2007 and she informed the Crèche Manager, Ms. X, that he had Cerebral Palsy and was physically (but not intellectually) affected by this disability. The respondent stated that it was not in a position to offer a place in the crèche to the complainant’s son until he turned two years of age as there were already three children with Special Needs in the one to two year old room and it was operating to its full capacity within that age group at that juncture. The respondent offered the complainant’s son a place at the crèche in the two to three year old room in July, 2007 when he would have turned two years of age; however, having considered the nature of his special needs and the number of children currently in the crèche at that time (including those with Special Needs), it was felt that the complainant’s son would require a full time assistant to allow him to obtain the maximum benefit from attending the crèche. The respondent was also mindful that the children with Special Needs who were attending the crèche in the one to two year old room at that juncture would be moving into the two to three year old room in or around the time that the complainant’s son would turn two years of age. The respondent submitted that if it had accepted the complainant’s son without any additional support staff it would have not have been in a position to provide the required level of care to all children of the other within that group.
3.3 The respondent submitted that it was not the duty of the crèche to have an independent assessment carried out of the complainant’s son’s special needs prior to agreeing or refusing to accept him in the crèche and it claims that the complainant was best placed to provide an assessment of her son’s special needs. The respondent accepted the complainant’s assessment of her son’s disability and having regard to the fact that he was not able to physically move on his own without assistance, it concluded that it was reasonable to require that he have a full-time personal assistant assigned to him while attending at the childcare facility, as the crèche was not in a position to provide one to one assistance. The respondent submitted that it would have been necessary to employ an additional staff member if it was to be in a position to provide the appropriate level of care to the complainant’s son and the other children that would have been in that group. The respondent claims that the cost of employing another member of staff in order to accommodate the complainant’s son would have amounted to more than a nominal cost within the meaning of Section 4 of the Equal Status Acts. The respondent totally denies that it has discriminated against either the complainant on the grounds of her family status or against her son on the grounds of his disability.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Disability Ground
4.2 In the present case, the complainant’s son has Cerebral Palsy and I am therefore satisfied that he is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. I am satisfied that the respondent’s childcare facility i.e. being a pre-school service within the meaning of Part VII of the Child Care Act, 1991 is an “educational establishment” within the meaning of section 7(1) of the Equal Status Acts. It is clearly stated within the provisions of section 7(2) of the Equal Status Acts that an educational establishment shall not discriminate in relation to the admission or the terms or conditions of admission of a person as a student to the establishment. Therefore, the question that I must decide in the present case is whether or not the complainant’s son was subjected to discrimination on the grounds of his disability within the meaning of section 7(2) of the Equal Status Acts in terms of the conditions which the respondent sought to impose upon his admission to its childcare facility.
4.3 In considering this issue, I have taken note of the Child Care Act, 1991 (as amended) and the Child Care (Pre-School Services) Regulations, 2006 which make legislative provision for the operation of childcare facilities, such as the respondent’s crèche, and this legislation clearly places an obligation on the service provider to take all reasonable measures to safeguard the health, safety and welfare of the children attending the service (section 52 of the Child Care Act refers). It is clear that any failure by a service provider such as the respondent to adhere to its obligations in this regard could have very serious consequences both for the service provider in question and the children under its care. I have noted that Mrs. A disputed the respondent’s contention that her son required a full-time assistant in order to attend the crèche and she claims that the respondent came to this conclusion in the absence of any objective or independent assessment of her son’s specific needs. I am satisfied that there was no obligation on the respondent under the Child Care Act to have an independent assessment carried out of the complainant’s son’s special needs prior to making a decision as to whether he would be granted a place in its crèche. I am of the view that the Mrs. A was in the best position to provide such an assessment of her son’s special needs. I accept the respondent’s evidence that it came to the conclusion that the complainant’s son would require the assistance of a personal assistant on a full-time basis having taken into consideration both Mrs. A’s own assessment of her son’s disability and its existing obligations to provide the required level of care for the children already enrolled in the crèche. In the circumstances, I find that the respondent was not acting in an unreasonable manner in arriving at this conclusion but rather it was attempting to ensure that it would be in a position to comply with its obligations under the Child Care legislation to provide the required level of care to all of the children under its care.
4.4 In order to decide whether the complainant’s son was subjected to discrimination on the grounds of his disability in terms of the condition which the respondent sought to impose upon his admission to its crèche i.e. the requirement that he be assisted by a personal assistant on a full-time basis, I have taken cognisance of the provisions of section 7(4)(b) of the Equal Status Acts which states:
“7(4) Subsection (2) does not apply –
(b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously
detrimental effect on, the provision by an educational establishment of its services to
other students”
I am of the view that the respondent can only rely upon this exemption if it can demonstrate that the admission of the complainant’s son to the crèche without the assistance of a personal assistant on a full-time basis would have made it impossible or have had a seriously detrimental effect on its ability to provide the required level of care to the children that were already enrolled at the crèche.
4.5 In that context, I am of the view that there was an obligation upon the respondent, when deciding whether or not to grant a place in the crèche to the complainant’s son, to ensure that it would have adequate staffing resources and facilities in place to fully cater for his special needs without compromising the level of care and attention available to the other children already in its care. Based on the evidence presented, I am satisfied that the respondent was operating to its full capacity in July, 2007 in terms of the staff to child ratios (within the aged two to three years group) that it was obliged to adhere to under the Child Care legislation. I have also taken into consideration the respondent’s evidence that the three children with Special Needs who were already attending in the one to two years age group were due to move into the two to three years age group around the time that the complainant’s son turned two (in July, 2007). In the circumstances, I am satisfied that it is reasonable to conclude that if the respondent had admitted the complainant’s son without the assistance of a personal assistant on a full-time basis that this would have placed excessive pressure on the staffing resources available to it at that juncture with the result that it would not have been in a position to provide the required level of care and the standard of service that it was obliged to provide to the other children that were already under its care. Having regard to the provisions of Section 7(4)(b) of the Equal Status Acts, I find that the respondent did not subject the complainant’s son to discrimination in the present case in terms of its requirement that he be assisted on a full-time basis by a personal assistant in order to be granted a place in its crèche. I therefore cannot accept the complainant’s contention that the respondent was operating in a discriminatory manner in terms of its policy regarding the admission of children with Special Needs to its crèche. Based on the evidence presented, I am satisfied that the respondent was operating an inclusive policy for all children irrespective of whether the child was disabled or not and this is evidenced by the fact that it was already providing care for a number of children with Special Needs when the complainant sought to enrol her son in the crèche.
Reasonable Accommodation
4.6 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question …”.
Therefore, the question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant’s son, as a person with a disability, by providing special treatment or facilities. In considering this issue, I note the respondent claimed that it could only provide a place for the complainant’s son in its crèche subject to the condition that he would be assisted on a full-time basis by a personal assistant. I am therefore satisfied that the special facilities which the respondent would have had to provide in order to facilitate the complainant’s son’s attendance at its crèche would have amounted to the provision of an additional member of staff i.e. a personal assistant to provide assistance for him whilst he attended the facility.
4.7 In considering this issue, I note that the complainant, Mrs. A had already been in contact with the Health Service Executive prior to her initial meeting with the respondent and she had informed it of the likelihood that her son would be provided with a personal assistant in order to assist him at the childcare facility for 5 hours per week. I am also mindful of the fact that the Mrs. A sought to have her son enrolled in the crèche for three full days each week and consequently, there would still have been a substantial shortfall between the number of hours which would have been covered by the HSE funded personal assistant and the additional hours that would have to be covered by the respondent. Section 4 of the Acts also provides that where the provision of special treatment or facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable. In considering the issue of nominal cost, I am of the view that the cost of providing another member of staff in an organisation of that size would have amounted to more than a nominal cost. In the circumstances, I am satisfied that the cost of providing the special facilities which the complainant’s son required would have amounted to more than a nominal cost within the meaning of section 4 of the Equal Status Acts. Having regard to the foregoing, I find that the respondent did not fail in its obligation under Section 4 of the Equal Status Acts to do all that was reasonable to accommodate the needs of the complainant as a person with a disability, in the circumstances of the present case, by providing special measures or facilities.
Family Status Ground
4.8 The complainant also claims that she was discriminated against by the respondent on the family status ground. Section 2(1) of the Equal Status Acts defines family status, inter alia, as meaning:
“family status means being pregnant or having responsibility –
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, …”
In the present case, the complainant is the parent of a child under the age of 18 years who sought to have her child enrolled at the respondent’s crèche and I am therefore satisfied that the family status ground is applicable to her in this case. Having regard to the fact that the alleged discrimination in the present case relates to access to a childcare facility, it is clear that all of the other parents/guardians who availed of or wished to avail of this service would have the same family status as the complainant i.e. they would also be the parent/guardian of a child under the age of 18 years. I am satisfied that the reason the respondent insisted upon the requirement for the complainant’s son to be assisted by a personal assistant on a full-time basis in order to attend its crèche was related to the special needs that arose because of his disability and that it was not in any way attributable to her family status. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 3(2)(c), 3(2)(g) and 4(1) of the Equal Status Acts.
Enda Murphy
Equality Officer
Decision DEC-S2008-0119
Ward v Keane
File ref: ES/2005/0118
Date of Issue: 23rd December, 2008
Key words
Equal Status Acts 2000 to 2008 – Direct discrimination, section 3(1)(a) – Membership of the Traveller community, section 3(2)(i) – Supply of goods and services, section 5(1) – providing accommodation, section 6(1)(c).
1. Delegation under the Equal Status Acts, 2000 to 2008
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004 on the 12th May 2005. On the 23rd June 2008 in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts on which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to hearing on the 10th December, 2008.
2. Summary of claim
2.1 This dispute concerns a complaint by Mr. Collum Ward that he was discriminated against by Paddy Keane, Auctioneer and Valuer by being refused access to information and service on numerous dates between the 14th and the 21st January 2005 because of his membership of the Traveller community contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Acts 2000 to 2004.
3. Complainant’s Case
3.1 The complainant claims that between the dates of the 14th January 2005 and the 21st January 2005 he made contact with the respondent by telephone and by email with regard to potential properties for rent in the Ballinasloe area, in particular in relation to a property in the Derrymullen area, which had been advertised by the respondent as being available for rent. The initial contact was by telephone where the complainant maintains that the respondent freely discussed property options that were without doubt available, however when the complainant gave his name and contact details this is where he felt there was a change in the attitude towards him. Mr. Ward received no follow up contact about the property he had expressed an interest in and subsequently attempted to make contact with the respondent on a number of occasions both by email and by telephone, but to no avail. The respondent did not reply to any of his emails and when the complainant finally managed to speak to the respondent by telephone on the 21st January 2005 the respondent said that he had no property available for rent in the Ballinasloe area.
3.2 The complainant claims that he became frustrated and somewhat suspicious as to why he was not getting any reply from the respondent. Accordingly, he approached a family friend, Mr. A, and asked him to contact the respondent and to request information about properties for rent in the Ballinasloe area. Mr. A, who was presented as a witness at the hearing, claims that he made contact with the respondent on two occasions via email and received a prompt reply by email from the respondent, on both occasions, with information about a variety of houses for rent in and around the Ballinasloe area and this included houses for rent in the Derrymullen area. Copies of these emails between Mr. A and the respondent were presented to me as evidence.
3.3 The complainant claims that after his telephone conversation with the respondent on the 21st January 2005 he felt that he was not getting the truth and asked his sister Ms. B, who has a different surname to the complainant, to telephone the respondent and ask if he had property to rent in the area. Ms. B was presented as a witness at the hearing and she states that she telephoned the respondent shortly after the complainant’s conversation with the respondent; she claims she spoke directly with Mr. Keane and he provided her with information about a variety of housing options available to rent in the Ballinasloe area at that time.
4. Respondent’s Case
4.1 Neither the respondent nor a legal representative on its behalf attended the oral hearing. The respondent did send a fax to the Tribunal on the eve of the hearing indicating that due to ill health that he, Mr. Paddy Keane, was unable to attend the oral hearing. The Tribunal Secretariat staff made contact with Mr. Keane at his office telephone number that evening and outlined the formal procedure for requesting an adjournment of the hearing. On the day of the hearing, five minutes before the scheduled start time, the respondent faxed a covering letter and a copy of a doctor’s note to the Tribunal’s office. However, having examined the documents furnished I am satisfied that that respondent did not request an adjournment of the hearing. I am also satisfied that the documents submitted do not constitute a request for an adjournment of the hearing to a later date nor does the doctor’s note certify that Mr. Keane was unfit to attend the scheduled hearing due to his ill health. Accordingly, the hearing proceeded.
5. Conclusions of the Equality Officer
5.1 In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2 The complainant claims that both he and his family are settled members of the Traveller community, and that the surname ‘Ward’ is commonly recognised as a Traveller name particularly in the Ballinasloe locality. I am therefore satisfied that the complainant is covered by a discriminatory ground under section 3(2) of the Equal Status Acts, namely the Traveller community ground. Mr. Ward claims to have been treated less favourably in the provision of a service, on account of his membership of the Traveller community.Therefore, the question that I must decide, in the present case, is whether the complainant was treated less favourably and denied access to information in relation to the rental of property by the respondent on the grounds of his membership of the Traveller community.
5.3 I am satisfied that the complainant presented his case at the oral hearing in a balanced and credible manner and I accept the version of events that he alleged took place on the dates in question. I have also taken cognisance of the evidence presented by the complainant’s witnesses at the hearing, both of whom claim they were immediately successful in obtaining information from the respondent in relation to properties that the complainant was refused, all in and around the same dates and times.
5.4 Therefore I am satisfied that on the balance of probabilities from the evidence presented that the complainant has established a prima facie case of discrimination on the basis that the respondent refused to provide him with a service based on his membership of the Traveller community. As the respondent was not present to offer a rebuttal of the inference of discrimination in relation to the claim, I find in favour of the complainant.
6. Decision
6.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1)(a) and 3(2)(i) of the Equal Status Acts 2000 – 2008 and I also find that the respondent has not attempted to rebut the allegation of discrimination.
In considering the issue of redress I am mindful of the need to ensure that it is effective, proportionate and dissuasive. Therefore, in accordance with section 27(a) of the Equal Status Acts, I award the complainant the sum of €850 in compensation for the discrimination and embarrassment experienced, and for the loss of amenity suffered.
Further, in accordance with section 27(b) of the Acts, I order the respondent to immediately review all customer service practices and ensure that they are fully compliant with the obligations set out in the Equal Status Acts.
______________________
James Kelly
Equality Officer
DEC-S2009-010 – Full Case Report
Equal Status Acts 2000 – 2008
Equality Officer Decision
DEC-S2009-010
A Male Student v A Secondary School
Date of Issue 3 February 2009
Key words
Equal Status Acts 2000 – 2008 – Direct discrimination, section 3(1)(a) – Gender ground, section 3(2)(a) – Supply of goods and services, section 5(1) – Length of a male student’s hair
1 Delegation under the Equal Status Acts 2000 – 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 – 2004 on 10 May 2005. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director has delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts 2000 – 2008. My investigation commenced on 27 May 2008 and the Hearing of the complaint was held on 10 October 2008.
2 Summary of Claim
This dispute concerns a complaint by a male secondary school student that he was discriminated against by a Secondary School in being asked to cut his hair to collar length. The complainant maintained that discrimination occurred on the gender ground as female students in the school were not bound by this rule. The student also claims that on one occasion he was personally harassed by a specific teacher over not getting his hair cut, contrary to section 11 of the Equal Status Acts. The claim was notified to the respondents on 12 January 2005.
3 Evidence of Parties at Hearing
3.1 At the outset of the Hearing, the complainant’s representative requested that the case be afforded anonymity because of the student’s age at the time (15) and this was agreed by all parties
The student gave evidence that during his Junior Certificate year he decided to let his hair grow as, like most teenagers, he wanted to establish his own identity among his peers and in society generally. However, when he began to grow his hair he was quickly reminded by the Third Year Head and other teachers that the school’s Code of Conduct required that boys not have unusually long hair and he was advised to get his hair cut. . When he declined to get his hair cut after a number of requests he was suspended for a few days until he eventually complied.
During this period, he claimed that he was verbally attacked by another teacher while talking to school friends outside the school. He maintained that the teacher ”screamed at him” asking why he was still refusing to get his hair cut. He said that the teacher’s outburst was so unsettling that his friends backed away. He claims that the teacher’s actions on that day constituted harassment.
The student described how the situation affected his studies and resulted in him withdrawing into himself. He said that he eventually left the school before sitting the Leaving Certificate to take up a PLC course.
At the Hearing, the student’s father described how his son completely withdrew from the family and even ate separately at home. He said that he became very concerned about his son’s well-being and worried about the development of suicidal tendencies. The father said that he actively engaged with the school in an effort to resolve the matter but the school was not prepared to deal with the issue in a reasonable manner.
At the Hearing, the complainant’s representative made the point that long hair for men has been fashionable for centuries and that, over the years, both male and females have always endeavoured to follow conventional trends in hair styles. In this regard, the representative drew attention at the Hearing to a photograph from the 1870s of the original male founder of the school in question showing him with shoulder length hair.
The complainant’s representative also drew attention to the Students Handbook at the Hearing which specifically states that “hairstyles should not be extreme or such as to attract undue attention” and that it is not permitted to have “unusually long or short hair or pony tails (boys)”. In evidence, photographs were shown at the Hearing of the student from the period in question with well-groomed collar length hair which the representative argued did not fall into the categories of “extreme”, “unusually long” or likely to “attract undue attention”.
At the Hearing, the respondents accepted that the student’s account of what had occurred in the school was reasonably factual but denied the allegation that a teacher had engaged in harassment. The respondents stated that the various teachers involved were simply applying the rules of the school which had been presented to all parents on enrolment.
4 Respondents’ Arguments
4.1 In defending their decision to ask the complainant to have his hair cut, the respondents maintain that the school was adhering to its rules and regulations relating to grooming and hair length and that these rules had been accepted by the student’s parents on his enrolment.
The respondents also refer to a number of UK precedent cases which they maintain support their position that discrimination was not a factor. These include a number of EAT cases from the UK where it was accepted that different rules with regard to uniform (Schmidt v Austick’ Bookshop [1977] IRLR 360 and Burrett [1994] IRLR 7) and hair length (Smith v Safeway PLC [1996] IRLR456) can apply to men and women in workplace situations.
4.2 With regard to school dress codes, the respondents rely specifically on the ruling of the Northern Ireland High Court in the case of a Judicial Review Application from theBoard of Governors of Ballyclare High School (REF WEAL4827T Delivered 18/1/2008) where the school sought a declaration that the adoption and application of the school’s uniform policy and its disciplinary policy were lawful and in particular that the policies were not discriminatory under the Sex Discrimination (Northern Ireland) Order.
In his judgement, Judge Weatherupe found that, overall, the requirements of the code taken as a package were not more onerous on males than females and that the code was not unlawful under the Sex Discrimination (NI) Order 1976. However, he did not deliver the formal declaration sought – that the adoption and application of the school’s uniform policy and the disciplinary policy was lawful and not discriminatory under the Sex Discrimination (Northern Ireland) Order 1976.
5 Complainant’s Arguments
5.1 For their part, the complainants have identified a number of Irish employment equality cases where discrimination was found to have occurred and on which they wish to rely as precedents. These include Pantry Franchise Ireland Ltd v A Worker (Labour Court EED 9310) where hair length was the issue, Keane v CERT (Equality Tribunal Dec-E-2000/08) regarding work uniform and O’Byrne v Dunnes Stores (Labour Court EED 0314) where an employee’s goatee beard was the issue.
6 Conclusions of the Equality Officer
6.1 Section 38A (1) of the Equal Status Acts 2000 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/she can rely in asserting that he/she 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.
In this particular case, the male student claims that he was discriminated against on the Gender ground in that he was asked to get his hair cut while female students were not.
6.2 In considering the Ballyclare and other precedent cases in UK law relied upon by the respondents, I note that all delivered different opposing outcomes to similar cases heard under Irish law (apart from the issue in the Ballyclare case which, to my knowledge, has not as yet come before the courts in Ireland)
In the Ballyclare case, the Judge drew a specific comparison between boys not being allowed to wear long hair and girls not being allowed to wear school trousers. This would not, however, appear to be an appropriate comparison as girls are free to wear trousers as soon as they leave the confines of the school each day while boys cannot change the length of their hair at the end of the school day.
This view echoes the ruling inPantry Franchise Ireland Ltd v A Worker which found that a male employee had been discriminated against by being asked to get his hair cut. In that case, the Labour Court recognised the right of the individual to determine their own appearance and highlighted the impact that such a rule had on the employee outside of work
5.4 O’Byrne v Dunnes Stores also involved this same principle (the right of the individual to determine their own appearance) where an employee’s goatee beard was the issue. In that case, the Labour Court stated that
“In considering whether a dress code operates unfavourably with regard to one or other of the sexes, the conventional standard of appearance is the appropriate criterion to be applied. Other factors to be considered are the relative degree of comfort or discomfort which one or other of the sexes may experience in complying with the code and the relative degree to which it impinges on the right of men and women to determine their own appearance, particularly where it extends outside the workplace (where it relates to such matters as hair length or in this case a beard). A clear distinction must also be drawn between rules which relate to appearance and those imposed by the requirements of hygiene and safety.
Taking the dress code as a whole, the Court is satisfied that it operated in the case of the complainant in a way which restricted his freedom to determine his own appearance to a significantly greater degree than it does in the case of women. This constituted unfavourable treatment on grounds of gender.”
5.5 The following is a further extract from the Labour Court ruling in O’Byrne v Dunnes Stores :
“Dress codes by their nature apply different rules to men and women and it would be absurd to suggest that they should do otherwise. Anti-discrimination law does not require that men and women be treated the same in every circumstance. What it requires is that they be treated equally.”
In considering this statement and its relevance to the case before me, I consider that there is clear evidence to demonstrate that the school in questiondoes not treat boys and girls equally. In the case of a female student, as soon as she leaves the school grounds, she is free to transform her appearance and wear her hair in whichever modern conventional style she chooses. This is not the case for a male student whose freedom to determine his own appearance has been seriously restricted by the requirements imposed on him by the school regarding the length of his hair. Consequently, the hair-length requirement imposed on a male student has a much greater impact on him after school than the requirements placed on female students.
5.6 Having considered the arguments of both sides at length, on balance I find the Labour Court rulings more persuasive as I consider that the school’s code of behaviour unfairly impinges on the right of males to determine their own appearance by placing a disproportionate burden on male students with regard to hair length. As long as male students agree to be bound by the same rules and conditions that apply to female students with regard to hair appearance, grooming and cleanliness, they should not be treated any differently, in my opinion.
Accordingly, I find that the male student in this case did suffer less favourable treatment compared to female students in the school and that the school’s actions constituted discrimination on the gender ground contrary to the provisions of the Equal Status Acts 2000 – 2008.
7 Decision
I find that a prima facie case of discrimination has been established by the complainant on the Gender ground in terms of sections 3(1) and 3(2)(a) of the Equal Status Acts 2000 – 2008 and that the respondents have failed to rebut the allegation. I order that the complainant be paid the sum of €1000 for the upset and distress caused.
With regard to the allegation of harassment, I find that insufficient evidence was put before me to support the claim.
Brian O’Byrne
Equality Officer
3 February 2009
DEC-S2010-049- Full Case Report
Equal Status Acts 2000 – 2008
Equality Officer Decision
DEC-S2010-049
A Separated Father v A Community School
Date of Issue 5 November 2010
Key words
Equal Status Acts 2000 – 2007 – Direct discrimination, section 3(1)(a) – Gender, Marital Status and Family Status grounds, sections 3(2)(a), 3(2)(b) and 3(2)(c) – Supply of goods and services, section 5(1) – Provision of information and documentation to a separated father
1 Delegation under the Equal Status Acts, 2000 – 2007
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 – 2007. On 17 October 2008, in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 – 2007, on which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to Hearing on the 16 March 2010 with correspondence ending on 31 August 2010.
2 Dispute
This dispute concerns a complaint by Mr. M that he was discriminated against on the gender, marital status and family status grounds by the Community School in not being provided with information and documentation he had sought with regard to his children’s’ progress in school.
3 Complainant’s Evidence
3.1 The complainant married in 1989 and the couple had 4 children. He and his wife separated in 2005 and secured a legal divorce in 2009. At the time of their initial separation, the couple came to an amicable arrangement with regard to their children who remained with their mother. The complainant said that he saw his children regularly and the arrangement worked well. The 2009 divorce settlement gave the couple joint guardianship of the children.
While they were married, the complainant worked a lot in the North and was often away during the week. When the children started attending school in the 1990s, they were enrolled in his wife’s national school, 8 miles from their home. As there was no direct public transport to the school, this caused some problems with absenteeism on occasions when his wife was unable to transport them to school in the morning. He said that his wife dealt directly with the school on these matters and that she did not keep him updated as to the seriousness of the absenteeism. Despite this absenteeism, the complainant said that he felt that the children were doing well in Primary School.
When the two older children finished Primary School they were enrolled in the Community School which was near their home. It was around this time that the marital problems developed and the complainant left home.
3.2 After they separated, he said that he began to suspect that all four children were not doing well at school and arranged a meeting with the Primary School to discuss his children’s’ welfare and learning. At that meeting he was made aware of the serious absenteeism problem with his two younger children which prompted him to seek an urgent meeting with the Principal of the Community School in relation to his older children’s attendance.
The complainant said that he knew the Principal, Mr C, from his own days as a student at the school and agreed that they had got on well back then. At their meeting in November 2005 he told Mr C of his marital position and expressed his concerns over his children’s attendance and performance. He said that Mr. C agreed to provide him with copies of his children’s school reports and attendance records for the past three school years.
When the attendance records and school reports had not been received by late January 2006, he made several calls to the school seeking a further meeting with Mr C and his daughter’s Year Head as he was becoming very concerned about his children’s upcoming Mock Exams. When no meeting date was offered he wrote to the school formally requesting a meeting on 10 February 2006.
3.3 Around that time he also contacted the National Education Welfare Board about his concerns over his children’s continuing absenteeism as he was aware that schools were obliged under the Welfare Act 2000 to submit regular reports of absenteeism to the NEWB. He was told by the NEWB that they had no reports from either school about poor attendance by his children.
He was eventually invited to a meeting on 22 March 2006 where he met the Principal Mr. C, his daughter’s Year Head Ms A and Mr R from the school’s School Completion Program (SCP). At the meeting, he reiterated his concerns over his children’s absenteeism and academic under-achievements. The response he got from the Year Head was that “there was no problem” in relation to his daughter’s absenteeism. He said that he felt at the time that these comments were deliberately misleading and he said that his suspicions were confirmed when he got the Year Head’s school report a week later which included her own personal comment about his daughter which said that “She must make an effort to attend school every day”.
When he mentioned at that meeting that he had been in touch with the NEWB, Mr R asked him specifically who had he been dealing with in the NEWB which made him slightly suspicious of Mr R’s intentions. In a later FOI request to the NEWB, the complainant was supplied with his daughter’s NEWB case records indicating that the required absenteeism records for his daughter were actually communicated to the NEWB by the School’s SCP on 22 March 2006, the date of his meeting with school officials. He does not believe that this was a coincidence but that it was prompted by his reference to the NEWB at the meeting and Mr R’s question as to who he had been dealing with.
3.4 The meeting ended with him being promised that copies of the records sought would be sent to him. When they did not arrive, the complainant made a number of written enquiries and phone enquiries to the people he had met on 22 March 2006 seeking his children’s absenteeism records which he had been promised at the meeting. He eventually received the 2005/2006 records on 22 July 2006 showing that his daughter had 38 absences during the school year while his son had 14. The complainant was then informed that the previous years records were not available as the office member who had access to these records was currently on summer holidays.
Around this time, the complainant said that he also learned that the school had visited his wife on a number of occasions in the early months of 2006 in relation to his children’s absenteeism. However, no attempt had been made to contact him or to alert him at the meeting on 22 March to the problems that had arisen in relation to attendance, despite Mr. C having agreed to this the previous November. He claims that this was yet another example of the discrimination he suffered.
3.5 In September 2006, the complainant learned that Mr C had retired and that a new Principal, Ms J had taken over. On 5 September 2006, he wrote to the new Principal outlining his position and enclosing copies of previous correspondence between himself and the school and asking for the outstanding absenteeism records. In response, he received a letter from Ms J asking him to “furnish evidence i.e. a Solicitor’s letter that you have access to your son and daughter’s records”. When Mr M complained and reminded Ms J that Mr C had previously agreed to provide this information, the request for a solicitors letter was dropped. The complainant believes that this was yet another attempt by the school to discriminate against him on account of his marital status.
In October 2006, he met with Ms J and Mr R to discuss the outstanding attendance records and the fact that counselling had been arranged for his daughter without his knowledge.
3.6 When he still had not received the attendance records by January 2007, he asked his solicitors to formally request them. The records were supplied to him within a fortnight of the solicitor’s letter, fourteen months after the complainant originally sought them himself.
In February 2007, as he had still not been supplied with copies of all his children’s recent school reports, he decided to lodge an equality complaint against them and submitted the Equal Status Acts notification form to the school. In a subsequent phone conversation with Ms J, she told him that the school reports had been posted to him the previous month and that she could not explain why they had not been received. She also informed him that the attendance records he had received “were all accurate”.
4 Respondent’s Evidence
4.1 Mr. C said that he had become School Principal in 2001 and had met the complainant’s wife once or twice after that. He only learned of the couple’s separation from the complainant in November 2005.
He said that the school has a number of children with separated parents and the school always met its legal obligations with regard to such situations. Once informed by a parent, the school has a protocol in place to correspond with both parents with regard to their child’s progress.
Mr C said that it was not unusual to ask couples for evidence of their separation but that he could only recall one such case in recent years. Where separate addresses are made known to the school, both parents are notified of parent/teacher meetings.
Mr C said that he recalled meeting Mr M in November 2005 and discussing his children’s progress. He recalls agreeing to supply him with details of his children’s absenteeism but accepts that he overlooked to do so immediately. He now regrets that he did not give the request more priority at the time. He said that he could not recall whether he made a note on the children’s files as to their parents separation or Mr M’s new address but believes that he would probably have told staff. He said that this could be explored after the Hearing
4.2 Mr. C recalls meeting Mr M again at a meeting in March 2006 attended by Mr R and Ms A. He says that he recalls the discussion focused on absenteeism and accepts that the seriousness of the problem may not have been fully explained to Mr. M at the meeting. He does not, however, recall Ms A saying that “there was no problem” with the daughter’s absenteeism.
4.3 Mr. R said that he was the Head of the school’s School Completion Programme (SCP). He first became aware of the M’s children’s absenteeism in 2005 but said that the situation only became chronic in early 2006 resulting in an average of 2 calls a week being made to Mrs M between February and June 2006, as well as visits from members of the SCP to deal with the absenteeism. It was only in March 2006 that the school considered the absenteeism serious enough to merit a report to the NEWB.
Mr R said that he recalls the meeting on 22 March 2006 dealing with the children’s non-attendance and recalls Mr M seeking attendance records from previous years. Mr R said that he had no recollection of contacting the NEWB on 22 March 2006 regarding the daughter’s absenteeism.
4.4 Ms J said that she had replaced Mr C in August 2006. She had previously worked in a different school and had to familiarise herself on all aspects of the Community School before she took up her appointment officially on 1 September 2006.
She said that she recalls Mr C mentioning the complainant to her in one of their briefing sessions in August 2006 and telling her that the family had separated.
She said that the daughter’s name had first been recorded on references to the NEWB in April 2006.
With regard to the meeting on 22 March 2006, Ms J said that she had spoken to Ms A on the morning of the Hearing and Ms A had assured her that she would not have said that there was “no problem” with the daughter’s attendance when she knew a problem existed.
4.5 Ms J said that she recalls getting Mr M’s letter of 5 September 2006, indicating that he had already got some attendance records and asking for the outstanding absenteeism records. She recalls discussing the letter with Mr R who confirmed that it had been agreed at the 22 March meeting that the records were to be released. She said, however, that she was unsure as to how to deal with this request at the time as, from her discussions with Mr C and other staff around that time, she had got the impression that a “situation of conflict / situation of dispute” existed with Mr M. When questioned at the Hearing as to how exactly she got that impression she replied that she could not recall where she had got it but said that Mr R had mentioned to her that there was a “custody issue”.
Ms J said that, while she regarded Mr M’s request as “legitimate”, she decided to seek advice on how to proceed. Although she is not entirely sure who she got it from (she thinks it may have been from her teachers’ union) the advice was that she should seek legal evidence that he was entitled to access to his children’s records. This letter issued on 8 September 2006 and was done so, she says, in good faith.
5 Conclusions of the Equality Officer
5.1 At the Hearing on 16 March 2010 and in subsequent submissions, the respondents made legal arguments on the following issues and I propose to deal with them at the outset of my conclusions:
1. The original complaint should be deemed inadmissible as it was “out of time”
2. The original complaint should be deemed inadmissible as the Community School do not provide a “service” as defined by the Equal Status Acts
3. The School Completion Programme is a separate entity to the Community School and should not be joined into the proceedings
5.2 Admissibility of Complaint – Time limits
In their submission, the respondents claim that the complaint in this case was “out of time” in that it was submitted to the Tribunal on 16 March 2007, which was more than six months after the last date of alleged discrimination. In support of their case, the respondents claim that, in evidence at the Hearing, the complainant indicated that the last incident of discrimination against him was the letter dated 8 September 2006 from Ms J.
In this regard, I have reviewed the complainant’s original complaint form and the notification he sent to the respondents on 16 February 2007. On both these forms I note that the complainant clearly identifies 7 February 2007 as the most recent date on which he suffered discrimination, as on that date he was still awaiting copies of his children’s pre-2005 school attendance records and that was the date he again wrote and emailed Ms J. asking for copies of same. In addition the ES3 form dated 13 March 2007 specifically states “they have discriminated (continuously) against me on grounds of gender, my marital status & family status for the past 13 months.
On examination of the evidence provided, I am satisfied that the complainant has identified a series of incidents of possible discrimination over the period 28 November 2005 to 7 February 2007 and that all of these fall for consideration as part of my deliberations. Accordingly, I must reject the respondent’s claim that the complaint is “out of time”.
5.3 The Service Issue
In claiming that the Community School does not provide a “service” to the complainant, the respondents argue that the school is not a “provider of a service” as defined in section 4(6)(b) of the Equal Status Acts and that it is not responsible for providing a service in respect of which section 5(1) applies. The respondents submit that that Section 7 of the Equal Status Act is the only provision within the Acts which governs discrimination in the education sphere.
In considering whether an educational establishment has additional obligations on it as a “service provider” as defined by the Equal Status Acts, over and above those contained in Section 7, I have taken cognizance of the decisions in the cases of Mr. Patrick Kelly V University of Dublin, (Trinity College) (DEC-S2004-163) and Mrs. Cr (on behalf of her daughter Miss. Cr) v The Minister for Education & Science Decision (DEC-S2009-051), where it was found that both the College’s role and the Department’s role in the provision of education in Ireland fell into the category of a “provider of a service” as defined under the Equal Status Acts.
In my opinion, the case before me is similar to those above in so far as the Community School also provides an educational “service” to the general public. Accordingly, I find that the Community School is a service provider and does provide a service which is covered by Section 5(1) of the Equal Status Acts.
In considering whether the service provided by the respondents extends to the parents of students, the question that arises is whether the Education or Equal Status Acts deliberately intended for educational establishments to be exempted from scrutiny in relation to their dealings with students’ parents. In this regard I have noted the extract below from Section 9 of the Education Act 1998 which sets out the following as one of the many functions that a Board of Management is obliged to fulfill:
(g) ensure that parents of a student, or in the case of a student who has reached the age of 18 years, the student, have access in the prescribed manner to records kept by that school relating to the progress of that student in his or her education
Based on the above, I am satisfied that access to a student’s records is a “service” that the Community School is required to provide to parents within the meaning of both the Education and the Equal Status Acts.
The respondents have also argued that the Tribunal’s definition of “service” is too wide-ranging and is not consistent with the definition of a “service” contemplated by Council Directive 2004/113/EC which the respondents claim clearly contemplate only those activities which include an economic element.
In considering this argument, I note that the Equal Status Act predated the Council Directive by four years. In that time the Tribunal’s broad definition of “service” has contributed enormously to the promotion of equality and the prohibition of discrimination in Irish society, which was the original primary purpose of the Equal Status Act 2000. To dilute the Tribunal’s definition of “service” at this point and exclude such services as education would, in my opinion, be a retrograde step and completely contrary to the intention of the legislature that enacted the legislation.
I also consider that such a step would be contrary to the intention of the EU legislature who introduced Council Directive 2004/113/EC as a means of further strengthening equality legislation across Member States rather than diluting the impact of laws already in existence. As instruments of social legislation, it is my opinion that both the Equal Status Acts and the Council Directive must be interpreted in a purposive manner and I cannot accept that it was ever the intention of the Oireachtas, in transposing the Directive, to limit the scope of the Equal Status Acts.
5.4 The School Completion Programme
In setting out his case, the complainant claimed that the lack of contact with him by the school in relation to his children’s absences constituted discrimination against him. He argued that the respondents only contacted and visited his wife in their attempts to address the problem of his children’s non-attendance at school while no attempt was made to contact him or to alert him to the problems that had arisen.
In this regard, the respondents argue that this element of the complaint is inadmissible as the visits in question were carried out by the school’s School Completion Programme (SCP) rather than by the Community School itself. The respondents maintain that they are not liable for the acts of the SCP who report to the Department of Education, that the SCP is not an agent for the respondent and that the SCP does not act under the respondent’s control or guidance. In their defence, the respondents refer to the case of Lynch v Palgrave Murphy Ltd [1964] L.R. 150 where the respondents were found not to be vicariously liable for injuries caused by a forklift operator who had been hired from another company.
As the SCP was not named as a co-respondent, they claim that complaints made in relation to dealings with the complainant’s wife and visits to her house cannot be considered by the Equality Officer as the Community School was not vicariously liable for the actions of the SCP.
In this regard, I note that this argument was only first raised at the Hearing on 16 March 2010. The argument was not raised in the respondent’s earlier submission of 23 February 2009. Indeed, in that earlier submission the respondents seem to accept that the Community School and the SCP were the one entity and were working together as indicated by the following extract from their submission:
“It is specifically denied that the Respondent School failed to follow up on K’s school attendance and failed to adhere to the provisions of the Welfare Act 2000. On the contrary, the Respondent submits it has been extremely pro-active in dealing with issues of absenteeism in that they have a school completion programme which is actively in place within the school, have four members of staff who have liaised with the applicant’s daughter K on many occasions in respect of difficulties she experienced (namely Mr R …..”
In further considering whether Mr. R’s role in proceedings should be dismissed because of his affiliation with the School Completion Programme rather than the Community School itself, I note that Mr. R played a prominent role at the meeting that Mr. M requested with representatives of the Community School in March 2006.
I also note that Mr. R closely liaised with Ms J in her dealings with Mr. M when she took up office in September 2006. Evidence of this can be found in a letter to Mr. M dated 5 October 2006 relating to his daughter’s absences. The letter is jointly signed by Mr. R and Ms J on headed paper bearing the address ***** School Completion Programme, ***** Community School, *****, Co *****. The obvious conclusion to be drawn from this letter by any reasonable person would be that the SCP was an integral part of the Community School itself.
On the basis of the above, it seems clear to me that the actions of the Community School and the SCP were inextricably linked when it came to dealing with the M family and that the bodies acted “in unison” in dealing with the issues involved. Accordingly, I cannot accept the argument that the actions of the staff of the SCP are exempted from scrutiny in this investigation.
6 Burden of Proof
6.1 In cases such as this, the burden of proof lies with the complainant who must first establish that a prima facie case of discrimination exists. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
In the case before me, the complainant maintains that he was discriminated against by the Community School in not being provided with the information and cooperation that he as a parent should have been provided with by his children’s school. Mr. M claims that he was treated less favourably than other parents on the grounds of gender, marital status and family status.
6.2 In considering whether the complainant was discriminated against on the gender ground, I note that the school has stated that it is normal practice to deal directly with the parent or parents with whom the children are residing. In this instance Mr. M has stated that he gave his permission for the children to continue living with his wife. Accordingly, on the balance of probabilities, I am prepared to accept that the school would have dealt directly with the complainant if he had been the parent with whom the children were residing and accordingly I do not find that the respondents discriminated against the complainant on the gender ground.
In considering whether the complainant was discriminated against on the family status ground, I note that the Equal Status Act defines the family status ground as follows “that one has family status and the other does not or that one has a different family status from the other”. Although he may have been living apart from his children, I consider that the complainant, as joint guardian of his children, had the same family status as all other parents of children attending the Community School in that they all had responsibility as a parent in relation to a person who had not attained the age of 18 years. Accordingly, I do not consider that the complainant suffered discrimination on the family status ground.
6.3 In considering whether the complainant suffered discrimination on the marital status ground, I am persuaded by the following points in particular:
– At their meeting in November 2005, the complainant states that Mr. C agreed to forward to him his children’s’ school attendance records and that he gave him his new address for this purpose. Mr. C accepted at the Hearing that he had agreed to forward the children’s current year records but said that he could not recall specifically whether he was given the new address. If he had received the address he said that he would have updated the family file himself or asked a staff member to do so.
– Mr. M was not, however, provided with the records promised in November 2005 and, subsequent to the Hearing, the respondents confirmed that the family file had not been updated in 2005 with Mr. M’s new address. If Mr. C had genuinely intended to supply the records sought but was prevented from doing so because he did not have the new address, the opportunity was there in January to establish this information when Mr. M phoned or alternatively to note it from Mr. M’s letter of 10 February 2006 to Mr. C. However, no records were forwarded to Mr. M around that time, nor was he given any explanation for the non-production of the records concerned. This fact was acknowledged by Mr. C himself at the Hearing when he expressed regret for not “giving more priority to Mr. M’s request”. As a result of Mr. C’s lack of engagement with the complainant around this time, Mr. M felt compelled to move to the next stage and seek a formal meeting with the School representatives.
– At the meeting on 22 March 2006, Mr. M claims that the school representatives were evasive and misleading with the information they provided to him with regard to his children’s progress and attendance. He says that when he sought to establish details of his children’s attendance, Ms A reported that there was “no problem” in relation to his daughter and absenteeism. However, a week later Ms A herself wrote on his daughter’s report “She must make an effort to attend school every day”.
– Around that same time Mr. M also received a copy of his daughter’s Mock Results which contained the following comment from her Maths teacher “Absent too often, needs to concentrate”. In addition, absenteeism records submitted subsequently show that the daughter had missed 12 days in school in the two months immediately prior to the 22 March meeting but this information was not conveyed to the complainant at the meeting.
– The allegation that the complainant was misled would also appear to be supported by Mr. C’s own evidence at the Hearing that he regarded the daughter’s absences as a “serious problem” but that it was “not explained to Mr. M” on 22 March 2006.
– On this point, I note that the respondents admitted at the Hearing that there was a problem over the daughter’s attendance in March 2006. However, the evidence before me indicates that this problem was not disclosed or discussed openly with Mr. M on 22 March 2006. The respondent’s reluctance to disclose the seriousness of the problem to the complainant is supported, in my view, by the fact that the respondents delayed a further 3 months before supplying Mr. M with the current years attendance records (and only on foot of a threat of legal action) yet were able to supply the figures to NEWB on 22 March 2006.
– Mr. M also stated that, at the meeting, he made reference to the fact that the NEWB had told him that no official referral regarding his daughter’s attendance had ever been made to the NEWB by the Community School. On disclosing this information, he said that Mr. R immediately sought details from him as to who he had communicated with in the NEWB. A year later, under an FOI request, Mr. M received confirmation from the NEWB that a referral had been received from the school relating to his daughter’s absenteeism on 22 March 2006, the date of his meeting with the school representatives. While the school state that the date was coincidental, on the balance of probabilities I find it very difficult to accept that this was in fact the case.
– In evidence, Mr. C stated that, once informed by a parent about a couple’s separation, the school has a protocol in place to correspond with both parents with regard to their child’s progress. However, this did not happen in this case as, despite the fact that the school would have had Mr. M’s new address from his letter of 10 February 2006, the school continued to deal directly with Mrs. M, unknownst to the complainant, between February and June 2006 in connection with the children’s absenteeism.
– In considering Ms J’s involvement with Mr. M, I note that she has admitted that, before she had met the complainant, she had been led to believe that a “situation of conflict / situation of dispute” existed with Mr. M and that the school regarded the situation with Mr M as difficult. This admission in itself supports the view that a pre-formed negative opinion of the complainant was conveyed to Ms J on her arrival and that this opinion originated from the school representatives who had been dealing with Mr. M prior to the new Principal’s arrival.
– It would also appear that the negative perception of Mr. M acquired by Ms J was an influencing factor in her decision to ask for legal confirmation from him that he was entitled to access to his children’s records. The fact that such a letter issued to him is a clear indication that he was being treated differently to other parents of children in the school with a different marital status.
6.4 Having considered the totality of the evidence before me and, in particular, the points highlighted above, I find that there is sufficient evidence to indicate that the complainant was less favourably treated by the representatives of the Community School and the SCP because of his status as a separated father. Accordingly I find that the complainant was discriminated against on the marital status ground contrary to the provisions of the Equal Status Acts. With regard to the gender and family status grounds, I find that there is insufficient evidence to support an allegation of discrimination on these two grounds.
7 Decision
7.1 I find that a prima facie case has been established on the marital status ground in terms of sections 3(1) and 3(2)(b) of the Equal Status Acts 2000 – 2008 and that the respondents have failed to rebut the allegation of discrimination.
Accordingly, I find in favour of the complainant in the matter and order that the respondents pay him the sum of €5000 for the hurt and upset caused. I also order that the school revise its existing guidelines for parents to include a commitment that the school will communicate and correspond with all parents in a fair and equitable manner with regard to their children’s progress at school, irrespective of their marital status.
Brian O’Byrne
Equality Officer
DEC-S2009-016 – Full Case Report
EQUAL STATUS ACTS 2000-2008
Decision No DEC-S2009-016
Lyamina v The Department of Education and Science
File Reference: ES/2007/070
Date of Issue: 6 March 2009
TABLE OF CONTENTS
Page 3 Summary
Page 4 Keywords and Delegation
Page 5 Complainants Case
Page 7 Respondents case
Page 14 Report of Hearing
Page 16 Conclusions of the Equality Officer
Page 26 Decision
Equal Status Acts 2000 – 2008
Summary of Decision DEC-S2009-016
Anastasia Lyamina
V
Department of Education and Science
(represented by the Chief State Solicitor’s Office)
This dispute concerns a complaint by Anastasia Lyamina alleging that the Department of Education and Science failed to provide for her continuing education through English while she was a student living in the Gaeltacht area of the Dingle peninsula. The complainant maintains that she was discriminated against both directly and indirectly by the Department on the race ground.
At the Hearing, the respondents argued that the Department of Education and Science was not a “service provider” as defined by the Equal Status Acts. They claimed that the Department was not a provider of education but rather that its role was to “provide for education”. They also argued that, in bringing her claim against the Department of Education and Science, that the complainant has not pursued the correct respondent. The respondents submitted that the appropriate respondent to this claim was the Board of Management of Pobalscoil Chorca Dhuibhne.
Having considered the arguments put forward by the respondents, the Equality Officer formed the opinion that the Department of Education and Science did fall into the category of a provider of a “service” as defined in the Equal Status Acts 2000 – 2008. However, having deliberated at length on the evidence before him, the Equality Officer found that the complainant had failed to identify the correct respondent and that the Department of Education and Science had not discriminated either directly or indirectly against the complainant.
Equal Status Acts 2000 – 2008
Decision DEC-S2009-016
Anastasia Lyamina
V
D
epartment of Education and Science
(represented by the Chief State Solicitor’s Office)
Key words
Equal Status Acts 2000 – 2008 – Direct discrimination, section 3(1)(a) – Indirect discrimination, section 3(1)(c) – Race ground, section 3(2)(h) – Supply of goods and services, section 5(1) – Failure to provide for the continuing education of a non-Irish student living in a Gaeltacht area
1 Delegation under the Equal Status Acts
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on 10 July 2007. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts 2000 – 2007. I commenced my investigation on the 18 September 2007 and, as required by Section 25(1), as part of my investigation held the hearing on 14 May 2008.
2 Progress of Investigation
On 18 September 2007, the complainant was requested to submit a detailed submission outlining the full background and circumstances of the complaint. This submission was received in early December 2007 and forwarded to the respondents on 7 December 2007 requesting that they submit a detailed counter-submission by 31 January 2008. The respondents’ counter-submission was only received at 7 pm on the evening prior to the Hearing. As a result, the complainant only received a copy an hour before the Hearing started on 14 May 2008.
The Hearing of the complaint proceeded as scheduled on 14 May 2008 with further correspondence between the parties and the Tribunal continuing until 23 January 2009.
3 Summary of Claim
This dispute concerns a complaint by Anastasia Lyamina against the Department of Education and Science alleging that the Department failed to provide for her continuing education through English while she was a student living in the Gaeltacht area of the Dingle peninsula. The complainant maintains that she was discriminated against both directly and indirectly by the Department on the race ground. The claim was notified to the respondents on 2 June 2007.
4 Summary of Complainant’s Case
4.1 The complainant moved to Annascaul, Co Kerry from Russia in 2005 with her mother. She was 13 years of age at the time. In February 2005 she enrolled in Meánscoil na Toirbhirte and was due to complete her Leaving Certificate there in 2010. While Meánscoil na Toirbhite was classified as an A1 Lán-Gaeilge school in a Gaeltacht area, the Complainant nonetheless received tuition in all subjects except Business Studies through English up to Junior Certificate level with the help of teachers in the school who conducted their classes through the medium of both Irish and English to facilitate non-Irish students and those with a poor standard of Irish.
In 2005, Anastasia had been exempted by Meánscoil na Toirbhirte from studying the Irish language pursuant to the provisions of Circular Letter M10/94 issued by the Department of Education and Science. In 2007, she sat her Junior Cert Examination through English and successfully passed all 10 subjects undertaken (achieving honours in 4 Honours papers).
4.2 At the end of the school year 2006-2007, Meánscoil na Toirbhirte amalgamated with Scoil na mBráithre Chríostaí, to form the new Pobalscoil Chorca Dhuibhne. Prior to amalgamation, Meánscoil na Toirbhirte and Scoil na mBráithre Chríostaí were designated as A1 all-Irish schools and, on amalgamation, the new school was also recognised by the Department of Education and Science as an A1 school. On amalgamation, however, the Trustees and Board of Management of the new school made a decision to implement a more stringent Irish language policy requiring teachers to conduct all classes strictly through the medium of Irish.
On learning of the new school’s strict All-Irish policy, the complainant’s step-father John Ferriter immediately became concerned about Anastasia’s future education believing that it would be seriously affected in light of the fact that she had never before studied the Irish language, but would now be receiving instruction for her Leaving Certificate through that language only.
When Mr Ferriter approached the principal of Pobalscoil Chorca Dhuibhne on his daughter’s behalf, the school responded by stating, inter alia, that as a Gaeltacht school the language of Pobalscoil Chorca Dhuibhne was Irish, and, while additional support would be made available to students to assist them in acquiring the language, this could not be done by the provision of an English language ‘stream’, as same would not be consistent with the character or the statutory duty of the school. The Principal explained to Mr Ferriter that this additional support would involve Anastasia and other non-Irish speaking students receiving an intensive 4 day crash course in the Irish language prior to the beginning of the new school year.
As his daughter was still only learning the English language, Mr Ferriter considered that this offer was a wholly inappropriate response to the accommodation of non-Irish speaking students and, as no other viable alternative was available in the Dingle peninsula, he reluctantly enrolled his daughter in the Presentation Convent, Tralee, 25 miles away.
4.3 In support of his claim that the Department of Education discriminated against his daughter, Mr Ferriter makes the following points:
Ÿ Anastasia has been denied a right to an education to which she is entitled to. The Department of Education and Science has discriminated against her by not providing for appropriate education through English in the Dingle peninsula for the complainant and other non-Irish speaking students.
Ÿ The Department has not reviewed its policies to take account of the increasing diversity in Irish society, in particular the contradictory policies whereby non-Irish students like Anastasia are given exemptions from Irish as a subject but the only schools in their catchment areas are all-Irish schools.
Ÿ Mr Ferriter maintains that Anastasia has also suffered indirect discrimination at the hands of the Department by virtue of its policy of locating all-Irish schools in Gaeltacht areas and its decision to approve the amalgamation of the two local Dingle schools without any consideration of the future needs of non-Irish speaking pupils.
Ÿ When approving the amalgamation of the two schools, Mr Ferriter maintains that the Department took no account of the needs of his daughter and other non-Irish students resulting in them suffering indirect discrimination on the grounds of their race and national origin.
Ÿ Both Meánscoil na Toirbhirte and Scoil na mBráithre Chríostaí provided instruction for many years in English yet received Higher Capitation Grants for all students from the Department of Education and Science without question, regardless of their ability to speak Irish.
5 Summary of Respondent’s Case
5.1 At the Hearing, the respondents argued that the Department of Education and Science was not a “service provider” as defined by the Equal Status Acts. They claimed that the Department was not a provider of education but rather that its role was to “provide for education”. They also argued that, in bringing her claim against the Department of Education and Science, that the complainant has not pursued the correct respondent. The respondents submit that the appropriate respondent to this claim is the Board of Management of Pobalscoil Chorca Dhuibhne and that the Department has no case to answer in respect of the complainant’s complaint of discrimination therein.
5.2 In support of their case, the respondents make the following points:
1. Section 7 of the Equal Status Acts 2000-2008, which deals with discrimination by an “educational establishment”, defines an “educational establishment” as “a preschool service within the meaning of Part VII of the Child Care Act 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds”.
2. Section 7 provides, inter alia, that;-
“(2) An educational establishment shall not discriminate in relation to—
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student, or
(d) the expulsion of a student from the establishment or any other sanction against the student.”
3. By definition, the Department is not and cannot be regarded as “an educational establishment”, and does not fall within the definition of same which is provided by Section 7(1) of the Act and set out above. In light of that fact, the Respondent submits that it cannot be guilty of discrimination in relation to access to an educational establishment within the meaning of the Equal Status Acts 2000-2008.
4. While the Minister for Education and Science carries out certain functions assigned to him/her by virtue of the provisions of, inter alia, Section 7 of the Education Act 1998, those functions relate only to providing for education rather than providing education itself. The Minister is obliged, inter alia, to provide funding for schools, to monitor and assess the quality of the education system provided by schools, to lease land or buildings to any person for the purpose of establishing a school and to provide support services through Irish to recognised schools which provide teaching through Irish. However, the Minister is not obliged to run or manage schools themselves and, indeed, has no power to do so. Such functions fall to be fulfilled by the Board of Management of a school (see below).
5. In carrying out his/her aforementioned functions, Section 7(4)(a)(iv) of the Education Act 1998 provides that the Minister must have regard, inter alia, to “the practices and traditions relating to the organisation of schools or groups of schools and the right of schools to manage their own affairs in accordance with the Education Act and any charters, deeds, articles of management or other such instruments relating to their establishment or operation”.
6. As is clear from the foregoing provision, the right of schools to manage their own affairs in accordance with the Education Act and any relevant charters or deeds is expressly recognised by Statute.
7. In the current context, Pobalscoil Chorca Dhuibhne is managed by its Board of Management, which, pursuant to the provisions of Section 14 of the Education Act 1998, has been appointed by the Patrons of the school. It is of considerable importance to note that pursuant to the said Section, the Board of Management is obliged to fulfil in respect of the school the functions assigned to the school by the Act. The functions in question are set out in Section 9 of the Act, the provisions of which the respondents say are worth setting out in full:-
“A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing, it shall use its available resources to-
(a) ensure that the educational needs of all students, including those with a disability or other special educational needs, are identified and provided for,
(b) ensure that the education provided by it meets the requirements of education policy as determined from time to time by the Minister including requirements as to the provision of a curriculum as prescribed by the Minister in accordance with section 30,
(c) ensure that students have access to appropriate guidance to assist them in their educational and career choices,
(d) promote the moral, spiritual, social and personal development of students and provide health education for them, in consultation with their parents, having regard to the characteristic spirit of the school,
(e) promote equality of opportunity for both male and female students and staff of the school,
(f) promote the development of the Irish language and traditions, Irish literature, the arts and other cultural matters,
(g) ensure that parents of a student, or in the case of a student who has reached the age of 18 years, the student, have access in the prescribed manner to records kept by that school relating to the progress of that student in his or her education
(h) in the case of schools located in a Gaeltacht area, contribute to the maintenance of Irish as the primary community language,
(i) conduct its activities in compliance with any regulations made from time to time by the Minister under section 33,
(j) ensure that the needs of personnel involved in management functions and staff development needs generally in the school are identified and provided for,
(k) establish and maintain systems whereby the efficiency and effectiveness of its operations can be assessed, including the quality and effectiveness of teaching in the school and the attainment levels and academic standards of students,
(l) establish or maintain contacts with other schools and at other appropriate levels throughout the community served by the school, and
(m) subject to this Act and in particular section 15 (2) (d), establish and maintain an admissions policy which provides for maximum accessibility to the school.”
8. It is not the Department nor the Minister, who fulfils the many functions of a school detailed above, but rather it is the Board of Management of the school that does so. The respondents submit that if it had been the intention of the legislature to provide that this Respondent should fulfil in respect of schools the functions assigned to them by the Education Act, it would specifically have provided for same. Instead, they claim that the Act makes it entirely plain that it is the Board of Management of a school which is obliged to fulfil the functions in question, and indeed has a specific and recognised right to manage its own affairs in so doing.
9. A further express statement of the position in this regard can be found in Section 15 of the Education Act 1998 which provides that “it shall be the duty of a Board to manage the school on behalf of the Patron and for the benefit of the students and their parents and to provide or cause to be provided an appropriate education for each student at the school for which that Board has responsibility”. Section 15 goes on to provide that a Board shall perform the functions conferred on it and on a school by the Act, which, as is clear from the functions set out at paragraph 13 above, would obviously include matters such the language policy to be implemented in a school, particularly in circumstances where schools in Gaeltacht areas are specifically mandated to contribute to the maintenance of Irish as the primary community language.
10. It is also of particular importance to note that pursuant to Section 14(2) of the Education Act 1998, each such Board of Management “shall be a body corporate with perpetual succession and power to sue and may be sued in its corporate name”. This Section clearly envisages that where any action is contemplated either by or against a school, the proper party to any such proceedings involving the school is the Board of Management. In light of that fact, as well as the other matters set out herein, it is submitted that the Complainant’s action against the Respondent is entirely misconceived.
11. It is submitted that, in light of the foregoing descriptions of the functions of both the Minister for Education and Science and of Boards of Management, it is entirely clear that responsibility for the management and running of Pobalscoil Chorca Dhuibhne falls squarely on the Board of Management of the school and not on the Minister or the Department for Education and Science.
12. Clearly, the Respondent herein is not the school or educational establishment which is alleged to have discriminated against the Complainant, and neither does it manage or run the school in question. Insofar as the Complainant may have any case in relation to any discrimination alleged to have been suffered by her with regard to her access to an educational institution, namely Pobalscoil Chorca Dhuibhne, such claim should be directed to the Board of Management of the said school, as it is the actions of the school which have caused the situation giving rise to the Complainant’s complaint, and not any actions on the part of this Respondent.
5.3 Powers of the Respondent vis-à-vis the Board of Management
The Respondents argue that it does not manage the school in question – nor indeed does it manage any other school – and neither does it have the power or authority so to do. Furthermore, the Education Act 1998 does not give the Respondent or the Minister the power or authority to compel the school to change its teaching policies, or to implement different policies to those which it has chosen to implement in accordance with its obligations under the Education Act. While the Department of Education and Science can engage in consultation with a school, and can seek to encourage a school to make accommodation for particular students, it does not have the power or authority to force a school to do so. The authority of a school to decide on its own policies and methods of management is clearly set out in the Education Act and has already been referred to in detail above. A school is entitled to decide on its own policies in accordance with the Act, and if such policies potentially discriminate against any student in particular, it is a matter for the Board of Management to deal with and defend any complaint made in respect of same.
In light of the claim being brought by the Complainant against the Respondent herein, the respondent argues that it is not responsible for the decision to implement the Irish language policy of the school.
5.4 Jurisdiction of the Equality Tribunal in relation to the complainant’s claim
The respondent argues that, insofar as the Complainant contends in the submissions made on her behalf that “if the Department does not do the sensible and economic thing and run both an Irish and English stream through the new school, then the Minister must look at the possibility of providing a new school outside of the Gaeltacht” (Page 10, Paragraph 3 of the Complainant’s submissions), the Respondent submits that such an issue falls entirely outside of the claim to be determined herein by the Equality Tribunal.
The respondent states that, if the Complainant wishes to make the case that the Minister for Education and Science has failed in her duty to provide for an appropriate education for the Complainant in the area in which she lives (such a claim being strenuously denied by the Minister), then the Complainant is bringing her claim in the wrong forum entirely, as such a claim must be brought before the Courts in plenary proceedings. The Equality Tribunal has no jurisdiction whatsoever to make any decisions, orders or findings in respect of such a claim. The respondent maintains that the only matter before the Equality Tribunal is the question as to whether the Complainant has been discriminated against in accessing an educational establishment and, in that regard; the Respondent submits that it is not the appropriate Respondent in all the circumstances, as has been set out elsewhere herein.
6 Report of Hearing 14 May 2008
6.1 At the Hearing on 14 May 2008, the complainant’s stepfather, John Ferriter, described how Anastasia’s level of English was very poor when she arrived in Ireland in 2005 and how she had worked to improve her English over the past few years with the assistance of teachers in her school.
Anastasia had no understanding of Irish whatsoever and had been given an exemption from studying Irish because of her nationality. She was taught through English in all subjects except Business by the teachers in Meánscoil na Toirbhirte and successfully sat all her Junior cert exams through English in 2007.
When it was announced that the new school would be strictly an All-Irish school, Anastasia was left with no option but to look elsewhere and ended up enrolling in the Presentation Convent Tralee.
6.2 At the Hearing on 14 May 2008, the Department of Education and Science was asked for some background information on how Lán Gaeilge schools operated the grants they received and the level of departmental monitoring that occurred.
On being asked for some background on all-Irish speaking schools and the general advantages to a school of being designated as an All Irish speaking school, the respondents explained that such schools received an additional 40% capitation for each of its pupils plus an additional teacher. There are over 100 designated Lán Gaeilge schools in Ireland.
When asked whether such a school was required to ensure that all classes are taught exclusively through Irish, the Department said that this was a matter for the school itself but that the Department would expect there would be some flexibility with regard to certain subjects where some element of English would be used. The Department does not, however, carry out any direct monitoring with regard to the manner in which subjects are taught in Irish speaking schools
6.3 The Department was not aware of any Lán Gaeilge school in the country having been penalised in the past 20 years for teaching subjects entirely through English or partly through English.
The Department was not aware that Anastasia’s old school Meánscoil na Toirbithe had been teaching some non-Irish students through the medium of English in most subjects. The Department had not envisaged that this would happen in an A1 Level Irish school and accepted that such behaviour could have implications for the payment of higher capitation grants
Students who answer in Irish at the written examination in certain subjects may be given up to 10% in bonus marks in addition to the marks gained in the subject.
There is no requirement on students from All Irish schools to take the Irish version of the Leaving Cert and Junior Cert exams papers. On the day of the exam, candidates have the option of answering either in Irish or in English and are supplied with whichever version of the examination paper they choose.
6.4 The State Examinations Commission has complete responsibility for overseeing the Junior and Leaving Cert examinations and for supplying students with whichever language paper they choose to answer. Accordingly, the Department has no means of recording how many students country wide sat the Irish version of specific subject papers
When asked if there was any way of finding out how many Irish language pupils in Dingle took the English version of particular papers in 2007, the Department explained that these statistics were not available. (According to the State Examinations Board, individual markers award the bonus marks when correcting papers and only release the total marks obtained to the Board. Markers are not required to record the number of Irish language papers they have marked.)
6.5 The respondents stated that the Gaeltacht catchment area of the new Pobalscoil Chorca Dhuibhne covers 70% of the Dingle peninsula. The only non-Irish school in the peninsula was in Castlegregory but this would require two daily trips over the Conor Pass and accordingly could not be regarded as a viable option for Anastasia
At the end of the 2006/2007 school year, prior to amalgamation, the Department reported that 229 students were attending Meánscoil na Toirbhithe and a further 255 were attending the local Scoil na mBráithre Chríostaí. A total of 469 students enrolled in the new Pobalscoil Chorca Dhuibhne for the 2007/2008 year of which at least 12 were born outside Ireland
7 Conclusions of the Equality Officer
7.1 Jurisdiction to hear complaint
In considering the respondent’s claim that the Equality Tribunal does not have jurisdiction to hear this complaint as there are constitutional issues involved, I am of the opinion that the issues that are before me are not constitutional issues. My examination of the facts is confined to the application of the Equal Status Acts and the alleged contravention of these Acts by the Department of Education and Science. I am therefore of the opinion that the complainant is entitled to name the Department of Education and Science as a Respondent in this action and that I have jurisdiction to examine the facts of this case and to decide on the matter.
7.2 As mentioned above, this dispute concerns a complaint by Anastasia Lyamina against the Department of Education and Science alleging that the Department failed to provide for her continuing education while she was a student living in the Gaeltacht area of the Dingle peninsula. The complainant maintains that she was discriminated against both directly and indirectly by the Department on the race ground. The respondents deny these allegations stating that the Department only provides for education and that the correct respondent in the case is the Board of Management of the school.
7.3 To enable me to fully consider the allegation made, I propose to examine matters from the following perspective:
· Firstly, I want to look at the question as to whether the Department of Education and Science falls into the category of “service provider” as defined under the Equal Status Acts.
Secondly, if my finding is in the affirmative,I propose to proceed to consider whether the Department discriminated either directly or indirectly against the complainant contrary to the provisions of the Equal Status Acts 2000 – 2008.
7.4 In considering the respondents argument that the Department of Education and Science is not a “service provider” as defined by the Equal Status Acts and that the Department’s role is to “provide for education” rather than being a provider of education, I have had regard to provisions of the Education Act, 1998 referred to above and, in particular, I have noted the following extracts from various Sections of the Education Act, 1998:
“ Objects of the Act
6.—Every person concerned in the implementation of this Act shall have regard to the following objects in pursuance of which the Oireachtas has enacted this Act:
(a) to give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs, as they relate to education;
(b) to provide that, as far as is practicable and having regard to the resources available, there is made available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people;
(c) to promote equality of access to and participation in education and to promote the means whereby students may benefit from education;
(i) to contribute to the realisation of national policy and objectives in relation to the extension of bi-lingualism in Irish society and in particular the achievement of a greater use of the Irish language at school and in the community;
(j) to contribute to the maintenance of Irish as the primary community language in Gaeltacht areas;
(k) to promote the language and cultural needs of students having regard to the choices of their parents;
Functions of Minister
7.—(1) Each of the following shall be a function of the Minister under this Act:
(a) to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person,
(b) to determine national education policy, and
(c) to plan and co-ordinate—
(i) the provision of education in recognised schools and centres for education, and
(ii) support services.
(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act;
(b) to monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education, having regard to the objects provided for in section 6 and to publish, in such manner as the Minister considers appropriate, information relating to such monitoring and assessment;
(d) to provide support services through Irish to recognised schools which provide teaching through Irish and to any other recognised school which requests such provision;
(f) to do all such acts and things as may be necessary to further the objects for which this Act is enacted.
(3) The Minister shall have all such powers as are necessary or expedient for the purpose of performing his or her functions.
and
(b) shall make all reasonable efforts to consult with patrons, national associations of parents, parents’ associations in schools, recognised school management organisations, recognised trade unions and staff associations representing teachers and such other persons who have a special interest in or knowledge of matters relating to education, including persons or groups of persons who have a special interest in, or experience of, the education of students with special educational needs, as the Minister considers appropriate.”
7.5 From consideration of the above extracts from the Education Act, 1998, I consider that it is clear that the Minister and the Department have a pivotal role to play in planning and co-ordinating the provision of education in recognised schools and centres for education. Indeed, the Act goes on to state that it shall be a function of the Minister to monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education.
In considering the Department of Education and Science’s role in the provision of education in Ireland, I have also had regard to its Mission Statement which describes the principal functions of the Department as follows:
· The mission of the Department of Education and Science is to provide high-quality education, which will:
· Enable individuals to achieve their full potential and to participate fully as members of society,and
· Contribute to Ireland’s social, cultural and economic development.”
In pursuit of this mission, the Department has identified the following high-level goals:
· “To promote equity and inclusion.
· To promote quality outcomes.
· To promote lifelong learning.
· To plan for education that is relevant to personal, social, cultural and economic needs.
· To enhance the capacity of the Department of Education and Science for service delivery, policy formulation, research and evaluation. “
In addition, in its Customer Service Charter the Department gives the following commitment under the heading Equality and Diversity:
“We aim to ensure equality of access to our services, accommodating those covered by the nine grounds identified in equality legislation”
Also, in its Statement of Strategy 2005-2007, the Department of Education and Science identifies itself as a provider of services. As part of this, the Department pledges to “ensure the effective development and implementation of emerging policy and legislation in partnership with parents, teachers and school management, with a view to promoting access, quality, efficiency and accountability in education.”.
From all of the above, it appears clear that, without the Department of Education and Science, there would be no fundamental education structures in Ireland and I consider that the role it has identified for itself in its mission statement “to provide high quality education” and to “contribute to Ireland’s social, cultural and economic development” is a service it is offering to the citizens of Ireland.
On being asked to comment on the content of its Mission Statement, Customer Service Charter and Statement of Strategy, the respondents argued that these publications do not give rise to any legal obligations on behalf of the respondents as the said documents have no legal standing, were not drafted with any legal precision and merely reflected the Department’s aims, objectives and intentions in relation to a broad range of activities.
While I accept the respondent’s argument that the documents in question have no legal basis, I still consider that they provide an accurate and helpful assessment of the Department’s duties, functions and obligations in the context of its overall role in the provision of education. Accordingly, I consider that the three publications identified above do have persuasive value in the context of my overall decision.
Having taken the contents of the Education Act into consideration in addition to the content of the above-mentioned publications, I have formed the opinion that the Department of Education and Science does fall into the category of a provider of a “service” as defined in the Equal Status Acts 2000 – 2008.
7.6 The Question of Direct or Indirect Discrimination
Having decided that the Department of Education and Science is a “service provider” under the provisions of the Equal Status Acts 2000 – 2008, I now propose to deliberate on whether Ms Lyamina was directly or indirectly discriminated against and, if so, whether the Department was responsible for any such discrimination.
In considering whether the complainant suffered direct discrimination, I find that there is no evidence to suggest that the Department treated her less favourably than any other student in providing her with education. Accordingly, I consider that the Department of Education and Science did not directly discriminate against Ms Lyamina in the matter.
7.7 In considering whether Ms Lyamina suffered indirect discrimination, I note that Section 3(1)(c) of the Equal Status Acts defines indirect discrimination as follows:
“where an apparently neutral provision puts a person ….at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
In Ms Lyamina’s case, she claims that it was at the time of the amalgamation of the two schools, when tuition through English was withdrawn, that she found herself to be in a less favourable position than other students.
In relating Ms Lyamina’s case to the above definition of indirect discrimination, I consider that the apparently neutral decision to teach students of the new school solely through the medium of Irish did put Ms Lyamina at a particular disadvantage compared to other students and that this decision may have constituted indirect discrimination contrary to the provisions of the Equal Status Acts.
7.8 Having accepted that indirect discrimination may have occurred, the next step is to decide whether the correct respondents have been identified, in order that they might be afforded an opportunity to rebut the allegation on the basis that the provision was “objectively justified by a legitimate aim”.
In denying that they are the correct respondents in this matter, the Department makes the argument that, in bringing her claim against the Department of Education and Science, the complainant did not pursue the correct respondent. The Department submitted that the appropriate Respondent to the claim was the Board of Management of Pobalscoil Chorca Dhuibhne who ultimately made the decision as to how tuition was to be provided.
The Department states that the authority of a school to decide on its own policies and methods of management is clearly set out in the Education Act and a school is entitled to decide on its own policies in accordance with the Act. If such policies potentially discriminate against any student in particular, the respondents claim that it is a matter for the Board of Management to deal with and defend any complaint made in respect of same. The Department says that it only becomes involved where an appeal is lodged under section 29 of the Education Act, 1998 against a decision of the Board of Management.
Having considered the above, I find that I am prepared to accept the Department’s claim that it is for the Board of Management to decide on its own policies and methods of management in the first instance and that the Department only has an appellant role in such cases.
7.9 Department’s Role in the Amalgamation of Schools
While I am prepared to accept that the Department was not responsible for the day-to-day management of Pobalscoil Chorca Dhuibhne, in order to establish whether indirect discrimination can be attributed to the Department, I believe that I still need to examine whether the Department had any role to play as a “service provider” in the amalgamation of the two local schools.
Accordingly, I now propose to examine the Department’s role in the amalgamation process of the Dingle schools to establish whether it played a primary or supporting role in the process and whether it had any input, at the amalgamation stage, into deciding the language through which subjects were to be taught in the new school.
As part of my deliberations on developments in the Dingle peninsula, I have taken cognisance of the Commission on School Accommodation’s report regarding the Amalgamation of Second Level Schools. At page 17 of the report the Commission states that “the desired outcome of an amalgamation is that students have improved access to educational programmes”
At page 27, the report summarises the formal role of the Department of Education and Science in second level school amalgamations. This includes the “decision in principle and Minister to decide on type of new school”. Moreover, in Section E of the report, at page 51, the following recommendation is made:
“School type for the new school
2. (a) The decision on the type of school for the newly amalgamated school should be informed by a range of considerations, including the outcomes of local consultation.
(b) If the patrons agree on the school type of the newly amalgamated school, the Minister for Education and Science should ratify the patron position.
(c) If the patrons agree in principle on an amalgamation but can not agree on the school type of the newly amalgamated school, the patrons should agree to refer the decision to the Minister for Education and Science on the basis that they will accept the Minister’s decision.”
7.10 Clearly from the above, the Minister for Education and Science has a role to play when amalgamations are being considered and this is in keeping with section 7(3)(b) of the Education Act 1998 which requires that the Minister “shall make all reasonable efforts to consult with patrons, national associations of parents, parents’ associations in schools, recognised school management organisations, recognised trade unions and staff associations representing teachers and such other persons who have a special interest in or knowledge of matters relating to education, including persons or groups of persons who have a special interest in, or experience of, the education of students with special educational needs, as the Minister considers appropriate.”
However, the important point to note from the above extract from the Commission on School Accommodation’s report is the reference to the power of the Minister in the amalgamation process at 2(b) above which says “If the patrons agree on the school type of the newly amalgamated school, the Minister for Education and Science should ratify the patron position”. This to me indicates that the Minister is only required to make a decision in a case where there is disagreement at local level on the type of school to be provided. Otherwise the Minister simply ratifies the proposal.
7.11 In order to obtain clarity as to the role of the Minister in the amalgamation of the Dingle schools, in September 2008 I sought copies from the Department of all relevant documentation held in relation to the proposed amalgamation of the Dingle schools. This documentation was submitted in November 2008.
I have since examined this documentation in detail and have found the following:
A new second-level school was originally discussed locally in 1986
In 1987, following local consultation at all levels, it was agreed by an overwhelming majority that sanction should be sought from the Minister for Education for the amalgamation of the two local schools in Dingle into a single Catholic Voluntary School
In 1989, the Minister gave her agreement in principle for the amalgamation
In 1998, because of the development contribution required from the local community towards a Voluntary School, the local community met and agreed unanimously that the status of the new school be changed to a Community School which would result in the Department financing the development of the school rather than the local community
In 1999, the Department, noting that the agreement of all relevant parties was now on record, confirmed its acceptance of the change of status of the new single school in Dingle to a Community School
There is no evidence whatsoever in the documentation to suggest that the Department was involved in any discussions with regard to the Irish language policy to be adopted by the new school for the tuition of classes.
7.12 From the above, it appears clear to me that the Department simply ratified the decision of the local community with regard to the status of the new Dingle school and played no decision-making role in the process. In addition, I can see no evidence from the documentation submitted to suggest that the Department had any influence in the decision to teach classes solely through the medium of Irish. It would seem that this decision was taken by the Board of Management itself at a later stage.
Based on the foregoing, I find that the Department of Education and Science had no role to play in deciding how tuition was to be provided in the new school and, accordingly, I consider that it did not discriminate either directly or indirectly against the complainant.
8 Decision
I find that the complainant has not established a complaint of direct discrimination but has established a complaint of indirect discrimination in this instance. However, I also find that the complainant, in bringing the case against the Department of Education and Science, has failed to identify the correct respondent with regard to her allegation of indirect discrimination.
Accordingly, I find that the complaint against the Department of Education and Science fails.
Brian O’Byrne
Equality Officer
6 March 2009
DEC – E /2001/041
Eng v St. James’s Hospital
(Represented by the HSEA)5.12 As an aid to considering the meaning of ‘vocational training’ and without seeking to apply
European Community law to the facts of this case as the complainant is a third country
national who does not enjoy the protection of any association agreements, I had regard to a
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number of European Court of Justice cases. In a case which concerned conditions of access
to vocational training in another Member State, the European Court of Justice clarified the
meaning of vocational training as:
“Any form of education which prepares for a qualification for a particular profession,
trade, or employment or which provides the necessary training and skills for such a
profession, trade or employment is vocational training, whatever the age and the level
of training of the pupils or students, and even if the training programme includes an
element of general education.”
1
In that case, the Court held that courses in strip cartoon art came within the definition of
vocational training. In a subsequent case, the Court stated that in general, university studies
fulfil the criteria for vocational training set out in the Gravier case and went on to hold that
University studies in veterinary medicine fall within the meaning of the term ‘vocational
training’2
. It appears that to come within the definition of vocational training in European
Court of Justice Jurisprudence, the education provided must prepare for a qualification for a
particular profession or provide the necessary training and skills for such a profession.
5.13 I note that in a High Court case which concerned the conditions of access to the solicitors’
vocational training programme, the Court found as a fact that the Incorporated Law
Society’s vocational training programme embodied two elements, institutional training and
in-service training. It found that under the regulatory regime in place at that time for students
to qualify as solicitors, “a student attends a four and a half month institutional course
(the Professional Course) and a two month institutional course (the Advanced
Course) with an eighteen month period of in-service training as an apprentice in a
solicitor’s office “sandwiched” between the two courses.” During the in-service training,
the student is bound by indentures of apprenticeship to a practising solicitor. Laffoy J held in
that case that on the authority of the European Court of Justice decision in Browne v. The
Secretary of State for Scotland 3
, an apprentice who enters into indentures of apprenticeship
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DEC-E-2001/041
3 Case 197/86 ECR 1988 page 3205
2 Vincent Blaizot v. University of Liege & ors Case 24/86 ECR 1988 page 0379 para 24
1 Francoise Gravier v City of Liege Case 293/83 ECR 195 page 0593 para 30
pursuant to the Society’s Regulations takes up an activity as an employed person and
becomes a worker within the meaning of Regulation (EEC) No. 1612/68 on the freedom of
movement of workers within the European Community. In the Bloomer case, Laffoy J
considered that “The plaintiffs seek to pursue a course of vocational training in this
jurisdiction of which an integral element is the creation of an employment relationship
with a practising solicitor.”
5.14 Arising from the reference in the Bloomer case to the European Court of Justice decision of
Browne v. The Secretary of State for Scotland, I have considered the case, again, without
seeking to apply it to the facts of this case. In that case, the Court emphasised that the
concept of worker within the meaning of Article 48 of the EEC Treaty and Regulation No.
1612/68 has a specific Community meaning. It referred to previous European Court of
Justice Judgments (Case 53/81 Levin v. Staatssecretaris van Justitie, Case 139/85 Kempf v.
Staatssecretaris van Justitie) where the Court held that “any person who pursues an
activity which is effective and genuine, to the exclusion of activities on such a small
scale as to be regarded as purely marginal and ancillary, is to be treated as a
worker.”
4
The Court in Browne then referred to Lawrie-Blum5
and stated that “The
essential characteristic of the employment relationship is that for a certain period of
time a person performs services for and under the direction of another person in
return for which he receives remuneration.”
5.15 In relation to this particular case, I note that vocational training is defined in section 12(2) of
the Employment Equality Act, 1998 as meaning “any system of instruction which enables
a person being instructed to acquire, maintain, bring up to date or perfect the
knowledge or technical capacity required for the carrying on of an occupational
activity and which may be considered as exclusively concerned with training for such
an activity.” Section 12(1) of the Act prohibits discrimination on any of the nine grounds in
vocational training by any person (a) in the terms on which a vocational training course or
related facility is offered, (b) by refusing or omitting to afford access to such a course or
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5 Lawrie-Blum v. Land Baden-Wuerttemburg 1986 ECR 2121
4 Para 31
facility and (c) in the manner in which such a course or facility is provided. I note that section
12(7) provides, inter alia, that nothing in subsection (1) of that section shall make unlawful
discrimination on the race ground in respect of any course of vocational training offered by
an educational or training body where –
(a) it provides different treatment in relation to –
(i) the fees for admission or attendance at any such course by persons
who are citizens of Ireland or nationals of another Member State of the
European Union, or
(ii) the allocation of places on any such course to those citizens or
nationals, …
5.16 The definition of vocational training in section 12(2) of the Act provides that to come within
the definition of vocational training, the system of instruction should be capable of being
considered as exclusively concerned with training for an occupational activity. In relation to
the question of whether the complainant’s Internship was exclusively concerned with training
for an occupational activity, I note that the complainant had already completed a period of
education in Trinity College, and had obtained a Bachelor Degree in Medicine, in Surgery
and in Obstetrics which enabled him to gain provisional registration as a Medical
Practitioner from the Medical Council. I consider that during the period of Internship, the
complainant was effectively carrying out work as a Medical Practitioner under the
supervision of a Consultant. It therefore appears to me that the years internship was not
exclusively concerned with training for carrying on an occupational activity and cannot
therefore be regarded as vocational training within the meaning of the Act. I note also that
under the Work Permit Rules of the Department of Enterprise, Trade and Employment, a
Work Permit is not required where the work is an integral part of the study being
undertaken. If it were the case that the respondent considered that the work performed
during the Internship was an integral part of study being undertaken, it would not have
necessitated an application for a Work Permit. Taking into account the definition of
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DEC-E-2001/041
vocational training in the Employment Equality Act, 1998, the High Court Judgement in the
Bloomer case and the respondent’s application for a work permit, I conclude that the period
of Internship cannot be considered to be vocational training and the exemption provided in
section 12(7) of the Act in relation to treatment has no application to this case.
5.17 In relation to the question whether the complainant was in an employment relationship with
the respondent, I note that the respondent stated that it is not in dispute that the complainant
performed like work with the three named comparators during the relevant period and is
relying on section 29(5) of the Act which provides that nothing shall prevent an employer
from paying, on grounds other than discriminatory grounds, different rates of pay to different
employees. The respondent also submitted that the Internship was a training opportunity.
However, I do not consider that employment and a training opportunity are necessarily
mutually exclusive. The respondent did not dispute that the comparators were in an
employment relationship and at the hearing, the respondent clarified that it also classified a
paid Internship as a training opportunity. In my opinion, the existence of a training
opportunity does not detract from the existence of an employment relationship. Taking into
account the various factors in this case, namely, (i) the documentary evidence in relation to
the complainant’s position, (ii) the employment relationship between the comparators and
the respondent, (iii) that the complainant held the same position (Intern) as the comparators,
(iv) that the complainant’s relationship with the respondent embraced the elements of a
contract of employment save for the remuneration in respect of basic hours worked (alleged
to be the discriminatory act), (v) the respondent’s statement of its power to dismiss the
complainant and comparators for gross misconduct and (vi) the respondent’s statement that
it did not dispute like work between the complainant and the comparators, I am satisfied
that an employment relationship existed between the complainant and the respondent. As the
respondent has accepted that the complainant and comparators who also occupied Intern
positions were engaged in like work, a prima facie case of pay discrimination on the race
ground is established. The onus therefore shifts to the respondent to rebut the claim of pay
discrimination by showing that there are grounds other than nationality for the difference in
pay.
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DEC-E-2001/041
Grounds other than race for the difference in pay
5.18 The respondent denies the allegation of pay discrimination and alleges that there were
grounds other than nationality for the difference in pay. Section 29(5) of the Act provides
that:
“……., nothing in this Part shall prevent an employer from paying, on grounds other
than discriminatory grounds, different rates of remuneration to different employees.” .
At the hearing of the claim, the respondent clarified that there were two grounds other than
race for the difference in pay between the complainant and the comparators. It submitted
that the first one was the work permit rules of the Department of Enterprise, Trade and
Employment which require that before a work permit is granted, the employer must establish
that it has not been possible to fill the vacancy with an Irish or EEA national. The second
one was the type of post which the complainant held, i.e. a non-funded post and
assignments to these posts took place on the basis of exam results and compliance with the
Treaty of Rome.
5.19 I shall firstly deal with the respondent’s submission that the rules for the granting of a work
permit by the Department of Enterprise, Trade and Employment constituted a ground other
than race for the difference in pay. It is correct to say that before a work permit can be
granted to an employer in respect of a non-Irish or non-European Economic Area national6
(EEA), employers are generally required to establish that it has not been possible, in spite of
reasonable efforts being made, to fill the vacancy with an Irish or other person for whom a
work permit is not required. Whilst the work permit rules require that preference is given to
Irish and EEA nationals to avail of employment opportunities, I do not consider that it was
envisaged that this preference applied to paid posts only and that non-EEA nationals could
instead be employed in unpaid posts. In the circumstances, I do not accept that the work
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DEC-E-2001/041
6 The EEA comprises of Member States of the European Union (Belgium, Denmark, Germany, Greece, Spain,
France, Ireland, Italy, Luxembourg, The Netherlands, Austria, Portugal, Finland, Sweden and the UK) together
with Norway, Iceland and Liechtenstein.
permit rules of the Department of Enterprise, Trade and Employment constituted a legitimate
ground other than nationality for the difference in pay between the complainant and the
comparators.
5.20 I will now consider the respondent’s second ground other than race for the non-payment of
salary to the complainant which is that when placing medical graduates in funded Intern
posts, non-EEA graduates may be displaced to accommodate EEA graduates who did not
score highly enough in their exams to secure a funded post. The respondent submitted in its
written submission that doctors are assigned to training schools based on the overall
aggregate of their marks in their final year and on the basis of their own particular placement
preferences. It submits that if Irish and other EEA graduates fail to be appointed to funded
posts under the scheme, non-EEA graduates may be displaced in order to accommodate
their EEA colleagues. It further submits that this is a requisite practice to accord with its
obligations under Article 48 and 49 of the Treaty of Rome which provides for equal
treatment of workers within the EEA. In its written submission, the respondent also referred
to Council Regulation (EEC) No. 1612/68 and the entitlement of a national of a Member
State to the same priority as regards access to employment in another Member State. It
submits that whilst the rights of European citizens are protected at EU level, no Community
rules have been formulated for nationals of non-member countries entering or residing in the
European Union. It further submits that:
“Although the recruitment practice described is not formally admitted in the
Employment Equality Act, 1998, it is submitted that where there appears to be a
conflict between domestic legislation and the Treaty of Rome, the Treaty of Rome
prevails.”
5.21 At the hearing of the claim, the respondent explained that there is a meeting each year
between representatives of the two teaching hospitals (St. James’s and Tallaght) and Trinity
College in relation to the allocation of Internship posts. It submitted that when allocating paid
Intern posts, the list of graduates in order of exam ranking is checked and in particular it is
checked whether there are Irish or EEA nationals at the end of the list. If it appears that
Page 17 of 20
DEC-E-2001/041
they might not secure a funded post because of their lower exam ranking, they are given
priority in the allocation of paid posts and non EEA-nationals are displaced in the ranking
order. The respondent also confirmed that Supernumerary posts were not allocated to Irish
persons in the year 2000. I have examined the exam rankings of the graduates and I note
that an EU graduate who was ranked lower than the complainant (82nd place), was
allocated a paid Internship post. It is therefore, clear that the reason that the complainant
was displaced in the allocation of paid posts was because he was not an EU/EEA national
and not because of his exam ranking.
5.22 Title III of the EC Treaty provides for the free movement of persons, services and capital.
Article 39 EC Treaty (ex Article 48 of the Treaty of Rome) in particular, provides, inter alia,
that freedom of movement for workers shall be secured within the Community. The right to
free movement initially established by the Treaty of Rome applies to Member State
nationals. It appears to me that the Article in question obliges Member States not to
discriminate between their own nationals and nationals of other EU Member States.
However, it does not appear that, by corollary, the Article obliges employers to discriminate
against non-EU nationals. Similarly, whilst Regulation 1612/68 states that any national of a
Member State is entitled to the same priority as regards access to available employment in
another Member State, the priority afforded is necessarily subject to the requirements of the
1998 Act and it does not oblige discriminatory treatment of non-EU nationals in
circumstances where it is bound by national law not to discriminate on the grounds of
nationality. I do not accept the respondent’s submission that Articles 39 and 40 EC Treaty
(ex Articles 48 and 49) and Regulation 1612/68 allow for the displacement of non-EU
nationals in order to give priority to EU graduates in the allocation of funded Intern positions.
Whilst it appears under European law that third country nationals resident in the E.U. do not
enjoy the right to equal treatment with Member State nationals, it does not require
discrimination against such persons and the matter of how they are treated is left to each
Member State. National law therefore governs the rights and entitlements of third country
nationals resident in a Member State in this respect. There is, therefore, no conflict between
the domestic law of this jurisdiction and European law in the matter and the provisions of the
Employment Equality Act, 1998 apply. In the circumstances, I do not accept that the EC
Page 18 of 20
DEC-E-2001/041
Treaty and Regulation 1612/68 constituted a valid ground other than nationality for the
difference in pay between the complainant and the comparators.
5.23 As the respondent has not submitted any valid ground other than nationality for the
non-payment of basic salary to the complainant, the respondent has failed to rebut the claim
of pay discrimination on the race ground contrary to section 29 of the Employment Equality
Act, 1998.
5.24 In addition to the complainant’s claim for basic salary, he also claimed unrostered overtime
for which he was not paid and a living out allowance. It appears that these claims fall within
the definition of ‘remuneration’ in section 2(1) of the Act which provides that remuneration
“includes any consideration, whether in cash or in kind, which the employee receives,
directly or indirectly, from the employer in respect of the employment.” At the hearing
of the claim, the respondent conceded that the complainant should have been paid for
unrostered overtime. It stated that payment for unrostered overtime must be claimed and it
was its understanding that the complainant did not apply for it as he understood that he was
not entitled to it. The complainant did not dispute the respondent’s statement in the matter
and stated that at this point in time, he did not wish to approach his Consultants with an
estimate of the hours worked in respect of unrostered overtime during the period July 2000
to March 2001. He did not therefore withdraw this element of the claim. In his written
submission, the complainant sought payment for unrostered overtime on the basis of 29
hours worked per week during his Internship. By letter dated 30 October 2001, the
respondent agreed to pay the complainant unrostered overtime based on the formula
proposed by the complainant at the hearing of the claim which reiterated the claim in his
written submission. I shall therefore make an order in relation to payment for unrostered
overtime hours on the basis of 29 hours per week as agreed by the parties.
6. DECISION
Page 19 of 20
DEC-E-2001/041
6.1 On the basis of the foregoing, I find that the complainant was discriminated against in relation
to his pay on the race ground contrary to section 29(1) of the Employment Equality Act,
1998.
6.2 In accordance with section 82 of the Employment Equality Act, 1998, I hereby order that
St. James’s Hospital pay Dr. Bennett Kim Heng Eng
(i) arrears of salary for the period 10 July 2000 to 31 March 2001 at the rates
applicable as circulated by the IMO;
(ii) unrostered overtime based on an average of 29 hours each week during the period
of the claim at the rates applicable as circulated by the IMO;
(iii) a living out allowance payable per week in respect of the period of the claim at the
rates applicable as circulated by the IMO;
_________________
Mary Rogerson
Equality Officer
20 December 2001
Kelly -v- U. C. D.
[2008] IEHC 464
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 14th day of March, 2008:
1. The plaintiff in this case is a qualified teacher and resides at 11 Deansrath Avenue, Clondalkin, Dublin 22.
2. The defendant is an educational establishment descended from the body founded in 1854 as the Catholic University of Ireland, re-formed in 1880 and chartered in its own right in 1908. The university is a constituent university of the National University of Ireland. The Universities Act 1997 renamed the university as “National University of Ireland, Dublin”, and the National University of Ireland, Dublin (Change of Name) Order 1998 (S.I. 447/1998) renamed the university as “University College Dublin – National University of Ireland, Dublin”. At all material times it was offering a course leading to a Masters in Social Science (Social Worker) mode A for the academic period 2002 – 2004.
3. The notice party is the statutory appointee of a body established by the Employment Equality Act 1998, namely the Equality Tribunal. That body has the powers, functions and duties assigned to it by virtue of the provisions of the aforesaid Act, together with additional powers granted to it under the Equal Status Act 2000.
4. On the 23rd of December 2001, the plaintiff submitted his completed application form to UniversityCollege Dublin (“UCD”) seeking admission to the aforesaid course for the cycle in question. Having been interviewed in February 2002 as part of the selection process, he was informed by letter dated the 15th March 2002 that he was not being offered a place on the course. Being dissatisfied with this decision and with the follow on correspondence between himself and the college, he made a formal complaint in late-April 2002 of gender discrimination to the Director of the Equality Tribunal. He did so pursuant to s. 7 of the 2000 Act and based his claim on alleged breaches of ss. 3(1)(a) and 3(2)(a) thereof. A Mr. Hugh O’Neill, an Equality Officer with the notice party, was deputed to investigate and determine this complaint. He did so following an oral hearing on the 22nd of September 2006, and committed his decision to writing on the 2nd of November 2006. He concluded that the plaintiff had failed to establish prima facie discrimination on gender grounds.
5. Given the issue which this Court is concerned, it is not necessary to set out in any detail the precise nature of the complaints made by Mr. Kelly or UCD’s detailed response to them. However a brief description of a general nature is required. Apparently, in February 2002, 93 candidates were interviewed for this course, 87 female and 6 male. A Professor Gabriel Kiely (male) and a Ms. Elaine Purcell (female), who interviewed the plaintiff, were obliged to complete a “selection interview guide”, which has been described as a “scoring sheet”. Apparently Mr. Kelly did poorly in this process. In response, relying on the numerous reasons set out (and repeated) in much of the documentation, including an affidavit sworn on the 6th of November 2006, he takes indignant issue with both the process and the result. In any event, after the interview and selection process had been completed, the top 50, two of whom were male and placed first and second, were offered immediate places on the course. A further 24, including two other males and the plaintiff (who was rated 65th overall) were placed on a waiting list. Subsequently by letter dated the 19th of August 2002, Mr. Kelly was offered a place on the course which he declined, offering as one of the reasons, the fact that he had been accepted on an equivalent postgraduate Social Work course at Trinity College, Dublin. Arising out of the entire process, both procedural and substantive, the basis of Mr. Kelly’scomplaint, which in essence is one of gender discrimination, is that at all times he was better qualified than the least qualified female candidate who was offered a position on round one.
6. In his initial complaint he alleged discrimination in the following respects:-
“1. In a course for which the overwhelming number of applicants were women, no demonstrable effort was made to address the gross under-representation of men;
2. At the time of his interview for a place on the course he suffered hostility bias and resentment due to his gender;
3. There was a failure on the part of the relevant authorities at The University to demonstrate adherence to the principles of equal opportunities and positive discrimination, constituting a breach of European Union law, as interpreted by the European Court of Justice;
4. Because of his gender he was not treated fairly at the time of his interview for the course and was the victim of prejudice.”
These grounds were later added to by way of a ten page written submission which is annexed as appendix A to the decision of the Equality Officer.
7. Some days after the decision of this officer, the plaintiff issued a notice of motion under O. 57A, r. 6(1) of the Circuit Court Rules appealing that decision to the Circuit Court which is provided for by s. 28 of the Equal Status Act 2000. A trial date of the 14th of June 2007 was subsequently set for this appeal. In the meantime however, he issued a further motion dated the 4th of January 2007, in which he sought from UCD copies of certain specified documents, again under O. 57A but this time under rule 6(6) of the Circuit Court Rules. By the issue date of this motion the plaintiff had been informed by letter of the 21st of December 2006, from Mr. Eugene O’Sullivan’s solicitor for UCD, that the defendant body had retained the application forms of 49 of the 93 applicants above-mentioned and had disposed of the other applications. What Mr. Kellytherefore sought was firstly copies of “the retained applications”, secondly copies of the documents “appended to or included with” the “retained applications”, and thirdly copies of the “scoring sheets” of the 49 candidates, whose application forms had been retained. In a subsequent affidavit sworn by one Suzanne Quin, Head of the School of Applied Social Science at UCD, she averred at para. 3 thereof that application material was only retained in respect of those candidates who actually commenced the course and that in accordance with the college’s records retention policy, the material which had been submitted by the other candidates was destroyed in March 2006. Nothing, however, turns on the precise date upon which the material was disposed of or on the correctness or otherwise of this policy.
8. The disclosure application was argued before the Circuit Court, having previously been in a list for the County Registrar. The President of that court refused the application on the 12th of March 2007 and by notice dated the 14th of March 2007, Mr. Kelly appealed to this Court against that order. For the following reasons, neither that appeal nor the substantive appeal against the decision of the Equality Officer have as yet been determined by the courts.
9. On the 23rd of April 2007, Mr. Kelly appeared before this Court and sought to have three questions, to which a fourth was added at a subsequent date, referred to the European Court of Justice under Article 234(1) and (3) of the EC Treaty. These questions are as follows:-
1. Does Article 4(1) of Council Directive 97/80/EC entitle an applicant for vocational training who believes that he or she has been denied access to vocational training because the principal of equal treatment was not applied to him or her, to information on the respective qualifications of the other applicants for the course in question and in particular the applicants who were not denied access to vocational training, so that the applicant can, “establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination”?
2. Does Article 4 of Council Directive 76/207/EEC entitle an applicant for vocational training who believes that he or she has been denied access to vocational training “on the basis of the same criteria” and discriminated against “on grounds of sex” in terms of accessing vocational training to information held by the course provider on the respective qualifications of the other applicants for the course in question and in particular the applicants who were not denied access to vocationaltraining?
3. Does Article 3 of Council Directive 2002/73/EC prohibiting “direct or indirect discrimination on the grounds of sex” in relation to “access” to vocational training entitle an applicant for vocationaltraining who claims to have been discriminated against “on the grounds of sex” in terms of accessing vocational training to information held by the course provider on the respective qualifications of the other applicants for the course in question and in particular, the applicants who were denied access to vocational training?
4. Does the nature of the obligation under Article 234(3) EC differ in a member state with an adversarial (as opposed to inquisitional) legal system and, if so, in what respect?
It is in respect of this reference request that this Court now gives judgment.
10. Council Directive 76/207/EEC of 9th of February 1976 ‘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’ (the “Equal Treatment Directive”), introduced “the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training…” (Article 1). Article 2 defined the principle of equal treatment as meaning that “there shall be no discrimination whatsoever on grounds of sex either directly or indirectly…” (Article 2). Article 4 requires member states to take all necessary measures to ensure that “…vocational training, advanced vocational training and retraining shall be accessible on the basis of the same criteria and at the same levels without any discrimination on grounds of sex” (Article 4(c)). That directive was subsequently amended by Council Directive 2002/73/EC, which took effect only as and from the 23rd of September 2002.
11. The second Directive referred to is Council Directive 97/80/EC of 15th December 1997, ‘on the burden of proof in cases of discrimination based on sex’ (the “Burden of Proof Directive”), and in particular Article 4(1) thereof which reads:
“Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”.
12. This Directive has ostensibly been given effect to in Irish law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. 337/2001), but only in respect of certain Acts of the Oireachtas, which do not include the Equal Status Act 2000.
13. The plaintiff relies upon the Equal Treatment Directive and the Burden of Proof Directive, as conferring upon him a right, by virtue of Community law, to have sight of the documents referred to at para. 7 of this judgment. He claims that having this information, which relates to the qualifications and suitability of the successful applicants, is critical so that he can establish his allegation of discriminating conduct, or at least can establish facts to which Article 4(1) of the Burden of Proof Directive could then apply. This right, he asserts on the one hand, is separate and distinct from his appeal presently before this Court, but on the other, if established, is such as must have a direct influence on domestic law. The latter appeal on the disclosure application has its foundation in domestic law, whereas the Directive point is based on Community law. Accordingly, Mr. Kelly submits that this Court is duty bound, by virtue of Article 234 of the EC Treaty, to refer the above questions to the European Court of Justice (“ECJ”) for a preliminary ruling from that Court.
14. The plaintiff’s substantial argument on this application is strikingly simple. He asserts that this Court is the court of final instance in his appeal against the order of the Circuit Court, which it will be recalled was made on foot of the disclosure application; that being so, it is submitted that in accordance with Article 234(3), this Court has no discretion, but must refer the suggested questions to the ECJ for its opinion thereon. In furtherance of his claim, the plaintiff has filed several books of legal submissions supported by authorities, articles, opinions and publications. These run to several hundred pages and it would be neither feasible nor desirable, or indeed necessary, to substantially repeat those submissions or the authorities in this judgment. This because in my view, the issue raised can be disposed of by reference to the material above mentioned, as well as the cases hereinafter discussed.
15. In addition to his principal request, Mr. Kelly has made two subsidiary arguments which conveniently can be dealt with at this point. The first submission, which I reject, is to the effect that once a party raises a question of Community law before a court acting as a court of final instance, that Court must make the reference as sought; it has no discretion to do otherwise. Arising out of a similar or comparable submission, the ECJ in CILFIT v. The Minister for Health [1982] ECR 3415 took the opportunity of clarifying what the true position was. As part of its decision the Court dealt specifically with this point at para. 9, where it stated:
“… Article [234] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning Community law does not mean that the Court or Tribunal concerned is compelled to consider that a question has been raised within the meaning of Article [234]. On the other hand, a national Court or Tribunal may, in an appropriate case, refer a matter to the Court of Justice of its own motion.”
Therefore no party to an action has the right to insist upon a reference being made or to assert a right of veto against the making of such a reference.
16. The second point is the suggestion that para. 3 of Article 234 is entirely unrelated to the preceding paragraph. Whilst there are significant differences, as noted infra., both have in common the requirement that the court of final instance must consider that the views of the ECJ are necessary in order to enable it to give judgment (emphasis added). Therefore, unless the domestic court felt unable to give a decision without making a reference, it would not do so. But where such conclusion is reached a reference must be made.
17. The defendant, UCD, has made two submissions in response, both in support of its opposition to the making of any reference. The College’s views can be summarised as follows:-
(1) In considering this application, the exact wording of Article 234 shows that the following four requirements must be satisfied before this court should accede to the request made:-
(a) The questions must relate to provisions of Community la w upon which the European Court has jurisdiction to give a ruling,
(b) The questions must relate to the interpretation and/or validity of those provisions,
(c) The questions must have been raised before a national court or tribunal, and
(d) A decision on the questions must be necessary so as to enable the national court or tribunal to give judgment.
(2) Where a court, before which the above requirements are satisfied, is a court of final instance, then a reference must be made subject only to the acte clair principles. These principles, which describe a number of circumstances in which a reference, even under para. (3) of Article 234, is not mandatory, takes its name from the decision of the ECJ in CILFIT v. The Minister for Health [1982] ECR 3415. Relying upon this decision it is suggested that the plaintiff’s request for a reference should be refused as he has failed to surmount the criteria specified in that case.
(3) In particular it is said:
(i) that, in the context of this case, the Court envisaged in Article 234(2) is not this court, but the Circuit Court, as that court has seisin over the substantive appeal (Fratelli Pardini v. Ministero del Commercio con L’estero [1988] ECR 2041);
(ii) that the reference is unnecessary as any ruling would have no impact on the outcome of the case; and,
(iii) that as the interpretation of community law is so obvious on the points at issue, no benefit could be derived from such a reference (CILFIT v. The Minister for Health [1982] ECR 3415).
(4) It is further claimed that the Equal Status Act 2000 is purely a domestic piece of legislation from which no question of Community law could arise: whereas if the discrimination claim has been brought under s. 12 of the Employment Equality Act 1998 (which it was not), some question of Community law could possibly have arisen. Moreover, the course in question was not in fact a vocational course, and therefore the Equal Treatment Directive is inapplicable.
(5) Neither does a reference have to be made when it could be regarded as frivolous or vexatious,an example of which would be where the issue in question can be determined solely by reference to domestic law (see Riordan v. An Taoiseach [2000] 4 IR 537).
(6) Finally, the defendant also claims that the principle of confidentiality as understood in both domestic and European case law, makes it clear that in any event the plaintiff’s request for sight of all applications of the successful parties in unredacted form cannot succeed.
18. Article 234 of the EC Treaty reads:-
(1) “The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.”
(2) “Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request a Court of Justice to give a ruling thereon.”
(3) “Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”
Purely for convenience I have numbered the paragraphs in the Article as (1), (2) and (3).
19. Before I look at these provisions in detail I should say a word about the relationship between Community law and national law. As a matter of general principle there is no doubt but that Community law constitutes an autonomous system of law and that in all respects it is a system which is superior to any domestic system of a Member State. In any case of conflict, inconsistency, or discord, national measures must give way. This means that where conflict exists:
i) Community law takes precedence over domestic law;
ii) Community law renders automatically inapplicable any relevant national provision;
iii) Community law prohibits the adoption of any new measures which are incompatible with it; and finally,
iv) A national court, in order to give full effect to this principle, must set aside conflicting provisions, whether passed before or after the Community measure.
20. These principles are non-controversial and well established (see Stato v Simmenthal [1978] ECR 629). These provisions have been supplemented by what might be described as subsidiary rules, established by the ECJ over time. One such rule emerged from the Marleasing case (Marleasing SA v. La Comercial Internacional de Alimentacion SA [1991] 1 ECR 4135) and is now known as the “Marleasing principle” or the “principle of conforming interpretation”. This means that a national court has an obligation to interpret domestic legislation “so far as possible” in a manner both compatible with and in conformity to European law. This phrase “so far as possible” has been the subject matter of several decisions. Broadly speaking this interpretive method cannot be stretched to a point which involves a departure from the fundamental or cardinal feature of the provision in question. Subject however to this qualification, the Marleasing principle pervades all pieces of domestic law which necessarily are or ought to be influenced by Community law (see Commissioners for Her Majesty’s Revenue and Customs v. IDT Card Services Ireland Ltd [2006] EWCA Civ 29 and Pfeiffer v. Deutsches Rotes Kreuz [2005] ICR 1307).
21. As can therefore be seen, Article 234 effectively has three parts to it. Para. (1) outlines the parameters of the Court’s jurisdiction to give a preliminary ruling. Para. (2) confers a discretion on a national body to make a reference if it considers it necessary “to enable it” to give judgment on an issue before it. Para. (3) is similar to para. (2), but with two vital differences: firstly it refers to a court against which there is no judicial remedy under national law (court of final instance); and secondly, once the qualifying criteria exist, the national court must make such a reference – it has no discretion in so doing.
22. To come within this Article, a plaintiff must meet the positive requirements which are inherent in its provisions, and must also disapply all of the exceptions underlining the mandatory element of para. 3 thereof. In the first instance, this means:
1) that the suggested questions must relate to the validity and interpretation of acts of the institutions of the Community;
2) that such questions are raised in a case pending before the referring national court;
3) that such court considers that a ruling from the ECJ on such question(s) is necessary so as to enable it to give judgment in the case pending before it; and,
4) that such court is a court of final instance in that there is no judicial remedy against its decision under national law.
23. In CILFIT v. The Minister for Health [1982] ECR 3415 the disputed question, which arose in proceedings between wool importers and the Italian Minister of Health, concerned the payment of a fixed health inspection levy in respect of wool imported from outside the Community. The point in question depended on whether “wool” was included within a list of certain specified products, with the Minister arguing that the correct interpretation of the domestic measure was so obvious that a reference to the ECJ was not required. In the course of its judgment the court set out the essential purpose of the Article, as being to establish a uniform interpretation of Community law in all Member States, and to that effect para. 3 of Article 177 was designed to prevent the emergence of national judgments which differed from one Member State to another (para. 7). It then continued by laying down some general principles, which cumulatively are now known as the acte clair doctrine; these remain applicable to this day.
24. The acte clair principles are designed to ensure that notwithstanding what appears to be the mandatory wording of Article 234(3), a national court will not have to make a reference where the opinion of the ECJ can have no utility in the case or issue pending before it. To that end a series of cases, including, but not limited to CILFIT, have declared that a reference is not necessary:
1) where a ruling could have no impact or affect on the outcome of the case (see Weinand Meilickev. ADV/ORGA F.A. Meyer AG [1992] ECR I-4871; Corsica Ferries Italia Slr v. Corpo dei Piloti del Porto di Genova [1994] ECR I-1783; Monin Automobiles-Maison de Deux-Roues [1994] ECR I-195);
2) where the true meaning of the provision in question is “so obvious as to leave no scope for any reasonable doubt”, a conclusion to be arrived at only when the same meaning would be equally obvious to courts of other Member States (see CILFIT);
3) where the provision has been interpreted previously by the court, disregarding the nature of the earlier proceedings, and irrespective of whether or not the question raised is identical to the previous question decided upon (see CILFIT; Da Costa en Schaake NV v. Nederlandse Belastingadministratie [1963] ECR 31; Foglia v. Novello II [1981] ECR 3045); and,
4) where the ruling is sought only for the purpose of obtaining an advisory opinion on general or hypothetical questions (see Foglia v. Novello II [1981] ECR 3045; Criminal Proceedings against Gasparini and others [2006] ECR I-9199).
25. There can be no doubt but that Directives of the Council, are acts of the Community Institutions, and therefore are within sub-paragraph (b) of Article 234(1), which it should be noted embraces not only the validity of an act, but also its interpretation. Equally so, there can be no dispute but that this Court, which is established by law and has constitutional status, is a Court as envisaged by Article 234. Therefore what must be considered is whether the other requirements of the Article are satisfied and, even if they are, whether there are any countervailing reasons against such a reference.
26. At the outset it can immediately be said that the reference application cannot be classified as being frivolous or vexatious, no matter how broad such a phrase is interpreted. Secondly this court has not been referred to any previous decision of the ECJ on this or any similar or analogous point. Thirdly, in light of the presenting circumstances, it cannot be said that the suggested questions seek an advisory opinion on general or hypothetical issues (see Mangold [2005] ECR I-9981 and Adeneler v. Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057). And finally, in my view it cannot be concluded, with any degree of certainty, that the true meaning of the measures in issue are so obvious, to all Courts of the Member States, as to make a reference superfluous.
27. Furthermore, I do not feel that I have to make any decision as to whether or not the course to which Mr. Kelly sought admission was a course of “vocational training” for the purposes of s. 12 of the Employment Equality Act 1998. As a result, I do not have to decide whether the views of the Equality Officer in this regard are correct. The reason for this is that in my view it is at least arguable and perhaps strongly so, that as a matter or European law, a postgraduate course in Social Work is “vocationaltraining” for the purposes of Council Directive 76/207/EEC. In Gravier v. City of Liège [1985] ECR 593 the ECJ, when defining or describing “vocational training”, said the following at para. 30:-
“It follows… that any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training, whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education.”
See also Blaizot v. the University of Liège [1989] 1 CMLR 69; in particular paras. 19 and 20 of the court’s judgment. Given the nature of Mr. Kelly’s application, it is sufficient in my opinion for him to establish that the relevant course is arguably a course “of vocational training” for the purposes of European law, whatever this phrase might mean in domestic law. When established, any “interest qualification” requirement of Article 234 is thus satisfied.
28. In addition, the defendant argues that the complaint of gender discrimination instituted by the plaintiff has no connection with European law, and accordingly this Court lacks jurisdiction to make a reference even if it was otherwise minded to so do. This argument is to the effect that the Equal Treatment Directive (Council Directive 76/207/EEC) was given effect to by the Employment Equality Act 1998 and not by the Equal Status Act 2000. As the application was made under s. 7 of the latter Act, all issues theretofore are purely of a domestic nature and do not touch upon and are otherwise not connected to any Directive.
29. I agree that only the 1998 Act gave effect to the Equal Treatment Directive. I also agree that the Burden of Proof Directive was only incorporated into domestic law in 2001 by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001, (S.I. 337/2001), and did not cover the Equal Status Act 2000. However, this is not determinative of the matter for two reasons. Firstly, where the 2000 Act was not covered by the implementing Regulation, there may be a question as to whether the Directive was properly transposed into Irish law. Secondly, the Court must, where a Directive touches on a matter, interpret any national legislation in a manner consistent with that Directive (the Marleasing principle). In those circumstances, there may be a question of Community law, for the purposes of Article 234, with regards to how and if the Burden of Proof Directive affects the Equal Status Act 2000, and if it was properly transposed into Irish law. An Article 234 reference may therefore still be required, notwithstanding the fact that the Act under which the plaintiff has moved does not specifically refer to any Community legislation.
30. It is unclear whether the defendant accepts that this Court, in the applying context, is a court of final instance: on the one hand it seems to so accept: on the other it seems not to. The defendant supported the latter viewpoint by suggesting that this court is not the court which ultimately will give judgment on the appeal from the decision of the equality officer, and so it does not require any opinion from the ECJ to determine those issues. For this reason, it is therefore not the court of final instance on the issue before it. In this regard, it relies upon the case of Fratelli Pardini v. Ministero del Commercio con L’estero [1988] ECR 2041, which I will come back to later in the judgment.
31. In assessing the status of the Court at this stage of the appeal process, it is important to identify precisely what relief Mr. Kelly is seeking before me, and which provisions of domestic law he is invoking. Among the most contentious documents in issue are the personal statements of the successful applicants who commenced the course. That such documents are relevant and material to the substantive appeal cannot be disputed. Ms. Quin, on behalf of UCD has stated in evidence that those statements are “part of the documents that make up the total application for the Master of Social Science (Social Work) Course”. She also explained that:
“applicants for the course are requested to provide two personal statements in response to the following question ‘How did your interest in social work arise?’ and ‘What particular qualities and personal experience which you posses do you consider would be of help to you in this field of work?’ These are open questions and candidates make their own decisions as to the content of their responses.”
In a letter written by Miss Richardson in January 2002, who was then the course Director, she said “Selection for the course is based on the candidate’s completed application form, personal statements, references and performance at interview.” There cannot be an argument therefore on the relevance of said documents for comparative purposes, as it has always been the plaintiff’s case that he was better qualified than the least qualified female who obtained a place in the first round. Whilst it is impossible to re-create that part of the process which related to the interview and how that impacted on the eventual outcome, it cannot be doubted however but that the personal statements must have been an influential part of it, and thus of the success or failure of each applicant.
32. As stated above, the provisions governing the substantive appeal, i.e. the re-hearing on facts and law against the decision of the Equality Officer, are to be found in s. 28 of the Equal Status Act 2000. That section designates the Circuit Court and not this Court as the appellate court. Section 28(3), however, states that:
“(3) No further appeal lies, other than an appeal to the High Court on a point of law.”
It is therefore clear that this Court could never have seisin of the appeal in the sense stated and indeed that would remain the situation even if the Circuit Court had already disposed of the appeal. However, the questions sought to be referred have been raised before this Court on an appeal from the Circuit Court rejection of the disclosure application. Such an appeal, which is permitted under Part IV of the Court of Justice Act 1936, is heard by way of re-hearing (s. 37), with the decision of the High Court thereon being “… final and conclusive and not appealable” (s. 39). Therefore this Court is the court of final instance on the disclosure application: there is no judicial remedy available in national law against such a decision.
33. The only submission to the contrary is that the Circuit Court is the court seised of the appeal proper. No reliance is placed on the provisions of s. 28(3) of the 2000 Act: therefore it is unnecessary to comment on the effect (if any) of the restricted and limited nature of that form of appeal. I am unaware as to whether the plaintiff relied upon the Directives in the application under appeal: if he did, it is clear beyond question that this court would be the final court with regards to document disclosure: Mr. Kelly either by issue estoppel, abuse of process or otherwise would not be allowed to re-open that issue in the substantive appeal. The matter would have been dealt with at first instance and finally disposed of on appeal. If he did not rely upon those Directives, one could potentially argue that he should raise this issue in the appeal proper, and if dissatisfied, attempt to re-litigate the point via s. 28(3) of the Equal Status Act 2000. That approach would be both most unsatisfactory and circuitous. Unsatisfactory in that, unless successful in the application, the full appeal on the facts and merits would proceed without reference to such documents. If thereafter the appellate court should grant disclosure, a mechanism would have to be found, which is not immediately apparent, to have the case entirely re-heard in the Circuit Court. Neither possibility should be allowed to occur. In my view the effect of the legal regime is that the issues relating to the disputed documents cannot be re-litigated elsewhere. The plaintiff either succeeds or fails in this court. There is therefore no judicial remedy against this Court’s decision on the production of the contested documents. Consequently I am satisfied that for the purpose of the disclosure application, this Court is a “Court” referred to in Article 234(3).
34. The case of Fratelli Pardini v. Ministero del Commercio con L’estero [1988] ECR 2041 has been relied upon by the respondent as supporting the submission that no reference should be made unless the referring court requires an answer so as to determine an issue before it. In Fratelli, proceedings were instituted by way of an interlocutory application seeking as its sole object interim measures in respect of a dispute which arose between the company and the Italian Ministry of Foreign Trade (“Ministero del Commercio con l’Estero”). Having granted the interim measure, the court nevertheless made a reference to the ECJ. As a result, the Commission expressed doubts about the ECJ’s jurisdiction to give a ruling on the questions raised; given the fact that the proceedings before the requesting court were concluded. According to the argument, any such opinion could have no bearing on that court, but could only have an influence, if any, on the substantive proceedings, which on the relevant date had yet to be commenced. When commenced, the substantive proceedings would be brought before a Court or Tribunal different to that of the requesting court.
35. Having referred to the wide discretion vested in the national courts as to when and at what stage of the process a reference may be made, the ECJ at para. 10 said:-
“In that respect it is not possible to uphold the interpretation put forward by the plaintiff in the main proceedings that the concept of a court or tribunal for the purposes of Article [234] covers all the courts or tribunals amongst which the various functions leading to a final decision on the merits are distributed, regardless of which judicial bodies are seised at various stages of a single dispute. It follows from both the wording and the scheme of Article [234] that only a national Court or Tribunal which considers that the preliminary ruling requested ‘is necessary to enable it to give judgment’ may exercise the right to bring a matter before the court. That right is therefore limited to a Court or Tribunal which considers that a case pending before it raises questions of Community law requiring a decision on its part.” (emphasis added)
Therefore the opinion of the ECJ could be of use to it.
36. There is no doubt but that Fratelli is authority for the proposition that not every court which might be involved at some stage, in a single case process, can be regarded, merely by virtue of that fact, as being a court within Article 234(3). A court which was “functus officio” or one which at a future date might be accessed, could not be so classified.
37. Incidentally, what saved the Pretore in Fratelli was his power to review. This had come about by default, in that the requesting court had erroneously failed to follow certain procedural rules, and as a result had retained a function, albeit a limited one, in that it could recall the parties at any time in order to confirm, vary, or discharge the interim order. If however he had become functus officio the result would clearly have been different.
38. It could not be said that this Court is functus officio, or that its involvement, is hypothetical or prospective only. Clearly, neither is so: the application is currently pending before it. True it is not the substantive appeal, but in my view that is irrelevant: this because it is the appeal proper regarding the disclosure application. A judgment, indeed the final judgment on it, has to be given, not by the Circuit Court but by this court. Therefore I am seised of this appeal, the result of which could be influenced by Community law: more specifically by the opinion of the Court of Justice on the questions raised. This is subject only to what is stated at para. 40 infra. Consequently I cannot see how Fratelli is of assistance to the defendant. In fact, in my view it is supportive of the conclusion herein reached.
39. It has also been claimed that the application pending is truly an interlocutory matter and therefore a reference would be inappropriate; I cannot agree that this is so. In Hoffmann-La Roche AG v. Centrafarm Vertribsgesellschaft Pharmazeutischer Erzeugnisse [1977] ECR 957 the Court stated at para. 6:
“The third paragraph of [Article 234] of the [EC] Treaty must be interpreted as meaning that a national court or tribunal is not required to refer to the court a question of interpretation or of validitymentioned in that article when the question is raised in interlocutory proceedings for an interim order …, even where no judicial remedy is available against the decision to be taken in the context of those proceedings provided that each of the parties is entitled to institute or to require proceedings to be instituted on the substance of the case and that during such proceedings the question provisionally decided in the summary proceedings may be re-examined and may be the subject of a reference to the Court under [Articles 234].”
For the reasons given there cannot be a re-opening of the disclosure issue in the appeal proper. I am therefore satisfied that the present application cannot be described as interlocutory in nature.
40. There is however one problem facing the plaintiff which renders his present application premature. It is this: the ultimate purpose of relying upon the Directives is to obtain the contested documentation in unredacted form; if such documents should otherwise became available, a reference would serve no purpose and would have no utility to this Court. Until the disclosure appeal is presented to and ruled upon by this Court it will not be possible to say, even prima facie or provisionally, whether, as a matter of domestic law, the decision of the Circuit Court was or was not correct. It may be that this Court would take a viewcontrary to that of the lower Court and as a result order the production of the disputed documents. If that occurred, a reference would be entirely unnecessary. In my view therefore, the appeal must be presented before this Court, as otherwise it will not know whether a reference is or is not required. For that reason the application is premature at this point in time and its final determination must therefore await the appeal process. However, I would note, albeit obiter, that I am satisfied that should the disclosure of the contested documentation be refused, a reference to the ECJ may be appropriate.
DEC-E2011-144- Full Case Report
Equality Officer’s Decision No: DEC-E/2011/144
DEC-S2011-001- Full Case Report
DEC-S2011-009- Full Case Report
PARTIES
Oladoyin and Others v Abby /Eco Taxis
File Reference No(s): ES/2008/0156 – 0157,
ES/2008/0159 – 0166.
Date of Issue: 21st February, 2011
Decision No. DEC-S2011-009
Equal Status Acts 2000 to 2008 – Direct discrimination, section 3(1)(a) – Race ground, section 3(2)(h) – Disposal of goods and provision of services, section 5(1) – Establishment of a prima facie case – Service under the Acts.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 These complaints were referred to the Director of the Equality Tribunal under the Equal Status Acts on the 18th August 2008. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts on the 21st January 2010. A hearing, in accordance with section 25 was scheduled for the 16th December 2010 and the final correspondence received was on the 31st January 2011.
2. Dispute
2.1. This dispute concerns a complaint, where the complainants claim that they were discriminated against by the respondent on the Race ground in terms of sections 3(1) and 3(2)(h) and contrary to section 5(1) of the Equal Status Acts in relation to the respondent’s refusal to allow them to buy “shares” into the taxi business known as Abby/Eco Taxis of 11A Eyre Street, Galway city.
3. In relation to claims brought by Mr. Olorunfemi, Mr. Ipeagwu and Mr. Ogba
3.1. These complainants were not in attendance at the hearing. The complainant’s legal representative was present and confirmed that he did receive notice of the hearing for these complainants. I allowed additional time for them to arrive but they did not. I contacted the Tribunal after the scheduled time for the hearing to enquire if they had made contact with it to offer an explanation for their non-attendance. However, I was informed that no contact was received.
3.3 Accordingly, I am satisfied that they were notified of the date and time of the hearing. I am also satisfied that no attempt was made by them to contact the Tribunal to inform of any delay. Finally, I am satisfied that ample time was provided for them to present themselves at the hearing so as to provide evidence.
4. In relation to claims brought by Mr. Oladoyin, Mr. Oladunni, Mr. Olayiwola, Mr. Egekiu, Mr. Wachira, Mr. Atu and Mr. Okocha
4.1. These complainants were in attendance at the hearing and gave direct evidence. All of the abovementioned complainants are originally from Nigeria with the exception of Mr. Wachira who is originally from Kenya. All of these complainants came to Ireland between the years 2000 and 2002 and have worked as taxi drivers since 2006.
4.2 They claim that they were all self employed taxi drivers up to June 2008. They claim that they paid an initial fee of €500 to the respondent for the rental of radio equipment and rights to use the name/logo on their taxis. They claim that they also paid a weekly fee of €100 to the respondent in return for it sending all its customers to them. They all maintain that they were not employed by the respondent.
4.3 The complainants claim that there were about 40 drivers connected with the respondent, 15 of whom were black. They claim that the respondent called all the drivers into a meeting in early summer 2008 and told them that it was changing the way that it operated its business. They claim that each of the drivers were invited to become a shareholder in the business. They claim that they were asked to pay €5,000 each and in return they each would become a “shareholder” in the business with all the entitlements and rights that would normally accrue to a shareholder. The complainants all agreed to accept the offer and money was paid to the respondent as consideration for the shares in the business, normally in an instalment basis, through out May/June 2008.
4.4 They claim that shortly after this offer was made and before everything was finalised, they were informed by one of the owners of the business that the offer to the black drivers to become a “shareholder” in the business was being withdrawn. They claim they were told that the business required new investment and the new investors coming into the business did not want ‘them’ involved. The complainants state that they were invited to claim back all the money paid up to that point and arrangements were made to make the refunds on the 10th June 2008. They were told that if they did not take up the offer of the refund and relinquish any interest in the business, and sign documentation to that effect, they might not get any of their money back at all. They claim that they were told to return the taxi radios and not to use the respondent’s logo in the future, and that their business relationship with the respondent was over. They claim that they were told that the business did not want coloured drivers and there was no room for any more drivers to invest into the business at that time.
4.5 The complainants claim that the respondent advertised to recruit other Public Service Vehicles (PSV) drivers once the 15 black drivers were removed. They submitted a copy of the Galway Advertiser Newspaper, dated 19th June 2008 and highlighted an advertisement from “Abbey Taxis” for “PSV Drivers”. The complainants’ solicitor gave evidence that he contacted the telephone number listed in the newspaper advertisement and was told the conditions for joining the business. He claims he was also told if he was interested that he could send in an application with a valid PSV driver licence and he would also be informed of the joining on fee. He also claims that he asked it if the business related to Abby/Eco taxis of 11A Eyre Street, Galway city to which he claims that he was told it was. Mr. Ayoola Muhamed Oladoyin claims that he also rang in around this time when he saw the advertisement in the newspaper but he claims that when he rang he was told that there were no positions at that time. The other complainants claim that they did not answer the advertisement because they knew whom the advertisement was from, and it had been made clear to them that they were not going to be allowed to join the business as “shareholders”.
4.6 The complainants claim that they carried out a company name search for Abby/Eco taxis in the Company Registration Office and claim that from this search Abby/Eco taxis it is not a registered company, but rather a business operating from 11A Eyre Square, Galway city.
4.7 The complainant’s submitted that their claim falls within the scope of the Equal Status Acts on the basis that the respondent was offering PSV license holders the opportunity to apply to it to become a “shareholder” in its business. However, they claim that the offer was not open to them simply because they were black.
5. Respondent’s case
5.1 The respondent in this case has been named as Abby/Eco Taxis, a business operating from 11A Eyre Square, Galway city. The Tribunal at first was successful in forwarding the original complaint forms that it had received and other related correspondence to the respondent at the above address. However, the Tribunal secretarial staff received a phone call from the proprietors at this address claiming that the named respondent had ceased trading and as new proprietors it was not responsible for any previous actions but they would not commit this to writing. Following that, all of the Tribunal’s correspondence was returned by An Post marked “Gone Away”. The Tribunal contacted the complainant’s and asked them to provide it with the most recent address details of the respondent so that it could update its records to correspond with it. The complainants’ solicitor claims that he visited the premises of 11A Eyre Square, Galway city in October 2010 and made enquires at the counter of the premises and asked if the business “was Abby taxis of Eco Taxis” and he claims that he was told that it was. He stated that this is the same address as provided on the original referral forms to the Tribunal.
5.2 Notice of the hearing was sent to the respondent at the above address by registered and ordinary post. The registered post was returned by An Post marked “gone away”. The notice sent by ordinary post was not returned.
6. Conclusion
6.1 Section 38A (1) of the Equal Status Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they 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.
Preliminary Issue
6.2 The first aspect in this case that I must consider is whether I am satisfied that the complaints fall within the scope of the Equal Status Acts. In particular I must give consideration to the definition of a “service” under Section 2(1) of the Act. In considering this issue, I note that a “service” is defined as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… “. It is clear to me that from the wording of Section 2(1) that the services and facilities which are covered by the section have to be available to the public generally or to a section of the public. It is also clear that the facilities mentioned in Section 2(1)(b) is not an exhaustive list of matters covered by the Acts.
6.3 I note the complainants’ legal submission that as there was no employment contract between the complainants and the respondent that therefore these cases do not qualify for consideration under the Employment Equality Acts and that they come within the scope of the Equal Status Acts. I am satisfied that the Equal Status Acts are a remedial social statute to be widely and liberally construed. In the long title of the 2000 Equal Status Act, it is expressed to be remedial legislation and as such I am satisfied that the Tribunal must adopt a purposive approach in interpreting its provisions. This approach was adopted by the Supreme Court in The Bank of Ireland v. Purcell [1989] 1 I.R. 327 “… As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done.” Therefore, I am satisfied that the definition of a “service” under the Acts must be construed in such a fashion to facilitate access for people to counter discriminatory action in society.
6.4 I note the previous decision of this Tribunal in Fitzgerald -v- Dairygold Co-Operative Society Limited where the Equality Officer had to consider whether the issue of bonus shares to its members qualified as a ‘service’ under the broad definition contained within the Acts. The Equality Officer stated,
5.2 In considering this issue, I note that a “service” is defined in section 2(1) of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… “. There follows an illustrative list of examples among which are a professional or trade service. The respondent in the present case is a society registered under the Industrial and Provident Societies Acts, 1893 to 1978. The definition of an entity which may be registered as a society under these Acts is outlined at section 4 of the 1893 Act i.e. “A society which may be registered under this Act (herein called an industrial and provident society) is a society for carrying on any industries, businesses, or trade specified in or authorised by its rules, whether wholesale or retail, and including dealings of any description with land”. Having regard to this definition, I am satisfied that a society which is registered under this legislation is an entity that engages in trade and/or provides facilities for trading on behalf of and for the benefit of it’s members.
5.3 It is clear from the “Objects of the of the Society” which are contained at page 9 of the Rules of Dairygold Co-operative Society Limited that the respondent is such an entity which provides the aforementioned facilities for and on behalf of its members. It is the case that the members of the respondent are shareholders and the rules of the society make provision for the distribution of a net surplus or reserves at the end of a trading year among its members (in the form of an allocation of bonus shares). The aim of this allocation of bonus shares is to provide a reward to members (albeit those in the A1 category) for their trade with the respondent and to provide an incentive for these members to continue trading with the respondent. I am of the view that the relationship which exists between the members of the society and the respondent (which includes the distribution of profits in the form of an allocation of bonus shares), in the circumstances of the present case, is covered by the broad definition of “service” contained within the Equal Status Acts. Having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainant in the present case.
6.5 I will now consider the facts of the case before me in light of the Fitzgerald -v- Dairygold Co-Operative Society Limited decision. I note that the complainants have stated that to become, what they claim, “a shareholder” they were invited to pay a fee to gain access to the shareholding status and that this facility was open to taxi drivers who held PSV licences. I note that they claim that the normal benefits that would accrue to a shareholder, including voting rights and a share in profits, would then accrue to them under such an arrangement. I am satisfied that this opportunity was a facility that was withdrawn from the complainants and then was subsequently advertised in the local newspaper, aimed at a section of the public, – holders of PSV licences-, under the name of Abbey Taxis. I agree with the conclusions of the Equality Officer in the Fitzgerald -v- Dairygold Co-Operative Society Limited case and as the question in relation to the definition of a “service” in that case, is similar to the question that is before me for consideration, I am satisfied the same conclusion apply, although I am mindful that the bonus share option in the Fitzgerald -v- Dairygold Co-Operative Society Limited may differ from the co-operative type share option arrangement in the case before me for consideration. However, in the circumstances of the present case, I am of the view that such a “share option” facility is covered by the broad definition of “service” contained within the Equal Status Acts. Therefore, having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainants’ under the Equal Status Acts.
Discriminatory Treatment – Race Ground
6.6 I am satisfied that the complainants have presented clear and consistent evidence of their interaction with the respondent in the period from May to June 2008. I am satisfied that the sequence of events presented to me demonstrates that the complainants were offered an opportunity to enter into a business relationship with the respondent in June 2008, having worked closely with the owners of the taxi business for a number of years prior to that. It is also clear from their evidence that at first all drivers were invited to partake in this new business venture. However, when the owners encountered financial problems and sought external investment a decision was made in relation to the ‘black drivers’ and they were ousted from their positions and refused access to the respondent because of their colour, before the new business model was completed. This evidence was clearly established and then corroborated independently by the complainants through their oral evidence at the hearing, one after another. I am satisfied that the complainants have established a prima facie case of less favourable treatment and discrimination on the Race ground under Section 3(2)(h) of the Equal Status Acts.
6.7 Having considered the facts before me I conclude that the respondent has decided not to engage with the Tribunals investigation of these cases and therefore has failed to rebut the serious allegation raised against it. As I have been presented with no explanation from the respondent as to why the complainants were not allowed to be considered suitable to become shareholders. Therefore, on the balance of probabilities, I accept the complainants’ evidence.
7. Decision
7.1. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I issue the following decision.
7.2 As part of my investigation under Section 25 of the Acts, I am obliged to hold a hearing. I find that Mr. Oludare Olorunfemi, Mr. Paul Ipeagwu and Mr. Amos Ogba failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. As no evidence was given at the hearing in support of the allegation of discrimination I conclude the investigation and find against these complainants.
7.3 I find that Mr. Ayoola Muhamed Oladoyin, Mr. Bisi Adisa Oladunni, Mr. Harrison Olayiwola, Mr. Henry Ikechi Egekiu, Mr. Amos Njugi Wachira, Mr. Austin Atu and Mr. Tony Okocha have established a prima facie case of discrimination on the Race ground. The respondent has not engaged with the Tribunal investigation and therefore has not rebutted the inference of discrimination raised. The maximum amount which may be awarded in compensation under the Acts is €6,349. In light of the unlawful and blatant overt policy of discrimination inflicted on the complainants, I find that €6,349 each is the appropriate amount of compensation for the effects of the prohibited conduct.
_______________
James Kelly
Equality Officer
21st February 2011
DEC-S2011-001-
DEC-S2008-006-Full Case Report
Buckley v An Garda Siochana
(Represented by Michael D. Murray Solicitors)
Summary of the Complainant’s case
Kevin and Jackie Buckley say they have been suffering at the hands people in their locality who indulge in anti-social behaviour. They have reported the various incidents and attacks to the Gardai and are concerned that not all incidents have been pursued to prosecution and that they are receiving insufficient feedback from the Gardai. They allege that such feedback is listed in the Garda Customer Charter. Apart from an injury to Mrs. Buckley’s eye the rest of the attacks were verbal. On one occasion, in February 2006, she called to report a threatening phonecall but received an inadequate response. Later in the evening she was called names by a group of teenagers. The complainants later spoke to the Gardai about these attacks and the lack of support being received around 9pm in the evening. They protested by sitting in the middle of a road and were arrested. Mrs. Buckley felt that undue force had been used. They allege that the Gardai have treated them less favourably than others because of a disability and they also allege victimisation under the Act. They notified the Gardai of their allegations on a form dated 6th April 2006 and lodged a complaint with the Tribunal on a form dated 7th April 2006. The Buckleys were at pains to explain that not all Gardai were causing difficulties and that some were very helpful. Evidence was submitted from medical personnel indicating the disabilities that the Buckley’s have and this was further described at the hearing.
Summary of the Respondent’s Case
The respondent argued that the issues being complained about are control functions and not services provided to the public. As such, they are outside the scope of the Act. It was also argued that the Gardai were not aware of the complainants’ disabilities until they were sent the notification alleging less favourable treatment because of a disability. When Mrs. Buckley called to report the threatening phone call the Garda who took the call was already dealing with a call from a person threatening to commit suicide and he was unable to give her immediate attention. Later that Garda went with another to Mrs. Buckley. She told them she had been verbally abused. They asked if that was all or had there been anything else. She got very upset and sat in the middle of the road. Her husband asked her to get up and when he had no success he joined her. The Garda asked them to get up. He then directed them to get up. After giving them several opportunities to follow the directions he told them he would be forced to arrest them if they did not get up. As Mrs. Buckley resisted the Gardai were forced to pull her off the road by her arms but then she stopped resisting and it was thought there was no need to handcuff her.
Various members of the Gardai met with the Buckleys at different times and the respondent feels that due concern was shown. It is generally accepted that there are counter-complaints from the alleged attackers about the complainants. When asked when the Gardai first became aware of the complainants’ disabilities the response was initially unclear but an indication was given that Ms. Buckley’s medical records were requested around 20th September 2005.
Conclusions of the Equality Officer
I am satisfied that the Buckleys are disabled in terms of the Act and I am also satisfied that there has been considerable interaction between the Buckleys and the Gardai involving both service provision in terms of the Act and control functions which are generally considered to be outside the scope of the Acts. This decision will only address those interactions relating to the provision of service in terms of the Acts. What must be established is whether or not the Buckley’s were treated less favourably during those interactions than someone without a disability, or with a different disability, would have been treated.
I was faced with considerable reticence on the part of the Gardai to respond to certain questions and requests for information. Both before the hearing and at the hearing I was told information was privileged. However at the hearing when directed to provide the information in accordance with the powers delegated to me the information was provided. Subsequent to the hearing the respondents were asked to confirm if they had received a letter from the Buckleys’ doctor dated 23rd September 2005. They indicated that they had not but that the contents of a conversation between a Garda and the Doctor on that date was confidential as it related to a complaint made by Ms. Buckley on a different matter. Since I am not interested in the substantive complaints made by the Buckleys on different matters but only in the treatment they received from the Gardai, in respect of which they complained to the Director, I saw no point in pursuing the matter. The Gardai argued at the hearing that they only became aware of the illnesses when they received the notification relating to these complaints. However, the complainants’ doctor stated in writing that he contacted them on 23rd September 2005 which is well before the incident in February 2006. I am satisfied that Ms. Buckley’s medical records were requested by a Garda on 20th September 2005 and that there was a conversation between the requesting Garda and the Doctor. It is apparent from the evidence submitted that the Doctor made significant efforts over time to ensure that the Buckleys’ situation was remedied. On the basis of all of the evidence presented to me I am satisfied that the Gardai were aware of at least Ms. Buckley’s medical condition on or around 23rd September 2005.
The Buckleys reported many incidents to the Gardai of what they considered to be attacks made on them by members of certain families. Each time they reported one it seems that they expected the Gardai to inform them as to what they intended to do, e.g. to prosecute the alleged perpetrators, to call to the perpetrators’ homes to give them a warning, etc., and they wanted ongoing feedback as to how these things progressed over time. Having reviewed the Customer Charter it seems to me that the feedback mentioned in it relates to feedback from the public to the Gardai in respect of services. While the Charter does mention that Gardai will consult with their customers regularly, it is not clear to me how the Buckleys have such high expectations relating to the level of consultation to which they are entitled. It also appears that some action was taken by the Gardai in that some prosecutions did take place and information was sent to the DPP in respect of some incidents. Subsequent to the lodging of the Buckleys claim to the Tribunal, and in the face of a worsening medical situation for the Buckleys, the Gardai did take part in multiparty talks involving other organisations to attempt to resolve the situation although these were unsuccessful overall.
On one occasion when Mrs. Buckley called to report a threatening phone call she felt she did not get an adequate response. When out later that evening another incident culminated in Mrs. Buckley sitting in the centre of road to protest the lack of support she was receiving from the Gardai. When she consistently refused to move she was ultimately arrested. I am satisfied that on the evening of the arrest the Buckleys had put themselves in danger and were a danger to others by sitting in the middle of the road. I am satisfied that the removal of the complainants from the road at 9:30 in the evening was necessary and that her arrest constituted a control function outside the scope of this Act.
The Buckleys also stated that they were required to make reports of the attacks on them in the public foyer of the Garda Station and that they would have expected this to have taken place in private. However, no dates or specifics were presented in relation to this and therefore I cannot verify when these took place. Had they taken place after the Gardai knew about their disabilites then reasonable accommodation of their disabilities might have been appropriate, that is such treatment as might have reduced their anxiety rather than increase it, such as the taking of reports in private.
It is clear from the evidence that the Buckleys have received varying degrees of customer service from the different Gardai involved. While it is not the case with all of the individual Gardai involved, it seems that to some of the Gardai these contacts had taken on a degree of nuisance value, given the frequency of contacts made by the Buckleys and efforts already made on their behalf. While the handling of their difficulties by the Buckleys may have been affected by their illnesses and while these illnesses may have had an effect on the number of times the Buckley’s contacted the Gardai no direct evidence to that effect was presented to me. In addition, while some of the Gardai may not have responded in a manner sympathetic of the Buckley’s plight, no evidence has been presented that would suggest that such treatment was because of any disability or illness effecting the Buckleys. In my view this speaks more of poor customer awareness and customer service than it does of discrimination. Finally, no evidence has been presented to show that someone without a disability or with a different disability would have been treated differently. Simply put, no evidence has been produced that would lead one to believe that the reason that the Gardai were unsympathetic at times was because they knew of the complainants’ disabilities. In addition, no evidence was produced by the complainants that would indicate victimisation of them in terms of the Act by the Gardai.
On the basis of the evidence presented to me I find that the Buckleys have failed to establish a prima facie case of discrimination on the disability ground or victimisation.
Decision DEC-S2008-006
I find that the complainants have failed to establish a prima facie case of discrimination on the disability ground and this decision is therefore in favour of the respondent.
Bernadette Treanor
Equality Officer
21st January 2008
DEC-S2004-187 Full Case Report
A named individual v A named Detective Garda Immigration Office
, An Garda Siochana, Limerick (represented by the Office of the Chief State Solicitor)
Headnotes:
Equal Status Acts 2000 to 2004 – Direct discrimination, section 3(1)(a) – race and marital status grounds, harassment – definition of service – jurisdiction of the Tribunal – Failure by complainant to attend hearing – no prima facie case
1. Dispute:
1.1 This dispute concerns a claim by a named individual that a named Detective Garda in the Immigration Office, An Garda Siochana, Henry Street, Limerick, discriminated against him and harassed him on the marital status and race grounds on 20 June 2002. The claim was referred to me as Director of Equality Investigations on 11 December 2002. I commenced the investigation on 21 September 2004 and a hearing was held on 24 November 2004.
2. Summary of the Complainant’s written evidence:
2.1 A named individual, who is a Turkish citizen married to an Irish woman, claimed harassment on the race ground in that he was subjected to verbal abuse, derogatory and unfounded insinuations when he applied to the Immigration Office in Limerick to renew his permission to remain in Ireland, which had lapsed some five months previously. He also claimed discriminatory treatment on the race and marital status ground in that he was provided with a limited service when permission to remain in Ireland was renewed for one year rather than two. He also claimed that the Gardai further harassed him by trying to contact him after he made his initial complaint.
3. Summary of the Respondent’s written evidence:
3.1 Statement by a named Detective Garda:
3.1.1 A named Detective Garda furnished a statement, in response to the notification form, that he applied standard procedures to the process of renewing the complainant’s permission to stay and that this procedure was no different from any other person in similar circumstances. He also denied harassment or discrimination.
3.2 Further submission by the Respondent:
3.2.1 The Respondent’s representative further submitted that immigration control within the State is outside the Tribunal’s jurisdiction as it does not represent the provision of a service within the meaning of the Equal Status Acts. They cited Donovan v Donnellan1 in their support, which concluded that the controlling functions of the State (including the investigation and prosecution of crime) are not services within the meaning of the Equal Status Act. In the alternative they submitted that the complaint was frivolous or vexatious. For the avoidance of doubt, they also strongly denied the detailed allegations made by the complainant.
4 Outline of events:
4.1 A hearing of the case was arranged for Wednesday 24 November 2004 at the offices of the Equality Tribunal. Both parties were notified of the hearing by letter issued on 21 September 2004 and confirmation of the respondent’s attendance was received on 1 November 2004. The Tribunal further wrote on 10 November to the complainant enclosing the respondent’s further submission, emailed a reminder on 15 November and attempted to phone the complainant on 15th and 16th November. No confirmation was received from the complainant and no application for an adjournment of the hearing was lodged.
4.2 On the date of the hearing the respondent party with his legal representatives and witnesses attended at the Tribunal for the hearing of the case. The complainant did not attend and the office sought unsuccessfully to contact the complainant by mobile telephone to ascertain the reason for his non-attendance. The respondent’s representatives confirmed that they were not aware of any reason for the complainant’s non-attendance as he had current permission to remain in Ireland until June 2005. I am satisfied that the Tribunal made every effort to contact the complainant.
5. Conclusions of the Director:
5.1 From my consideration of the submissions in this case, two distinct complaints of discrimination were raised by the complainant: a) the allegations of discriminatory treatment on the ground of race regarding the way the complainant was treated by the respondent when he sought to renew his permission to stay in Ireland; and b) the allegation of discrimination on the ground of race and marital status regarding the substantive decision to renew the permission to stay for one year rather than for two.
5.2 In accordance with the Tribunal’s settled practice, the onus is in the first instance on the complainant to establish a prima facie case of discrimination. In order to establish a prima facie case, a complainant needs to establish, to the satisfaction of the Tribunal, primary facts which are of sufficient significance to raise a presumption of discrimination. In the absence of the complainant, it is not possible for him to establish a prima facie case. The respondent thus had no case to answer.
5.3 I consider it may nevertheless be helpful to make some general comments on the jurisdiction of the Tribunal, which are necessarily obiter given the absence of the complainant at the hearing of this case.
1 Donovan v Donnellan, DEC-S2001-011
5.4 The definition of “services” in section 2 of the Equal Status Act 2000 clearly covers services provided by the State. However, not all functions carried out by the State amount to provision of services. I would refer to the Equality Officer’s decision in Donovan v Donnellan concerning the possible liability of the State in proceedings under the Equal Status Act. That decision makes a clear distinction between: i) the exercise by the State of executive functions which relate to the exercise of the controlling functions of the State and which do not amount to the provision of a service to the public; and ii) the treatment of an individual by the State in relation to ancillary matters, which may amount to the provision of a service generally available to the public or a section of it.
5.5 Donovan v Donnellan held that the investigation and prosecution of crime was not a service provided by the State to a person accused and was accordingly outside the scope of the Equal Status Act. Conversely, I note the point made in that decision, and the similar conclusions of the UK Court of Appeal under the Race Relations Act in Farah v Metropolitan Police Commissioner [1997] 2 WLR 824, that Gardai actions such as the treatment of persons reporting a crime, asking for witnessing of passport application or giving directions to a person on the street can amount to services provided to the public, which are covered by the Equal Status Act.
5.6 I would refer to the statement made by the Minister for Justice, Equality and Law Reform during the Dail debates on the Equal Status Bill on 15 December 1999 to the effect that: “The service aspect of policing, immigration, defence and prisons will, however, come within the scope of the Bill. For example while a decision to grant a visa would not be covered by the Equal Status Bill, the interaction between officials and the visa applicant and collateral services and facilities, such as access to buildings and information, would come within the scope of the legislation.” I am conscious of the High Court and Supreme Court caselaw in relation to the use of parliamentary debates as an aid to statutory interpretation. Given that this statement was made by the presenting Minister, and as I am fully aware of the legislative history of this particular Bill, I am satisfied that it accurately reflects the basis on which the Oireachtas enacted this particular provision. I consider therefore that I am entitled to take the Minister’s statement into account in my deliberations.
5.7 My preliminary view is accordingly that, on the one hand, certain decisions made by the State on applications concerning immigration and the entry of nonnationals may well also be the exercise by the State of controlling functions which are not covered by the Equal Status Acts. On the other hand, by analogy, it appears that the treatment by the State or its officers (including gardai) of a person wishing to make an application in an immigration matter may involve provision of a service to the public and thus may come within the Equal Status Acts.
5.8 However, I wish to stress that this issue has not been decided, as no facts have been proved in the present case.
6. Decision
6.1 I find for the respondent, a named Detective Garda.
Melanie Pine
Director
Gichura v Home Office & Anor
[2008] EWCA Civ 697 [2008] ICR 1287 Buxton LJ
It will have been noted that the claim extends to the Human Rights Act as well as the Disability Discrimination Act. In this appeal we are not concerned with the Human Rights Act aspect of it.
I turn to the legislation under which the claim is brought. Before doing that I should say that in the pleading itself, after the passages that I have read out, very substantial allegations are made about the failure of both respondents to adjust their premises and so forth in a way that it is alleged the Disability Discrimination Act requires. The Act says in Section 19:
“It is unlawful for a provider of services to discriminate against a disabled person”
And various ways in which discrimination can take place are set out, including making it difficult or impossible for a member of the public to make use of any service provided to him or to discriminate in the terms or standard in which he provides the services.
Then Section 19 (2) says:
“For the purposes of this section and sections 20 and 21—
(a) the provision of services includes the provision of any goods or facilities;
(b) a person is “a provider of services” if he is concerned with the provision, in the United Kingdom, of services to the public or to a section of the public; and
(c) it is irrelevant whether a service is provided on payment or without payment.”
In sub-section 3 various examples of services are set out. It is important to emphasise that the services there set out are merely examples of a common sense sort of what might consist of a provision of a service.
In our case it has been helpfully summarised by Mr Beer on behalf of the Home Office that the types of service that are in issue consist of the following, taken from the pleadings: a) the reception procedures including the searches of him and the time for which and the conditions in which the appellant was kept waiting; b) access to toilet and bathroom facilities; c) access and egress in a room in the detention centre; d) provision of suitable bedding; and e) provision of medical services.
An application was made by both respondents to strike out the claim. The application came before District Judge Hasan in the Central London County Court. The judge said this in paragraph 17 of her judgment:
“…the first matter I need to consider is whether [the defendants were] providing a service under section 19 of the Disability Discrimination Act 1995. The claimant is a failed asylum seeker and was detained on two separate occasions pending his removal. The House of Lords decision in Amin held that an immigration officer exercising his powers under the immigration rules was not providing a service to a potential immigrant under the Race Relations Act 1976. By analogy, the same principles can be applied where a claim is brought under the Disability Discrimination Act 1995. In this case the claimant was detained under schedule 2 of the Immigration Act 1971 and no complaint has been made that the detention was unlawful. The right to detain is provided by paragraph 18 of that schedule. The primary purpose of the detention is to control immigration, in this case the eventual removal of the claimant, a failed asylum seeker — it is not to provide a service to him. The use by him of the facilities at the detention centre is incidental to his detention; conversely the provision of such facilities is incidental to his detention. In such circumstances, the Home Office [and Kalyx are not providers of] services under Section 19 of the Disability Discrimination Act 1995.”
So the whole claim, as far as the effect of the Disability Discrimination Act, was struck out.
The applicant appeals to this court against that decision. Now since the encounter at the County Court matters have moved forward somewhat at least as far as the dispute between the Home Office and the applicant is concerned. What has been agreed or conceded is, that on the part of the Home Office it has been agreed that it is arguable — and that of course is the only question the District Judge had to decide — that the provision of facilities or services that are contained in paragraphs (b) to (e) of the summary I read out is the provision of services for the purposes of Section 19 of the Disability Discrimination Act. For his part the applicant agrees that the basic items or provisions contained in paragraph (a) of the summary above, that is to say reception procedures and the acts of searching, do not fall under Section 19 of the Disability Discrimination Act. The applicant is not prepared to go further than that in relation to, for instance, incidental matters such as provisions about arrangements for waiting in order to be searched and so on. That is in effect the dispute, or at least as far as this application is concerned the lack of dispute, between the Home Office and the applicant.
Kalyx seeks to uphold the District Judge’s judgment as a whole, on the grounds that I shall now seek to explore.
The point I think can be put like this. If one looks at the matters that are in dispute between the applicant and Kalyx — facilities, provision of bedding, provision of medical services and of course other aspects of life in the detention centre that are not specifically complained of, such as particular provision of food or recreation and so on, there seems to be no doubt that in the ordinary meaning of the English language provision of those matters is the provision of a service. The point that Kalyx takes, as did the District Judge, is that those functions are part and parcel of a governmental function, that is to say, the detention of a failed asylum seeker pending removal, and therefore for that reason do not fall under Section 19. It will already have been noted that reference is made by the District Judge in support of that analysis to the case of R v ECO ex parte Amin [1983] 2 AC 818 and to that I now turn.
The facts in that case were of course a long way away from the facts in this case. There was an arrangement at that time whereby what were called special vouchers were issued by entry clearance officers to enable persons to settle in the United Kingdom. The rule was that only a head of a household could acquire such a voucher. The complaint so far as sexual discrimination was concerned was that it was far easier for a man to be or to be recognised as the head of the household, in contradistinction to a woman such as Mrs Amin was. It was accepted that the scheme was indeed for that reason discriminatory but the House of Lords held, and this is conveniently set out in paragraph 2 of the head note:
“The grant of special vouchers did not come within the general wording of Section 29 (1) [a provision in material part similar to that with which we are concerned] since, on its true construction Section 29 applied to the direct provision of facilities or services not to the mere grant of permission to use facilities, and, by virtue of Section 85 (1) was to be construed as applying only to acts that were at least similar to acts that could be done by private persons; and that, accordingly, since the entry clearance officer was not providing a service for would-be immigrants but only performing his duty of controlling them, the refusal of a special voucher was not unlawful discrimination.”
That was explained, if I may say so, most helpfully by a passage in the speech of Lord Fraser at page 835. He referred to Section 85 (1) of that Act, paralleled in the Disability Discrimination Act by Section 64, which provided that the Act did apply to an act done by or for the purposes of a Minister of the Crown or to an act done on behalf of the Crown by a statutory body. Lord Fraser said this:
“That section puts an act done on behalf of the Crown on a par with an act done by a private person, and it does not in terms restrict the comparison to an act of the same kind done by a private person. But in my opinion it applies only to acts done on behalf of the Crown which are of a kind similar to acts that might be done by a private person. It does not mean that the Act is to apply to any act of any kind done on behalf of the Crown by a person holding statutory office”.
Then Lord Fraser said:
“Therefore acts done in the course of formulating or carrying out government policy which are quite different in kind of any act that will ever be done by a private person is one to which the Act does not apply. For that reason therefore acts in pursuit of government policy or the performance of distinctively governmental functions do not fall within the ambit of provision of services”.
There are of course two reasons for that; one that, as Lord Fraser held that is not a function to which the Act applied at all, despite Section 85 (1) in that Act; and secondly, although he did not put it in quite this way, it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do. How does that distinction apply here? Kalyx says, as the District Judge said, this case is the same or very similar to Amin because what they, Kalyx, are doing is performing a governmental function. They are standing in the shoes of the Home Office in detaining Mr Gichura and other people in his position pending their expulsion from this country.
There is no case directly dealing with that, but we were shown a number of authorities that indicate that that is, if I may say so, too simplistic an approach. On a number of occasions the court has taken what might be called an expansive view of the application of disability discrimination legislation to matters done in the course of the performance of governmental functions. I would refer only to two cases in particular. The first is Savjani v IRC [1981] 1 QB 458, a decision of this court. The complaint there was that a gentleman who was born in India went to his local income tax office, as I think it was called in those days, in order to investigate whether he could claim tax relief under part of the tax legislation. He was told that there was a rule that any tax payer who made an enquiry must be required to produce a fully certified copy of his birth certificate if he came from the Indian sub continent, that costing this gentleman £2.50. He paid the amount, and then complained that that requirement was an instance of discrimination on grounds of race because it was a requirement applied to persons from India but not to persons from England. The argument that was advanced on behalf of the Revenue was that while it was I think accepted, or if not accepted it was fairly obviously the case, that that requirement was in broad terms discriminatory it did not fall within the ambit of the Racial Discrimination Act because it involved the exercise of a government function. This court did not agree. In particular Lord Templeman said that in his view the Inland Revenue and its inspectors were not merely concerned in determining the sort of question that had been put before by Mr Savjani with their duty to collect tax, they were also, as Lord Templeman put it at page 467G:
“…the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof.”
And Lord Templeman went on at page 468A to say this:
“On behalf of the revenue [counsel] submitted that the Race Relations Act 1976 does not apply to the Inland Revenue at all, but he naturally and wisely recoiled from the suggestion that the inspector of taxes might decline to interview a taxpayer if the taxpayer were coloured. He makes forcibly the submission that, when the board decides for sensible reasons that a higher standard of proof is required from taxpayers who come from the Indian sub-continent, the board are not providing a service to that taxpayer; they are carrying out their duty to the Crown. As I have already indicated, it does not seem to me that the two concepts are mutually exclusive. The board and the inspectors perform their duty and carry out a service and, in my judgment, it is a service within the meaning of section 20 of the Race Relations Act 1976”.
Now I would respectfully draw attention to that analysis where Lord Templeman says that the Board is effectively doing two things at the same time, carrying out its public duty but also providing a service to the taxpayer.
The other authority of particular interest is Farah v Metropolitan Police [1998] QB 65. A lady who is a Somali refugee summoned the police to complain about, or sought their assistance in connection with, an alleged attack on her by a group of white youths. Far from giving assistance the officers arrested her and subsequently charged her with various offences, in respect of which in due course no evidence was offered. She complained that there had been unlawful racial discrimination involved in the decision to take that course subject to the Race Relations Act. This court held that it was inappropriate for that claim to be struck out on the ground that it did not fall under the legislation. The head note again accurately reflects what the court held:
“…those parts of a police officer’s duties involving assistance to or protection of members of the public amounted to the provision of services to the public for the purposes of Section 20(1) of the Race Relations Act 1976 and it was therefore unlawful for officers to discriminate in their provision on grounds of race”.
And in particular that finding relied on what was said by Lord Templeman in Savjani and also referred to what was said by Lord Fraser in Ex parte Amin. Of particular interest, if I may respectfully say so, is part of the judgment of Otton LJ at page 84 (h) when he said this:
“These acts (or services) which the plaintiff sought from the police were, to my mind, acts which might have been done by a private person. The second category envisaged by Lord Fraser covers those acts which a private person would never do, and would normally only ever be performed by the police eg gaining forcible entry into a suspected drugs warehouse. Here the officers would be carrying out government policy to which the Act would not apply. Moreover, they would be performing duties in order to prevent and detect crime and exercising their powers to enable them to perform those duties.”
That distinction is with respect of importance in distinguishing between acts which might be done by a private person and acts which a private person would never do. Clearly a private person would never sit in judgement on the issue of entry certificates, to take the facts of the case in Amin. Clearly a private person would never be engaged in searching for drugs. By contrast a private person would often be engaged in the sort of services which we are concerned with in this case.
Now it is quite right to say as Kalyx says, and as Miss Hewitt forcibly said, that everything that happened here was incidental to the detention of Mr Gichura; but the authorities that I have referred to clearly show that that is not enough to exclude the provision of a service from the reach of this Act if, when done by a private person, what happened would be regarded as the provision of a service.
The cases of Farah and Savjani show that the court is prepared to take a fairly broad view of what falls outside the provision of the governmental service in the context of the discrimination legislation. It was, if I may respectfully say so, by no means certain in Savjani that it would be said that, as part of their operation of the tax office, the Inland Revenue officials were providing a service to the public as opposed to ensuring that the public paid its taxes. But as Lord Templeman said there can be two functions going on at the same time. That in my judgement is this case. On the one hand Kalyx is of course detaining Mr Gichura. True it is, as Miss Hewitt said, that anyone who is detaining a person that in effect has to provide them with bed, board, food and facilities; but as this case shows many issues may arise as to how that is done.
The broad view of what counts in these terms as provision of a service is important because it is important that the disability and other discrimination legislation does apply in circumstances which it is natural to think it should apply. I do not think that it is conceivably right to say now that Parliament intended this very important legislation not to apply in circumstances such as the detention centre with which we are concerned with, detention in police custody or detention in prison. Some of the functions that were performed there are purely governmental, like, as is conceded in this case, the administrative handling of the detainee on his arrival. But once he is there he is as a detainee a member of a section of the public. He is provided with what are in truth services and there is no reason either in the Act or in the authorities to which I have referred to exclude those services from the ambit of the Act.
For that reason therefore I do not agree with the analysis of the District Judge. I would hold her to be wrong in her conclusion that it is not arguable that services were provided in this case and I would reverse her decision. The effect of that as I would understand it that the case will now proceed on that basis, but subject to the concession that I have recorded on the part of the applicant so far as the first part of his detention is concerned.
I therefore allow this appeal in those terms.
Lord Justice Waller:
I agree.
Lady Justice Smith:
I also agree
Order: Application granted; appeal allowed
Equal Status Acts 2000-2008
Decision No: DEC-S2009- 087
Fogarty v Employment Appeals Tribunal
File Reference: ES/2003/585
Date of Issue: 21st December 2009
Key words
Equal Status Act, 2000 – misconceived, Section 22 – definition of service or facility available to the public or a section of the public – Direct discrimination, Section 3(1) – Disability, Section 2 (1) and 3(2)(g) – special treatment or facilities to accommodate the needs of a person with a disability – Section 4(1), Section 4(2) – nominal cost, Section 27(1) – redress for the effect of discrimination, Section 27(2) – specific course of action.
Delegation under Equal Status Acts, 2000-2008
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On the 10th June 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000 the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 10th June 2009. The final submissions were received on 28th September 2009.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated on the disability ground. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 and contrary to Section 4 of that Act by failing to provide him with reasonable accommodation.
2. Summary of Complainant’s case
2.1 The complainant is deaf and he cannot speak His primary mode of communication is sign language. He appealed a decision of the Right’s Commissioner to the respondent under the Unfair Dismissals Acts 1977 to 2001. The appeal concerned a decision by the Rights Commissioner that the claim was submitted outside the statutory time limits. The complainant said that he attended an Employment Appeals Tribunal hearing on the 22nd of November 2002. He was represented by Mr. John O’Connell a union shop steward who was also a work colleague. The complainant submitted that Mr. O’Connell does not use sign language and there was no sign language interpreter provided for the hearing. He said that Mr. O’Connell spoke to the respondent at the hearing and he communicated with Mr. O’Connell by writing notes to one another. The complainant said that he understood Mr. O’Connell but he did not understand the hearing and that he had no opportunity to tell the respondent the reason his complaint was submitted outside the statutory time limits.
2.2 In a written submission to the Tribunal prepared by the complainant’s solicitor the complainant submitted that the respondent failed to properly accommodate his disability for the purposes of a hearing before it. It was submitted that the respondent knew of his disability about five months before the hearing. They were again made aware by Mr. O’Connell at the commencement of the hearing that the complainant was deaf and cannot speak and that he (Mr. O Connell) did not know sign language nor could he lip read. The complainant submits that the respondent made no attempt to communicate with him directly nor did they write down any questions and allow him to answer in writing. He submits that he was denied an opportunity to address the respondent and to outline the reasons why he believed that exceptional circumstances applied to his claim and that the time limit should be extended. He believes that his claim for an extension of the time limit failed because he was unable to put his case before the respondent
2.3 In the written submission, the complainant also submitted that the functions of the Employment Appeals Tribunal fall within the definition of a service as set out in Section 5 of the Equal Status Acts.
3 Respondent’s Case
3.1 In the respondent’s submissions to the Tribunal, they requested that the complaint should be dismissed under Section 22 of the Acts on the grounds that it is misconceived. They submitted that the complainant was attempting to re-argue the merits of his claim for an extension of time under the Unfair Dismissals Act before the Equality Tribunal and that it was for this reason the complaint herein was misconceived.
3.2 The respondent submitted that the making of a determination on appeal from a Rights Commissioner in discharge of its statutory functions under section 9 of the Unfair Dismissals Acts does not constitute the provision of a service or facility under the Equal Status Acts. The respondent accepts that the definition of a service is wide enough to include services provided by the State and said that it is also clear that commercial services provided by public bodies or local authorities are within the remit of the Equal Status Acts. The respondent submitted that it was not clear from the Act the extent to which non-commercial activities, major policy and administrative functions of government are brought within the scope of the Act. The respondent referred the Tribunal to the case of Donovan V. Donnellan (DEC-SS2001-011, 17th October 2001) and submitted that the decision in this case is applicable to the complaint herein. They submit that while some limited aspects of its functions may fall within the definition of a service or facility under the ES Acts, the duty of the respondent to adjudicate upon appeals referred to it under section 9 of the 1977 Act does not come within the scope of the Equal Status Acts. The respondent further submitted that if the respondent discriminated on one of the prohibited grounds in the conduct of its statutory duty, the complainant is not left without a remedy in that the public law decisions of the respondent remain susceptible to the supervision of the High Court by way of an application for Judicial Review.
3.3 The respondent stated that the determination it made under the Unfair Dismissals Acts, 1977 to 2001 was subject to an appeal to the Circuit Court and High Court and an appeal on a point of law to the Supreme Court. It submitted that these remedies are exhaustive and are not supplemented by the Equal Status Acts and that if the Equality Tribunal were to accept jurisdiction in the complaint it would in effect usurp the statutory functions of the respondent.
3.4 The Chairman of the Employment Appeals Tribunal, Mr. Jeremiah Sheedy, Solicitor and Dr. Anne Clune Ordinary Member gave evidence that they heard the case and that the complainant never requested a sign language interpreter. Mr. Sheedy stated that he was aware that the complainant was unable to hear or speak He understood that Mr. O’ Connell was an experienced union person and had appeared before the respondent on a number of occasions and he was satisfied that he could represent the complainant. Mr Sheedy said that at the commencement of the hearing he asked Mr. O’Connell about how the hearing was going to proceed given that the complainant’s disability. It was agreed that the questions for the complainant would be written down by Mr. O’Connor and that the complainant would write down the answers which would be related back to the respondent by Mr. O’Connor.
The respondent witnesses stated that, while they were made aware of the complainants disability by the secretary to the Employment Appeals before the hearing commenced, they did not consider adjourning. They further submitted that no request was made by the complainant for a sign language interpreter. If a request had been made for an interpreter Mr. Sheedy said that he would have adjourned the case. He said he did not know if the complainant understood the hearing. The Tribunal itself did not write down any questions for the him. They relied on Mr. O’Connor to communicate with the complainant. Mr. Justin Corcoran who was the secretary for the hearing gave evidence that he took notes of the hearing and he provided a handwritten copy of the notes taken to the hearing herein.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against contrary to Section 4 of the Equal Status Acts. The complainant alleges that the respondent failed to provide reasonable accommodation for him contrary to Section 4(1) of the Act.
In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 The first issue which I have to consider is the respondent’s submission that I have no jurisdiction to hear the complaint and therefore the referral should be dismissed under Section 22 as misconceived. The application is based on their submission that the Act is not applicable as the respondent was not engaged in the provision of a service within the meaning of the Equal Status Acts. Therefore I have to first consider is whether the functions of the respondent is a service within the meaning of section 2(1) of the Equal Status Acts. The Act provides:
”service” means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes —
(a) access to and the use of any place,
(b) facilities for —
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
It is clear to me having examined the wording of section 2(1) that the services and facilities which are covered by the section have to be available to the public generally or a section of the public. It is also clear that the facilities mentioned in section 2(1)(b) is not an exhaustive list of matters covered by the Act. Therefore I need to examine the statutory functions of the respondent to determine whether they can be regarded as a service or facility within the meaning of section 2(1) which are available to the public or a section of the public.
4.3 The Employment Appeals Tribunal was set up under the Redundancy Payments Act, 1967 to hear disputes about redundancy between employers and employees. Its functions were expanded further on the introduction of the Unfair Dismissals Act 1977 which included hearing disputes about inter alia dismissals and hearing appeals from the Rights Commissioner’s. Over time there were several other Acts of the Oireachtas were included in the remit of the EAT. A sitting division of the EAT comprises of a chairman and two ordinary members who hears the claim or the appeal and issues a decision. Section 8 and 9 of the 1977 Act provides:
8. — “(1) A claim by an employee against an employer for redress under this Act for unfair dismissal may be brought by the employee before a rights commissioner or the Tribunal and the commissioner or Tribunal shall hear the parties and any evidence relevant to the claim tendered by them and, in the case of a rights commissioner, shall make a recommendation in relation to the claim, and, in the case of the Tribunal, shall make a determination in relation to the claim.
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period.
9. — (1) A party concerned may appeal to the Tribunal from a recommendation of a rights commissioner in relation to a claim for redress under this Act and the Tribunal shall hear the parties and any evidence relevant to the appeal tendered by them and shall make a determination in relation to the appeal.
(2) An appeal under this section shall be initiated by a party by giving, within 6 weeks of the date on which the recommendation to which it relates was given to the parties concerned, a notice in writing (containing such particulars (if any) as way be specified in regulations under section 17 of this Act for the purposes of section 8 (8) thereof) to the Tribunal and stating the intention of the party concerned to appeal against the recommendation and a copy of the notice shall be given to the other party concerned within the said period of 6 weeks.”
4.4 The procedures of the respondent’s are governed by regulations S.I. No. 24/1968 – Redundancy (Redundancy Appeals Tribunal) Regulations, 1968 and S.I. No. 286/1977 – Unfair Dismissals (Claims and Appeals) Regulations, 1977. These procedures also set out the administrative functions of the EAT in relation to the reception of claims and appeals. These functions are carried out by the administrative staff in the office of the Secretary of the Tribunal. In support of the contention that the functions of the EAT do not fall within the definition of a service or facility, the respondent referred me to the Equality Tribunal’s decision in the case of Donovan v. Donnellan (DEC-S2001-011). The Equality Officer in that case concluded that the investigation and the prosecution of crime by a member of the Gardaí does not constitute the provision of a service or a facility to the public. The respondent further submitted that while they accepted that some limited aspects of their function may fall within the definition of a service or facility, the duty of the respondent to adjudicate upon appeals referred to it under Section of the of the Unfair Dismissals Acts does not.
4.5 I note that in the Donovan case that the Equality Officer, who considered the jurisprudence in the English case of Farah v. Commissioner of Police of the Metropolis (1997) 2 W.L.R. 824, differentiated between the duty of the Gardaí to investigate and prosecute the commission of a crime and other functions of an Garda Síochana such as witnessing a passport application, giving directions or taking a complaint. The Equality Officer stated : ” the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Síochana, including those of the investigation and the prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope.”
4.6 I have also considered the jurisprudence in other jurisdictions which has similar anti discrimination legislation to the Equal Status Acts which I believe to be of persuasive to my reasoning in the case herein. I note that the High Court of Australia considered the meaning of “service” under the Equal Opportunity Act 1984 in a number of cases. Section 4(1) of that Act has similar definition of “service” to the definition in the Equal Status Acts. The case of IW v City of Perth and others- (1997) 146 ALR 696 concerned the Council of the city of Pert’s refusal to grant planning permission. The question which arose was whether the Council provided a service of giving approval for planning permission. In their High Court Judgment Brennan C.J. and McHugh J. referred to the remedial purpose of the statute and stated that while a court or tribunal cannot give a statutory provision a meaning which is unreasonable or unnatural, “if the term “service” read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal should hold that that activity is a service for the purpose of the Act.” The Act was not necessarily inapplicable to the Council just because the refusal of service was made in the exercise of a statutory power or duty. In this case, the complainant did not succeed as the Council had not refused to properly consider the application. The High Court held that the Council did not provide a service of refusing or approving applications, but they had a duty to consider the application and had a discretionary power to grant or refuse it.
4.7 In applying the jurisprudence of the Donovan case and taking into consideration the persuasive value of the above mentioned Australian case I am of the view that some of the functions of the respondent are services within the meaning of the Equal Status Acts. These functions, which can be distinguished from the decision making functions, are the reception and processing of complaints and the organising and hearing of complaints. I note that the respondent is obliged to receive the claim and then they are obliged to hear the parties and any evidence relevant to the appeal. I am of the view, that this part of the functions i.e. the administrative matters in relation to receiving the claim or appeal and the organising and hearing of the claim or appeal, is a service or a facility under the ES Acts. The respondent has a statutory function to provide a mechanism to enable a person, who believes that they have been unfairly dismissed, to seek redress or to appeal a recommendation of the Right’s Commissioner. For this reason, I find that these functions are a service or facility for a person who finds themselves in such a position.
I am also satisfied that the service or the facility the respondent provides is a available to the public or a section of the public i.e. to a people who want to inter alia dispute their dismissal or to a person who wants to appeal a recommendation of a Rights Commissioner. Therefore I find for the above reasons that the complaint, in so far as it relates to the administrative matters of organising and hearing of the appeal, is not misconceived under section 22.
4.8 I also find that the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a “service” or “facility” which is available to the public. The respondent is exercising a quasi judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.
5 Reasonable Accommodation
5.1 I am now going to consider the evidence to see if the complainant, who cannot hear or speak, was provided with reasonable accommodation under section 4 of the Equal Status Acts. A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof shifts to the respondent to rebut the presumption of discrimination.
There are three tests which the complainant must satisfy to establish a prima facie case
(i) Is the complainant covered by the discriminatory ground? (in this case has the complainant a disability?)
(ii) is there evidence that he has been subject to a specific treatment by the respondent?
(iii) did the respondent’s actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainant’s needs as a person with a disability, which made it impossible or unduly difficult for him to seek a service or a facility from the respondent?
It is accepted that the complainant has a disability and that his primary mode of communication is by sign language and that no sign language interpreter was provided.
Section 4 of the Equal Status Act provides that, inter alia:
“(1) For the purposes of this Act discrimination includes a refusal or failure
by the provider of a service to do all that is reasonable to accommodate the
needs of a person with a disability by providing special treatment or facilities,
if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.
5.2 In considering reasonable accommodation, I note that the section of the Act requires the respondent to do “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”. This means that the Act requires the respondent to show that it did everything it could reasonably do to accommodate the needs of the complainant. The complainants case is that he could not take part in the hearing because of his disability and he believes that he had no opportunity to put his case directly to the respondent and for this reason he believes there could have been a different outcome to his appeal to the respondent. The respondent’s case is that the complainant suffered no discrimination because he was represented both before the Right’s Commissioner and the EAT by Mr. O’Connell who they believed was an experienced representative. Neither the complainant or his representative requested any accommodation at the hearing and had they done so, or if the EAT of its own motion identified a need for an interpreter, they would have adjourned the hearing for that reason.
In considering reasonable accommodation under Section 4 of the Act, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council, Judge Hunt considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: ” …reasonableness must be judged according to the context of the individual case…….. The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations …… and they are indeed relevant to the decision as to what is reasonable in the particular case…. The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities….. All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it,”
5.3 In applying the above mentioned reasoning to the case in hand, and having considered whether the facilities put in place to accommodate the complainant’s right to pursue his appeal, and to fully participate in the hearing of that appeal were reasonable, I am not satisfied that the respondent devised “a reasonable solution to a problem”. I note that the complainant in his appeal documentation to the EAT stated that he could not speak or hear. The respondent, who said that they had been only made aware of the complainant’s disability shortly before the hearing commenced, asked Mr. O’Connell who could not speak sign language to devise a solution. It was agreed that the questions for the complainant would be written down and that the complainant would provide written answers. The respondent in evidence stated that they did not address any questions or have any direct verbal communication even by the agreed written method through Mr. O’Connell. He could not speak or address the respondent during the course of the hearing.
In my view it was the duty of the respondent to ensure that there was no impediment to the complainant’s full participation and understanding of the hearing. From the evidence of both parties it would appear that the complainant was not asked if he required the services of a sign language interpreter. The non-availability of a sign language interpreter was an impediment to the complainants participation in the hearing and was in breach of his right to a fair procedures and natural justice and his right to be heard. As sign language is the complainant’s first language and his primary means of verbal communication, I am satisfied that without the special facilities of a sign language interpreter it was both impossible and unduly difficult for him to fully participate in his appeal hearing before the respondent.
In the above mentioned case, Hunt J. stated that reasonable accommodation must be considered in the context of the individual case. I am of the view that a reasonable solution in the context of this case would have been for the respondent to adjourn the EAT hearing to a new date and to provide the facilities of a sign language interpreter for the complainant. For the above reasons I find that the complainant has established a prima facie case of discrimination. I find also that the respondent, by the failure to provide reasonable accommodation in accordance with Section 4(1) of the Act to the complainant, has failed to rebut the prima facie case of discrimination.
5.4 I am now going to consider nominal cost in accordance with Section 4(2) of the Equal Status Acts which provides:
(2) “A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
There were no submissions made by either party in relation to nominal costs. I am satisfied however that the provision of a sign language interpreter for the complainant by the respondent would given rise to no more than a nominal cost in the context of the respondent’s overall budget.
6. Decision
6.1 I find that the complainant was discriminated against in terms of section 4 of the Equal Status Act.
Under section 27(1) of that Act redress may be ordered where a
finding is in favour of the complainant. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
6.2 Under Section 27 the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effect the discrimination had on the complainant and the fact that sign language is his first language and primary mode of communication so a sign language interpreter was essential for him to engage with and to fully participate and understand the proceedings. The fact that the complainant could not communication with the respondent to put the evidence in relation to his appeal and to understand or participate in the proceedings caused him great distress. In the circumstances I order The Employment Appeals Tribunal, to pay to the complainant the sum of €3,000 to compensate him for the distress, embarrassment and inconvenience suffered by him.
6.3 I requested the respondent to provide me with their procedures and I note that the respondent has procedures in place for persons requiring language interpretation services whereby an application has to be made in person before the EAT for such services. There appears to be no procedure in place for persons with disabilities or for persons who require a sign language interpreter. It is not possible for an unrepresented complainant who is deaf and cannot speak to appear in person before the respondent seeking language interpretation services for their hearing.
Under Section 27(1)(b) of the Act, I order the respondent to provide special facilities at the hearings for people with disabilities, these special facilities should include the provision of a sign language interpreter. I also order the respondent to notify parties in advance of a hearing that these special facilities are available.
___________________
Marian Duffy
Equality Officer
21st December 2009
Secretary of State for Defence v Elias
[2006] EWCA Civ 1293 (10 October 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1293.html
Cite as: [2006] WLR 3213, [2006] 1 WLR 3213, [2006] IRLR 934, [2006] EWCA Civ 1293
Mummery LJ
Race discrimination law
Sweeping changes were made to the scope of application of the 1976 Act to public authorities by the Race Relations (Amendment) Act 2000 (the 2000 Act) with effect from 2 April 2001.
Section 71 imposes a general statutory duty on every specified body or other person that it
“(1) ….shall, in carrying out its functions, have due regard to the need-
(a) to eliminate unlawful racial discrimination; …”
As mentioned earlier, the Secretary of State has not appealed against the declaration made by the judge that the Secretary of State had not complied with his obligations under section 71(1) in the formulation and maintenance of the Compensation Scheme.
Section 71(2) of the 1976 Act enables orders to be made requiring specified bodies to take steps for the better performance of their duties under section 71(1). An order was made obliging the publication of a racial equality scheme by 31 May 2002. The Secretary of State published his first Race Equality Scheme in May 2002, which referred to seeking out and removing discrimination and the possibility of discrimination from the services provided by the Ministry of Defence, such as the provision of pensions. The Race Equality Scheme contained no reference to the Compensation Scheme. As the judge observed, it was wrongly assumed at the time that there was no race discrimination issue to be addressed.
Section 19B of the 1976 Act provides that
“(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.”
It has been common ground in this litigation that the Secretary of State and the Veterans Agency are subject to sections 71 and 19B.
It is also accepted by the Secretary of State, for the purposes of this litigation, that an ex gratia payment under the Compensation Scheme is a “form of social advantage” within the meaning of the amended provisions of the 1976 Act set out below, which derive from Article 3 of the EC Race Equality Directive referred to below. In the context of the prohibition of discrimination in EC law the concept of “social advantage” has not been interpreted restrictively (see State of the Netherlands v. Reed 17 April 1986, Case 59/85 at paragraph 25). It encompasses “not only benefits accorded by virtue of a right but also those granted on a discretionary basis.” See Law of the European Communities Service (General Editor David Vaughan QC) at paragraph 145.
While making the concession for the purposes of this case, Mr Sales drew our attention to cases on EC Regulation 1612/68 (for example, Baldinger C-386/02 at paragraph 17), in which it was held that an allowance to a former prisoner of war was not a “social advantage” within the meaning of the Regulation. Although this expression does not necessarily have the same meaning in both contexts, it may be argued in a later case that “social advantage” is a term of art in EC law.
I now turn to the specific provisions of the 1976 Act, as amended, which make acts of race discrimination unlawful.
Section 1(1) of the 1976 Act defines race discrimination. There are two sub-subsections, (a) and (b). They define two different kinds of discrimination in the alternative (“or”): subsection (a) defines what is commonly described as direct discrimination; subsection (b) defines what is commonly described as indirect discrimination. Those expressions do not appear anywhere in the legislation, but are commonly used in discrimination law practice. The non-statutory descriptions “overt discrimination” and “covert” or “disguised discrimination” are also sometimes used.
Until this case I had assumed, perhaps wrongly, that direct and indirect discrimination were strictly alternative statutory causes of action, as indicated by the use of a disjunctive “or” placed between the definitions in sub-subsections (a) and (b). The difference between the two forms of discrimination may be crucial, because the elements of the causes of action are different and the defence of justification of the difference in treatment between one racial group and another, irrespective of the race of the persons to whom the condition or requirement is applied, is only available under the 1976 Act in the case of indirect discrimination. Direct discrimination on racial grounds is never justifiable under the 1976 Act.
The distinction between direct and indirect discrimination also affected remedies for discrimination. For example, it was provided by section 57(3) of the 1976 Act that, as respects an unlawful act of discrimination falling within section 1(1)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds.
If it is the correct reading of section 1(1) to distinguish between the two kinds of discrimination as alternatives, it would follow that it would not be possible for the same act to be both an act of direct discrimination and an act of indirect discrimination. This reading is challenged by Mrs Elias, on whose behalf Mr Rabinder Singh QC submitted that the eligibility criteria are both directly and indirectly discriminatory by reason of the racially discriminatory purpose and effect of the birth link criteria. In the alternative, the criteria are either direct or indirect discrimination on racial grounds.
Section 1(1)(a) covers direct discrimination;
“(a) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or …”
“Racial grounds” are defined in section 3(1) as meaning-
“any of the following grounds, namely colour, race, nationality or ethnic or national origins;”
Indirect discrimination is covered by section 1(1) (b). It provides that a person discriminates against another in any circumstances relevant for the purposes of this Act if-
“(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.”
“Racial group” is defined in section 3(1) as meaning
“a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls.”
Section 3(4) states-
“A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
As the reference to subsection (1A) in section 3(4) indicates, the provisions relating to indirect discrimination have been amended since 1976. The protection against indirect discrimination was extended by amendments made with effect from 19 July 2003 (SI 2003/1626) implementing the Council Directive 2000/43/EC (the Race Equality Directive). The Directive was made in order to extend the principle of equal treatment to persons irrespective of racial or ethnic origin. The preambles refer (in preamble (3)) to the “right to equality before the law and protection against discrimination for all persons” as constituting “a universal right” recognised by various international instruments including the 1969 International Convention on the Elimination of all forms of Racial Discrimination (CERD) and (in preamble (12)) to covering areas such as “social protection, including social security and healthcare”, and “social advantages.”
The concept of discrimination is defined in Article 2 of the Directive expressly in terms of direct or indirect discrimination based on racial or ethnic origin. As in the 1976 Act, the different forms of discrimination in the Directive are expressed in the alternative. They are differently defined in Article 2.2 (a) and (b). In the case of direct discrimination the focus is on less favourable treatment of a person “on grounds of racial or ethnic origin.” In the case of indirect discrimination the focus is on “an apparently neutral provision, criterion or practice [which] would put persons of a racial or ethnic origin 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.”
In accordance with general principles of European Community law the duty of the UK courts is to construe, in so far as it is possible for them to do so, the domestic law implementing a directive so as to be compatible with the directive.
Article 14 of the Directive requires Member States to take necessary measures to ensure that any laws or administrative provisions contrary to the principle of equal treatment are abolished. Article 15 requires Member States to lay down rules on sanctions applicable to infringements of national provisions adopted pursuant to the Directive and for them to be “effective, proportionate and dissuasive.”
Mrs Elias relies on the new provisions on indirect discrimination inserted in the 1976 Act in order to comply with Article 2 of the Directive, as well as on the original provisions. They have applied since 19 July 2003 when they came into force. Where discrimination falls within the new provision, section 1(1)(b) does not apply: see section 1(1C). As in the case of indirect discrimination contrary to section 1(1)(b), the focus is not on difference in treatment “on racial grounds”, express or implied: it is on the evaluation of the disparate and adverse racial impact of the application of an apparently neutral and general provision, criterion or practice-
“(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but-
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.”
According to subsection (1B)(c) the provisions mentioned in subsection (1A) include section 19B, so far as relating to
“(iii) any other form of social protection; and
(iv) any form of social advantage
which does not fall within section 20.”
As I indicated earlier, it is common ground, for the purposes of this case, that payments under the Compensation Scheme are a “form of social advantage” that do not fall within section 20, which relates to the provision of goods, facilities or services, such as access, accommodation, financial services, education, leisure, transport and so on. The Secretary of State accepts that, for the purposes of this case, section 1(1A) applied to the case of Mrs Elias as from 19 July 2003.
I should add that it is clear from section 41 of the 1976 Act, which relates to acts done under statutory authority, that it is no longer possible for the Secretary of State to rely on section 41(1) as a defence in a case where the discrimination is on grounds of race or ethnic or national origins and it is unlawful by virtue of a provision referred to in section 1(1B): see section 41(1A). As already mentioned, section 1(1B) refers to section 19B.
I should also explain that, although proceedings alleging race discrimination under Part III of the 1976 Act must be brought in the County Court (section 53(1)) (and proceedings under Part II must be brought in the employment tribunal), the making of judicial review orders are not precluded in public law proceedings: section 53(2).
Mrs Elias also relied on the CERD, which was ratified by the UK and came into force on 4 January 1969. It was submitted that the 1976 Act must be interpreted to produce an effect compatible with the CERD. Article 1(1) defines “racial discrimination” in the Convention in such a way as to emphasise the importance of the principle of equality and of the discriminatory purpose or effect of an action or measure in determining whether it is unlawful. The term means
” any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
Reference was also made to Article 2 of CERD relating to the obligations of Member States to eliminate racial discrimination in all its forms and to the obligation in Article 6 to provide effective protection and remedies, including just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
Finally, Mrs Elias submitted that discrimination on the ground of race may be a form of degrading treatment prohibited by Article 3 of the European Convention of Human Rights (ECHR). The ruling of the Commission in East African Asians v. UK (1973) 3 EHRR 76 was cited as showing that ambiguities in national legislation should be resolved so as to avoid breaches of obligations under international law, such as the ECHR.
The East Africans Case is, it was argued on behalf of Mrs Elias, relevant to both direct and indirect discrimination. The immigration rule challenged in that case was framed in similar terms to the birth link criteria, so as to exclude those UK passport holders who did not have at least one grandparent born in the UK and did not therefore have a substantial connection or close links with the UK. The European Commission of Human Rights found a breach of Article 3 of the ECHR in the racially discriminatory purpose of the rule which, in its normal operation, singled out for differential treatment, on the ground of race, a particular group of persons. The rule was more favourable to descendants of white settlers than to Asian persons. The close links did not have a legitimate aim, irrespective of discrimination, which would prevent the rule from being a breach of Article 3.
Although a number of authorities on ECHR were cited, I should point out this case is not brought under the Human Rights Act 1998 and is not based on breach of Convention rights. Article 14 ECHR deals with discrimination in relation to the Convention rights. There is no Convention right not to be discriminated against on grounds such as race or national origins. This must be borne in mind when considering the authorities on ECHR points cited in support of the construction of the provisions of the 1976 Act, as amended, and of the EC Directive. It is, I think, fair to say that, as there is no general right not to be discriminated against on racial grounds guaranteed by the Convention, the Strasbourg jurisprudence on race discrimination in relation to Convention rights has not yet developed as fully as UK domestic law or EC law, either on the different forms that race discrimination may take or on the possible justifications for discrimination.
Throughout his submissions for Mrs Elias, Mr Rabinder Singh QC emphasised the fundamental nature of the right to equality underlying the 1976 Act, EC law, the ECHR and in international law and the unlawfulness of a racially discriminatory purpose aimed at excluding those who are of alien descent, even though the discriminatory effects were not fully achieved in practice.
Direct race discrimination
Direct race discrimination was at the forefront of the arguments of Mrs Elias in the judicial review appeal.
The judge rejected the contention that the birth link criteria were directly discriminatory “on racial grounds.” On behalf of Mrs Elias, Mr Rabinder Singh QC submitted that she should succeed on both direct and indirect discrimination, or, failing that, on the ground of direct discrimination in preference to the ground of indirect discrimination upheld by the judge. As mentioned earlier, subject to the defence of justification, indirect discrimination has been conceded by the Secretary of State. As for direct discrimination, the thrust of the case for Mrs Elias is based principally on the racially discriminatory purpose of the birth link criteria and on their discriminatory effects.
The obvious importance of the case for direct discrimination is that, if it is made out, the defence of justification is not available to the Secretary of State.
That Mrs Elias was treated less favourably than other comparable persons is undeniable. Her application for a payment under the Compensation Scheme was rejected. Applications by others for compensation were accepted. The critical question is whether her application was rejected “on racial grounds” within the meaning of section 1(1)(a) of the 1976 Act.
The fact is that, although Mrs Elias was, by virtue of the British Nationality and Status of Aliens Act 1914, a British subject at the date of her internment in 1941, she did not have the birth link with the UK required by the eligibility criteria: she was not born in the UK, nor were either of her parents or any of her grandparents. She did not qualify for a payment, because she did not satisfy the condition of payment linked to place of birth.
The judge accepted the submissions of the Secretary of State that Mrs Elias was not discriminated against directly, as the grounds on which compensation was refused were not “racial grounds.” The criteria specified place of birth as determinative: either her place of birth, or the place of birth of either of her parents and/or any of her grandparents. The birth link criteria did not require an applicant to have UK national origins, nor did the UK national origins of an applicant guarantee entitlement.
The judge recognised that a distinction has been established by the authorities on race discrimination between the “national origins” of a propositus and the place of birth of the propositus. In practical terms the use in the Compensation Scheme of criteria relating to the place of birth meant that applicants for compensation were eligible, even if they were not of UK national origin, it being sufficient that their mother happened to be in the UK when she gave birth.
Although these aspects give the criteria an arbitrary and adventitious quality, the Court of Appeal held in ABCIFER that they were not irrational. It does not, of course, follow that they complied with the 1976 Act. It is necessary to examine a different line of authority on the scope of discrimination on “the racial grounds” in the context of national origins and their relationship to place of birth.
Ealing LBC v. Race Relations Board [1972] AC 342, a decision on the Race Relations Act 1968, was cited by Mr Philip Sales for the Secretary of State. Ealing LBC refused to place the name of the applicant, who was a Polish national, on the housing waiting list, as he was not a British subject. This was less favourable treatment, but, according to the House of Lords, it was not treatment “on racial grounds.” “National origin”, a term left undefined in the legislation, meant national in the sense of, or analogous to, race, lineage or descent. It did not mean national in the legal sense of the citizenship (i.e. nationality), which may be acquired by an individual at birth by virtue of parental connection with the country in which birth takes place: see pages 358D-G, 363H-364E and 365D-366E. In distinguishing between national origins and nationality the House of Lords incidentally distinguished national origins from place of birth, which does not by itself determine “national origins.”
The law was amended in section 3(2) of the 1976 Act to include “nationality” in “racial grounds,” but that has not affected the construction placed by the courts on the expression “national origins.” This expression was repeated by Parliament in the 1976 Act, four years after the Ealing case with, it is reasonable to assume, knowledge of the meaning that the House of Lords had placed on it in the earlier legislation against race discrimination. In those circumstances it may be presumed that Parliament intended “national origins” to continue to have the same meaning in the 1976 Act: BBC Scotland v. Souster [2001] IRLR 150 (Court of Session-Inner House) per Lord Cameron of Lochbroom at paragraph 28, applying the principle in Barras v. Aberdeen Steam Trawling and Fishing Company Ltd [1933] AC 402 at 412, 442 and 445 that a word which has received a judicial interpretation must, when used in the same context in a later enactment, bear the same interpretation unless a contrary meaning is indicated.
In this case the birth link criteria related to where Mrs Elias or her ancestors happened to have been born. Mr Sales submitted that this was an adventitious fact that does not operate to determine or identify a person’s “national origins” for the purposes of the 1976 Act.
The reasoning in the Ealing case has been followed in later cases, which have drawn a distinction in race discrimination law between different treatment on grounds of “national origins”, as construed in Ealing, and different treatment on grounds of place of birth.
In Tejani v. Superintendent Registrar for the District of Peterborough [1986] IRLR 502 the dismissal of a claim for direct race discrimination was upheld by the Court of Appeal. The claimant was a British national born in Uganda. He wished to marry. The Registrar asked all people from abroad to produce their passports. Mr Tejani produced his as requested, but later made a claim under the 1976 Act for direct discrimination on the ground of national origins. The court held that the reason why the Registrar took that course had nothing to do with race: it was because the claimant was born abroad. He would have taken the same course with everyone coming to this country from abroad, irrespective of their race or national origins: see the judgment of Slade LJ at p506.
In Naraine v. Hoverspeed Ltd …12 November 1999) Mr Naraine, who was a black Asian Caribbean born in Guyana, complained that Hoverspeed had unlawfully discriminated against him on racial grounds contrary to the 1976 Act by declining to carry him to France. His full British passport had expired. He held a British Visitor’s passport, the holder of which the French authorities refused to admit to France if the document showed that the holder was born outside the UK. The French authorities also fined sea carriers who brought such passengers to France.
The rejection of the claim for direct discrimination was upheld by the Court of Appeal. The reason for the refusal to carry him was that he lacked the travel documents required by the French authorities as a condition of entry and that the French authorities would fine Hoverspeed, if they did carry him. The refusal by Hoverspeed had nothing to do with the “national origins” of Mr Naraine. May LJ asserted an intrinsic distinction between national origins and place of birth in that a person’s place of birth may be entirely fortuitous. It was a distinction recognised in the Ealing case and in Tejani. He pithily pointed out that being born a German and being born in Germany are two different things. See also AG’s Reference (N0 4 of 2004: R v. D [2005] EWCA Crim 889.
Mr Sales accordingly submitted that a criterion that distinguishes between applicants on the basis of the place of birth is not discrimination on the grounds of “national origins.” This is so, even though statistically those who are born in the UK are more likely to have UK national origins than those who are not born in the UK .
He disputed the suggestion that the generous extension of the place of birth criterion in this case to ancestors born in the UK in order to make the birth link criteria more inclusive had the effect of making the criterion so closely related to national origins as to lead in practice to almost the same differentiation as the adoption of national origins would have done. Having UK national origins was neither a necessary nor a sufficient condition of eligibility under the Compensation Scheme.
Mr Sales contended that the CERD, to which particular reference had been made in the case for Mrs Elias for its reference to “descent”, added nothing to her case. The domestic legislation on race discrimination complied with the CERD. As in the case of national origins, the birth link criteria neither excluded applicants of non-British descent nor guaranteed entitlement to applicants of British descent.
The point was discussed by reference to different ways of posing the question of the ground of the treatment of Mrs Elias in refusing her application for compensation. First, there was the “reason why” approach as in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337: why had Mrs Elias received less favourable treatment by being denied compensation? Secondly, there was the “but for” approach, as in James v. Eastleigh Borough Council [1990] 2 AC 751: would Mrs Eliashave received the same treatment but for her national origins?
The answers to these questions, Mr Sales submitted, did not lead to the conclusion that Mrs Elias was discriminated against on the grounds of her “national origins.” She was denied compensation because she did not satisfy criteria as to her place of birth or that of her parents or grandparents. The criteria applied irrespective of her national origins. As the judge pointed out, even as someone with non-UK national origins, she might have qualified had a parent or grandparent been born in the UK, whether or not they were of UK national origins. Similarly a person with UK national origins would not inevitably qualify for a compensation payment.
The different ways of putting the crucial question (why was Mrs Elias’s application for payment refused?) produced the same answer: she could not establish that her place of birth or that of her parents or grandparents was in the UK. For that reason she could not satisfy the birth link criteria. It had nothing to do with the racial or national origins of Mrs Elias.Irrespective of her national origins, she could not satisfy the criteria.
The point made by Mr Rabinder Singh QC for Mrs Elias was that, in order to answer the relevant question, it is necessary to look beyond the literal criteria of the place of birth to the central discriminatory purpose of the birth link criteria and to their discriminatory effect in favouring, on racial grounds, one group as compared with another. Direct discrimination on racial grounds can, he argued, occur even where the criteria are not expressly framed to refer to race. The judge had erred in only looking at the outer edges of application of the birth link criteria. The fringe cases had diverted the attention of the judge from the central purpose of the birth link criteria and led him to disregard the descent-based grounds for refusing payment.
Applying the “purpose” or “effect” approach spelt out in Article 1 of CERD Mr Singh submitted that the birth link criteria were deliberately selected for the purpose of identifying and requiring a real, strong and close link between those eligible for compensation and the UK. Descent, parentage and national origins provide the link and they constitute direct discrimination against Mrs Elias.
In practice in the vast majority of cases place of birth and national origins come to the same thing. It does not require statistical evidence or any other kind of evidence to establish that, for the vast majority of people in the UK, their place of birth and their national origins are one and the same. Birth criteria focus on origins of a national character, which are immutable characteristics acquired or imposed at birth. Further, the national origins in the criteria in this case were reinforced by the fact that they relate not only to the birth place of the applicant but also to the birth place of the applicant’s parents or grandparents. The whole purpose of adopting such criteria was to identify those who could show a concept of “belonging to the UK” or “being British” in a more specific way than simply through being British subjects or civilians. Although it is accepted that place of birth is not identical to national origins, it is so close to it that it should be treated as direct discrimination on that racial ground. The criteria were designed for the very purpose of excluding from payment those of non-national UK origins or alien descent and to make only de facto Europeans eligible for payments under the Compensation Scheme. If her parents or grandparents had been born in the UK she would have qualified. She was treated less favourably because she was not of UK national origins.
Why, Mr Singh forcefully protested, should peripheral cases of UK nationals, who are born outside the UK, and non-UK nationals, who are born in the UK, on which the judge relied, be determinative of whether the grounds on which an applicant is refused compensation under the Compensation Scheme are racial or not? The real reason why Mrs Elias could not satisfy the birth link criteria was because she did not have UK national origins. The refusal of her application was less favourable treatment of her “on racial grounds.”
This is a very pertinent question aimed at throwing real doubt on whether, in cases of this kind, there is a valid distinction between national origins and place of birth and whether there is any meaningful distinction in substance between the concepts of direct and indirect discrimination. What really matters, it is suggested, is whether the difference in treatment can be justified independently of racial grounds.
Certainly, from the perspective of victims of discrimination, there is no difference in substance between direct and indirect discrimination, other than that the former is more open, explicit or obviously offensive racial treatment, which is less excusable than a neutrally worded requirement, condition, provision, criterion or practice applicable equally to persons not of the same race. Whatever the kind of discrimination, direct or indirect, the victim of the discrimination in this case has been subjected to a comparative disadvantage, to which those with UK birth links, who are predominantly of UK national origins, have not been subjected. The legal distinction drawn in the authorities on the interpretation of the 1976 Act between national origins and place of birth might well appear to the victims of race discrimination to be a hair splitting distinction, in which the substance of the matter is obscured by preoccupation with form.
Mr Singh also submitted that overall the arguments advanced by the Secretary of State on the discrimination issue were contradictory and inconsistent. He said that the Secretary of State was impaled on Morton’s Fork
As to direct discrimination the Secretary of State sought to avoid the charge of a racially discriminatory purpose present in the birth link criteria by emphasising their random and adventitious aspects. Place of birth was where the mother of Mrs Elias happened to be when she gave birth. How could this be a racially discriminatory purpose?
As to indirect discrimination, which is discussed in more detail below, the emphasis of the Secretary of State’s submissions on objective justification was not on the fortuitous aspects of the birth link criteria, but on the purpose of requiring close links with the UK at the date of internment. This was a discriminatory purpose, as it was linked to grounds of UK descent or national origins and could not be relied on as a justification of race discrimination.
The powerful submissions of Mr Rabinder Singh raised serious doubts in my mind about the correctness of the judge’s ruling on this point, which, as Mr Singh pointed out, focused more on the edges of the effects of the criteria than on their central purpose or effect. In a general sense, discrimination with a discriminatory purpose, regardless of the particular form it takes, can be perceived as treating a person less favourably “on racial grounds.”
I am, however, clear that, in the present state of the law, the particular form of discrimination matters, even if there are present in the circumstances of the case a discriminatory purpose and discriminatory effects. The 1976 Act, as amended, makes an important broad distinction between two different forms of discrimination. This distinction is consistent with the Directive and this court must observe it.
The discrimination complained of in this case does not take the direct form of treatment “on racial grounds.” The birth link criteria take an apparently neutral form, which applies or would apply equally to all applicants for payments under the Compensation Scheme. It is the application of the neutrally worded criteria which produces the disparate adverse impact and puts persons of the same national origins at a particular disadvantage when compared with other persons. These are the distinguishing features of discrimination in its indirect form.
On this aspect of the case I would make the following particular points.
First, the 1976 Act clearly creates two different causes of action for race discrimination. They are two different statutory torts. The conditions of liability, the available defences to liability and the available defences to remedies differ. So far as remedies are concerned damages for injury to feelings for indirect discrimination were not available in cases of unintentional indirect discrimination contrary to section 1(1)(b): see section 57(3). (This has ceased to matter much in practice since the introduction of section 1(1A) as the defence to damages in section 57(3) has been removed for discrimination contrary to that section: see section 1(1C)).
Secondly, it is well established on authority and in practice that the material facts for the separate causes of action need to be separately pleaded, proved and ruled on. Section 1 of the 1976 Act cannot be construed as collapsing two causes of action into a single cause of action, the ingredients of which are discriminatory purpose and/or discriminatory effects.
Thirdly, the basic differentiation between the two causes of action is plain: it is between one form of discrimination, which focuses on treatment of another person on prohibited grounds and aims at achieving “formal equality” of treatment, and a different form of discrimination, which aims at achieving “substantive equality of results” where the application of apparently racially neutral criteria produces disproportionate adverse racial impact: see the trenchant observations in Secretary of State for Trade and Industry v. Rutherford [2006] UKHL 19 at paragraph 71 per Lady Hale.
Fourthly, the distinction between the two forms of discrimination is recognised in the Directive, as well as in the original and the amended provisions of section 1 of the 1976 Act. It is not just a peculiar feature of UK domestic law.
Fifthly, the availability of the defence of objective justification for one form of discrimination but not for another emphasises the importance of observing the separate nature of direct and indirect forms of discrimination. If the distinction is not observed, the result would be that the defence of justification would become available for direct discrimination. That result would not reflect the provisions of section 1 of the 1976 Act or be compatible with the Directive.
Sixthly, there is a consistent line of authorities since the Ealing case which are binding on this court and are to the effect that less favourable treatment on the ground that you were not born in a particular country is different from less favourable treatment on the ground of “national origins” and that the former falls outside what is prohibited by the 1976 Act as direct discrimination. Although place of birth is not a racial ground, it may be prohibited as an indirect form discrimination, subject to the defence of justification which may be difficult to establish, because, as will be explained later, justification must address the substance and not just the form of the discrimination.
Accordingly the judge was right, indeed bound, to rule as he did on the issue of direct discrimination. So is this court. Although I have continuing reservations, in principle, about the defensibility of a legal distinction between national origins and place of birth when determining whether there is direct race discrimination, I think that this court is bound by authority to dismiss this ground of the appeal by Mrs Elias.
Indirect race discrimination: justification
The Secretary of State conceded that the birth link criteria had an adverse impact on a greater proportion of applicants like Mrs Elias than on applicants who were born in the UK and had UK national origins. In other words the birth link criteria excluded a higher proportion of those with non-UK national origins than those with UK national origins. This is indirect race discrimination, which is unlawful, unless objectively justified.
The issue of objective justification, which has a number of different aspects, is the most difficult point in the whole case. The court heard very lengthy arguments on many points with extensive citation of authorities dealing in generalities, which, like so much in this field, are easier to state in the abstract than to apply in practice to the facts of particular cases.
A number of points fall to be considered: the relevance, if any, of the fact that, as reflected in the declaration under section 71 of the 1976 Act, the Secretary of State did not consider the question of justification at the relevant time because it was not accepted by him that there was any race discrimination; the question whether the justification relied on was “irrespective of race”; the level of scrutiny by the court appropriate to the defence of justification; whether there was a legitimate aim in the birth link criteria; whether there was a wide margin of appreciation or a discretionary area of judgment allowed to the Secretary of State in formulating the eligibility criteria; and whether the birth link criteria were a necessary and proportionate means of achieving a legitimate aim.
Although Mrs Elias was successful overall on the absence of objective justification, she contends that the judge should have decided the case in her favour on a broader basis than he did. He should have held that there was no legitimate aim in seeking to achieve close links to the UK by reference to descent and that such an aim could not be justified by cost considerations or administrative workability.
Failure to address potential race discrimination
This is an important point affecting the court’s overall view of the defence of justification. Mr Sales submitted that the Secretary of State was entitled to assert that the birth link criteria were justified, even though he had not addressed the issue of discrimination or possible justifications for it at the time of formulating the birth link criteria: Schonheit v.Stadt Frankfurt am Main [2004] IRLR 983 at paragraphs 86 and 87. Indirect discrimination may be justified, depending on the circumstances, by reasons other than those put forward when the measure introducing the differential treatment was adopted. What matters is that there are objective reasons for the criteria, which are unrelated to the forbidden grounds of, among other things, national origins and are such as to justify the measure concerned.
While I do not doubt the correctness of the general proposition that in theory ex post facto justification of indirect race discrimination is legally permissible, it does depend on the circumstances. In R (Morris) v. Westminster City Council [2005] EWCA Civ 1184, [2006] 1 WLR 505 at paragraph 49 Sedley LJ referred to the difficulties of relying on the margin of appreciation in cases of attempts to justify discrimination, when it was not appreciated that the measure had a discriminatory impact and so no judgment at all was made as to whether the measure was proportionate or otherwise justified.
There are several legal and practical difficulties in this case in advancing grounds of justification for a form of indirect discrimination that was not even considered when the birth link criteria were adopted and, when raised, was consistently denied down to the hearing of the case.
First, the onus is on the Secretary of State to justify the birth link criteria as a matter of law and of objective fact. The onus is not on Mrs Elias to establish that the birth link criteria are unjustified, because they do not have a legitimate aim or because the means of pursuing a legitimate aim are disproportionate or because the birth link criteria cannot be justified “irrespective of race.” I would also add that the onus is not on the court, as part of the exercise of margin of appreciation or area of discretionary judgment allowed by the court to the State, to search around for a justification of the birth link criteria in order to help the Secretary of State out of a situation of his own making.
Secondly, one important consequence of the failure of the Secretary of State to address the indirectly discriminatory effects of the birth link criteria is the absence of an evidential basis for justifying the birth link criteria or for assessing the comparative discriminatory effects of other possible criteria as a means of confining compensation to those with close links with the UK. I agree that the requirement of close links with the UK would make it practically impossible to avoid some adverse disparate impact resulting from different neutrally worded criteria, such as requirements of residence or domicile. But, if the exercise of formulating the criteria had been properly carried out with due regard to the potentially discriminatory effects of requiring close links with the UK, there would probably have been brought into existence evidence in the form of data and reasons relevant to an informed choice of criteria, which might have had a lesser discriminatory impact than the birth link criteria. The kind of evidential material which ought to be available for deciding the issue of justification does not exist, because the selection of the eligibility criteria by the Secretary of State was carried out without due regard to the race discrimination issue.
Thirdly, this court must give effect to section 71 of the 1976 Act, which placed on the Secretary of State a statutory duty which he has failed to perform. I think that this adds to the difficulties of the Secretary of State in now attempting to justify the imposition of the birth link criteria. He has to justify an act of discrimination committed in the carrying out his functions when, in breach of an express duty, he failed even to have due regard to the elimination of that form of unlawful race discrimination. He has to justify something which he did not even consider required any justification. In these circumstances the court should consider with great care the ex post facto justifications advanced at the hearing. I shall return to this point later.
Legitimate aim
The judge held that the aim of the birth link criteria was in principle legitimate (paragraph 73).The Secretary of State was entitled to limit eligibility to compensation to a category narrower than everyone who was a British subject at the time of internment by requiring the applicant to have close links with the UK.
In formulating a legitimate aim the Secretary of State was entitled to take into account a number of factors: considerations of social and national solidarity; administrative workability; and the cost to the UK taxpayers of funding as part of the definition of the Compensation Scheme and the financial consequences of decisions. The court was referred to Hoogendijk v. The Netherlands (2005) 40 EHRR SE22 189 at 204-205, a case on Article 14 of the Convention in relation to an alleged violation of a violation of rights under Article 1 of Protocol No 1. The case concerned loss of entitlement to disablement benefits. It was held that the control of public expenses by the State is a legitimate aim for the purposes of securing social justice and protecting the State’s economic well-being. In this respect, in implementing social and economic policies, the margin of appreciation enjoyed by the national authorities in determining what is in the general interest of the community is a broad one. The court went on to consider the issue of proportionality and held that, given the wide margin of appreciation enjoyed by Contracting States in implementing social and economic policies, the decision complained of could not be considered disproportionate to the legitimate aims pursued and so there was no violation of Article 1 of Protocol No 1.
As to whether it was legitimate to require applicants for benefits to demonstrate a sufficient connection with the paying state, as they are national in character and express a debt of national gratitude, it was submitted on behalf of Mrs Elias that national solidarity cannot justify a measure which, by requiring a national connection, has disparate impact on persons of a particular race nationality or national origin.
Mr Sales summarised four factors as justifying the aim of narrowing the class of British subjects by requiring close links with the UK. First, the immense size of the “British subject” group, many living in territories that are now independent and not financed by UK public funds. Secondly, the fact that military prisoners of war were the main focus of the compensation payments initially. As they were confined to UK Armed Forces, a similar equivalent connecting factor was sought for civilian claimants. Thirdly, the cost to the public purse. Fourthly, the need for understandable and administratively workable criteria.
He also pointed out that there was no single obviously “right” solution. There was no rule of EC law against “national solidarity” in the distribution of benefits of this kind, such as social security benefits, which were an act of national recognition by particular states to those with genuine links with that state. Ex gratia payments of the kind made under the Compensation Scheme as expressions of national gratitude were an a fortiori case.
A rational attempt had been made to make the criteria more inclusive by extending place of birth from the applicant to parents and grandparents and to relate the requirement of close links with the UK to the position as at the date of internment. It had been held by his court in ABCIFER that this was not an irrational aim with which to start.
Mr Rabinder Singh criticised the judge’s finding of the legitimate aim of the birth link criteria on a number of grounds.
First, as already mentioned, there was no national or social solidarity as a legitimate aim in this case, as the solidarity was judged by national origins/racial descent. He cited Cowan v. Tresor Public …Case 186/87) [1989] ECR 195 at paragraphs 16 and 17, a case on freedom of movement, in support of the proposition that the principle of national solidarity cannot justify a measure relating to the award of compensation which has discriminatory effects on grounds of nationality.
Secondly, economic considerations could never be relied on to justify race discrimination. The curtailing of the cost of the scheme was not a legitimate aim. In this case it was, in any event, an ex post facto consideration and the estimated figures showed that only a comparatively small group was disadvantaged by the birth link criteria.
Thirdly, administrative workability was not a legitimate aim. In this case it was relied on ex post facto. There had been no difficulty in making a large number of payments in February 2001 before the birth link criteria were settled.
I think that the question of legitimate aim has to be looked at in the round. In my judgment the judge was right to conclude that overall the aim of confining the payments to those with close links with the UK was a legitimate one. The real question is not about the end to be achieved but the means by which it was to be achieved and, in particular, whether the birth link criteria were a reasonably necessary and proportionate way of achieving the aim. I would make the following points.
First, I agree with the judge that ends must be distinguished from means. The overall aim sought to be achieved was to require close links of the applicants for compensation with the UK. The birth link criteria were the means chosen to achieve that end. The critical issue is whether they are proportionate means to achieve the end. I shall deal with that point later.
Secondly, national or social solidarity can justify the aim of close links to the State supplying the benefits. I do not think that Cowan v. Tresor Public is authority for such a wide legal proposition as that advanced on this point by Mr Rabinder Singh.
Thirdly, cost is not itself an aim or part of the aim. It is a factor in selecting the means and it falls to be considered as part of the proportionality exercise discussed below.
Fourthly, the same comment applies to the administrative workability of the criteria selected as a means of achieving the aim of close links with the UK.
Standard of scrutiny
In deciding the issue of proportionality there was significant disagreement on the preliminary point of the appropriate level of scrutiny of the birth link criteria.
In the ABCIFER the Court of Appeal rejected the contention that the birth link criteria were irrational. That does not, of course, determine this case. As the issue of race discrimination was not raised the court did not have to consider the question whether indirect race discrimination was objectively justified.
The standard of justification in race discrimination is the more exacting EC test of proportionality. As held by the Court of Justice in Bilka Kaufhaus GmbH v. Weber vonHarz [1986] ECR 1607 at paragraphs 36 and 37 the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group. It is not sufficient that the Secretary of State could reasonably consider the means chosen as suitable for attaining the aim.
The judge was criticised by Mr Sales for applying “intense scrutiny” to the birth link criteria. The judge did so, as he regarded the criteria as too closely related to “national origins.”
Mr Sales submitted that there was a broad margin of appreciation or discretionary area of judgment allowed by the courts in areas of social and economic policy, as, for example, in the distribution of social security benefits.
A wide margin of appreciation or discretion was a recurrent theme of the submissions of Mr Sales on the different aspects of justification and it was the main plank for his criticisms of the judge’s ruling on proportionality. He submitted that the judge failed to accord to the Secretary of State in relation to the Compensation Scheme an appropriate margin of appreciation in using “bright line” criteria which were easy to understand and administratively workable.
He relied on Hoogendjik v. The Netherlands …see above) at 205 and 207-208 as showing that a wide margin of appreciation should be accorded to national authorities in a case in which what is impugned is a social policy decision on the basis of discrimination on “a suspect ground.” This approach in earlier decisions was, he argued, re-inforced by the very recent decision of the Strasbourg Court in Stec v. UK … 12 April 2006- Application Nos 65731/01 and 65900/01). It is a case on a state welfare benefits scheme in which the criteria, which were linked to the different pensions ages for men (65) and women (60) directly discriminated on the ground of sex. It was held that the discrimination was justified. The Court said-
“50. The applicants complain of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14.
51. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article …….. A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. …
52. The scope of this margin will vary according to the circumstances , the subject matter and the background ( see Petrovic v. Austria …) As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. …On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. ….Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation.”
Mr Sales submitted that it was sufficient to show that the Secretary of State could reasonably consider that the means chosen were “suitable for attaining the aim”. The judge has misdirected himself by relying on cases of direct discrimination when he had already correctly concluded that this was not a case of direct discrimination.
It was argued that a wide margin of appreciation was appropriate in this case, as it had been recognised that special considerations applied to one-off war payments. There was a one-off moral objective, which had major economic consequences, principally because of the potential impact of the removal of the birth link criteria on the military eligibility criteria if they were extended to include all military personnel who were British subjects when they became prisoners of war.
In my judgment, the judge correctly adopted a rigorous standard in scrutinising the reasons advanced by the Secretary of State in justifying the birth link criteria.
The submissions made by Mr Sales do not meet the point that, although the race discrimination is indirect in form, objective justification must address the particular substance of the discrimination, which flows from the neutrally worded condition or requirement.
Although the birth link criteria are not direct discrimination in the form of treatment on “racial grounds”, as they relate expressly to place of birth, they are in substance veryclosely related to treatment on “racial grounds.” This is because it is self evident that the overwhelming proportion of applicants born in the UK, or whose parents or grandparents were born in the UK, have UK national origins as compared with the overwhelming proportion of applicants not born in the UK who do not have UK national origins.
Even though UK national origins are not formally specified in the birth link criteria, Mrs Elias’ exclusion from the Compensation Scheme is in substance very closely related to her non-UK national origins. It is that exclusion that has to be objectively justified. A stringent standard of scrutiny of the claimed justification is appropriate because the discrimination, though indirect in form, is so closely related in substance to the direct form of discrimination on grounds of national origins, which can never be justified.
If this is the correct approach, as I think it is, it is difficult for the Secretary of State to rely on a wide margin of appreciation or a broad discretionary judgment. I agree with the judge that the speech of Lord Fraser in Orphanos v. Queen Mary College [1985] AC 761 supports the stringent standard of scrutiny in seeking to justify indirect discrimination, which is closely related to “racial grounds”.
I agree with Mr Rabinder Singh’s point that, at the heart of the Secretary of State’s case, there is a serious contradiction. It does not, in my view, as Mr Singh asserts, make the discrimination direct, but it does make the substance of the indirect discrimination very difficult to justify. The contradiction is that, on the one hand, in order to avoid liability for unjustifiable direct discrimination, the Secretary of State focuses on the happenstance of “place of birth” as where the mother of the propositus just happens to be at the moment of birth, which has no necessary close link with the national origins of the mother or child. On the other hand, when it comes to justification of admitted indirect discrimination, the Secretary of State is at pains to emphasise the legitimate aim of close requiring links of applicants with the UK, which, in substance, involve their national origins and are difficult to justify as proportionate means which are appropriate and necessary to that end.
Proportionality
The judge correctly considered that the proportionality issue was at the heart of the case on justification.
A three stage test is applicable to determine whether the birth link criteria are proportionate to the aim to be achieved: see de Freitas v. Permament Secretary of Ministry of Agriculture, Fisheries and Housing [1999] AC 69 at 80 and R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 at paragraph 27 and 28. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?
The first issue has been covered by the earlier discussion on the legitimacy of an aim requiring the applicant to have close links with the UK. The issue of justification turns on the second and third aspects of the proportionality of measure (the birth link criteria) which is the chosen means of accomplishing the aim.
The judge thought that the birth link criteria were not necessary and proportionate to achieve the legitimate aim of requiring close links with the UK at the date of internment.
He was particularly influenced by two factors: first, the fact that the birth link was “very closely linked to national origins” (paragraph 89) and, secondly, by the consideration that the birth link criteria were by no means the only way in which the Secretary of State could have achieved the legitimate objective of restricting the category of British subjects, such as a period of residence in the UK before internment or criteria based on domicile. There would still be disparate impact, but it would be further removed from the forbidden racial ground of national origins.
This made it necessary to make a stringent assessment of the justification advanced.
This was disputed by Mr Sales. He contended that the judge erred in focussing on the criteria themselves instead of on the particular justification for them. The justification advanced by the Secretary of State was independent of and irrespective of national origins.
States, he said, have a wide margin of appreciation in determining whether policies in the field of social or economic policies are proportionate to a legitimate aim. The means were proportionate if the state could reasonably consider that the means chosen were suitable for attaining that aim. There was a discretionary area of judgment, even where the Secretary of State had failed to consider the issue of justification.
The judge had also failed to consider and compare other means by which the legitimate aim could have been achieved. If this was done, the birth link criteria satisfied the proportionality test. The Compensation Scheme had to identify those who qualified for payment. The criteria for close connection were appropriate. Other states had chosen criteria. It was an inevitable feature of the very nature of the scheme that the criteria are satisfied by a greater number of persons whose origins are those of the relevant country. The means chosen were rationally connected to the aim and could be reasonably considered to be suitable to attain the end. The alternatives of residence or domicile were no more obviously generous to those of non-UK national origins.
In my judgment, the judge was right to find that the means used were not proportionate to the aim. In reaching a decision on proportionality it is important to focus on the particular circumstances of this case rather than on the different circumstances of other cases. I would make the following particular points about this case.
First, the concepts of margin of appreciation and discretionary judgment developed by the Strasbourg Court in relation to Convention rights have to be cautiously applied to this case, which is not dealing with a Convention right or with Article 14 of the ECHR.
Under domestic law implementing the Directive, the Secretary of State was under an express statutory duty not to discriminate on racial grounds. There is an unappealed ruling that he acted in breach of that duty. It is more difficult for the Secretary of State to justify the proportionality of his choice of the birth link criteria as a matter of discretionary judgment when he did not even consider whether or not he was indirectly discriminating on racial grounds. This is particularly so when the indirect discrimination which it is sought to justify is in substance very close to direct discrimination on racial grounds, which can never be justified under the 1976 Act. It must be more difficult to give a wide margin of appreciation to discrimination in these circumstances.
Secondly, it is relevant to take account of the fact that, as the Compensation Scheme was not properly thought out in the first place, the issue of discrimination was not properly addressed at the relevant time and that poor standards of administration were evident. Consequently there was no proper attempt to achieve a proportionate solution by examining a range of criteria as a means of determining close links with the UK and by balancing the need for criteria to achieve the legitimate aim of close links with the UK with the seriousness of the detriment suffered by individuals who were discriminated against.
Thirdly, the birth link criteria produce anomalous or even absurd results, because there is no real match between the end and the means. An applicant who did not have a close connection with the UK would qualify simply because his or her mother was on holiday here at the date of birth.
Fourthly, as there was no proper consideration of whether there were other less discriminatory means of restricting payments to those with a close link to the UK, there is no evidential basis for finding that the birth link criteria were the only criteria that were reasonably necessary and proportionate to achieve the legitimate aim.
I would add three comments on points which I consider to be irrelevant to proportionality. The first is the “numbers” point. The argument that the birth link criteria adopted are justified because they are more inclusive than other possible birth link criteria that could have been adopted, as they include the place of birth of a parent or grandparent, is irrelevant to proportionality. The argument that more people are receiving favourable treatment does not justify treating others less favourably if they are excluded on what are, in substance, racial grounds.
The second point is that when the Secretary of State reviewed the Compensation Scheme and decided to amend the criteria so that Mrs Elias became eligible for compensation by virtue of more than 20 years residence in the UK, he was able to devise criteria for close links with the UK which were not based on the place of birth or the national origins of the applicant, or were even related to links with the UK as at the date of internment of the applicant. The amended criteria have not, so far as I am aware, attracted any challenge on the ground of race discrimination.
The third point is the ex gratia nature of the Compensation Scheme. This is irrelevant to proportionality. I should make it clear that Mr Sales did not submit that it was relevant that the Secretary of State was under no obligation to set up the scheme in the first place. As explained earlier the central point in race discrimination and its justification is the reason for the less favourable treatment or the disparate adverse impact of a requirement, condition, provision and so on. The fact that the compensation supplied by the State is ex gratia does not justify race discrimination.
Fettering common law power : general
In addition, or alternatively, to race discrimination Mr Rabinder Singh contended that the Secretary of State had unlawfully fettered his common law discretionary power to make ex gratia payments. He argued that the Secretary of State erred by rigidly applying the criteria to her case and in declining to consider any exceptional circumstances, in which payment might be paid to those owed “a debt of honour” even though they fell outside the scope of the criteria. Rigid application of self-created, absolute criteria of closeness of connection with UK was not justified. The fact that Mrs Elias did have close links with the UK made it inappropriate to adopt too strict an approach to the way the Compensation Scheme framed. It was an unlawful fettering of power to refuse to make or even consider making exceptions in individual cases according to the circumstances, such as, in her case, her extreme suffering in, and as a result of, internment and her strong links with the UK over many years.
Mr Rabinder Singh referred to documents revealing that, while it was considered that there might be cases that “throw up special circumstances which might merit discretion being exercised in favour of payment,” the Veterans Agency treated itself as wholly unable to disapply the criteria and to exercise discretion to make payments if someone did not meet an element of the entitlement conditions.
He referred to a letter sent to Mrs Elias by the Veterans Agency on 15 April 2004 saying that “we cannot make exceptions to the ruling for individual claims” and that they were bound by the conditions of eligibility laid down by the government, which they could not change. On 28 July 2004 the Agency again refused the application by Mrs Eliasfollowing the submission by her of evidence about the highly exceptional features of her internment. No consideration was given to the exercise of a discretion to make an exception to the eligibility criteria because of the particular circumstances of her case.
He relied on the analogy of a statutory public law discretion. In the case of a statutory discretion the decision maker must not fetter his discretion by “shutting his ears” or closing his mind and refusing to listen to reasonable arguments, or by adopting rules, which disable him from exercising his discretion in individual cases. The decision in British Oxygen v.Board of Trade [1971] AC 610 at 625D is a well known example. The same principle applies to common law prerogative discretionary powers of the Crown after Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 in order to ensure that they are exercised lawfully. The common law powers are always available and when the Crown, acting through government, formulates a scheme for their exercise it must remain willing and able to make exceptions to the scheme in appropriate cases.
The case of R v. Secretary of State for the Home Department ex parte Bentley [1994] QB 349 (a case on the prerogative of mercy) was cited for the proposition that a prerogative discretionary power is capable of being exercised in many wide ranging circumstances and that it should not be fettered by an established policy, to which exceptions cannot be made.
A declaration was originally sought that the Secretary of State erred by declining to consider any exceptional circumstances in which payment of ex gratia compensation might be made to those owed a “debt of honour” in the light of their imprisonment by the Japanese, but who fell outside the scope of the scheme by reason of the birth link criteria.
There was placed before the court on the last day of the hearing a proposed alternative form of declaration to the effect that the Secretary of State had acted unlawfully “in not being prepared to reconsider the decision to refuse Mrs Elias payments under the Compensation Scheme and/or had breached his duty to keep the criteria under review from time to time.”
Mr Sales opposed the amendment. In my judgment the court should not allow the amendment. There was obviously a power to amend the Scheme. Mr Sales accepted that there was a duty to keep the Scheme under review in the light of developments. The Secretary of State had now done that. In certain circumstances there might be a duty to reconsider the criteria in the light of experience. There was, however, no such duty here. The criteria had been laid down with full knowledge of the facts and a decision was made as to who should be excluded form the Scheme. In ABCIFER this court had decided that this was a rational and lawful decision. There was no duty to reconsider the criteria on the grounds suggested by Mrs Elias, namely her close connection with the UK after the Second World War and the exceptional degree of suffering undergone by her during internment. In other words the amended declaration is no different from her main case on fettering discretion, namely that it is unlawful to refuse to consider her as an exceptional case.
Although I am prepared to accept, for the purposes of this argument, that there are exceptional circumstances in the case of Mrs Elias, I would not make any of these declarations either on authority or on principle.
I agree with Elias J that the authorities do not assist the case advanced by Mrs Elias on this point. The analogy with statutory discretion, as in British Oxygen, is a false one. It is lawful to formulate a policy for the exercise of a discretionary power conferred by statute, but the person who falls within the statute cannot be completely debarred, as he continues to have a statutory right to be considered by the person entrusted with the discretion. No such consideration arises in the case of an ordinary common law power, as it is within the power of the decision maker to decide on the extent to which the power is to be exercised in, for example, in setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be. If there are no exceptions the decision maker is under no duty to make payments outside the parameters of the scheme. The consequence of the submission made on behalf of Mrs Elias would create problems by requiring every individual case falling outside the scheme to be examined in its individual detail in order to see whether it should be regarded as an exceptional case.
Bentley was decided on the basis that the Secretary of State had fettered his discretion under a misunderstanding as to the scope of the powers available to him. This is not a case of fettering discretion under a misunderstanding of the scope of a discretion exercisable according to individual circumstances. Like R. v. Criminal Injuries Compensation Board ex p Lain [1967] 2 QB 864, Re W’s Application [1998] NI 19 and the ABCIFER case itself, this is a case of a policy decision to exercise a common law power. The intervention of statute was not required. With regard to the Compensation Scheme it was necessary to formulate what Mr Sales called “bright line” criteria for determining who is entitled to receive payments from public funds. Subject to the race discrimination point the criteria implement the policy of the Compensation Scheme. They are not a fetter on an existing common law discretionary power to decide each application according to the circumstances of each individual case. In my judgment, there was nothing unlawful (subject again, of course, to the race discrimination point) in using common law powers to define a scheme to be governed by rules, to make specific provision for general criteria of eligibility and for exceptions and in then refusing to apply different criteria or, by way of exception, to consider or grant applications from those not falling within the published criteria.
The Secretary of State has not unlawfully fettered an existing relevant ordinary common law power (or prerogative power) nor has he acted arbitrarily nor under a mistake as to the nature and scope of his powers by rejecting or refusing to consider or re-consider Mrs Elias’ application as exceptional on the basis of the circumstances of her internment or of the appalling consequences of it for her or of her very strong close links with the UK.
The position of the Secretary of State with regard to the claims of Mrs Elias to be treated as an exceptional case has been within his common law powers and consistent with the objects of the scheme. Of course, he has power to amend the Compensation Scheme that he has propounded by modifying the criteria or by adding exceptions to the general criteria the light of practical experience of its operation. In certain circumstances he might even come under a duty to consider the criteria afresh, if for example he found that relevant considerations had not been taken into account in formulating the criteria. Until the scheme is amended to bring Mrs Elias within in it, the Secretary of State is acting lawfully in insisting that payments are only made under the scheme to those who satisfy the eligibility criteria.
I would dismiss the appeal by Mrs Elias on this ground.
DEC-S2011-009- Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2011-009
PARTIES
Oladoyin and Others v Abby /Eco Taxis
File Reference No(s): ES/2008/0156 – 0157,
ES/2008/0159 – 0166.
Date of Issue: 21st February, 2011
Decision No. DEC-S2011-009
Equal Status Acts 2000 to 2008 – Direct discrimination, section 3(1)(a) – Race ground, section 3(2)(h) – Disposal of goods and provision of services, section 5(1) – Establishment of a prima facie case – Service under the Acts.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 These complaints were referred to the Director of the Equality Tribunal under the Equal Status Acts on the 18th August 2008. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts on the 21st January 2010. A hearing, in accordance with section 25 was scheduled for the 16th December 2010 and the final correspondence received was on the 31st January 2011.
2. Dispute
2.1. This dispute concerns a complaint, where the complainants claim that they were discriminated against by the respondent on the Race ground in terms of sections 3(1) and 3(2)(h) and contrary to section 5(1) of the Equal Status Acts in relation to the respondent’s refusal to allow them to buy “shares” into the taxi business known as Abby/Eco Taxis of 11A Eyre Street, Galway city.
3. In relation to claims brought by Mr. Olorunfemi, Mr. Ipeagwu and Mr. Ogba
3.1. These complainants were not in attendance at the hearing. The complainant’s legal representative was present and confirmed that he did receive notice of the hearing for these complainants. I allowed additional time for them to arrive but they did not. I contacted the Tribunal after the scheduled time for the hearing to enquire if they had made contact with it to offer an explanation for their non-attendance. However, I was informed that no contact was received.
3.3 Accordingly, I am satisfied that they were notified of the date and time of the hearing. I am also satisfied that no attempt was made by them to contact the Tribunal to inform of any delay. Finally, I am satisfied that ample time was provided for them to present themselves at the hearing so as to provide evidence.
4. In relation to claims brought by Mr. Oladoyin, Mr. Oladunni, Mr. Olayiwola, Mr. Egekiu, Mr. Wachira, Mr. Atu and Mr. Okocha
4.1. These complainants were in attendance at the hearing and gave direct evidence. All of the abovementioned complainants are originally from Nigeria with the exception of Mr. Wachira who is originally from Kenya. All of these complainants came to Ireland between the years 2000 and 2002 and have worked as taxi drivers since 2006.
4.2 They claim that they were all self employed taxi drivers up to June 2008. They claim that they paid an initial fee of €500 to the respondent for the rental of radio equipment and rights to use the name/logo on their taxis. They claim that they also paid a weekly fee of €100 to the respondent in return for it sending all its customers to them. They all maintain that they were not employed by the respondent.
4.3 The complainants claim that there were about 40 drivers connected with the respondent, 15 of whom were black. They claim that the respondent called all the drivers into a meeting in early summer 2008 and told them that it was changing the way that it operated its business. They claim that each of the drivers were invited to become a shareholder in the business. They claim that they were asked to pay €5,000 each and in return they each would become a “shareholder” in the business with all the entitlements and rights that would normally accrue to a shareholder. The complainants all agreed to accept the offer and money was paid to the respondent as consideration for the shares in the business, normally in an instalment basis, through out May/June 2008.
4.4 They claim that shortly after this offer was made and before everything was finalised, they were informed by one of the owners of the business that the offer to the black drivers to become a “shareholder” in the business was being withdrawn. They claim they were told that the business required new investment and the new investors coming into the business did not want ‘them’ involved. The complainants state that they were invited to claim back all the money paid up to that point and arrangements were made to make the refunds on the 10th June 2008. They were told that if they did not take up the offer of the refund and relinquish any interest in the business, and sign documentation to that effect, they might not get any of their money back at all. They claim that they were told to return the taxi radios and not to use the respondent’s logo in the future, and that their business relationship with the respondent was over. They claim that they were told that the business did not want coloured drivers and there was no room for any more drivers to invest into the business at that time.
4.5 The complainants claim that the respondent advertised to recruit other Public Service Vehicles (PSV) drivers once the 15 black drivers were removed. They submitted a copy of the Galway Advertiser Newspaper, dated 19th June 2008 and highlighted an advertisement from “Abbey Taxis” for “PSV Drivers”. The complainants’ solicitor gave evidence that he contacted the telephone number listed in the newspaper advertisement and was told the conditions for joining the business. He claims he was also told if he was interested that he could send in an application with a valid PSV driver licence and he would also be informed of the joining on fee. He also claims that he asked it if the business related to Abby/Eco taxis of 11A Eyre Street, Galway city to which he claims that he was told it was. Mr. Ayoola Muhamed Oladoyin claims that he also rang in around this time when he saw the advertisement in the newspaper but he claims that when he rang he was told that there were no positions at that time. The other complainants claim that they did not answer the advertisement because they knew whom the advertisement was from, and it had been made clear to them that they were not going to be allowed to join the business as “shareholders”.
4.6 The complainants claim that they carried out a company name search for Abby/Eco taxis in the Company Registration Office and claim that from this search Abby/Eco taxis it is not a registered company, but rather a business operating from 11A Eyre Square, Galway city.
4.7 The complainant’s submitted that their claim falls within the scope of the Equal Status Acts on the basis that the respondent was offering PSV license holders the opportunity to apply to it to become a “shareholder” in its business. However, they claim that the offer was not open to them simply because they were black.
5. Respondent’s case
5.1 The respondent in this case has been named as Abby/Eco Taxis, a business operating from 11A Eyre Square, Galway city. The Tribunal at first was successful in forwarding the original complaint forms that it had received and other related correspondence to the respondent at the above address. However, the Tribunal secretarial staff received a phone call from the proprietors at this address claiming that the named respondent had ceased trading and as new proprietors it was not responsible for any previous actions but they would not commit this to writing. Following that, all of the Tribunal’s correspondence was returned by An Post marked “Gone Away”. The Tribunal contacted the complainant’s and asked them to provide it with the most recent address details of the respondent so that it could update its records to correspond with it. The complainants’ solicitor claims that he visited the premises of 11A Eyre Square, Galway city in October 2010 and made enquires at the counter of the premises and asked if the business “was Abby taxis of Eco Taxis” and he claims that he was told that it was. He stated that this is the same address as provided on the original referral forms to the Tribunal.
5.2 Notice of the hearing was sent to the respondent at the above address by registered and ordinary post. The registered post was returned by An Post marked “gone away”. The notice sent by ordinary post was not returned.
6. Conclusion
6.1 Section 38A (1) of the Equal Status Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they 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.
Preliminary Issue
6.2 The first aspect in this case that I must consider is whether I am satisfied that the complaints fall within the scope of the Equal Status Acts. In particular I must give consideration to the definition of a “service” under Section 2(1) of the Act. In considering this issue, I note that a “service” is defined as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… “. It is clear to me that from the wording of Section 2(1) that the services and facilities which are covered by the section have to be available to the public generally or to a section of the public. It is also clear that the facilities mentioned in Section 2(1)(b) is not an exhaustive list of matters covered by the Acts.
6.3 I note the complainants’ legal submission that as there was no employment contract between the complainants and the respondent that therefore these cases do not qualify for consideration under the Employment Equality Acts and that they come within the scope of the Equal Status Acts. I am satisfied that the Equal Status Acts are a remedial social statute to be widely and liberally construed. In the long title of the 2000 Equal Status Act, it is expressed to be remedial legislation and as such I am satisfied that the Tribunal must adopt a purposive approach in interpreting its provisions. This approach was adopted by the Supreme Court in The Bank of Ireland v. Purcell [1989] 1 I.R. 327 “… As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done.” Therefore, I am satisfied that the definition of a “service” under the Acts must be construed in such a fashion to facilitate access for people to counter discriminatory action in society.
6.4 I note the previous decision of this Tribunal in Fitzgerald -v- Dairygold Co-Operative Society Limited where the Equality Officer had to consider whether the issue of bonus shares to its members qualified as a ‘service’ under the broad definition contained within the Acts. The Equality Officer stated,
5.2 In considering this issue, I note that a “service” is defined in section 2(1) of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… “. There follows an illustrative list of examples among which are a professional or trade service. The respondent in the present case is a society registered under the Industrial and Provident Societies Acts, 1893 to 1978. The definition of an entity which may be registered as a society under these Acts is outlined at section 4 of the 1893 Act i.e. “A society which may be registered under this Act (herein called an industrial and provident society) is a society for carrying on any industries, businesses, or trade specified in or authorised by its rules, whether wholesale or retail, and including dealings of any description with land”. Having regard to this definition, I am satisfied that a society which is registered under this legislation is an entity that engages in trade and/or provides facilities for trading on behalf of and for the benefit of it’s members.
5.3 It is clear from the “Objects of the of the Society” which are contained at page 9 of the Rules of Dairygold Co-operative Society Limited that the respondent is such an entity which provides the aforementioned facilities for and on behalf of its members. It is the case that the members of the respondent are shareholders and the rules of the society make provision for the distribution of a net surplus or reserves at the end of a trading year among its members (in the form of an allocation of bonus shares). The aim of this allocation of bonus shares is to provide a reward to members (albeit those in the A1 category) for their trade with the respondent and to provide an incentive for these members to continue trading with the respondent. I am of the view that the relationship which exists between the members of the society and the respondent (which includes the distribution of profits in the form of an allocation of bonus shares), in the circumstances of the present case, is covered by the broad definition of “service” contained within the Equal Status Acts. Having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainant in the present case.
6.5 I will now consider the facts of the case before me in light of the Fitzgerald -v- Dairygold Co-Operative Society Limited decision. I note that the complainants have stated that to become, what they claim, “a shareholder” they were invited to pay a fee to gain access to the shareholding status and that this facility was open to taxi drivers who held PSV licences. I note that they claim that the normal benefits that would accrue to a shareholder, including voting rights and a share in profits, would then accrue to them under such an arrangement. I am satisfied that this opportunity was a facility that was withdrawn from the complainants and then was subsequently advertised in the local newspaper, aimed at a section of the public, – holders of PSV licences-, under the name of Abbey Taxis. I agree with the conclusions of the Equality Officer in the Fitzgerald -v- Dairygold Co-Operative Society Limited case and as the question in relation to the definition of a “service” in that case, is similar to the question that is before me for consideration, I am satisfied the same conclusion apply, although I am mindful that the bonus share option in the Fitzgerald -v- Dairygold Co-Operative Society Limited may differ from the co-operative type share option arrangement in the case before me for consideration. However, in the circumstances of the present case, I am of the view that such a “share option” facility is covered by the broad definition of “service” contained within the Equal Status Acts. Therefore, having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainants’ under the Equal Status Acts.
Discriminatory Treatment – Race Ground
6.6 I am satisfied that the complainants have presented clear and consistent evidence of their interaction with the respondent in the period from May to June 2008. I am satisfied that the sequence of events presented to me demonstrates that the complainants were offered an opportunity to enter into a business relationship with the respondent in June 2008, having worked closely with the owners of the taxi business for a number of years prior to that. It is also clear from their evidence that at first all drivers were invited to partake in this new business venture. However, when the owners encountered financial problems and sought external investment a decision was made in relation to the ‘black drivers’ and they were ousted from their positions and refused access to the respondent because of their colour, before the new business model was completed. This evidence was clearly established and then corroborated independently by the complainants through their oral evidence at the hearing, one after another. I am satisfied that the complainants have established a prima facie case of less favourable treatment and discrimination on the Race ground under Section 3(2)(h) of the Equal Status Acts.
6.7 Having considered the facts before me I conclude that the respondent has decided not to engage with the Tribunals investigation of these cases and therefore has failed to rebut the serious allegation raised against it. As I have been presented with no explanation from the respondent as to why the complainants were not allowed to be considered suitable to become shareholders. Therefore, on the balance of probabilities, I accept the complainants’ evidence.
7. Decision
7.1. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I issue the following decision.
7.2 As part of my investigation under Section 25 of the Acts, I am obliged to hold a hearing. I find that Mr. Oludare Olorunfemi, Mr. Paul Ipeagwu and Mr. Amos Ogba failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. As no evidence was given at the hearing in support of the allegation of discrimination I conclude the investigation and find against these complainants.
7.3 I find that Mr. Ayoola Muhamed Oladoyin, Mr. Bisi Adisa Oladunni, Mr. Harrison Olayiwola, Mr. Henry Ikechi Egekiu, Mr. Amos Njugi Wachira, Mr. Austin Atu and Mr. Tony Okocha have established a prima facie case of discrimination on the Race ground. The respondent has not engaged with the Tribunal investigation and therefore has not rebutted the inference of discrimination raised. The maximum amount which may be awarded in compensation under the Acts is €6,349. In light of the unlawful and blatant overt policy of discrimination inflicted on the complainants, I find that €6,349 each is the appropriate amount of compensation for the effects of the prohibited conduct.
_______________
James Kelly
Equality Officer
21st February 2011
DEC-S2011-001-
Farah v Commissioner Of Police For Metropolis
[1996] EWCA Civ 684 (1997) 9 Admin LR 601, [1997] 2 WLR 824, [1997] 1 All ER 289, [1996] EWCA Civ 684, [1998] QB 65 Hutchinson LJ
Having considered each of the arguments advanced by the defendant the judge felt unable to say that the Race Relations Act claim was unarguable and dismissed the application. I now consider the arguments as they have been presented before us on the appeal from the judge’s order.
I begin by referring to those provisions of the Race Relations Act 1976 (“the Act”) and the Police Act 1964 which are material. Part I of the Act defines discrimination and it is necessary to cite only section 1 (1) (a) which reads:
A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons….
Part II of the Act deals with discrimination in the employment field. Section 16 headed “Police” provides in subsection (1):
For the purposes of this Part, the holding of the office of constable shall be treated as employment –
(a) by the chief officer of police as respects any act done by him in relation to a constable or that office;
(b) by the police authority as respects any act done by them in relation to a constable or that office.
Part III of the Act deals with discrimination in other fields, and in that part is to found section 20, relating to discrimination in the provision of goods, facilities or services. Its material provisions are as follows:
(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person’s case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.
(2) The following are examples of the facilities and services mentioned in subsection (1) –
(a) access to and use of any place which members of the public are permitted to enter;
(b) accommodation in a hotel, boarding house or other similar establishment’
(c) facilities by way of banking or insurance or for grants, loans, credit or finance;
(d) facilities for education;
(e) facilities for entertainment, recreation or refreshment;
(f) facilities for transport or travel;
(g) the services of any profession or trade, or any local or other public authority.
In Part IV of the Act, dealing with other unlawful acts, is section 32, headed “Liability of employers and principals”; it provides:
(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.
(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him.
Part VI of the Act contains general exceptions from Parts II to IV (for example, by section 41 acts done under statutory authority and by section 42 acts safeguarding national security).
Part VIII of the Act relates to enforcement. Section 53 (1) reads:
Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this act.
Section 57, headed “Claims under Part III provides, as
material:
(1) A claim, by any person (“the claimant”) that another person (“the respondent”) –
(a) has committed an act of discrimination against the claimant which is unlawful by virtue of
Part III; or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the claimant,
may be made the subject of civil proceedings in like manner as any other claim in tort …..
Section 48 (1) of the Police Act 1964 provides as follows:
The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.
There are in my view two important issues which have to be determined in this case. The first is whether a police officer comes within section 20 of the Race Relations Act. The second is whether, if he does, the chief officer of police for the area in which he serves is answerable in law for any breaches of the Act which the police officer has committed. The first of these issues is obviously of fundamental and general importance; the second, while its resolution in the appellant’s favour might be fatal to the plaintiff’s claim under the Act in this case, is unlikely to preclude such claims being advanced in other cases. This is because, if we were to decide the first issue against the appellant and the second in his favour, any future plaintiff alleging racial discrimination against the police would join the officer or officers said to be the actual offenders. (It would not be possible for the present plaintiff to do that as the 6 months period within which proceedings are to be brought has long since expired – see section 68 (2) – unless she can persuade the court to consider the claim out of time under section 68 (6)). I ventured to suggest during the argument that such an outcome, while disposing of the claim in the instant case, would be for the Commissioner a Pyrrhic victory, and I remain of that view. The provisions of section 48 of the Police Act are, it seems to me, beneficial to both plaintiffs and the police, for reasons which are too obvious to need elaboration; and if the police are susceptible to a claim under the Act, it would be unfortunate if that, like other tortious claims, could not be brought against the Commissioner. However, such considerations are only of relevance if the first and crucial issue is decided against the appellant and if there is any room for doubt as to the interpretation of the statutory provisions bearing on the matter of the Commissioner’s vicarious liability. It is to the first of those questions that I now turn.
Mr. Seabrook invites us first to consider the scheme of the Act. He makes the following points:
(a) It is implicit in section 16 (1) (and indeed section 48 of the Police Act) that there is no relationship of employer/employee between the chief officer and constables. This is common ground – it is, as Mr. Nicol for the plaintiff concedes, well-established that police constables are office-holders not employees.
(b) Section 53, which is in specific and restrictive terms, prevents proceedings for breach of the provisions of the Act unless authorised by the Act itself. Section 57 provides the only authorization on which the plaintiff in this case can rely. The commissioner is not alleged to have personally committed any act of discrimination and can only be vicariously liable for the constables’ acts if they were acting as his agents with his authority – see section 32 (2): but, says Mr. Seabrook, section 32 has no application to the commissioner. The constables were not acting as agents or with the authority of the commissioner, but were exercising an original authority by virtue of their office. Section 48 does not avail the plaintiff because section 53 prohibits one from looking outside the provisions of the Race Relations Act.
Mr. Seabrook also submits that the constables themselves are not within the enforcement provisions of the Act. If, he says, those provisions do not extend to the commissioner, it is inconceivable that they should extend to the constables. He submits that the omission to make special provision, such as for example is made in relation to Part II of the Act by section 16 indicates that it was never intended that individual constables should be caught by section 20.
As a matter of construction, Mr. Seabrook submits, section 20 does not apply to police officers performing the duties of their office – they are not providing services. The acts alleged against them all entail the exercise of discretion and judgment. What they were engaged on, from the moment the 999 call was received, was the exercise of their powers of investigation, detection and the bringing of offenders to justice.
In this connection Mr. Seabrook referred us to a number of authorities. The first was R v Imm. App. Trib. Ex parte Kassam [1980] 1 WLR 1037. In that case a question arose as to whether a complaint of discrimination contrary to the Sex Discrimination Act 1975 was maintainable in respect of a provision of the Immigration Rules which required the wife or child of a male student who had been given leave of entry to study to be admitted for the period for which the husband had been authorized to enter but contained no corresponding provision in respect of the husband of a female student. Section 29 of that Act is in terms essentially similar to those of section 20 of the 1976 Act. It was held that the Secretary of State was not a person concerned with the provision of facilities to a section of the public. Stephenson LJ. said, at 1042:
I am of the opinion that the Secretary of State is not a person concerned with the provisions of facilities to a section of the public. Section 29 (1) and (2) repeat, mutatis mutandis, section 2 (1) and (2) of the Race Relations Act 1968 (now repealed and re-enacted in section 20 (1) and (2) of the Act of 1976) and so are not free from judicial interpretation. But read in their natural and ordinary meaning they are not aimed at, and do not hit, the Secretary of State concerned with giving leave to enter or remain in the exercise of his powers under the Immigration Act 1971. The kind of facilities with which the sections of the Acts of 1975 and 1976 are concerned is of the same order as goods and services, and though it may not always be easy to say whether a particular person (or body of persons) is a person concerned with the provision of any of those three things to the public or a section of the public and although a Minister of the Crown or a government department might be such a person (for instance, in former days the Postmaster General, as Sir David Cairns suggested in argument), I am clearly of the opinion that the Secretary of State in acting under the Immigration Act and Rules is not such a person, and he cannot be held to have unlawfully discriminated against the applicant by refusing to give him leave to remain here while his wife was a student, or by refusing to interpret or alter the immigration rule, paragraph 22 of H.C. 79, which is relevant to this appeal. He is operating in a field outside the fields in which Parliament has forbidden sex discrimination.
Ackner LJ. agreeing, said at 1043:
In my judgment, when the Secretary of State is exercising his discretion in relation to powers granted to him by the Immigration Act 1971, he is not providing a facility within the meaning of section 29 of the Act. The word “facilities” in that section is flanked on one side by the word “goods” and on the other by the word “services”. This suggests to my mind that the word “facilities” is not to be given a wholly unrestricted meaning but must be limited or confined to facilities that are akin to goods or services. Section 29 (2) provides examples of the facilities and services mentioned in section 29 (1). These examples support the view which I have expressed above.
Ex parte Kassam was distinguished in Savjani v IRC [1981] 1 QB 458, a case which gave rise to the question whether the Inland Revenue were concerned with the provision of services under section 20 of the 1976 Act. This court held that they were and in the course of his judgment Lord Denning MR said at 466:
I would only mention Reg. v Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 WLR 1037, which was before another division of this court. In that case discrimination was alleged against the immigration authorities. The court held that, in dealing with people coming in under the immigration rules, the immigration authorities were not providing “services” within the meaning of the Act. This case is very different. The revenue are providing “services” in regard to relief from tax or repayment of tax. Those services come within the provisions of the Act. If there is discrimination in the carrying out of those services, it is unlawful.
Templeman LJ. said at 466:
The Race Relations Act 1976 undoubtedly poses and is continually posing a large number of administrative difficulties both for the Crown and for large organisations; and in the present instance the Inland Revenue are to be treated with sympathy rather than criticism. Undoubtedly their task has been made more difficult by the Act if it applies to them. On the other hand, the Act was brought in to remedy very great evil. It is expressed in very wide terms, and I should be very slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act. Nevertheless, of course, one must look at the Act and construe its provisions.
A little later he said at 467:
As Mr. Moses on behalf of the revenue submitted, the board and the inspector are performing duties – those duties laid upon them by the Act which I have mentioned – but, in my judgment, it does not necessarily follow that the board and the inspector are not voluntarily, or in order to carry out their duty, also performing services for the taxpayer. The duty is to collect the right amount of revenue; but, in my judgment, there is a service to the taxpayer provided by the board and the inspector by the provision, dissemination and implementation of regulations which will enable the taxpayer to know that he is entitled to a deduction or a repayment, which will entitle him to know how he is to satisfy the inspector or the board if he is so entitled, and which will enable him to obtain the actual deduction or repayment which Parliament said he is to have. For present purposes, in my judgment, the inspector and the board provide the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof.
At 468 he said:
On behalf of the revenue Mr. Moses submitted that the Race Relations Act 1976 does not apply to the Inland Revenue at all, but he naturally and wisely recoiled from the suggestion that the inspector of taxes might decline to interview a taxpayer if the taxpayer were coloured. He makes forcibly the submission that, when the board decides for sensible reasons that a higher standard of proof is required from taxpayers who come from the Indian sub-continent, the board are not providing a service to that taxpayer; they are carrying out their duty to the Crown. As I have already indicated, it does not seem to be that the two concepts are mutually exclusive. The board and the inspectors perform their duty and carry out a service and, in my judgment, it is a service within the meaning of section 20 of the Race Relations Act 1976.
Both these cases were considered by the House of Lords in In re Amin [1983] 2 AC 818 where an issue was whether the grant of special vouchers under the special voucher scheme introduced by paragraph 38 of HC 79 came within section 29 of the 1975 Act. It was held that by the majority that it did not. The contention that Ex parte Kassam was wrongly decided was rejected by the majority. In the course of his speech Lord Fraser said, at 834:
My Lords, I accept that the examples in section 29 (2) are not exhaustive, but they are, in my opinion, useful pointers to aid in the construction of subsection (1). Section 29 as a whole seems to me to apply to the direct provision of facilities or services, and not to the mere grant of permission to use facilities. That is in accordance with the words of subsection (1) and it is reinforced by some of the examples in subsection (2)…. Example (g) seems to me to be contemplating things such as medical services, or library facilities, which can be directly provided by local or other public authorities. So in Savjani, Templeman LJ. took the view that the Inland Revenue performed two separate functions – first a duty of collecting revenue and secondly a service of providing taxpayers with information. He said at page 467:
[and Lord Fraser quotes the second of the passages I have cited from the judgment of Templeman LJ, save for the last sentence].
In so far as that passage states the ground of the Court of Appeal’s decision in that case I agree with it. If Lord Denning M.R., at pages 465-466, intended to base his decision on wider grounds, I would respectfully disagree with him. In the present case the entry clearance officer in Bombay was in my opinion not providing a service for would-be immigrants; rather he was performing his duty of controlling them.
Counsel for the appellant sought to draw support for his contention from section 85 (1) of the Act of 1975 which provides:
“This Act applies – (a) to an act done by or for purposes of a Minister of the Crown or government department, or (b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office, as it applies to an act done by a private person”.
That section puts an act done on behalf of the Crown on a par with an act done by a private person, and it does not in terms restrict the comparison to an act of the same kind done by a private person. But in my opinion it applies only to acts done on behalf of the Crown which are of a kind similar to acts that might be done by a private person. It does not mean that the Act is to apply to any act of any kind done on behalf of the Crown by a person holding statutory office. There must be acts (which include deliberate omissions – see section 82 (1)), done in the course of formulating or carrying out government policy, which are quite different in kind from any act that would ever be done by a private person, and to which the Act does not apply.
Mr. Seabrook places particular reliance on Lord Fraser’s concluding words in this citation. However, he was there dealing with an argument that section 85 of the 1975 Act (the equivalent of section 75 of the 1976 Act) provided support for the argument based on section 29 (section 20). I shall consider in a moment what is the significance of section 75 of the Race Relations Act but before doing so I should say that in my view the most important feature of Lord Fraser’s speech in the context of the present case is his approval of the passage in Templeman LJ’s judgment in Savjani.
Section 75 of the Act is headed “Application to the Crown etc” and its material provisions are as follows.
(1) This Act applies –
(a) to an act done by or for purposes of a Minister of the Crown or government department; or
(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,
as it applies to an act done by a private person.
(2) Parts II and IV apply to –
(a) service for purposes of a Minister of the Crown or government department, other than service of a person holding a statutory office; or
(b) service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body; or
(c) service in the armed forces,
as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service.
(3) Subsections (1) and (2) have effect subject to section 16.
Mr. Seabrook relies on the passage from Lord Fraser’s speech cited above as authority that the relevant act must be similar to an act done by a private person – and certainly that is what Lord Fraser says, though it might be argued that his observations are obiter. Mr. Nicol, while not accepting that what Lord Fraser said is applicable to the present case, argues that the assistance and protection that the plaintiff sought from the police were similar to acts which might have been performed by a private person – for example a security firm – and that accordingly Lord Fraser’s test is satisfied in this case.
Mr. Nicol also submits that it is arguable that section 75 applies to police constables since theirs is a service on behalf of the Crown for the purposes of a person holding statutory office or of a statutory body, and that section 32 (included in Part IV to which section 75 (2) refers) applies to constables’ service as it applies to employment by a private person and as if reference to contracts of employment included reference to their terms of service. Acknowledging that this is, as he puts it, “a somewhat strained construction”, Mr. Nicol points out that unless the police are within section 75 (2) (and, he might have added, section 75 (1)) section 75 (3) makes no sense. Mr. Seabrook’s response to this is that Part III of the Act is not referred to in section 75 (2). Mr. Nicol in turn suggests that the explanation for this omission is that Part III of the Act is not concerned with employment.
These arguments are not easy to resolve, and the statutory provisions are by no means clear. However my conclusion is that it is arguable that the limited service for which the plaintiff looked to the police comes within Lord Fraser’s test. As to Mr. Nicol’s second submission, I agree that it is strained and I consider that the most that can be said is that section 75 (3) shows that section 75 (1) and (2) might easily apply to the police, not that they do so apply.
Mr. Seabrook, in further support of his contention that it is plain that section 20 has no application to a police officer performing his duties, advanced a powerful argument based on considerations of public policy. He submitted that the law has consistently recognized the need to protect those involved in the investigation, preparation for and giving of evidence in criminal and civil proceedings from susceptibility to actions for damages because of the danger that this would impede or inhibit the effectiveness of legal process. It is, he suggested, unthinkable that Parliament would, incidentally as it were, have infringed such well established interests. In support of this submission he referred us to a number of authorities, including Marrinan v Vibart [1963] 1 QB 234 and 529 (a case which reaffirmed the absolute immunity of a witness from any form of civil action in respect of his evidence in judicial proceedings and any acts done in the preparation of that evidence); Hill v Chief Constable of West Yorkshire [1989] AC 53 (where it was held that there was no general duty of care owed by the police to individual members of the public in respect of the detention and apprehension of criminals); Calveley v Chief Constable of Merseyside [1989] AC 1228, (where it was held that officers investigating allegations against other police officers owed no duty of care to the subjects of the investigation on the grounds, inter alia, that it would be contrary to public policy to recognize such a duty); and Alexandrou v Oxford [1993] 4 All ER 328 (where it was held that it would not be in the public interest to impose on the police a duty of care towards the shopkeeper where they had attended as a result of but (it was said) negligently investigated a burglar alarm call). These and other cases to which Mr. Seabrook referred us do, of course, exemplify a well established strand of public policy, the reasons for which are readily understandable. As Lord Bridge said in Calveley (page 1238):
Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, if would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitallyimportant public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.
Mr. Seabrook, however, readily conceded that it was open to Parliament to legislate in a manner which impinged upon such public policy immunity. The value of these authorities, concerned as they are with whether in given circumstances a common law duty of care should be held to exist, lies in the assistance they may afford in interpreting statutory provisions the effect of which is ambiguous or otherwise unclear. They certainly do not preclude the acceptance of the plaintiff’s contentions, if the words of the statute are clear.
The same may be said of Mr. Seabrook’s submission based on what I will call inconvenience, expense and difficulty. He points to the provisions of Part VII of the 1976 Act relating to the administration of questionnaires, to the need for extensive discovery, to the necessity for the judge in the County Court to sit with assessors and related matters. I do not find it necessary to make specific reference to the relevant provisions, since I accept Mr. Nicol’s submission that such considerations cannot be decisive of the question whether on its proper construction the Act applies to some aspects of police activities. For the same reason I do not propose to rehearse Mr. Nicol’s submissions in support of his contention that the problems are much less formidable than the appellant suggests they are. This case turns not on such considerations but upon the proper construction of the Act in the light of the directly relevant authorities.
In my view Mr. Nicol is correct when he argues that, prima facie, section 20 is wide enough to apply to at least some of the acts undertaken by police officers in the performance of the duties of their office. The crucial words – to be interpreted of course in the light of the examples given, but not on the basis that the examples are definitive of the circumstances to which the section can apply – are
…any person concerned with the provision (for payment or not) of …. services to the public.
I accept Mr. Nicol’s contention that these words are entirely apt to cover those parts of a police officer’s duties involving assistance to or protection of members of the public. Mr. Nicol emphasised that it is in regard to that aspect of the officers’ duties that the claim in the present case is advanced – it is not suggested that pursuing and arresting or charging alleged criminals is the provision of a service. What is said is that the service sought by the plaintiff was that of protection and that she did not, because of her race, obtain the protection that others would have been afforded. It seems to me that that is no less the provision of a service than is the giving of directions or other information to a member of the public who seeks them.
Turning to the examples in subsection (2) I find nothing expressly or impliedly to exclude police officers; and in my view they can properly be regarded as falling within subparagraph (g) – “the services of any profession or trade, or any local or other public authority”.
Furthermore, I find in the case of Savjani support for the conclusion that the police, in some aspects of their activities, fall within the Act. The passage in Templeman LJ’s judgment approved in Amin shows that there is no reason why a person performing a public duty may not also be providing a service, and strongly supports the plaintiff’s arguments. The first paragraph of his judgment helpfully states and contrasts some of the conflicting policy considerations and emphasises the necessity, notwithstanding those matters, to construe the Act. The last of the paragraphs I have cited from his judgment could easily be adapted to pose an example in as stark terms but concerning a member of the public and police officers.
Finally, I do not find in the other provisions of the Act relied upon by Mr. Seabrook anything to indicate that the prima facie clear words of section 20 should not apply to police officers. In my view Mr. Nicol is correct to contend that section 16 certainly does not have that effect, since it is explicable on the simple basis that, since police officers are not employed but hold their office under the Crown, some such provision was necessary if they were to be afforded the protection of Part II, concerned as it is with discrimination in the employment field. I am, moreover, impressed by Mr. Nicol’s argument that of more significance is the fact that, whereas Part V of the Act contains specified exceptions to its provisions, some of which are clearly based on public policy grounds, there is no such specific exception of the police.
Taking the view I do on construction, I do not consider that there is any basis for entertaining Mr. Seabrook’s policy arguments. I would observe, however, that (as the judgment of Templeman LJ. recognizes) there are in any event powerful arguments on each side of the public policy issue and I do not find the spectre of claims of racial discrimination against the police, with the inconvenience and expense that that may involve, to be more disturbing than the prospect that a member of the public who, seeking assistance in dire need, has been the subject of racial discrimination, should be without remedy.
The question that remains to be considered is whether, under the provisions of sections 53 and 57 of the Act, such a claim can prima facie be advanced by an individual plaintiff against the police officers allegedly guilty of discrimination (it will be recalled that I am not here considering the question of vicarious liability which arises in this case by reason of the fact that only the Commissioner has been made a defendant). This depends on whether a claim of discrimination by a member of the public against a police officer falls within section 57 (1). In my view it plainly does, for reasons too obvious to require further discussion.
Before turning to the issue of vicarious liability I wish to say that in this case I am doubtful, as judges have been in many others involving striking out, of the wisdom of deciding questions of the sort we have been asked to determine at this stage, before the facts have been established. Mr. Nicol referred us to Lonrho v Tebbit [1991] 4 All ER 973 where Sir Nicholas Browne-Wilkinson VC emphasised the virtues of deciding difficult questions of law in a new and developing field on the basis of the true facts once they are ascertained. It is true that the racial discrimination claim in the present case would probably, if allowed to proceed, increase the cost and difficulty of the hearing or hearings. Against that, however, are the considerations (i) that its determination now, on the basis of assumed and rather generally pleaded facts which have not even been the subject of a request for particulars, would not dispose entirely of the claim even if the decision were adverse to the plaintiff; and (ii) that it might turn out, when the facts were investigated, that no basis for this contentious claim existed. It would in my view have been better for the difficult questions to which this application and appeal give rise to be decided in the light of established facts rather than on the basis of the assumed truth of the pleaded facts.
The judge found the issue of vicarious liability the most difficult of those he had to decide, and I agree that it raises difficult problems.
If one begins with section 48 of the Police Act, and considers it apart altogether from the restrictive provisions of the 1976 Act or any provisions of that Act which might be invoked as establishing vicarious liability on the part of the Commissioner, the position is plain beyond argument – the Commissioner is answerable for the actions of the officers. This is because –
(1) Section 48 expressly provides that the chief officer of police is liable for torts committed by constables under his direction and control in the performance or purported performance of their duties as though they were committed by his servants in the course of their employment; and that he shall be treated for all purposes as a joint tortfeasor.
(2) An act of racial discrimination within section 20 is a statutory tort. If there were any doubt as to that it would be dispelled by the concluding words of section 57 (1) “… in like manner as any other claim in tort”.
It follows that, if the appellant’s argument that the Commissioner is not vicariously liable in respect of this claim is to succeed it must be on the basis
(1) that there is in the 1976 Act some provision which precludes the plaintiff’s relying on section 48 of the Police Act; and
(2) that there is not in the 1976 Act any other provision which, on the assumed facts of this case, justifies a claim based on vicarious liability of the Commissioner.
There is no doubt that the words of section 53 (1) are prima facie very restrictive.
If the prohibition is considered in isolation from the introductory qualification, it is that –
…. no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by reason of a provision of this Act.
Is this a prohibition affecting both types of claim and identity of parties, or only the former? If seems to me inescapable that as a matter of strict construction it applies to both. It would have been perfectly possible to frame the prohibition in terms which did not have that effect (for example by saying “… no proceedings … shall be brought in respect of an act etc”).
I cannot accept Mr. Nicol’s contention that the section is not expressed in clear language.
If (relying on the introductory words to section 53) one turns to section 57 (1) there is in my view support for this construction. That subsection draws a distinction between the respondent who has himself committed an act of discrimination and someone who by virtue of sections 32 or 33 is to be treated as having committed such an act. If the section 53 prohibition were one which did not operate to exclude claims against persons vicariously liable for the acts of the respondent, the reference to section 32 and 33 would be unnecessary. Thus, to take an example removed from the facts of this case, it is in my view plain that a claim cannot be brought by virtue of section 57 against an employer in respect of his servant’s discriminatory act save in reliance on section 32 (1) (or 33). Ordinary vicarious liability apart from the Act does not suffice; it is only to the extent that the Act permits vicarious liability claims that they can be maintained.
Part of Mr. Nicol’s argument involved the assertion that it cannot have been the intention of Parliament to exclude the normal adjectival or parasitic operation of associated legislation such as the Police Act: so he seeks to draw a distinction between ordinary vicarious liability – i.e. that arising simply as an incident of relationship or authority conferred – and vicarious lability imposed (as in section 48) by statute. The Police Act was, he says, part of the legislative background against which the 1976 Act was passed. In advancing this argument he places particular emphasis on the concluding words of section 48 of the Police Act.
…. and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.
However, since the term joint tortfeasor embraces the agent who commits a tort on behalf of his principal and the employer liable in respect of his employee’s torts, I cannot accept that there is any valid distinction in scope between the common law relationship of principal and agent and this statutory relationship.
A further variation of the argument is that section 48 characterises the imposed relationship in terms not of principal and agent but of master and servant, and it is in terms of that assumed relationship that they are for all purposes to be treated as joint tortfeasors. Accordingly, says Mr. Nicol, there is, by virtue of the deemed relationship a basis for saying that the Commissioner falls within section 32 (1). The difficulty about this is that the Commissioner and the police officer are not employer and employee, since deeming or treating persons as being in a relationship is, so far from clothing them with that relationship, rather an acknowledgment that they are not in that relationship. They do not therefore fall within section 32 (1).
Then Mr. Nicol submits that the relationship is in any event one of agency and that section 32 (2) applies. He points to the fact that by virtue of section 4 of the Metropolitan Police Act 1829 the Commissioner has the direction and control of the force for his area (compare the equivalent provisions in section 5 (1) of the Police Act 1964). He also relies on case law which recognizes that a chief officer commands the officers of his force. This is common ground.
However, Mr. Seabrook, contesting the notion that a constable is to be regarded as the agent of the chief officer of police, relies on the decision in Fisher v Oldham Corporation [1930] 2 KB 364. The question at issue is that case was whether the police appointed by the watch committee, in effecting an unlawful arrest, were acting as the servants or agents of the corporation so as to render it liable to an action for false imprisonment. It was held that they were not, and in the course of his judgment McCardie J. said at 371:
Prima facie …. a police constable is not the servant of the borough. He is a servant of the State, a ministerial officer of the central power, though subject in some respects to local supervision and local regulation.
Later he cited with approval a passage from the judgment of the High Court of Australia in Enever v The King [1906] 3 Commonwealth L.R. 969 in which Griffith CJ said at 975, 977:
At common law the office of constable or peace officer was regarded as a public office, and the holder of it as being, in some sense, a servant of the Crown.
Now, the powers of a constable, qua peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself….. A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application.
McCardie J. concluded his judgment thus at 377:
The police, in effecting that arrest and detention, were not acting as the servants or agents of the defendants. They were fulfilling their duties as public servants and officers of the Crown sworn to “preserve the peace by day and by night, to prevent robberies and other felonies and misdemeanours and to apprehend offenders against the peace”. If the local authorities are to be liable in such a case as this for the acts of the police with respect to felons and misdemeanours, then it would indeed be a serious matter and it would entitle them to demand that they ought to secure a full measure of control over the arrest and prosecution of all offenders. To give any such control would, in my view, involve a grave and most dangerous constitutional change. For the reasons given, there must be judgment for the defendant.
This case is commonly relied upon for the proposition that no relationship of principal and agent exists. However, Mr. Nicol referred us to a passage in a text book entitled Civil Actions Against the Police by Richard Clayton and Hugh Tomlinson which, at page 39, argues as follows:
It is submitted, however, that police officers must now be regarded as agents of their chief officer. The contrary dicta in Fisher v Oldham are, strictly, obiter as the case was directly concerned only with the relationship of master and servant. In any event, the position has now, arguably, been altered by the effect of section 5 of the Police Act 1964 which places a police force under the direction and control of the chief constable. Such direction and control suggests a subordination of the original authority of individual constables to that of the chief constable. This contention is supported by the case of Hawkins v Bepey in which it was held that a police officer instituting a prosecution was, in effect, doing so “on behalf of” his chief constable.
Hawkins v Bepey [1980] 1 WLR 419, however, was a case of express authority, where a police officer had under instructions issued by the chief constable laid information on behalf of the police force. On his death a question arose as to whether the proceedings had lapsed. The court held that the real prosecutor was the chief constable or the force under his direction and control and that the proceedings had not lapsed. Bearing in mind the rather special facts and the fact that Watkins J. in his judgment expressly held that the officer, in carrying out the instructions of the chief constable whose orders he had to obey, was acting in a representative capacity, I do not consider that this decision is in conflict with Fisher’s case.
In my view there is no valid ground for contending that the officers in the instant case were acting as the agents of the Commissioner.
As some of the observations I have already made must have shown, I should like to be able to hold that there exists here the necessary vicarious liability to entitle the plaintiff to maintain against the Commissioner the action for racial discrimination which, on the basis of the facts pleaded in the Particulars of Claim, and for present purposes assumed to be true, I have accepted that she would have been entitled to pursue against the officers themselves. But however the argument is put, I can find no valid ground for holding that such a claim is maintainable against the Commissioner. On this part of the case, moreover, it cannot be and is not suggested that further elucidation of the facts might disclose circumstances (such as existed in Bepey) establishing express authorization.
Accordingly, while holding that a claim for racial discrimination under section 20 is, in certain circumstances, maintainable against the police, I would allow this appeal on the second ground because the claim against the Commissioner is defeated by the prohibition in section 53. That part of the claim must accordingly, in my view be struck out. I should add that, had I taken a different view on the vicarious liability point, I should nevertheless have favoured striking our the concluding sentence of the passage I have quoted from paragraph 12 (iv) of the Particulars of Claim, which in my view clearly goes beyond anything that could fall within section 20. Moreover it also overlaps an existing claim in the action.
Gichura v Home Office & Anor
[2008] EWCA Civ 697 [2008] ICR 1287 Buxton LJ
It will have been noted that the claim extends to the Human Rights Act as well as the Disability Discrimination Act. In this appeal we are not concerned with the Human Rights Act aspect of it.
I turn to the legislation under which the claim is brought. Before doing that I should say that in the pleading itself, after the passages that I have read out, very substantial allegations are made about the failure of both respondents to adjust their premises and so forth in a way that it is alleged the Disability Discrimination Act requires. The Act says in Section 19:
“It is unlawful for a provider of services to discriminate against a disabled person”
And various ways in which discrimination can take place are set out, including making it difficult or impossible for a member of the public to make use of any service provided to him or to discriminate in the terms or standard in which he provides the services.
Then Section 19 (2) says:
“For the purposes of this section and sections 20 and 21—
(a) the provision of services includes the provision of any goods or facilities;
(b) a person is “a provider of services” if he is concerned with the provision, in the United Kingdom, of services to the public or to a section of the public; and
(c) it is irrelevant whether a service is provided on payment or without payment.”
In sub-section 3 various examples of services are set out. It is important to emphasise that the services there set out are merely examples of a common sense sort of what might consist of a provision of a service.
In our case it has been helpfully summarised by Mr Beer on behalf of the Home Office that the types of service that are in issue consist of the following, taken from the pleadings: a) the reception procedures including the searches of him and the time for which and the conditions in which the appellant was kept waiting; b) access to toilet and bathroom facilities; c) access and egress in a room in the detention centre; d) provision of suitable bedding; and e) provision of medical services.
An application was made by both respondents to strike out the claim. The application came before District Judge Hasan in the Central London County Court. The judge said this in paragraph 17 of her judgment:
“…the first matter I need to consider is whether [the defendants were] providing a service under section 19 of the Disability Discrimination Act 1995. The claimant is a failed asylum seeker and was detained on two separate occasions pending his removal. The House of Lords decision in Amin held that an immigration officer exercising his powers under the immigration rules was not providing a service to a potential immigrant under the Race Relations Act 1976. By analogy, the same principles can be applied where a claim is brought under the Disability Discrimination Act 1995. In this case the claimant was detained under schedule 2 of the Immigration Act 1971 and no complaint has been made that the detention was unlawful. The right to detain is provided by paragraph 18 of that schedule. The primary purpose of the detention is to control immigration, in this case the eventual removal of the claimant, a failed asylum seeker — it is not to provide a service to him. The use by him of the facilities at the detention centre is incidental to his detention; conversely the provision of such facilities is incidental to his detention. In such circumstances, the Home Office [and Kalyx are not providers of] services under Section 19 of the Disability Discrimination Act 1995.”
So the whole claim, as far as the effect of the Disability Discrimination Act, was struck out.
The applicant appeals to this court against that decision. Now since the encounter at the County Court matters have moved forward somewhat at least as far as the dispute between the Home Office and the applicant is concerned. What has been agreed or conceded is, that on the part of the Home Office it has been agreed that it is arguable — and that of course is the only question the District Judge had to decide — that the provision of facilities or services that are contained in paragraphs (b) to (e) of the summary I read out is the provision of services for the purposes of Section 19 of the Disability Discrimination Act. For his part the applicant agrees that the basic items or provisions contained in paragraph (a) of the summary above, that is to say reception procedures and the acts of searching, do not fall under Section 19 of the Disability Discrimination Act. The applicant is not prepared to go further than that in relation to, for instance, incidental matters such as provisions about arrangements for waiting in order to be searched and so on. That is in effect the dispute, or at least as far as this application is concerned the lack of dispute, between the Home Office and the applicant.
Kalyx seeks to uphold the District Judge’s judgment as a whole, on the grounds that I shall now seek to explore.
The point I think can be put like this. If one looks at the matters that are in dispute between the applicant and Kalyx — facilities, provision of bedding, provision of medical services and of course other aspects of life in the detention centre that are not specifically complained of, such as particular provision of food or recreation and so on, there seems to be no doubt that in the ordinary meaning of the English language provision of those matters is the provision of a service. The point that Kalyx takes, as did the District Judge, is that those functions are part and parcel of a governmental function, that is to say, the detention of a failed asylum seeker pending removal, and therefore for that reason do not fall under Section 19. It will already have been noted that reference is made by the District Judge in support of that analysis to the case of R v ECO ex parte Amin [1983] 2 AC 818 and to that I now turn.
The facts in that case were of course a long way away from the facts in this case. There was an arrangement at that time whereby what were called special vouchers were issued by entry clearance officers to enable persons to settle in the United Kingdom. The rule was that only a head of a household could acquire such a voucher. The complaint so far as sexual discrimination was concerned was that it was far easier for a man to be or to be recognised as the head of the household, in contradistinction to a woman such as Mrs Amin was. It was accepted that the scheme was indeed for that reason discriminatory but the House of Lords held, and this is conveniently set out in paragraph 2 of the head note:
“The grant of special vouchers did not come within the general wording of Section 29 (1) [a provision in material part similar to that with which we are concerned] since, on its true construction Section 29 applied to the direct provision of facilities or services not to the mere grant of permission to use facilities, and, by virtue of Section 85 (1) was to be construed as applying only to acts that were at least similar to acts that could be done by private persons; and that, accordingly, since the entry clearance officer was not providing a service for would-be immigrants but only performing his duty of controlling them, the refusal of a special voucher was not unlawful discrimination.”
That was explained, if I may say so, most helpfully by a passage in the speech of Lord Fraser at page 835. He referred to Section 85 (1) of that Act, paralleled in the Disability Discrimination Act by Section 64, which provided that the Act did apply to an act done by or for the purposes of a Minister of the Crown or to an act done on behalf of the Crown by a statutory body. Lord Fraser said this:
“That section puts an act done on behalf of the Crown on a par with an act done by a private person, and it does not in terms restrict the comparison to an act of the same kind done by a private person. But in my opinion it applies only to acts done on behalf of the Crown which are of a kind similar to acts that might be done by a private person. It does not mean that the Act is to apply to any act of any kind done on behalf of the Crown by a person holding statutory office”.
Then Lord Fraser said:
“Therefore acts done in the course of formulating or carrying out government policy which are quite different in kind of any act that will ever be done by a private person is one to which the Act does not apply. For that reason therefore acts in pursuit of government policy or the performance of distinctively governmental functions do not fall within the ambit of provision of services”.
There are of course two reasons for that; one that, as Lord Fraser held that is not a function to which the Act applied at all, despite Section 85 (1) in that Act; and secondly, although he did not put it in quite this way, it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do. How does that distinction apply here? Kalyx says, as the District Judge said, this case is the same or very similar to Amin because what they, Kalyx, are doing is performing a governmental function. They are standing in the shoes of the Home Office in detaining Mr Gichura and other people in his position pending their expulsion from this country.
There is no case directly dealing with that, but we were shown a number of authorities that indicate that that is, if I may say so, too simplistic an approach. On a number of occasions the court has taken what might be called an expansive view of the application of disability discrimination legislation to matters done in the course of the performance of governmental functions. I would refer only to two cases in particular. The first is Savjani v IRC [1981] 1 QB 458, a decision of this court. The complaint there was that a gentleman who was born in India went to his local income tax office, as I think it was called in those days, in order to investigate whether he could claim tax relief under part of the tax legislation. He was told that there was a rule that any tax payer who made an enquiry must be required to produce a fully certified copy of his birth certificate if he came from the Indian sub continent, that costing this gentleman £2.50. He paid the amount, and then complained that that requirement was an instance of discrimination on grounds of race because it was a requirement applied to persons from India but not to persons from England. The argument that was advanced on behalf of the Revenue was that while it was I think accepted, or if not accepted it was fairly obviously the case, that that requirement was in broad terms discriminatory it did not fall within the ambit of the Racial Discrimination Act because it involved the exercise of a government function. This court did not agree. In particular Lord Templeman said that in his view the Inland Revenue and its inspectors were not merely concerned in determining the sort of question that had been put before by Mr Savjani with their duty to collect tax, they were also, as Lord Templeman put it at page 467G:
“…the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof.”
And Lord Templeman went on at page 468A to say this:
“On behalf of the revenue [counsel] submitted that the Race Relations Act 1976 does not apply to the Inland Revenue at all, but he naturally and wisely recoiled from the suggestion that the inspector of taxes might decline to interview a taxpayer if the taxpayer were coloured. He makes forcibly the submission that, when the board decides for sensible reasons that a higher standard of proof is required from taxpayers who come from the Indian sub-continent, the board are not providing a service to that taxpayer; they are carrying out their duty to the Crown. As I have already indicated, it does not seem to me that the two concepts are mutually exclusive. The board and the inspectors perform their duty and carry out a service and, in my judgment, it is a service within the meaning of section 20 of the Race Relations Act 1976”.
Now I would respectfully draw attention to that analysis where Lord Templeman says that the Board is effectively doing two things at the same time, carrying out its public duty but also providing a service to the taxpayer.
The other authority of particular interest is Farah v Metropolitan Police [1998] QB 65. A lady who is a Somali refugee summoned the police to complain about, or sought their assistance in connection with, an alleged attack on her by a group of white youths. Far from giving assistance the officers arrested her and subsequently charged her with various offences, in respect of which in due course no evidence was offered. She complained that there had been unlawful racial discrimination involved in the decision to take that course subject to the Race Relations Act. This court held that it was inappropriate for that claim to be struck out on the ground that it did not fall under the legislation. The head note again accurately reflects what the court held:
“…those parts of a police officer’s duties involving assistance to or protection of members of the public amounted to the provision of services to the public for the purposes of Section 20(1) of the Race Relations Act 1976 and it was therefore unlawful for officers to discriminate in their provision on grounds of race”.
And in particular that finding relied on what was said by Lord Templeman in Savjani and also referred to what was said by Lord Fraser in Ex parte Amin. Of particular interest, if I may respectfully say so, is part of the judgment of Otton LJ at page 84 (h) when he said this:
“These acts (or services) which the plaintiff sought from the police were, to my mind, acts which might have been done by a private person. The second category envisaged by Lord Fraser covers those acts which a private person would never do, and would normally only ever be performed by the police eg gaining forcible entry into a suspected drugs warehouse. Here the officers would be carrying out government policy to which the Act would not apply. Moreover, they would be performing duties in order to prevent and detect crime and exercising their powers to enable them to perform those duties.”
That distinction is with respect of importance in distinguishing between acts which might be done by a private person and acts which a private person would never do. Clearly a private person would never sit in judgement on the issue of entry certificates, to take the facts of the case in Amin. Clearly a private person would never be engaged in searching for drugs. By contrast a private person would often be engaged in the sort of services which we are concerned with in this case.
Now it is quite right to say as Kalyx says, and as Miss Hewitt forcibly said, that everything that happened here was incidental to the detention of Mr Gichura; but the authorities that I have referred to clearly show that that is not enough to exclude the provision of a service from the reach of this Act if, when done by a private person, what happened would be regarded as the provision of a service.
The cases of Farah and Savjani show that the court is prepared to take a fairly broad view of what falls outside the provision of the governmental service in the context of the discrimination legislation. It was, if I may respectfully say so, by no means certain in Savjani that it would be said that, as part of their operation of the tax office, the Inland Revenue officials were providing a service to the public as opposed to ensuring that the public paid its taxes. But as Lord Templeman said there can be two functions going on at the same time. That in my judgement is this case. On the one hand Kalyx is of course detaining Mr Gichura. True it is, as Miss Hewitt said, that anyone who is detaining a person that in effect has to provide them with bed, board, food and facilities; but as this case shows many issues may arise as to how that is done.
The broad view of what counts in these terms as provision of a service is important because it is important that the disability and other discrimination legislation does apply in circumstances which it is natural to think it should apply. I do not think that it is conceivably right to say now that Parliament intended this very important legislation not to apply in circumstances such as the detention centre with which we are concerned with, detention in police custody or detention in prison. Some of the functions that were performed there are purely governmental, like, as is conceded in this case, the administrative handling of the detainee on his arrival. But once he is there he is as a detainee a member of a section of the public. He is provided with what are in truth services and there is no reason either in the Act or in the authorities to which I have referred to exclude those services from the ambit of the Act.
For that reason therefore I do not agree with the analysis of the District Judge. I would hold her to be wrong in her conclusion that it is not arguable that services were provided in this case and I would reverse her decision. The effect of that as I would understand it that the case will now proceed on that basis, but subject to the concession that I have recorded on the part of the applicant so far as the first part of his detention is concerned.
I therefore allow this appeal in those terms.
Lord Justice Waller:
I agree.
Lady Justice Smith:
I also agree
Order: Application granted; appeal allowed
DEC-S2010-053-Full Case Report
Equal Status Acts
2000 to 2008
EQUALITY OFFICER’S DECISION
NO: DEC-S2010-053
PARTIES
A patient v a Health Service Provider and a Hospital
File reference: ES/2008/0222 and ES/2009/0005
Date of issue: 1 December 2010
File reference: ES//2008/0222 and ES/2009/0005 – DEC-S2010-053
Equal Status Acts 2000 to 2008 – Discrimination, section 3(1) – gender ground, section 3(2)(a) – service provision 5(1) – Other non-discriminatory activities, section 16(2)(a)
1. Dispute
1.1. This dispute concerns a complaint by a Patient (hereafter “the complainant”) that she was subjected to discriminatory treatment contrary to the Equal Status Acts by a Health Service Provider and a Hospital (hereafter “the respondent”). It was submitted that the discrimination has been on-going since the complainant’s hospitalisation in the latter part of 2000. The complaints have been made on the gender ground.
2. Delegation
2.1. The complainant referred two complaints under the Equal Status Acts to the Director of the Equality Tribunal. The first complaint named the hospital as the respondent on 08 December 2008. The second claim, against the service provider, was received on 16 January 2009. In accordance with her powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- an Equality Officer – on 13 April 2010 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 1 July 2010. Due to the complainant’s disability, it was agreed between the parties that further written submissions – relating to law – would be submitted in writing to the investigation. The reply period for this exchange closed on 8 September 2010. This decision has been anonymised with the consent of the parties.
3. Preliminary issue
3.1 A preliminary issue was raised at the end of the hearing. It was submitted by the respondent that the facility and the nature of the service that the complainant’s complaint referred to is not within this Tribunal’s jurisdiction because the respondent is not a provider of goods and services within the meaning of the Acts in that it is not available to the public generally or a section of the public. The respondent relied on the Oxford English Dictionary where ‘service’ is defined as “capable of being used; at one’s disposal”. It was submitted that the accommodation provided for the complainant is part of involuntary detention under the Criminal Justice (Insanity) Act 2006 and that the word “available” implies a voluntary availing of in the ordinary meaning of available. The respondent submitted Donovan v Donnellan (DEC-S2001-011) as an authority in the matter.
3.2. Service, according to section 2 of the Acts, means a “service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes —
(a) access to and the use of any place,
(b) facilities for —
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service,
but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies.”
3.3. The complainant, in reply, submitted that paragraphs (a), (b) and (c) are non-exhaustive. The key part of the definition is that a service is ‘a service or facility of any nature which is available to the public generally or a section of the public’. It was submitted that the facility is an approved centre pursuant of the provisions of the Mental Health Act, 2001. Section 62 of that Act defines a centre as: ‘hospital or in-patient facility for the care and treatment of persons suffering from mental illness or a mental disorder under the clinical direction of a consultant psychiatrist’. This clearly means that the hospital is a provider of services. It was also pointed out that the hospital’s own Mission Statement places an emphasis on its role as ‘a service provider’ and refers to patients as ‘service users’. Furthermore, the hospital is funded by public money.
3.4 Furthermore, it was submitted that a perception that the provision of care towards the mentally ill persons is not a provision of a service is in itself discriminatory of the mentally ill as against other persons who avail of other services of the State. Such treatment could not be legitimately justified and it was submitted that such treatment constitutes unlawful discrimination and contravenes with Articles 8 and 14 of the European Convention of Human Rights (ECHR) and is therefore in breach of section 3 of the European Convention of Human Rights Act, 2003.
3.5. Whilst it was accepted by the parties that it is the case that only persons suffering a particular degree of illness are admitted to the hospital it does not alter the fact that a service is provided to those persons. Furthermore, the complainant submitted, the fact is that the hospital provides services to only persons who are admitted there pursuant of the Mental Health Act, 2001 and Criminal (Law Insanity) Act, 2003 and is therefore ‘available to a section of the public’.
4. Case for the complainant
4.1. The complainant is a female resident in a hospital. Her condition is covered by the Criminal Law (Insanity) Act 2006, the Mental Health Act, 2001 and the Equal Status Acts 2000 to 2008. The Tribunal had sight of number of medical reports to confirm same. Her complaint relates to the fact that she, as a female, received and continues to receive less favourable treatment than male patients staying in the hospital. She submitted a number of services, not relating to her personal clinical care but specific to the facilities available in the hospital, discriminated against her as a woman. It was submitted that the hospital only contains one female unit that caters for widely differing needs in relation to clinical care and in terms of risk and security status. In contrast, male patients are able to avail of a number of therapeutic units with differing security levels. The complainant also submitted that male residents are able to avail of an external hostel while no such facility is available to women. Further complaints about security measures such as freedom to move around the facility and the use of family facilities were referred to.
4.2. The complainant submitted that in her opinion her rehabilitation is being hampered and delayed by the fact that she cannot move to another unit that could provide her with increasing levels of self-responsibility and liberty in a similar manner as the male patients can. The complainant referred to the Report of the Inspector of Mental Health Services (2008) that stated that due to the current limitations of the hospital, it has not been possible to provide different levels of secure care for female patients.
4.3. It was submitted that integrated facilities were not the best possible service for women with the complainant’s condition. In any regard, the service available for the complainant is less favourable because of her female gender than that provided to male patient’s in the hospital.
5. Case for the respondents
5.1. The respondent submitted that the correct respondent is the Health Service Provider, not the hospital.
5.2. It was submitted that. in addition to the preliminary issue, the claim was not properly before the Tribunal as the treatment complaint of related to matters of clinical judgment in accordance with section 16(2).
5.3. The respondent relied on the Tribunal decision Mr X v Health Service Executive (DEC-S2008-112) where the equality officer accepted in the circumstances of that case that the respondent’s inability to secure a psychologist was an administrative issue due to financial constraints or inadequate staffing resources and did not thus constitute discrimination. It was submitted that the same statement applied to this case.
5.4 The respondents refuted that the complainant was not availing of all possible treatment options that are relevant to her condition. A catalogue of interventions was provided to the investigation.
5.5. It was submitted that the security arrangements were in place to protect the complainant and other patients staying in the facility. Such arrangements were in place to protect the complainants and the other patients.
5.6. It was denied that the treatment of the complainant was in any way discriminatory of the mentally ill as opposed to others who avail of the health services and that such treatment is in contravention of Articles 8 or 14 of the ECHR.
6. Conclusion of the equality officer
6.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. It must be noted that while the complainant is a person with a disability, this complaint is on the gender ground only.
6.2 Preliminary issues
6.2.1. It was accepted that the named Health Service Provider is the correct respondent in the circumstances of this case.
6.2.2. It is well established in law that the provision of health services are within this Tribunal’s jurisdiction. I do not therefore accept that mental health services, regardless of their nature, are not a service within the meaning of the Acts. Much has been made of the fact that the hospital is one that detains persons pursuant to statutory provisions providing for their in-patient treatment. None of the statutory provisions referred to provide a defence in accordance with section 14 of the Acts. That is, there is no statutory provision that explicitly provides for the differences of treatment of men and women. I am satisfied that the hospital is a service provider to persons, both female and male, who suffer from a specific type of mental disorder.
6.2.3. Furthermore, the detention aspect is clearly an integral part of the treatment and cannot in any meaningful way be separated from it. To do so, I find, would be to ascribe an element of the patients’ treatment to retribution rather than rehabilitation and such approach would be against law and public policy. It is clear that the persons availing of the service are doing so because they require specific treatment and health care. I am also satisfied that this case can be distinguished from the Donovan decision in that I do not accept that the hospital is anything other than a hospital. It is the very services that the hospital provides that have dictated its nature.
6.2.4. It is clear that the service is one that is available to a section of the public. I find that pursuant of the literal and purposive meaning of the Acts, all health service providers have a duty of non-discrimination. It is irrelevant whether the availing of such service is voluntary or involuntary. It could indeed be argued that a majority of persons availing of health services would choose, given the opportunity, not to be in need of such services.
6.3. Discriminatory treatment
6.3.1. The Tribunal heard that the hospital’s patient ratio is approximately 10% female and 90% male. This is because of the nature of the hospital and the differing way that mental health disorders affect women and men. It was submitted that while females and males suffer from mental health problems in equal number, it is more usual for men to be affected by disorders that bring them to this particular hospital. It is clear from the facts that the rationale for the number of male/female units in the hospital is a policy decision arising from the gender breakdown. Having heard the evidence, regardless of the foregoing, it has however been impossible to adduce any evidence that the complainant has been treated any less favourably as a result of the above policy decision. I note that reports, submitted to the investigation, clearly show progress in the complainant’s case. While the evidence presented to the investigation has shown that there has been difference of treatment between men and women, such treatment has not been shown to be less favourable. While I note that the complainant would prefer to be housed in a unit that does not deal with admissions, no expert evidence on clinical judgment to support her argument was provided. In contrast, the Tribunal was presented with compelling expert evidence on behalf of the respondent that indicated that the complainant is and has been receiving the best possible medical care available to her. In such circumstances, where no rebuttal to this expert opinion has been forthcoming, it is impossible for this Tribunal to adduce any evidence of less favourable treatment. Therefore, I have taken cognisance of section 16(2)(a), and am satisfied that any treatment that the complainant has received has been in accordance with treatment associated with clinical judgment.
6.3.2. It was also accepted that no external hostel facility was available to the complainant because of her gender. Such a facility exists only for the hospital’s male patients. I note that a report from a named authority documented the complainant’s rehabilitation (dated 28 June 2007) and acknowledged the lack of step down facilities and the isolation that the one unit posed as a concern. The report identified the benefits of a lower security environment. It was also noted that such ambitions would pose a number of practical difficulties to the respondent. In contrast, I note in the circumstances of this complaint, the complainant had been released to avail of accompanied and unaccompanied home visits instead of a stay in a hostel as well as a day facility that she has been attending twice weekly. Such visits have been deemed to be more suitable for her by her treating psychiatrist. It was submitted in direct evidence that such visits are, in her clinical judgment, more beneficial to the complainant than a stay in an external hostel. In such circumstances, I am satisfied that such different treatment does not constitute less favourable treatment of the complainant.
6.3.3. I accept that the matter of access to her children is not in the control of the respondent. However, I note that provisions for same have been made in accordance of a Court Order.
6.3.4. While I have no hesitation in acknowledging that the respondent’s staff would most likely welcome better facilities and more resources for all of its patients, regardless of gender, I am satisfied that in the circumstances of this case, the complainant has not been treated in a manner that can be described as less favourable. The concerns raised by as report from a named authority, whilst noted by this Tribunal, were not supported by original evidence and could not be given any further weight. This Tribunal may only consider cases brought to it by individual complainants and must consider them pertaining to specific facts relating to the complainant’s experience. What must be shown for such discriminatory treatment to be established, on the balance of probabilities, is that such treatment is less favourable to the complainant. Therefore, it must be noted that in certain circumstances, difference of treatment is justifiable in law because the treatment, while different, is not de facto less favourable.
6.3.5. I am satisfied that the security arrangements are done in accordance with clinical judgment based on the welfare of all the patients. I have not heard sufficient evidence to accept that male patients had or have more freedom than the female patients. Even if the complainant herself may be of the view that she is in a position to avail of lesser security, as a woman, I find that the security measures are in place in a manner that is objectively justified and the manner in which such aim has been achieved reasonable to the hospital environment.
6.4.5. Finally, it must be noted that this Tribunal has no jurisdiction in relation to section 3 of the Human Rights Act, 2003.
7. Decision
7.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the gender ground in terms of Sections 3(1) and 3(2)(a). This has been successfully rebutted by the respondent in reliance of section 16(2) of the Acts. Accordingly, the complainant’s case fails.
_________________
Tara Coogan
Equality Officer
1 December 2010
Equal Status Acts 2000-2008
Decision No: DEC-S2009- 087
Fogarty v Employment Appeals Tribunal
File Reference: ES/2003/585
Date of Issue: 21st December 2009
Key words
Equal Status Act, 2000 – misconceived, Section 22 – definition of service or facility available to the public or a section of the public – Direct discrimination, Section 3(1) – Disability, Section 2 (1) and 3(2)(g) – special treatment or facilities to accommodate the needs of a person with a disability – Section 4(1), Section 4(2) – nominal cost, Section 27(1) – redress for the effect of discrimination, Section 27(2) – specific course of action.
Delegation under Equal Status Acts, 2000-2008
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On the 10th June 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000 the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 10th June 2009. The final submissions were received on 28th September 2009.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated on the disability ground. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 and contrary to Section 4 of that Act by failing to provide him with reasonable accommodation.
2. Summary of Complainant’s case
2.1 The complainant is deaf and he cannot speak His primary mode of communication is sign language. He appealed a decision of the Right’s Commissioner to the respondent under the Unfair Dismissals Acts 1977 to 2001. The appeal concerned a decision by the Rights Commissioner that the claim was submitted outside the statutory time limits. The complainant said that he attended an Employment Appeals Tribunal hearing on the 22nd of November 2002. He was represented by Mr. John O’Connell a union shop steward who was also a work colleague. The complainant submitted that Mr. O’Connell does not use sign language and there was no sign language interpreter provided for the hearing. He said that Mr. O’Connell spoke to the respondent at the hearing and he communicated with Mr. O’Connell by writing notes to one another. The complainant said that he understood Mr. O’Connell but he did not understand the hearing and that he had no opportunity to tell the respondent the reason his complaint was submitted outside the statutory time limits.
2.2 In a written submission to the Tribunal prepared by the complainant’s solicitor the complainant submitted that the respondent failed to properly accommodate his disability for the purposes of a hearing before it. It was submitted that the respondent knew of his disability about five months before the hearing. They were again made aware by Mr. O’Connell at the commencement of the hearing that the complainant was deaf and cannot speak and that he (Mr. O Connell) did not know sign language nor could he lip read. The complainant submits that the respondent made no attempt to communicate with him directly nor did they write down any questions and allow him to answer in writing. He submits that he was denied an opportunity to address the respondent and to outline the reasons why he believed that exceptional circumstances applied to his claim and that the time limit should be extended. He believes that his claim for an extension of the time limit failed because he was unable to put his case before the respondent
2.3 In the written submission, the complainant also submitted that the functions of the Employment Appeals Tribunal fall within the definition of a service as set out in Section 5 of the Equal Status Acts.
3 Respondent’s Case
3.1 In the respondent’s submissions to the Tribunal, they requested that the complaint should be dismissed under Section 22 of the Acts on the grounds that it is misconceived. They submitted that the complainant was attempting to re-argue the merits of his claim for an extension of time under the Unfair Dismissals Act before the Equality Tribunal and that it was for this reason the complaint herein was misconceived.
3.2 The respondent submitted that the making of a determination on appeal from a Rights Commissioner in discharge of its statutory functions under section 9 of the Unfair Dismissals Acts does not constitute the provision of a service or facility under the Equal Status Acts. The respondent accepts that the definition of a service is wide enough to include services provided by the State and said that it is also clear that commercial services provided by public bodies or local authorities are within the remit of the Equal Status Acts. The respondent submitted that it was not clear from the Act the extent to which non-commercial activities, major policy and administrative functions of government are brought within the scope of the Act. The respondent referred the Tribunal to the case of Donovan V. Donnellan (DEC-SS2001-011, 17th October 2001) and submitted that the decision in this case is applicable to the complaint herein. They submit that while some limited aspects of its functions may fall within the definition of a service or facility under the ES Acts, the duty of the respondent to adjudicate upon appeals referred to it under section 9 of the 1977 Act does not come within the scope of the Equal Status Acts. The respondent further submitted that if the respondent discriminated on one of the prohibited grounds in the conduct of its statutory duty, the complainant is not left without a remedy in that the public law decisions of the respondent remain susceptible to the supervision of the High Court by way of an application for Judicial Review.
3.3 The respondent stated that the determination it made under the Unfair Dismissals Acts, 1977 to 2001 was subject to an appeal to the Circuit Court and High Court and an appeal on a point of law to the Supreme Court. It submitted that these remedies are exhaustive and are not supplemented by the Equal Status Acts and that if the Equality Tribunal were to accept jurisdiction in the complaint it would in effect usurp the statutory functions of the respondent.
3.4 The Chairman of the Employment Appeals Tribunal, Mr. Jeremiah Sheedy, Solicitor and Dr. Anne Clune Ordinary Member gave evidence that they heard the case and that the complainant never requested a sign language interpreter. Mr. Sheedy stated that he was aware that the complainant was unable to hear or speak He understood that Mr. O’ Connell was an experienced union person and had appeared before the respondent on a number of occasions and he was satisfied that he could represent the complainant. Mr Sheedy said that at the commencement of the hearing he asked Mr. O’Connell about how the hearing was going to proceed given that the complainant’s disability. It was agreed that the questions for the complainant would be written down by Mr. O’Connor and that the complainant would write down the answers which would be related back to the respondent by Mr. O’Connor.
The respondent witnesses stated that, while they were made aware of the complainants disability by the secretary to the Employment Appeals before the hearing commenced, they did not consider adjourning. They further submitted that no request was made by the complainant for a sign language interpreter. If a request had been made for an interpreter Mr. Sheedy said that he would have adjourned the case. He said he did not know if the complainant understood the hearing. The Tribunal itself did not write down any questions for the him. They relied on Mr. O’Connor to communicate with the complainant. Mr. Justin Corcoran who was the secretary for the hearing gave evidence that he took notes of the hearing and he provided a handwritten copy of the notes taken to the hearing herein.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against contrary to Section 4 of the Equal Status Acts. The complainant alleges that the respondent failed to provide reasonable accommodation for him contrary to Section 4(1) of the Act.
In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 The first issue which I have to consider is the respondent’s submission that I have no jurisdiction to hear the complaint and therefore the referral should be dismissed under Section 22 as misconceived. The application is based on their submission that the Act is not applicable as the respondent was not engaged in the provision of a service within the meaning of the Equal Status Acts. Therefore I have to first consider is whether the functions of the respondent is a service within the meaning of section 2(1) of the Equal Status Acts. The Act provides:
”service” means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes —
(a) access to and the use of any place,
(b) facilities for —
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
It is clear to me having examined the wording of section 2(1) that the services and facilities which are covered by the section have to be available to the public generally or a section of the public. It is also clear that the facilities mentioned in section 2(1)(b) is not an exhaustive list of matters covered by the Act. Therefore I need to examine the statutory functions of the respondent to determine whether they can be regarded as a service or facility within the meaning of section 2(1) which are available to the public or a section of the public.
4.3 The Employment Appeals Tribunal was set up under the Redundancy Payments Act, 1967 to hear disputes about redundancy between employers and employees. Its functions were expanded further on the introduction of the Unfair Dismissals Act 1977 which included hearing disputes about inter alia dismissals and hearing appeals from the Rights Commissioner’s. Over time there were several other Acts of the Oireachtas were included in the remit of the EAT. A sitting division of the EAT comprises of a chairman and two ordinary members who hears the claim or the appeal and issues a decision. Section 8 and 9 of the 1977 Act provides:
8. — “(1) A claim by an employee against an employer for redress under this Act for unfair dismissal may be brought by the employee before a rights commissioner or the Tribunal and the commissioner or Tribunal shall hear the parties and any evidence relevant to the claim tendered by them and, in the case of a rights commissioner, shall make a recommendation in relation to the claim, and, in the case of the Tribunal, shall make a determination in relation to the claim.
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period.
9. — (1) A party concerned may appeal to the Tribunal from a recommendation of a rights commissioner in relation to a claim for redress under this Act and the Tribunal shall hear the parties and any evidence relevant to the appeal tendered by them and shall make a determination in relation to the appeal.
(2) An appeal under this section shall be initiated by a party by giving, within 6 weeks of the date on which the recommendation to which it relates was given to the parties concerned, a notice in writing (containing such particulars (if any) as way be specified in regulations under section 17 of this Act for the purposes of section 8 (8) thereof) to the Tribunal and stating the intention of the party concerned to appeal against the recommendation and a copy of the notice shall be given to the other party concerned within the said period of 6 weeks.”
4.4 The procedures of the respondent’s are governed by regulations S.I. No. 24/1968 – Redundancy (Redundancy Appeals Tribunal) Regulations, 1968 and S.I. No. 286/1977 – Unfair Dismissals (Claims and Appeals) Regulations, 1977. These procedures also set out the administrative functions of the EAT in relation to the reception of claims and appeals. These functions are carried out by the administrative staff in the office of the Secretary of the Tribunal. In support of the contention that the functions of the EAT do not fall within the definition of a service or facility, the respondent referred me to the Equality Tribunal’s decision in the case of Donovan v. Donnellan (DEC-S2001-011). The Equality Officer in that case concluded that the investigation and the prosecution of crime by a member of the Gardaí does not constitute the provision of a service or a facility to the public. The respondent further submitted that while they accepted that some limited aspects of their function may fall within the definition of a service or facility, the duty of the respondent to adjudicate upon appeals referred to it under Section of the of the Unfair Dismissals Acts does not.
4.5 I note that in the Donovan case that the Equality Officer, who considered the jurisprudence in the English case of Farah v. Commissioner of Police of the Metropolis (1997) 2 W.L.R. 824, differentiated between the duty of the Gardaí to investigate and prosecute the commission of a crime and other functions of an Garda Síochana such as witnessing a passport application, giving directions or taking a complaint. The Equality Officer stated : ” the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Síochana, including those of the investigation and the prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope.”
4.6 I have also considered the jurisprudence in other jurisdictions which has similar anti discrimination legislation to the Equal Status Acts which I believe to be of persuasive to my reasoning in the case herein. I note that the High Court of Australia considered the meaning of “service” under the Equal Opportunity Act 1984 in a number of cases. Section 4(1) of that Act has similar definition of “service” to the definition in the Equal Status Acts. The case of IW v City of Perth and others- (1997) 146 ALR 696 concerned the Council of the city of Pert’s refusal to grant planning permission. The question which arose was whether the Council provided a service of giving approval for planning permission. In their High Court Judgment Brennan C.J. and McHugh J. referred to the remedial purpose of the statute and stated that while a court or tribunal cannot give a statutory provision a meaning which is unreasonable or unnatural, “if the term “service” read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal should hold that that activity is a service for the purpose of the Act.” The Act was not necessarily inapplicable to the Council just because the refusal of service was made in the exercise of a statutory power or duty. In this case, the complainant did not succeed as the Council had not refused to properly consider the application. The High Court held that the Council did not provide a service of refusing or approving applications, but they had a duty to consider the application and had a discretionary power to grant or refuse it.
4.7 In applying the jurisprudence of the Donovan case and taking into consideration the persuasive value of the above mentioned Australian case I am of the view that some of the functions of the respondent are services within the meaning of the Equal Status Acts. These functions, which can be distinguished from the decision making functions, are the reception and processing of complaints and the organising and hearing of complaints. I note that the respondent is obliged to receive the claim and then they are obliged to hear the parties and any evidence relevant to the appeal. I am of the view, that this part of the functions i.e. the administrative matters in relation to receiving the claim or appeal and the organising and hearing of the claim or appeal, is a service or a facility under the ES Acts. The respondent has a statutory function to provide a mechanism to enable a person, who believes that they have been unfairly dismissed, to seek redress or to appeal a recommendation of the Right’s Commissioner. For this reason, I find that these functions are a service or facility for a person who finds themselves in such a position.
I am also satisfied that the service or the facility the respondent provides is a available to the public or a section of the public i.e. to a people who want to inter alia dispute their dismissal or to a person who wants to appeal a recommendation of a Rights Commissioner. Therefore I find for the above reasons that the complaint, in so far as it relates to the administrative matters of organising and hearing of the appeal, is not misconceived under section 22.
4.8 I also find that the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a “service” or “facility” which is available to the public. The respondent is exercising a quasi judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.
5 Reasonable Accommodation
5.1 I am now going to consider the evidence to see if the complainant, who cannot hear or speak, was provided with reasonable accommodation under section 4 of the Equal Status Acts. A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof shifts to the respondent to rebut the presumption of discrimination.
There are three tests which the complainant must satisfy to establish a prima facie case
(i) Is the complainant covered by the discriminatory ground? (in this case has the complainant a disability?)
(ii) is there evidence that he has been subject to a specific treatment by the respondent?
(iii) did the respondent’s actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainant’s needs as a person with a disability, which made it impossible or unduly difficult for him to seek a service or a facility from the respondent?
It is accepted that the complainant has a disability and that his primary mode of communication is by sign language and that no sign language interpreter was provided.
Section 4 of the Equal Status Act provides that, inter alia:
“(1) For the purposes of this Act discrimination includes a refusal or failure
by the provider of a service to do all that is reasonable to accommodate the
needs of a person with a disability by providing special treatment or facilities,
if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.
5.2 In considering reasonable accommodation, I note that the section of the Act requires the respondent to do “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”. This means that the Act requires the respondent to show that it did everything it could reasonably do to accommodate the needs of the complainant. The complainants case is that he could not take part in the hearing because of his disability and he believes that he had no opportunity to put his case directly to the respondent and for this reason he believes there could have been a different outcome to his appeal to the respondent. The respondent’s case is that the complainant suffered no discrimination because he was represented both before the Right’s Commissioner and the EAT by Mr. O’Connell who they believed was an experienced representative. Neither the complainant or his representative requested any accommodation at the hearing and had they done so, or if the EAT of its own motion identified a need for an interpreter, they would have adjourned the hearing for that reason.
In considering reasonable accommodation under Section 4 of the Act, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council, Judge Hunt considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: ” …reasonableness must be judged according to the context of the individual case…….. The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations …… and they are indeed relevant to the decision as to what is reasonable in the particular case…. The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities….. All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it,”
5.3 In applying the above mentioned reasoning to the case in hand, and having considered whether the facilities put in place to accommodate the complainant’s right to pursue his appeal, and to fully participate in the hearing of that appeal were reasonable, I am not satisfied that the respondent devised “a reasonable solution to a problem”. I note that the complainant in his appeal documentation to the EAT stated that he could not speak or hear. The respondent, who said that they had been only made aware of the complainant’s disability shortly before the hearing commenced, asked Mr. O’Connell who could not speak sign language to devise a solution. It was agreed that the questions for the complainant would be written down and that the complainant would provide written answers. The respondent in evidence stated that they did not address any questions or have any direct verbal communication even by the agreed written method through Mr. O’Connell. He could not speak or address the respondent during the course of the hearing.
In my view it was the duty of the respondent to ensure that there was no impediment to the complainant’s full participation and understanding of the hearing. From the evidence of both parties it would appear that the complainant was not asked if he required the services of a sign language interpreter. The non-availability of a sign language interpreter was an impediment to the complainants participation in the hearing and was in breach of his right to a fair procedures and natural justice and his right to be heard. As sign language is the complainant’s first language and his primary means of verbal communication, I am satisfied that without the special facilities of a sign language interpreter it was both impossible and unduly difficult for him to fully participate in his appeal hearing before the respondent.
In the above mentioned case, Hunt J. stated that reasonable accommodation must be considered in the context of the individual case. I am of the view that a reasonable solution in the context of this case would have been for the respondent to adjourn the EAT hearing to a new date and to provide the facilities of a sign language interpreter for the complainant. For the above reasons I find that the complainant has established a prima facie case of discrimination. I find also that the respondent, by the failure to provide reasonable accommodation in accordance with Section 4(1) of the Act to the complainant, has failed to rebut the prima facie case of discrimination.
5.4 I am now going to consider nominal cost in accordance with Section 4(2) of the Equal Status Acts which provides:
(2) “A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
There were no submissions made by either party in relation to nominal costs. I am satisfied however that the provision of a sign language interpreter for the complainant by the respondent would given rise to no more than a nominal cost in the context of the respondent’s overall budget.
6. Decision
6.1 I find that the complainant was discriminated against in terms of section 4 of the Equal Status Act.
Under section 27(1) of that Act redress may be ordered where a
finding is in favour of the complainant. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
6.2 Under Section 27 the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effect the discrimination had on the complainant and the fact that sign language is his first language and primary mode of communication so a sign language interpreter was essential for him to engage with and to fully participate and understand the proceedings. The fact that the complainant could not communication with the respondent to put the evidence in relation to his appeal and to understand or participate in the proceedings caused him great distress. In the circumstances I order The Employment Appeals Tribunal, to pay to the complainant the sum of €3,000 to compensate him for the distress, embarrassment and inconvenience suffered by him.
6.3 I requested the respondent to provide me with their procedures and I note that the respondent has procedures in place for persons requiring language interpretation services whereby an application has to be made in person before the EAT for such services. There appears to be no procedure in place for persons with disabilities or for persons who require a sign language interpreter. It is not possible for an unrepresented complainant who is deaf and cannot speak to appear in person before the respondent seeking language interpretation services for their hearing.
Under Section 27(1)(b) of the Act, I order the respondent to provide special facilities at the hearings for people with disabilities, these special facilities should include the provision of a sign language interpreter. I also order the respondent to notify parties in advance of a hearing that these special facilities are available.
___________________
Marian Duffy
Equality Officer
21st December 2009
Secretary of State for Defence v Elias
[2006] EWCA Civ 1293 (10 October 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1293.html
Cite as: [2006] WLR 3213, [2006] 1 WLR 3213, [2006] IRLR 934, [2006] EWCA Civ 1293
Mummery LJ
Race discrimination law
Sweeping changes were made to the scope of application of the 1976 Act to public authorities by the Race Relations (Amendment) Act 2000 (the 2000 Act) with effect from 2 April 2001.
Section 71 imposes a general statutory duty on every specified body or other person that it
“(1) ….shall, in carrying out its functions, have due regard to the need-
(a) to eliminate unlawful racial discrimination; …”
As mentioned earlier, the Secretary of State has not appealed against the declaration made by the judge that the Secretary of State had not complied with his obligations under section 71(1) in the formulation and maintenance of the Compensation Scheme.
Section 71(2) of the 1976 Act enables orders to be made requiring specified bodies to take steps for the better performance of their duties under section 71(1). An order was made obliging the publication of a racial equality scheme by 31 May 2002. The Secretary of State published his first Race Equality Scheme in May 2002, which referred to seeking out and removing discrimination and the possibility of discrimination from the services provided by the Ministry of Defence, such as the provision of pensions. The Race Equality Scheme contained no reference to the Compensation Scheme. As the judge observed, it was wrongly assumed at the time that there was no race discrimination issue to be addressed.
Section 19B of the 1976 Act provides that
“(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.”
It has been common ground in this litigation that the Secretary of State and the Veterans Agency are subject to sections 71 and 19B.
It is also accepted by the Secretary of State, for the purposes of this litigation, that an ex gratia payment under the Compensation Scheme is a “form of social advantage” within the meaning of the amended provisions of the 1976 Act set out below, which derive from Article 3 of the EC Race Equality Directive referred to below. In the context of the prohibition of discrimination in EC law the concept of “social advantage” has not been interpreted restrictively (see State of the Netherlands v. Reed 17 April 1986, Case 59/85 at paragraph 25). It encompasses “not only benefits accorded by virtue of a right but also those granted on a discretionary basis.” See Law of the European Communities Service (General Editor David Vaughan QC) at paragraph 145.
While making the concession for the purposes of this case, Mr Sales drew our attention to cases on EC Regulation 1612/68 (for example, Baldinger C-386/02 at paragraph 17), in which it was held that an allowance to a former prisoner of war was not a “social advantage” within the meaning of the Regulation. Although this expression does not necessarily have the same meaning in both contexts, it may be argued in a later case that “social advantage” is a term of art in EC law.
I now turn to the specific provisions of the 1976 Act, as amended, which make acts of race discrimination unlawful.
Section 1(1) of the 1976 Act defines race discrimination. There are two sub-subsections, (a) and (b). They define two different kinds of discrimination in the alternative (“or”): subsection (a) defines what is commonly described as direct discrimination; subsection (b) defines what is commonly described as indirect discrimination. Those expressions do not appear anywhere in the legislation, but are commonly used in discrimination law practice. The non-statutory descriptions “overt discrimination” and “covert” or “disguised discrimination” are also sometimes used.
Until this case I had assumed, perhaps wrongly, that direct and indirect discrimination were strictly alternative statutory causes of action, as indicated by the use of a disjunctive “or” placed between the definitions in sub-subsections (a) and (b). The difference between the two forms of discrimination may be crucial, because the elements of the causes of action are different and the defence of justification of the difference in treatment between one racial group and another, irrespective of the race of the persons to whom the condition or requirement is applied, is only available under the 1976 Act in the case of indirect discrimination. Direct discrimination on racial grounds is never justifiable under the 1976 Act.
The distinction between direct and indirect discrimination also affected remedies for discrimination. For example, it was provided by section 57(3) of the 1976 Act that, as respects an unlawful act of discrimination falling within section 1(1)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds.
If it is the correct reading of section 1(1) to distinguish between the two kinds of discrimination as alternatives, it would follow that it would not be possible for the same act to be both an act of direct discrimination and an act of indirect discrimination. This reading is challenged by Mrs Elias, on whose behalf Mr Rabinder Singh QC submitted that the eligibility criteria are both directly and indirectly discriminatory by reason of the racially discriminatory purpose and effect of the birth link criteria. In the alternative, the criteria are either direct or indirect discrimination on racial grounds.
Section 1(1)(a) covers direct discrimination;
“(a) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or …”
“Racial grounds” are defined in section 3(1) as meaning-
“any of the following grounds, namely colour, race, nationality or ethnic or national origins;”
Indirect discrimination is covered by section 1(1) (b). It provides that a person discriminates against another in any circumstances relevant for the purposes of this Act if-
“(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.”
“Racial group” is defined in section 3(1) as meaning
“a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls.”
Section 3(4) states-
“A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
As the reference to subsection (1A) in section 3(4) indicates, the provisions relating to indirect discrimination have been amended since 1976. The protection against indirect discrimination was extended by amendments made with effect from 19 July 2003 (SI 2003/1626) implementing the Council Directive 2000/43/EC (the Race Equality Directive). The Directive was made in order to extend the principle of equal treatment to persons irrespective of racial or ethnic origin. The preambles refer (in preamble (3)) to the “right to equality before the law and protection against discrimination for all persons” as constituting “a universal right” recognised by various international instruments including the 1969 International Convention on the Elimination of all forms of Racial Discrimination (CERD) and (in preamble (12)) to covering areas such as “social protection, including social security and healthcare”, and “social advantages.”
The concept of discrimination is defined in Article 2 of the Directive expressly in terms of direct or indirect discrimination based on racial or ethnic origin. As in the 1976 Act, the different forms of discrimination in the Directive are expressed in the alternative. They are differently defined in Article 2.2 (a) and (b). In the case of direct discrimination the focus is on less favourable treatment of a person “on grounds of racial or ethnic origin.” In the case of indirect discrimination the focus is on “an apparently neutral provision, criterion or practice [which] would put persons of a racial or ethnic origin 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.”
In accordance with general principles of European Community law the duty of the UK courts is to construe, in so far as it is possible for them to do so, the domestic law implementing a directive so as to be compatible with the directive.
Article 14 of the Directive requires Member States to take necessary measures to ensure that any laws or administrative provisions contrary to the principle of equal treatment are abolished. Article 15 requires Member States to lay down rules on sanctions applicable to infringements of national provisions adopted pursuant to the Directive and for them to be “effective, proportionate and dissuasive.”
Mrs Elias relies on the new provisions on indirect discrimination inserted in the 1976 Act in order to comply with Article 2 of the Directive, as well as on the original provisions. They have applied since 19 July 2003 when they came into force. Where discrimination falls within the new provision, section 1(1)(b) does not apply: see section 1(1C). As in the case of indirect discrimination contrary to section 1(1)(b), the focus is not on difference in treatment “on racial grounds”, express or implied: it is on the evaluation of the disparate and adverse racial impact of the application of an apparently neutral and general provision, criterion or practice-
“(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but-
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.”
According to subsection (1B)(c) the provisions mentioned in subsection (1A) include section 19B, so far as relating to
“(iii) any other form of social protection; and
(iv) any form of social advantage
which does not fall within section 20.”
As I indicated earlier, it is common ground, for the purposes of this case, that payments under the Compensation Scheme are a “form of social advantage” that do not fall within section 20, which relates to the provision of goods, facilities or services, such as access, accommodation, financial services, education, leisure, transport and so on. The Secretary of State accepts that, for the purposes of this case, section 1(1A) applied to the case of Mrs Elias as from 19 July 2003.
I should add that it is clear from section 41 of the 1976 Act, which relates to acts done under statutory authority, that it is no longer possible for the Secretary of State to rely on section 41(1) as a defence in a case where the discrimination is on grounds of race or ethnic or national origins and it is unlawful by virtue of a provision referred to in section 1(1B): see section 41(1A). As already mentioned, section 1(1B) refers to section 19B.
I should also explain that, although proceedings alleging race discrimination under Part III of the 1976 Act must be brought in the County Court (section 53(1)) (and proceedings under Part II must be brought in the employment tribunal), the making of judicial review orders are not precluded in public law proceedings: section 53(2).
Mrs Elias also relied on the CERD, which was ratified by the UK and came into force on 4 January 1969. It was submitted that the 1976 Act must be interpreted to produce an effect compatible with the CERD. Article 1(1) defines “racial discrimination” in the Convention in such a way as to emphasise the importance of the principle of equality and of the discriminatory purpose or effect of an action or measure in determining whether it is unlawful. The term means
” any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
Reference was also made to Article 2 of CERD relating to the obligations of Member States to eliminate racial discrimination in all its forms and to the obligation in Article 6 to provide effective protection and remedies, including just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
Finally, Mrs Elias submitted that discrimination on the ground of race may be a form of degrading treatment prohibited by Article 3 of the European Convention of Human Rights (ECHR). The ruling of the Commission in East African Asians v. UK (1973) 3 EHRR 76 was cited as showing that ambiguities in national legislation should be resolved so as to avoid breaches of obligations under international law, such as the ECHR.
The East Africans Case is, it was argued on behalf of Mrs Elias, relevant to both direct and indirect discrimination. The immigration rule challenged in that case was framed in similar terms to the birth link criteria, so as to exclude those UK passport holders who did not have at least one grandparent born in the UK and did not therefore have a substantial connection or close links with the UK. The European Commission of Human Rights found a breach of Article 3 of the ECHR in the racially discriminatory purpose of the rule which, in its normal operation, singled out for differential treatment, on the ground of race, a particular group of persons. The rule was more favourable to descendants of white settlers than to Asian persons. The close links did not have a legitimate aim, irrespective of discrimination, which would prevent the rule from being a breach of Article 3.
Although a number of authorities on ECHR were cited, I should point out this case is not brought under the Human Rights Act 1998 and is not based on breach of Convention rights. Article 14 ECHR deals with discrimination in relation to the Convention rights. There is no Convention right not to be discriminated against on grounds such as race or national origins. This must be borne in mind when considering the authorities on ECHR points cited in support of the construction of the provisions of the 1976 Act, as amended, and of the EC Directive. It is, I think, fair to say that, as there is no general right not to be discriminated against on racial grounds guaranteed by the Convention, the Strasbourg jurisprudence on race discrimination in relation to Convention rights has not yet developed as fully as UK domestic law or EC law, either on the different forms that race discrimination may take or on the possible justifications for discrimination.
Throughout his submissions for Mrs Elias, Mr Rabinder Singh QC emphasised the fundamental nature of the right to equality underlying the 1976 Act, EC law, the ECHR and in international law and the unlawfulness of a racially discriminatory purpose aimed at excluding those who are of alien descent, even though the discriminatory effects were not fully achieved in practice.
Direct race discrimination
Direct race discrimination was at the forefront of the arguments of Mrs Elias in the judicial review appeal.
The judge rejected the contention that the birth link criteria were directly discriminatory “on racial grounds.” On behalf of Mrs Elias, Mr Rabinder Singh QC submitted that she should succeed on both direct and indirect discrimination, or, failing that, on the ground of direct discrimination in preference to the ground of indirect discrimination upheld by the judge. As mentioned earlier, subject to the defence of justification, indirect discrimination has been conceded by the Secretary of State. As for direct discrimination, the thrust of the case for Mrs Elias is based principally on the racially discriminatory purpose of the birth link criteria and on their discriminatory effects.
The obvious importance of the case for direct discrimination is that, if it is made out, the defence of justification is not available to the Secretary of State.
That Mrs Elias was treated less favourably than other comparable persons is undeniable. Her application for a payment under the Compensation Scheme was rejected. Applications by others for compensation were accepted. The critical question is whether her application was rejected “on racial grounds” within the meaning of section 1(1)(a) of the 1976 Act.
The fact is that, although Mrs Elias was, by virtue of the British Nationality and Status of Aliens Act 1914, a British subject at the date of her internment in 1941, she did not have the birth link with the UK required by the eligibility criteria: she was not born in the UK, nor were either of her parents or any of her grandparents. She did not qualify for a payment, because she did not satisfy the condition of payment linked to place of birth.
The judge accepted the submissions of the Secretary of State that Mrs Elias was not discriminated against directly, as the grounds on which compensation was refused were not “racial grounds.” The criteria specified place of birth as determinative: either her place of birth, or the place of birth of either of her parents and/or any of her grandparents. The birth link criteria did not require an applicant to have UK national origins, nor did the UK national origins of an applicant guarantee entitlement.
The judge recognised that a distinction has been established by the authorities on race discrimination between the “national origins” of a propositus and the place of birth of the propositus. In practical terms the use in the Compensation Scheme of criteria relating to the place of birth meant that applicants for compensation were eligible, even if they were not of UK national origin, it being sufficient that their mother happened to be in the UK when she gave birth.
Although these aspects give the criteria an arbitrary and adventitious quality, the Court of Appeal held in ABCIFER that they were not irrational. It does not, of course, follow that they complied with the 1976 Act. It is necessary to examine a different line of authority on the scope of discrimination on “the racial grounds” in the context of national origins and their relationship to place of birth.
Ealing LBC v. Race Relations Board [1972] AC 342, a decision on the Race Relations Act 1968, was cited by Mr Philip Sales for the Secretary of State. Ealing LBC refused to place the name of the applicant, who was a Polish national, on the housing waiting list, as he was not a British subject. This was less favourable treatment, but, according to the House of Lords, it was not treatment “on racial grounds.” “National origin”, a term left undefined in the legislation, meant national in the sense of, or analogous to, race, lineage or descent. It did not mean national in the legal sense of the citizenship (i.e. nationality), which may be acquired by an individual at birth by virtue of parental connection with the country in which birth takes place: see pages 358D-G, 363H-364E and 365D-366E. In distinguishing between national origins and nationality the House of Lords incidentally distinguished national origins from place of birth, which does not by itself determine “national origins.”
The law was amended in section 3(2) of the 1976 Act to include “nationality” in “racial grounds,” but that has not affected the construction placed by the courts on the expression “national origins.” This expression was repeated by Parliament in the 1976 Act, four years after the Ealing case with, it is reasonable to assume, knowledge of the meaning that the House of Lords had placed on it in the earlier legislation against race discrimination. In those circumstances it may be presumed that Parliament intended “national origins” to continue to have the same meaning in the 1976 Act: BBC Scotland v. Souster [2001] IRLR 150 (Court of Session-Inner House) per Lord Cameron of Lochbroom at paragraph 28, applying the principle in Barras v. Aberdeen Steam Trawling and Fishing Company Ltd [1933] AC 402 at 412, 442 and 445 that a word which has received a judicial interpretation must, when used in the same context in a later enactment, bear the same interpretation unless a contrary meaning is indicated.
In this case the birth link criteria related to where Mrs Elias or her ancestors happened to have been born. Mr Sales submitted that this was an adventitious fact that does not operate to determine or identify a person’s “national origins” for the purposes of the 1976 Act.
The reasoning in the Ealing case has been followed in later cases, which have drawn a distinction in race discrimination law between different treatment on grounds of “national origins”, as construed in Ealing, and different treatment on grounds of place of birth.
In Tejani v. Superintendent Registrar for the District of Peterborough [1986] IRLR 502 the dismissal of a claim for direct race discrimination was upheld by the Court of Appeal. The claimant was a British national born in Uganda. He wished to marry. The Registrar asked all people from abroad to produce their passports. Mr Tejani produced his as requested, but later made a claim under the 1976 Act for direct discrimination on the ground of national origins. The court held that the reason why the Registrar took that course had nothing to do with race: it was because the claimant was born abroad. He would have taken the same course with everyone coming to this country from abroad, irrespective of their race or national origins: see the judgment of Slade LJ at p506.
In Naraine v. Hoverspeed Ltd …12 November 1999) Mr Naraine, who was a black Asian Caribbean born in Guyana, complained that Hoverspeed had unlawfully discriminated against him on racial grounds contrary to the 1976 Act by declining to carry him to France. His full British passport had expired. He held a British Visitor’s passport, the holder of which the French authorities refused to admit to France if the document showed that the holder was born outside the UK. The French authorities also fined sea carriers who brought such passengers to France.
The rejection of the claim for direct discrimination was upheld by the Court of Appeal. The reason for the refusal to carry him was that he lacked the travel documents required by the French authorities as a condition of entry and that the French authorities would fine Hoverspeed, if they did carry him. The refusal by Hoverspeed had nothing to do with the “national origins” of Mr Naraine. May LJ asserted an intrinsic distinction between national origins and place of birth in that a person’s place of birth may be entirely fortuitous. It was a distinction recognised in the Ealing case and in Tejani. He pithily pointed out that being born a German and being born in Germany are two different things. See also AG’s Reference (N0 4 of 2004: R v. D [2005] EWCA Crim 889.
Mr Sales accordingly submitted that a criterion that distinguishes between applicants on the basis of the place of birth is not discrimination on the grounds of “national origins.” This is so, even though statistically those who are born in the UK are more likely to have UK national origins than those who are not born in the UK .
He disputed the suggestion that the generous extension of the place of birth criterion in this case to ancestors born in the UK in order to make the birth link criteria more inclusive had the effect of making the criterion so closely related to national origins as to lead in practice to almost the same differentiation as the adoption of national origins would have done. Having UK national origins was neither a necessary nor a sufficient condition of eligibility under the Compensation Scheme.
Mr Sales contended that the CERD, to which particular reference had been made in the case for Mrs Elias for its reference to “descent”, added nothing to her case. The domestic legislation on race discrimination complied with the CERD. As in the case of national origins, the birth link criteria neither excluded applicants of non-British descent nor guaranteed entitlement to applicants of British descent.
The point was discussed by reference to different ways of posing the question of the ground of the treatment of Mrs Elias in refusing her application for compensation. First, there was the “reason why” approach as in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337: why had Mrs Elias received less favourable treatment by being denied compensation? Secondly, there was the “but for” approach, as in James v. Eastleigh Borough Council [1990] 2 AC 751: would Mrs Eliashave received the same treatment but for her national origins?
The answers to these questions, Mr Sales submitted, did not lead to the conclusion that Mrs Elias was discriminated against on the grounds of her “national origins.” She was denied compensation because she did not satisfy criteria as to her place of birth or that of her parents or grandparents. The criteria applied irrespective of her national origins. As the judge pointed out, even as someone with non-UK national origins, she might have qualified had a parent or grandparent been born in the UK, whether or not they were of UK national origins. Similarly a person with UK national origins would not inevitably qualify for a compensation payment.
The different ways of putting the crucial question (why was Mrs Elias’s application for payment refused?) produced the same answer: she could not establish that her place of birth or that of her parents or grandparents was in the UK. For that reason she could not satisfy the birth link criteria. It had nothing to do with the racial or national origins of Mrs Elias.Irrespective of her national origins, she could not satisfy the criteria.
The point made by Mr Rabinder Singh QC for Mrs Elias was that, in order to answer the relevant question, it is necessary to look beyond the literal criteria of the place of birth to the central discriminatory purpose of the birth link criteria and to their discriminatory effect in favouring, on racial grounds, one group as compared with another. Direct discrimination on racial grounds can, he argued, occur even where the criteria are not expressly framed to refer to race. The judge had erred in only looking at the outer edges of application of the birth link criteria. The fringe cases had diverted the attention of the judge from the central purpose of the birth link criteria and led him to disregard the descent-based grounds for refusing payment.
Applying the “purpose” or “effect” approach spelt out in Article 1 of CERD Mr Singh submitted that the birth link criteria were deliberately selected for the purpose of identifying and requiring a real, strong and close link between those eligible for compensation and the UK. Descent, parentage and national origins provide the link and they constitute direct discrimination against Mrs Elias.
In practice in the vast majority of cases place of birth and national origins come to the same thing. It does not require statistical evidence or any other kind of evidence to establish that, for the vast majority of people in the UK, their place of birth and their national origins are one and the same. Birth criteria focus on origins of a national character, which are immutable characteristics acquired or imposed at birth. Further, the national origins in the criteria in this case were reinforced by the fact that they relate not only to the birth place of the applicant but also to the birth place of the applicant’s parents or grandparents. The whole purpose of adopting such criteria was to identify those who could show a concept of “belonging to the UK” or “being British” in a more specific way than simply through being British subjects or civilians. Although it is accepted that place of birth is not identical to national origins, it is so close to it that it should be treated as direct discrimination on that racial ground. The criteria were designed for the very purpose of excluding from payment those of non-national UK origins or alien descent and to make only de facto Europeans eligible for payments under the Compensation Scheme. If her parents or grandparents had been born in the UK she would have qualified. She was treated less favourably because she was not of UK national origins.
Why, Mr Singh forcefully protested, should peripheral cases of UK nationals, who are born outside the UK, and non-UK nationals, who are born in the UK, on which the judge relied, be determinative of whether the grounds on which an applicant is refused compensation under the Compensation Scheme are racial or not? The real reason why Mrs Elias could not satisfy the birth link criteria was because she did not have UK national origins. The refusal of her application was less favourable treatment of her “on racial grounds.”
This is a very pertinent question aimed at throwing real doubt on whether, in cases of this kind, there is a valid distinction between national origins and place of birth and whether there is any meaningful distinction in substance between the concepts of direct and indirect discrimination. What really matters, it is suggested, is whether the difference in treatment can be justified independently of racial grounds.
Certainly, from the perspective of victims of discrimination, there is no difference in substance between direct and indirect discrimination, other than that the former is more open, explicit or obviously offensive racial treatment, which is less excusable than a neutrally worded requirement, condition, provision, criterion or practice applicable equally to persons not of the same race. Whatever the kind of discrimination, direct or indirect, the victim of the discrimination in this case has been subjected to a comparative disadvantage, to which those with UK birth links, who are predominantly of UK national origins, have not been subjected. The legal distinction drawn in the authorities on the interpretation of the 1976 Act between national origins and place of birth might well appear to the victims of race discrimination to be a hair splitting distinction, in which the substance of the matter is obscured by preoccupation with form.
Mr Singh also submitted that overall the arguments advanced by the Secretary of State on the discrimination issue were contradictory and inconsistent. He said that the Secretary of State was impaled on Morton’s Fork
As to direct discrimination the Secretary of State sought to avoid the charge of a racially discriminatory purpose present in the birth link criteria by emphasising their random and adventitious aspects. Place of birth was where the mother of Mrs Elias happened to be when she gave birth. How could this be a racially discriminatory purpose?
As to indirect discrimination, which is discussed in more detail below, the emphasis of the Secretary of State’s submissions on objective justification was not on the fortuitous aspects of the birth link criteria, but on the purpose of requiring close links with the UK at the date of internment. This was a discriminatory purpose, as it was linked to grounds of UK descent or national origins and could not be relied on as a justification of race discrimination.
The powerful submissions of Mr Rabinder Singh raised serious doubts in my mind about the correctness of the judge’s ruling on this point, which, as Mr Singh pointed out, focused more on the edges of the effects of the criteria than on their central purpose or effect. In a general sense, discrimination with a discriminatory purpose, regardless of the particular form it takes, can be perceived as treating a person less favourably “on racial grounds.”
I am, however, clear that, in the present state of the law, the particular form of discrimination matters, even if there are present in the circumstances of the case a discriminatory purpose and discriminatory effects. The 1976 Act, as amended, makes an important broad distinction between two different forms of discrimination. This distinction is consistent with the Directive and this court must observe it.
The discrimination complained of in this case does not take the direct form of treatment “on racial grounds.” The birth link criteria take an apparently neutral form, which applies or would apply equally to all applicants for payments under the Compensation Scheme. It is the application of the neutrally worded criteria which produces the disparate adverse impact and puts persons of the same national origins at a particular disadvantage when compared with other persons. These are the distinguishing features of discrimination in its indirect form.
On this aspect of the case I would make the following particular points.
First, the 1976 Act clearly creates two different causes of action for race discrimination. They are two different statutory torts. The conditions of liability, the available defences to liability and the available defences to remedies differ. So far as remedies are concerned damages for injury to feelings for indirect discrimination were not available in cases of unintentional indirect discrimination contrary to section 1(1)(b): see section 57(3). (This has ceased to matter much in practice since the introduction of section 1(1A) as the defence to damages in section 57(3) has been removed for discrimination contrary to that section: see section 1(1C)).
Secondly, it is well established on authority and in practice that the material facts for the separate causes of action need to be separately pleaded, proved and ruled on. Section 1 of the 1976 Act cannot be construed as collapsing two causes of action into a single cause of action, the ingredients of which are discriminatory purpose and/or discriminatory effects.
Thirdly, the basic differentiation between the two causes of action is plain: it is between one form of discrimination, which focuses on treatment of another person on prohibited grounds and aims at achieving “formal equality” of treatment, and a different form of discrimination, which aims at achieving “substantive equality of results” where the application of apparently racially neutral criteria produces disproportionate adverse racial impact: see the trenchant observations in Secretary of State for Trade and Industry v. Rutherford [2006] UKHL 19 at paragraph 71 per Lady Hale.
Fourthly, the distinction between the two forms of discrimination is recognised in the Directive, as well as in the original and the amended provisions of section 1 of the 1976 Act. It is not just a peculiar feature of UK domestic law.
Fifthly, the availability of the defence of objective justification for one form of discrimination but not for another emphasises the importance of observing the separate nature of direct and indirect forms of discrimination. If the distinction is not observed, the result would be that the defence of justification would become available for direct discrimination. That result would not reflect the provisions of section 1 of the 1976 Act or be compatible with the Directive.
Sixthly, there is a consistent line of authorities since the Ealing case which are binding on this court and are to the effect that less favourable treatment on the ground that you were not born in a particular country is different from less favourable treatment on the ground of “national origins” and that the former falls outside what is prohibited by the 1976 Act as direct discrimination. Although place of birth is not a racial ground, it may be prohibited as an indirect form discrimination, subject to the defence of justification which may be difficult to establish, because, as will be explained later, justification must address the substance and not just the form of the discrimination.
Accordingly the judge was right, indeed bound, to rule as he did on the issue of direct discrimination. So is this court. Although I have continuing reservations, in principle, about the defensibility of a legal distinction between national origins and place of birth when determining whether there is direct race discrimination, I think that this court is bound by authority to dismiss this ground of the appeal by Mrs Elias.
Indirect race discrimination: justification
The Secretary of State conceded that the birth link criteria had an adverse impact on a greater proportion of applicants like Mrs Elias than on applicants who were born in the UK and had UK national origins. In other words the birth link criteria excluded a higher proportion of those with non-UK national origins than those with UK national origins. This is indirect race discrimination, which is unlawful, unless objectively justified.
The issue of objective justification, which has a number of different aspects, is the most difficult point in the whole case. The court heard very lengthy arguments on many points with extensive citation of authorities dealing in generalities, which, like so much in this field, are easier to state in the abstract than to apply in practice to the facts of particular cases.
A number of points fall to be considered: the relevance, if any, of the fact that, as reflected in the declaration under section 71 of the 1976 Act, the Secretary of State did not consider the question of justification at the relevant time because it was not accepted by him that there was any race discrimination; the question whether the justification relied on was “irrespective of race”; the level of scrutiny by the court appropriate to the defence of justification; whether there was a legitimate aim in the birth link criteria; whether there was a wide margin of appreciation or a discretionary area of judgment allowed to the Secretary of State in formulating the eligibility criteria; and whether the birth link criteria were a necessary and proportionate means of achieving a legitimate aim.
Although Mrs Elias was successful overall on the absence of objective justification, she contends that the judge should have decided the case in her favour on a broader basis than he did. He should have held that there was no legitimate aim in seeking to achieve close links to the UK by reference to descent and that such an aim could not be justified by cost considerations or administrative workability.
Failure to address potential race discrimination
This is an important point affecting the court’s overall view of the defence of justification. Mr Sales submitted that the Secretary of State was entitled to assert that the birth link criteria were justified, even though he had not addressed the issue of discrimination or possible justifications for it at the time of formulating the birth link criteria: Schonheit v.Stadt Frankfurt am Main [2004] IRLR 983 at paragraphs 86 and 87. Indirect discrimination may be justified, depending on the circumstances, by reasons other than those put forward when the measure introducing the differential treatment was adopted. What matters is that there are objective reasons for the criteria, which are unrelated to the forbidden grounds of, among other things, national origins and are such as to justify the measure concerned.
While I do not doubt the correctness of the general proposition that in theory ex post facto justification of indirect race discrimination is legally permissible, it does depend on the circumstances. In R (Morris) v. Westminster City Council [2005] EWCA Civ 1184, [2006] 1 WLR 505 at paragraph 49 Sedley LJ referred to the difficulties of relying on the margin of appreciation in cases of attempts to justify discrimination, when it was not appreciated that the measure had a discriminatory impact and so no judgment at all was made as to whether the measure was proportionate or otherwise justified.
There are several legal and practical difficulties in this case in advancing grounds of justification for a form of indirect discrimination that was not even considered when the birth link criteria were adopted and, when raised, was consistently denied down to the hearing of the case.
First, the onus is on the Secretary of State to justify the birth link criteria as a matter of law and of objective fact. The onus is not on Mrs Elias to establish that the birth link criteria are unjustified, because they do not have a legitimate aim or because the means of pursuing a legitimate aim are disproportionate or because the birth link criteria cannot be justified “irrespective of race.” I would also add that the onus is not on the court, as part of the exercise of margin of appreciation or area of discretionary judgment allowed by the court to the State, to search around for a justification of the birth link criteria in order to help the Secretary of State out of a situation of his own making.
Secondly, one important consequence of the failure of the Secretary of State to address the indirectly discriminatory effects of the birth link criteria is the absence of an evidential basis for justifying the birth link criteria or for assessing the comparative discriminatory effects of other possible criteria as a means of confining compensation to those with close links with the UK. I agree that the requirement of close links with the UK would make it practically impossible to avoid some adverse disparate impact resulting from different neutrally worded criteria, such as requirements of residence or domicile. But, if the exercise of formulating the criteria had been properly carried out with due regard to the potentially discriminatory effects of requiring close links with the UK, there would probably have been brought into existence evidence in the form of data and reasons relevant to an informed choice of criteria, which might have had a lesser discriminatory impact than the birth link criteria. The kind of evidential material which ought to be available for deciding the issue of justification does not exist, because the selection of the eligibility criteria by the Secretary of State was carried out without due regard to the race discrimination issue.
Thirdly, this court must give effect to section 71 of the 1976 Act, which placed on the Secretary of State a statutory duty which he has failed to perform. I think that this adds to the difficulties of the Secretary of State in now attempting to justify the imposition of the birth link criteria. He has to justify an act of discrimination committed in the carrying out his functions when, in breach of an express duty, he failed even to have due regard to the elimination of that form of unlawful race discrimination. He has to justify something which he did not even consider required any justification. In these circumstances the court should consider with great care the ex post facto justifications advanced at the hearing. I shall return to this point later.
Legitimate aim
The judge held that the aim of the birth link criteria was in principle legitimate (paragraph 73).The Secretary of State was entitled to limit eligibility to compensation to a category narrower than everyone who was a British subject at the time of internment by requiring the applicant to have close links with the UK.
In formulating a legitimate aim the Secretary of State was entitled to take into account a number of factors: considerations of social and national solidarity; administrative workability; and the cost to the UK taxpayers of funding as part of the definition of the Compensation Scheme and the financial consequences of decisions. The court was referred to Hoogendijk v. The Netherlands (2005) 40 EHRR SE22 189 at 204-205, a case on Article 14 of the Convention in relation to an alleged violation of a violation of rights under Article 1 of Protocol No 1. The case concerned loss of entitlement to disablement benefits. It was held that the control of public expenses by the State is a legitimate aim for the purposes of securing social justice and protecting the State’s economic well-being. In this respect, in implementing social and economic policies, the margin of appreciation enjoyed by the national authorities in determining what is in the general interest of the community is a broad one. The court went on to consider the issue of proportionality and held that, given the wide margin of appreciation enjoyed by Contracting States in implementing social and economic policies, the decision complained of could not be considered disproportionate to the legitimate aims pursued and so there was no violation of Article 1 of Protocol No 1.
As to whether it was legitimate to require applicants for benefits to demonstrate a sufficient connection with the paying state, as they are national in character and express a debt of national gratitude, it was submitted on behalf of Mrs Elias that national solidarity cannot justify a measure which, by requiring a national connection, has disparate impact on persons of a particular race nationality or national origin.
Mr Sales summarised four factors as justifying the aim of narrowing the class of British subjects by requiring close links with the UK. First, the immense size of the “British subject” group, many living in territories that are now independent and not financed by UK public funds. Secondly, the fact that military prisoners of war were the main focus of the compensation payments initially. As they were confined to UK Armed Forces, a similar equivalent connecting factor was sought for civilian claimants. Thirdly, the cost to the public purse. Fourthly, the need for understandable and administratively workable criteria.
He also pointed out that there was no single obviously “right” solution. There was no rule of EC law against “national solidarity” in the distribution of benefits of this kind, such as social security benefits, which were an act of national recognition by particular states to those with genuine links with that state. Ex gratia payments of the kind made under the Compensation Scheme as expressions of national gratitude were an a fortiori case.
A rational attempt had been made to make the criteria more inclusive by extending place of birth from the applicant to parents and grandparents and to relate the requirement of close links with the UK to the position as at the date of internment. It had been held by his court in ABCIFER that this was not an irrational aim with which to start.
Mr Rabinder Singh criticised the judge’s finding of the legitimate aim of the birth link criteria on a number of grounds.
First, as already mentioned, there was no national or social solidarity as a legitimate aim in this case, as the solidarity was judged by national origins/racial descent. He cited Cowan v. Tresor Public …Case 186/87) [1989] ECR 195 at paragraphs 16 and 17, a case on freedom of movement, in support of the proposition that the principle of national solidarity cannot justify a measure relating to the award of compensation which has discriminatory effects on grounds of nationality.
Secondly, economic considerations could never be relied on to justify race discrimination. The curtailing of the cost of the scheme was not a legitimate aim. In this case it was, in any event, an ex post facto consideration and the estimated figures showed that only a comparatively small group was disadvantaged by the birth link criteria.
Thirdly, administrative workability was not a legitimate aim. In this case it was relied on ex post facto. There had been no difficulty in making a large number of payments in February 2001 before the birth link criteria were settled.
I think that the question of legitimate aim has to be looked at in the round. In my judgment the judge was right to conclude that overall the aim of confining the payments to those with close links with the UK was a legitimate one. The real question is not about the end to be achieved but the means by which it was to be achieved and, in particular, whether the birth link criteria were a reasonably necessary and proportionate way of achieving the aim. I would make the following points.
First, I agree with the judge that ends must be distinguished from means. The overall aim sought to be achieved was to require close links of the applicants for compensation with the UK. The birth link criteria were the means chosen to achieve that end. The critical issue is whether they are proportionate means to achieve the end. I shall deal with that point later.
Secondly, national or social solidarity can justify the aim of close links to the State supplying the benefits. I do not think that Cowan v. Tresor Public is authority for such a wide legal proposition as that advanced on this point by Mr Rabinder Singh.
Thirdly, cost is not itself an aim or part of the aim. It is a factor in selecting the means and it falls to be considered as part of the proportionality exercise discussed below.
Fourthly, the same comment applies to the administrative workability of the criteria selected as a means of achieving the aim of close links with the UK.
Standard of scrutiny
In deciding the issue of proportionality there was significant disagreement on the preliminary point of the appropriate level of scrutiny of the birth link criteria.
In the ABCIFER the Court of Appeal rejected the contention that the birth link criteria were irrational. That does not, of course, determine this case. As the issue of race discrimination was not raised the court did not have to consider the question whether indirect race discrimination was objectively justified.
The standard of justification in race discrimination is the more exacting EC test of proportionality. As held by the Court of Justice in Bilka Kaufhaus GmbH v. Weber vonHarz [1986] ECR 1607 at paragraphs 36 and 37 the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group. It is not sufficient that the Secretary of State could reasonably consider the means chosen as suitable for attaining the aim.
The judge was criticised by Mr Sales for applying “intense scrutiny” to the birth link criteria. The judge did so, as he regarded the criteria as too closely related to “national origins.”
Mr Sales submitted that there was a broad margin of appreciation or discretionary area of judgment allowed by the courts in areas of social and economic policy, as, for example, in the distribution of social security benefits.
A wide margin of appreciation or discretion was a recurrent theme of the submissions of Mr Sales on the different aspects of justification and it was the main plank for his criticisms of the judge’s ruling on proportionality. He submitted that the judge failed to accord to the Secretary of State in relation to the Compensation Scheme an appropriate margin of appreciation in using “bright line” criteria which were easy to understand and administratively workable.
He relied on Hoogendjik v. The Netherlands …see above) at 205 and 207-208 as showing that a wide margin of appreciation should be accorded to national authorities in a case in which what is impugned is a social policy decision on the basis of discrimination on “a suspect ground.” This approach in earlier decisions was, he argued, re-inforced by the very recent decision of the Strasbourg Court in Stec v. UK … 12 April 2006- Application Nos 65731/01 and 65900/01). It is a case on a state welfare benefits scheme in which the criteria, which were linked to the different pensions ages for men (65) and women (60) directly discriminated on the ground of sex. It was held that the discrimination was justified. The Court said-
“50. The applicants complain of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14.
51. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article …….. A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. …
52. The scope of this margin will vary according to the circumstances , the subject matter and the background ( see Petrovic v. Austria …) As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. …On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. ….Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation.”
Mr Sales submitted that it was sufficient to show that the Secretary of State could reasonably consider that the means chosen were “suitable for attaining the aim”. The judge has misdirected himself by relying on cases of direct discrimination when he had already correctly concluded that this was not a case of direct discrimination.
It was argued that a wide margin of appreciation was appropriate in this case, as it had been recognised that special considerations applied to one-off war payments. There was a one-off moral objective, which had major economic consequences, principally because of the potential impact of the removal of the birth link criteria on the military eligibility criteria if they were extended to include all military personnel who were British subjects when they became prisoners of war.
In my judgment, the judge correctly adopted a rigorous standard in scrutinising the reasons advanced by the Secretary of State in justifying the birth link criteria.
The submissions made by Mr Sales do not meet the point that, although the race discrimination is indirect in form, objective justification must address the particular substance of the discrimination, which flows from the neutrally worded condition or requirement.
Although the birth link criteria are not direct discrimination in the form of treatment on “racial grounds”, as they relate expressly to place of birth, they are in substance veryclosely related to treatment on “racial grounds.” This is because it is self evident that the overwhelming proportion of applicants born in the UK, or whose parents or grandparents were born in the UK, have UK national origins as compared with the overwhelming proportion of applicants not born in the UK who do not have UK national origins.
Even though UK national origins are not formally specified in the birth link criteria, Mrs Elias’ exclusion from the Compensation Scheme is in substance very closely related to her non-UK national origins. It is that exclusion that has to be objectively justified. A stringent standard of scrutiny of the claimed justification is appropriate because the discrimination, though indirect in form, is so closely related in substance to the direct form of discrimination on grounds of national origins, which can never be justified.
If this is the correct approach, as I think it is, it is difficult for the Secretary of State to rely on a wide margin of appreciation or a broad discretionary judgment. I agree with the judge that the speech of Lord Fraser in Orphanos v. Queen Mary College [1985] AC 761 supports the stringent standard of scrutiny in seeking to justify indirect discrimination, which is closely related to “racial grounds”.
I agree with Mr Rabinder Singh’s point that, at the heart of the Secretary of State’s case, there is a serious contradiction. It does not, in my view, as Mr Singh asserts, make the discrimination direct, but it does make the substance of the indirect discrimination very difficult to justify. The contradiction is that, on the one hand, in order to avoid liability for unjustifiable direct discrimination, the Secretary of State focuses on the happenstance of “place of birth” as where the mother of the propositus just happens to be at the moment of birth, which has no necessary close link with the national origins of the mother or child. On the other hand, when it comes to justification of admitted indirect discrimination, the Secretary of State is at pains to emphasise the legitimate aim of close requiring links of applicants with the UK, which, in substance, involve their national origins and are difficult to justify as proportionate means which are appropriate and necessary to that end.
Proportionality
The judge correctly considered that the proportionality issue was at the heart of the case on justification.
A three stage test is applicable to determine whether the birth link criteria are proportionate to the aim to be achieved: see de Freitas v. Permament Secretary of Ministry of Agriculture, Fisheries and Housing [1999] AC 69 at 80 and R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 at paragraph 27 and 28. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?
The first issue has been covered by the earlier discussion on the legitimacy of an aim requiring the applicant to have close links with the UK. The issue of justification turns on the second and third aspects of the proportionality of measure (the birth link criteria) which is the chosen means of accomplishing the aim.
The judge thought that the birth link criteria were not necessary and proportionate to achieve the legitimate aim of requiring close links with the UK at the date of internment.
He was particularly influenced by two factors: first, the fact that the birth link was “very closely linked to national origins” (paragraph 89) and, secondly, by the consideration that the birth link criteria were by no means the only way in which the Secretary of State could have achieved the legitimate objective of restricting the category of British subjects, such as a period of residence in the UK before internment or criteria based on domicile. There would still be disparate impact, but it would be further removed from the forbidden racial ground of national origins.
This made it necessary to make a stringent assessment of the justification advanced.
This was disputed by Mr Sales. He contended that the judge erred in focussing on the criteria themselves instead of on the particular justification for them. The justification advanced by the Secretary of State was independent of and irrespective of national origins.
States, he said, have a wide margin of appreciation in determining whether policies in the field of social or economic policies are proportionate to a legitimate aim. The means were proportionate if the state could reasonably consider that the means chosen were suitable for attaining that aim. There was a discretionary area of judgment, even where the Secretary of State had failed to consider the issue of justification.
The judge had also failed to consider and compare other means by which the legitimate aim could have been achieved. If this was done, the birth link criteria satisfied the proportionality test. The Compensation Scheme had to identify those who qualified for payment. The criteria for close connection were appropriate. Other states had chosen criteria. It was an inevitable feature of the very nature of the scheme that the criteria are satisfied by a greater number of persons whose origins are those of the relevant country. The means chosen were rationally connected to the aim and could be reasonably considered to be suitable to attain the end. The alternatives of residence or domicile were no more obviously generous to those of non-UK national origins.
In my judgment, the judge was right to find that the means used were not proportionate to the aim. In reaching a decision on proportionality it is important to focus on the particular circumstances of this case rather than on the different circumstances of other cases. I would make the following particular points about this case.
First, the concepts of margin of appreciation and discretionary judgment developed by the Strasbourg Court in relation to Convention rights have to be cautiously applied to this case, which is not dealing with a Convention right or with Article 14 of the ECHR.
Under domestic law implementing the Directive, the Secretary of State was under an express statutory duty not to discriminate on racial grounds. There is an unappealed ruling that he acted in breach of that duty. It is more difficult for the Secretary of State to justify the proportionality of his choice of the birth link criteria as a matter of discretionary judgment when he did not even consider whether or not he was indirectly discriminating on racial grounds. This is particularly so when the indirect discrimination which it is sought to justify is in substance very close to direct discrimination on racial grounds, which can never be justified under the 1976 Act. It must be more difficult to give a wide margin of appreciation to discrimination in these circumstances.
Secondly, it is relevant to take account of the fact that, as the Compensation Scheme was not properly thought out in the first place, the issue of discrimination was not properly addressed at the relevant time and that poor standards of administration were evident. Consequently there was no proper attempt to achieve a proportionate solution by examining a range of criteria as a means of determining close links with the UK and by balancing the need for criteria to achieve the legitimate aim of close links with the UK with the seriousness of the detriment suffered by individuals who were discriminated against.
Thirdly, the birth link criteria produce anomalous or even absurd results, because there is no real match between the end and the means. An applicant who did not have a close connection with the UK would qualify simply because his or her mother was on holiday here at the date of birth.
Fourthly, as there was no proper consideration of whether there were other less discriminatory means of restricting payments to those with a close link to the UK, there is no evidential basis for finding that the birth link criteria were the only criteria that were reasonably necessary and proportionate to achieve the legitimate aim.
I would add three comments on points which I consider to be irrelevant to proportionality. The first is the “numbers” point. The argument that the birth link criteria adopted are justified because they are more inclusive than other possible birth link criteria that could have been adopted, as they include the place of birth of a parent or grandparent, is irrelevant to proportionality. The argument that more people are receiving favourable treatment does not justify treating others less favourably if they are excluded on what are, in substance, racial grounds.
The second point is that when the Secretary of State reviewed the Compensation Scheme and decided to amend the criteria so that Mrs Elias became eligible for compensation by virtue of more than 20 years residence in the UK, he was able to devise criteria for close links with the UK which were not based on the place of birth or the national origins of the applicant, or were even related to links with the UK as at the date of internment of the applicant. The amended criteria have not, so far as I am aware, attracted any challenge on the ground of race discrimination.
The third point is the ex gratia nature of the Compensation Scheme. This is irrelevant to proportionality. I should make it clear that Mr Sales did not submit that it was relevant that the Secretary of State was under no obligation to set up the scheme in the first place. As explained earlier the central point in race discrimination and its justification is the reason for the less favourable treatment or the disparate adverse impact of a requirement, condition, provision and so on. The fact that the compensation supplied by the State is ex gratia does not justify race discrimination.
Fettering common law power : general
In addition, or alternatively, to race discrimination Mr Rabinder Singh contended that the Secretary of State had unlawfully fettered his common law discretionary power to make ex gratia payments. He argued that the Secretary of State erred by rigidly applying the criteria to her case and in declining to consider any exceptional circumstances, in which payment might be paid to those owed “a debt of honour” even though they fell outside the scope of the criteria. Rigid application of self-created, absolute criteria of closeness of connection with UK was not justified. The fact that Mrs Elias did have close links with the UK made it inappropriate to adopt too strict an approach to the way the Compensation Scheme framed. It was an unlawful fettering of power to refuse to make or even consider making exceptions in individual cases according to the circumstances, such as, in her case, her extreme suffering in, and as a result of, internment and her strong links with the UK over many years.
Mr Rabinder Singh referred to documents revealing that, while it was considered that there might be cases that “throw up special circumstances which might merit discretion being exercised in favour of payment,” the Veterans Agency treated itself as wholly unable to disapply the criteria and to exercise discretion to make payments if someone did not meet an element of the entitlement conditions.
He referred to a letter sent to Mrs Elias by the Veterans Agency on 15 April 2004 saying that “we cannot make exceptions to the ruling for individual claims” and that they were bound by the conditions of eligibility laid down by the government, which they could not change. On 28 July 2004 the Agency again refused the application by Mrs Eliasfollowing the submission by her of evidence about the highly exceptional features of her internment. No consideration was given to the exercise of a discretion to make an exception to the eligibility criteria because of the particular circumstances of her case.
He relied on the analogy of a statutory public law discretion. In the case of a statutory discretion the decision maker must not fetter his discretion by “shutting his ears” or closing his mind and refusing to listen to reasonable arguments, or by adopting rules, which disable him from exercising his discretion in individual cases. The decision in British Oxygen v.Board of Trade [1971] AC 610 at 625D is a well known example. The same principle applies to common law prerogative discretionary powers of the Crown after Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 in order to ensure that they are exercised lawfully. The common law powers are always available and when the Crown, acting through government, formulates a scheme for their exercise it must remain willing and able to make exceptions to the scheme in appropriate cases.
The case of R v. Secretary of State for the Home Department ex parte Bentley [1994] QB 349 (a case on the prerogative of mercy) was cited for the proposition that a prerogative discretionary power is capable of being exercised in many wide ranging circumstances and that it should not be fettered by an established policy, to which exceptions cannot be made.
A declaration was originally sought that the Secretary of State erred by declining to consider any exceptional circumstances in which payment of ex gratia compensation might be made to those owed a “debt of honour” in the light of their imprisonment by the Japanese, but who fell outside the scope of the scheme by reason of the birth link criteria.
There was placed before the court on the last day of the hearing a proposed alternative form of declaration to the effect that the Secretary of State had acted unlawfully “in not being prepared to reconsider the decision to refuse Mrs Elias payments under the Compensation Scheme and/or had breached his duty to keep the criteria under review from time to time.”
Mr Sales opposed the amendment. In my judgment the court should not allow the amendment. There was obviously a power to amend the Scheme. Mr Sales accepted that there was a duty to keep the Scheme under review in the light of developments. The Secretary of State had now done that. In certain circumstances there might be a duty to reconsider the criteria in the light of experience. There was, however, no such duty here. The criteria had been laid down with full knowledge of the facts and a decision was made as to who should be excluded form the Scheme. In ABCIFER this court had decided that this was a rational and lawful decision. There was no duty to reconsider the criteria on the grounds suggested by Mrs Elias, namely her close connection with the UK after the Second World War and the exceptional degree of suffering undergone by her during internment. In other words the amended declaration is no different from her main case on fettering discretion, namely that it is unlawful to refuse to consider her as an exceptional case.
Although I am prepared to accept, for the purposes of this argument, that there are exceptional circumstances in the case of Mrs Elias, I would not make any of these declarations either on authority or on principle.
I agree with Elias J that the authorities do not assist the case advanced by Mrs Elias on this point. The analogy with statutory discretion, as in British Oxygen, is a false one. It is lawful to formulate a policy for the exercise of a discretionary power conferred by statute, but the person who falls within the statute cannot be completely debarred, as he continues to have a statutory right to be considered by the person entrusted with the discretion. No such consideration arises in the case of an ordinary common law power, as it is within the power of the decision maker to decide on the extent to which the power is to be exercised in, for example, in setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be. If there are no exceptions the decision maker is under no duty to make payments outside the parameters of the scheme. The consequence of the submission made on behalf of Mrs Elias would create problems by requiring every individual case falling outside the scheme to be examined in its individual detail in order to see whether it should be regarded as an exceptional case.
Bentley was decided on the basis that the Secretary of State had fettered his discretion under a misunderstanding as to the scope of the powers available to him. This is not a case of fettering discretion under a misunderstanding of the scope of a discretion exercisable according to individual circumstances. Like R. v. Criminal Injuries Compensation Board ex p Lain [1967] 2 QB 864, Re W’s Application [1998] NI 19 and the ABCIFER case itself, this is a case of a policy decision to exercise a common law power. The intervention of statute was not required. With regard to the Compensation Scheme it was necessary to formulate what Mr Sales called “bright line” criteria for determining who is entitled to receive payments from public funds. Subject to the race discrimination point the criteria implement the policy of the Compensation Scheme. They are not a fetter on an existing common law discretionary power to decide each application according to the circumstances of each individual case. In my judgment, there was nothing unlawful (subject again, of course, to the race discrimination point) in using common law powers to define a scheme to be governed by rules, to make specific provision for general criteria of eligibility and for exceptions and in then refusing to apply different criteria or, by way of exception, to consider or grant applications from those not falling within the published criteria.
The Secretary of State has not unlawfully fettered an existing relevant ordinary common law power (or prerogative power) nor has he acted arbitrarily nor under a mistake as to the nature and scope of his powers by rejecting or refusing to consider or re-consider Mrs Elias’ application as exceptional on the basis of the circumstances of her internment or of the appalling consequences of it for her or of her very strong close links with the UK.
The position of the Secretary of State with regard to the claims of Mrs Elias to be treated as an exceptional case has been within his common law powers and consistent with the objects of the scheme. Of course, he has power to amend the Compensation Scheme that he has propounded by modifying the criteria or by adding exceptions to the general criteria the light of practical experience of its operation. In certain circumstances he might even come under a duty to consider the criteria afresh, if for example he found that relevant considerations had not been taken into account in formulating the criteria. Until the scheme is amended to bring Mrs Elias within in it, the Secretary of State is acting lawfully in insisting that payments are only made under the scheme to those who satisfy the eligibility criteria.
I would dismiss the appeal by Mrs Elias on this ground.