Pre-Contract
Cases
A Government Department Employee v A Government Department
Spring v Guardian Assurance
[1994] UKHL 7
“The policy reasons underlying the requirement that the defence of qualified privilege is only dislodged if express malice is established do not necessarily apply in regard to a claim in negligence. There may be other policy reasons in particular situations which should prevail. Thus, in relation to a reference given by an employer in respect of a former employee or a departing employee (and assuming no contractual obligation to take care in giving a reference) it is relevant to consider the changes which have taken place in the employer/employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and even psychological welfare of the employee.
As to the second question it is a relevant circumstance that in many cases an employee will stand no chance of getting another job, let alone a better job. unless he is given a reference. There is at least a moral obligation on the employer to give it. This is not necessarily true when the claim is laid in defamation even if on an occasion of qualified privilege. In the case of an employee or ex-employee the damage is clearly foreseeable if a careless reference is given; there s as obvious a proximity of relationship in this context as can be imagined. The sole question therefore, in my view, is whether balancing all the factors (Lord Bridge in Caparo) as to whether “the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”
Hedley Byrne does not decide the present case, but I find it unacceptable that the person to whom a reference is given about an employee X should be able to sue for negligence if he relies on the statement (and, for example, employs X who proves to be inadequate for the job) as it appears to
be assumed that he can; but that X who is refused employment because the recipient relies on a reference negligently given should have no recourse unless he can prove express malice as defined by Lord Diplock in Horrocks v. Lowe [1975] A.C. 135, 149-151.
In Balfour (supra) the Inspector who wrote the comment on the teacher ‘entirely unsuitable,” giving detailed reasons, concluded “check file to make absolutely sure I have the right person then ring Mrs. Brocklesby and inform her.” It seems to me extraordinary that, if the remarks were untrue about the named individual and written without malice (so that no claim lay in defamation) but that the teacher lost a job as a result, there should be no possibility for the employee to claim in negligence.
In Bell-Booth the New Zealand Court of Appeal emphasised that “to impose the law of negligence upon [the law as to injury to reputation and freedom of speech] by accepting that there may be common law duties of care not to publish the truth would be to introduce a distorting element” (emphasis added page 156 at line 40; see also at line 50 “true statements” and at page 157 line 15 “this class of case” which seems to have the same element of a truthful statement in mind). This, however, in my view is not the issue. The question is whether there should be a liability where the statements negligently made are untrue or the opinions are unfounded even if honestly believed to be true or honestly held. If the statements alleged to have been carelessly given are true then the considerations adverted to by the New Zealand Court of Appeal would seem plainly to be right. They do not, however, to my mind apply in a situation where the statements are untrue.
I do not accept the in terrorem arguments that to allow a claim in negligence will constitute a restriction on freedom of speech or that in the employment sphere employers will refuse to give references or will only give such bland or adulatory ones as is forecast. They should be and are capable of being sufficiently robust as to express frank and honest views after taking reasonable care both as to the factual content and as to the opinion expressed.
They will not shrink from the duty of taking reasonable care when they realise the importance of the reference both to the recipient (to whom it is assumed that a duty of care exists) and to the employee (to whom it is contended on existing authority there is no such duty). They are not being asked to warrant absolutely the accuracy of the facts or the incontrovertible validity of the opinions expressed but to take reasonable care in compiling or giving the reference and in verifying the information on which it is based. The courts can be trusted to set a standard which is not higher than the law of negligence demands. Even if it is right that the number of references given will be reduced, the quality and value will be greater and it is by no means certain that to have more references is more in the public interest than to have more careful references.
Those giving such references can make it clear what are the parameters within which the reference is given such as staling their limited acquaintance with the individual either as to time or as to situation. This issue does not arise in the present case but it may be that employers can make it clear to the subject of the reference that they will only give one if he accepts that there will be a disclaimer of liability to him and to the recipient of the reference.
Nor does it follow that if a duty of care is recognised in some situations it must exist in all situations. It seems to me that for the purposes of deciding whether the law recognises the duty as being fair, just and reasonable there may be a difference between the situation where it is an employer or ex-employer who gives a reference and the situation where a reference is given by someone who has only a social acquaintance with the person the subject of the reference. There may be difficult situations in between but these will, as is the common practice, have to be worked out in particular situations. That is really the purpose of the approach indicated by Lord Keith of Kinkel which I have set out above.
In his article, to which the Court of Appeal in the present case ([1993] 1 C.R. 412, 436) referred and with which they agreed, “Misleading References and Qualified Privilege” (1988) 104 L.Q.R. 191. 194 Dr. Andrew Demopoulos writes that to have recourse to the “typical concepts employed in some of the leading cases on negligently caused economic and other loss … for the purposes of establishing a duty of care in circumstances similar to those of Lawton v. B.O.C. Transhield Ltd. involves an extension of the law of negligence which flies in the teeth of express statements that anything less than malice in the making of a privileged statement cannot engage liability.”
I do not for my part consider that to recognise the existence of a duty of care in some situations when a reference is given necessarily means that the law of defamation has to be changed or that a substantial section of the law relating to defamation and malicious falsehood is “emasculated” (Court of Appeal [1993] 2 All E.R. p. 294j). They remain distinct torts. It may be that there will be less resort to these torts because a more realistic approach on the basis of a duty of care is adopted. If to recognise that such a duty of care exists means that there have to be such changes – either by excluding the defence of qualified privilege from the master/servant situation or by withdrawing the privilege where negligence as opposed to express malice is shown – then I would in the interests of recognising a fair, just and reasonable result in the master/servant situation accept such change.”
The precise relationship between the plaintiff and the four defendants has led to much argument. The judge accepted that the plaintiff had a contract
………….After a review of the authorities, the learned judge concluded that on the facts of the case a duty of care was owed to the plaintiff when the reference was given and that that duty had been broken. The reference was given in the name of Guardian Assurance but the judge accepted that the four companies were so closely associated that all were to be treated as owing a duty and as being responsible for the reference. It was inevitable that the appellant would not be offered a job by the other insurance companies to whom such reference was given. In my opinion the learned judge was entitled to find, as he did. that there was here a sufficiently approximate relationship between the companies on whose behalf the reference was given; the damage was clearly foreseeable: and it is fair, just and reasonable in such an employment situation for the law to recognise a duty on the part of the giver of the reference, and the person who within the employer’s organisation collates or provides information for the purpose of preparing the reference, to take reasonable care that the information was obtained and passed on with reasonable care. On this aspect of the case I think the judge was right: duty and breach were established.
Genockey -v- Bank of Ireland
[2017] IEHC 498
Eagar J.
1. This case concerns a claim of misrepresentation, negligent misstatement, and breach of contract arising out of the plaintiff being offered the position of Administrator by the Defendant, its servants or agent.
Facts
2. On the 19th of July, 2013, the plaintiff emailed Ed Meagher, Senior Manager in the Loans Administration department of the defendant employer. The email sent by the plaintiff asked if Mr. Meagher would consider her C.V. for any upcoming positions. Attached to the email was her C.V., which set out amongst other things her educational history. Included in this information was the plaintiff’s leaving certificate results, which stated as follows: ‘1992-1997 – Holy Faith, Killester – 3 (honours) 4 (passes)’. In evidence, the plaintiff admitted that these results did not reflect what she had actually received in her leaving certificate. In reality, the plaintiff had received 4 passes and 3 fails in pass level subjects. She stated in evidence that she had forgotten over time what her results were, they went out of her head. She had never handed her leaving certificate results into any employer, as no previous employer had required leaving certificate results from her.
3. At the time of her emailing Mr. Meagher initially, no positions were available with the defendant employer. Mr. Meagher in email correspondence on the 15th of August, 2013, informed the plaintiff of this, but said that he would keep her C.V. on file in the event of a position opening up.
4. On the 19th of October, 2013, the plaintiff was contacted by agents of the defendant employer with a view to interviewing her for the position of Loans Administrator. She was asked to bring with her to interview the following documents – a completed and signed application form, and original proof of qualifications.
5. The plaintiff was interviewed on the 23rd of September, 2013. On this date she brought with her to the interview the relevant application form, however, she did not bring with her original proof of qualifications.
6. Several points regarding the application form completed by the plaintiff prior to interview are noted:
a. The application form states that all applicants will undergo a pre-employment screening process.
b. Additional documentation required of any successful candidate prior to commencing employment includes original documentation in relation to the required educational qualifications.
c. Moreover, the application form ends with a declaration to be signed by the candidate, which makes the following points:
“an offer of employment is subject to verification of educational qualifications, proof of identification […]
Any deliberate misrepresentation or omission could result in the withdrawal of any offer of employment (if successful), or in dismissal should employment have commenced.”
7. The plaintiff completed her interview and on 2nd of October, 2013, she received a phone call from Lynsey King. Ms. King works for the defendant employer in their recruitment department. Ms. King in evidence stated that she informed the plaintiff of her success at interview, and that she was being offered the job.
8. A point of dispute arises as to the precise wording utilised by Ms. King in offering the job to the plaintiff. The plaintiff contends that this was an unconditional offer, and she was asked when she could begin. The plaintiff in evidence stated that she was under the impression that the defendant employer wanted her to start as soon as possible. Ms. King stated that she does not specifically remember the conversation with the plaintiff on the phone. However, it is standard practice for her in making such phone calls to offer the job to the candidate, and if the candidate accepts the offer, she would inform the candidate that any offer from the defendant employer is subject to successful completion of pre-hire screening checks. This would include confirmation of documents and C.V.’s, which the plaintiff had not provided as of yet to the defendant, despite being asked to do so previously.
9. The plaintiff informed Ms. King that she would give her current employer two weeks’ notice, and the agreed start date for the plaintiff to commence employment with the defendant was set at 21st of October, 2013.
10. On 15th of October, 2013, the plaintiff received a call from Emma Wadding, servant or agent of the defendant. She informed the plaintiff that she would require a reference from the plaintiff’s current employer, as well as proof of educational qualifications. The plaintiff asked would her post leaving certificate results received from Marino College suffice, and on the 16th of October, 2013, she dropped these in to Ms. Wadding. She received a phone call from Catriona Delaney, servant or agent of the defendant employer on 17th of October, 2013, informing the plaintiff that her leaving certificate results were required before commencing employment. On this date, the plaintiff also received a job offer in the post from the defendant employer. This offer stated the following:
“I am pleased to formally offer you a position of Administrator as a fixed-term employee with the Governor and Company of the Bank of Ireland […] This offer is subject to receipt of two satisfactory references, one from a previous employer and one from your current employer, Medical Assessment, verification of your qualifications and the information you have provided on the Application Form.”
11. The plaintiff states that on the 18th of October, 2013, her partner collected her leaving certificate results from Holy Faith, and subsequently brought the results to the defendant employer’s recruitment office. Her then manager also provided a reference for the plaintiff to the defendant employer at approximately 2:30 pm that day.
12. The plaintiff later in the day received a call from a servant or agent of the defendant employer stating that the defendant employer could no longer offer her the position of Administrator, as she had failed Maths in the leaving certificate.
Submissions of the Plaintiff
13. The plaintiff’s claim is for damages for breach of contract, damages for misrepresentation and/or breach of warranty, damages for wrongful dismissal, damages for negligence and/or negligent misstatement and breach of duty of care. The central allegation of the plaintiff in these respects is that the defendant represented to her that she was receiving an unconditional offer of employment when she was phoned by Ms. King on 2nd of October, 2013, and that she was effectively advised to hand in her notice in her existing job, with a view to taking up employment with the defendant employer.
14. Counsel for the plaintiff argues that the court may find the defendant liable in contract and tort, citing Carey v. Independent Newspapers [2004] 3 I.R. 52.
15. He also cites the above judgment in support of the plaintiff’s claim for damages, and states that the court may look to what the plaintiff would have earned had she stayed in her position with her previous employer in awarding damages.
Submissions of the Defendant
16. Counsel for the defendant disputes that the offer made to the plaintiff on the 2nd of October, 2013 was an unconditional offer of employment. Ms. King in evidence that she informs the candidate that they should be aware that any offer is subject to the successful completion of pre-hire screening checks. He argues that the court should favour Ms. King’s evidence over that of the plaintiff’s. Ms. King’s evidence ought to be contextualised, in that her phone call was followed by a written offer from the defendant employer, which contained an express limitation, as set out above:
“I am pleased to formally offer you a position of Administrator as a fixed-term employee with the Governor and Company of the Bank of Ireland […] This offer is subject to receipt of two satisfactory references, one from a previous employer and one from your current employer, Medical Assessment, verification of your qualifications and the information you have provided on the Application Form.”
17. He states that there can be no doubting that the offer made verbally to the plaintiff and the offer repeated in writing, received on 15th of October, 2013 was subject to several requirements. The case is simply that the plaintiff did not comply with these requirements.
18. He states that it for the court to draw inferences as to the reality of her results handed in to the defendant’s recruitment office, and the leaving certificate results the plaintiff claimed to have received when she initially emailed her C.V. to the defendant employer for consideration. He also highlights the lateness of the plaintiff handing her results in to her employer.
19. To further strengthen the defendant’s claim that the job offer was subject to requirements, counsel points to the initial application form filled out by the plaintiff. First, the application form states that all applicants will undergo a pre-employment screening process. Secondly, the form states that additional documentation will be required of any successful candidate prior to commencing employment, including original documentation in relation to the required educational qualifications. The plaintiff failed to provide the defendant employer with this documentation. Furthermore, the declaration the plaintiff signed at the end of the application form, to which she attached her C.V. stated the following:
“an offer of employment is subject to verification of educational qualifications, proof of identification […]
Any deliberate misrepresentation or omission could result in the withdrawal of any offer of employment (if successful), or in dismissal should employment have commenced.”
20. The plaintiff declared the information she had provided, that she had received 3 honours and 4 passes in her leaving certificate exams, was true and accurate. In reality, the plaintiff had received 4 passes and 3 fails in pass level subjects in her leaving certificate exams.
21. Counsel for the defendant thus argues that any misfortune that befalls the plaintiff stems from her own failings: her failure to fill out the application form accurately; her failure to bring her results to the interview.
22. He states that on the facts, it is evident that no unconditional offer was made to the plaintiff. The likelihood of this is supported by the defendant’s standard hiring process.
Negligent Misrepresentation/Misstatement
23. In Carey v. Independent Newspapers [2004] 3 I.R. 52, Gilligan J. held that it was a fundamental term of the employee’s contract that she would not have to work in the mornings. The plaintiff in that case relied on the employer’s misrepresentation and acted to her detriment, as she would not have taken up employment with the defendant unless she could work out of the office at the agreed times.
24. In Forshall & Fine Arts & Collections Ltd. v. Walsh (Unreported, High Court, Shanley J., 18th June, 1997) Shanley J. stated that:
“A party seeking damages for negligent misrepresentation must establish that the representor failed to exercise due care in making the representation as a result of which representation the person to whom it was made was induced to enter into the particular agreement and suffered damage in consequence of the inaccurate representation.”
25. In King v. Aer Lingus Plc. [2002] 3 I.R. 481, it was held that there is a duty of care to avoid making negligent representations or statements in pre-contractual, negotiation stages, which will have the effect of inducing a person to act to their detriment by leaving a previous position.
Employer’s Right to Dismiss
26. In Sheehy v. Ryan [2008] 4 I.R. 258, Geoghegan J. held that an employer is entitled to dismiss an employee for any reason or no reason on giving reasonable notice, dependent on the contract, in the absence of clear terms of the contrary.
Decision
27. Applying Forshall & Fine Arts & Collections Ltd. v. Walsh (Unreported, High Court, Shanley J., 18th of June, 1997), the plaintiff has not established that the defendant failed to exercise a duty of care in making a representation to the plaintiff to enter into the agreement, acting to her detriment. At all stages of the hiring process, it was made clear that the job offer was conditional upon the plaintiff meeting certain requirements: in the declaration she signed at application stage; at interview stage; when she was offered the job on the phone; when she was sent a written offer in the post.
28. This Court believes the plaintiff when she states that she overstated her results unwittingly. However, in applying Sheehy v. Ryan [2008] 4 I.R. 258, it was made clear by the defendant employer that a term of any successful candidate’s employment would be that they meet specific educational criteria. Unfortunately, the plaintiff did not meet these criteria, and thus the defendant employer had the right to dismiss the plaintiff for this reason.
29. For all these reasons, the court cannot find in favour of the plaintiff. No damages arise.
A Prospective Employee v A Company
DEC-E/2015/101
Equality Tribunal
7 October 2015
[2016] 27 E.L.R. 36
October 7, 2015
1. Dispute
1.1 This dispute involves a claim that the respondent discriminated against the complainant on the grounds of her gender in relation to access to employment in terms of the conduct of an interview process contrary to the provisions of the Employment Equality Acts.
2. Background
2.1 The complainant referred this complaint to the Equality Tribunal on 16 November 2012. In accordance with his powers under s.75 of the Employment Equality Acts, the Director, on 2 February 2015, delegated the case to me, Gary Dixon, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Pt VII of those Acts. This is the date on which I commenced my investigation.
2.2 Written submissions were received from each party. As required by s.79(1) of the Acts, and as part of my investigation, I proceeded to a hearing on 26 March 2015. At the hearing the respondent requested that the names of the parties be anonymised in the Tribunal’s decision. The complainant did not agree with this request. The parties were invited to submit post-hearing submissions *38 on the issue and each party submitted a supplemental submission in due course. Final correspondence in the matter took place on 2 October 2015.
3. Summary of complainant’s case
3.1 The complainant applied for the position of “support worker” with the respondent in or around September 2012. She had appropriate qualifications (a certificate and a diploma) and relevant work experience for the advertised position. Her application was accepted and she states that after several weeks of preparation for a comprehensive and demanding selection process she was advised that she had been successful in the interview. However, she was subsequently contacted by the respondent and informed that a male was being recruited for the position.
3.2 The complainant submits that she had spent a considerable amount of time and effort in preparing for the interview. The selection process was extremely challenging and involved a number of stages.
3.3 The complainant submits that approximately one week after the interview she was informed by email that “they were looking to recruit a male”. A copy of this email was submitted in evidence. Correspondence between the parties followed in which the respondent advised, again by email (copy presented in evidence), that it had been explained to applicants on the day of the interview that it (the respondent) was recruiting for two roles, one of which was a gender- specific position and the second was subject to HSE approval. The complainant does not accept that this fact was explained to her at any time during the process. Further, she does not accept that gender was a genuine occupational requirement for any of the positions.
3.4 The complainant states that the Employment Equality Acts prohibit discrimination on, inter alia, the ground of gender. She submitted various examples of case law at national, international and E.U. levels which, she contends, show that the scope of the discrimination prohibited by law is wide and encompasses every stage of employment, including the recruitment stage, i.e. access to employment.
3.5 Section 25 of the Acts provides for a derogation from the general principles of gender discrimination where gender is a bona fide occupational requirement but, the complainant submits, this must constitute more than mere assumptions by the employer. As a particular example she refers to Brady v Irish TV Rental Ltd DEE 8/1985 where a “belief” that male staff would deter robberies from the employer’s premises was held not to constitute a genuine occupational requirement.
3.6 The complainant states that s.85A of the Acts deals with the burden of proof in relation to allegations of discrimination and she cites various precedent cases which, she believes, demonstrate that once a prima facie case of discrimination has been established by a complainant, the burden of proof shifts *39 to the respondent to prove that there has been no discrimination. A number of cases were cited in this regard. For example, in Dublin Corporation v Gibney EE 5/1986, the complainant submits that a prima facie case was defined as:
“… evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.
3.7 In conclusion, the complainant submits that she has established a prima facie case of discrimination on grounds of her gender within the meaning of the Employment Equality Acts and that, therefore, the respondent must prove that it did not discriminate against her in relation to this matter.
4. Summary of respondent’s case
4.1 The respondent provides therapeutic services in the form of care and support for adults with physical and intellectual needs. It often provides these services to clients on behalf of the Health Services Executive (HSE).
4.2 In Autumn 2011 the respondent was approached by the HSE to explore the feasibility of providing care services for a man who had a troubled history of convictions for sexual offences involving females and who was then resident in a secure nursing home facility. The respondent states that it initially provided day care services at its care centre to assess the viability of the client being released from the secure environment into a supported living community and during this time he displayed a lack of social awareness and disinhibition in all matters relating to interactions with females. The client was, however, subsequently admitted onto a full-time programme with the respondent as he was deemed suitable for community support in his home. Support workers are assigned to “support teams” in respect of each client and such teams generally comprise an average of two to three members of staff operating on rotating shifts in order to provide dedicated one-to-one care.
4.3 The respondent submits that it decided it would need an additional staff member to accommodate the admission of this client into a full-time programme. The position of “support worker” was advertised and the complainant was one of a number of applicants. The respondent accepts that the advertisement for the post did not specify that it was seeking male candidates because, at that time, it had hoped to establish a panel of successful candidates to fill three prospective vacancies and it was engaged in discussions with the HSE in that regard.
4.4 In the circumstances of the current case, the respondent states that it required a team to provide one-to-one care with a person who had a history of inappropriate sexual behaviour with females and was assessed as being “high risk”. Members of the team would be required to provide the client with a substantial level of personal care and, without the presence of other members *40 of staff, to stay at his home both during the day and overnight.
4.5 Based on its assessment of the risk posed by the client, the particular occupational activities concerned and the context in which they would be carried out, the respondent submits that it concluded that the appointment of a male support worker to this particular team was a genuine and determining occupational requirement for the post. To expose a female member of its staff to the high risk posed in the provision of such a personal service to this client would, in the respondent’s view, have been irresponsible. The respondent states that it had conducted a risk assessment in relation to the client and concluded that he was “high risk” in relation to females and that this assessment was consistent with previous professional psychological assessments which concluded that the client should not be left alone with females (staff or otherwise).
4.6 The respondent states that it interviewed a number of male and female candidates for the advertised position(s) including the complainant. While it is accepted by the respondent that the selection process was thorough and intensive, comprising a series of “group” and “individual” panel interviews, it contends that all candidates were advised that it was seeking to recruit for at least two roles subject to HSE approval, one of which was gender-specific. It emerged, however, that the filling of subsequent vacancies did not materialise at the time as the anticipated additional HSE funding was not forthcoming due to financial cutbacks.
The law
4.7 The respondent is relying on s.25 of the Employment Equality Acts which provides a derogation from the general principle of non-discrimination on grounds of gender, in particular, s.25(1) in relation to access to employment. The respondent submits that s.25 recognises the fact that in certain limited circumstances working arrangements may require an acceptable category of gender discrimination where gender is a bona fide occupational qualification. The respondent has cited various legal precedents in support of its position and submits that, on the specific facts of this case, it should be permitted to avail of the protections provided by s.25 of Acts.
4.8 Section 27 of the Employment Equality Acts provides for exceptions to gender discrimination in relation to Gardaí and the Prison Service. It is also submitted that, although considered under a separate legislative provision, similar rationale can be applied in the current case because it was necessary to maintain an all-male care team in respect of this particular client as members of the team would be required to provide a substantial level of personal care and, without the presence of other members of staff, to stay at his home both during the day and overnight.
4.9 It is further submitted that the particular gender requirement that is at issue in this case was strictly confined to the particular post in question and did *41 not apply in relation to the recruitment process generally, or in respect of any other of the respondent’s clients. The respondent states that it recognises the complainant’s right to gender equality but that it had to balance this right with the occupational requirements of the actual vacancy, both in terms of the risks posed to any female employee and in terms of the best interests of the client in question. It is submitted, therefore, that the principle of equal treatment on the specific facts of this case is not capable of being reconciled with the requirements of staff safety and the provision of appropriate care for the particular client.
4.10 In summary, the respondent submits that a departure from the principles of equal treatment is within the limits of what is appropriate and necessary in order to achieve its aim in the circumstances of the current case. In specifically referring to s.25, it is submitted that the gender stipulation in relation to “support workers” for the particular client was a legitimate objective and proportionate requirement.
5. Conclusions of Equality Officer
5.1 In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.
Confidentiality
5.2 At para.2.2 I referred to the respondent’s request that the names of the parties be anonymised in my decision and also to the complainant’s objection in that regard.
5.3 The respondent states that its primary concern in requesting anonymity is the protection and wellbeing of the persons who are in its care. While it is a private company, the respondent states that it provides care and support to people with extremely complex needs and, if the parties were named, then there might be potential for negative impacts on those persons and also on the services it provides.
5.4 The complainant submits that the respondent is a private “for profit” company which advertises its services in the public domain and that no person under its care has had their name mentioned before the Tribunal. The complainant believes that to deny her a right to have the issues in her case published would be a deviation from the ordinary procedures of the Tribunal.
5.5 My investigation of this matter involved hearing very sensitive evidence from the respondent. However, that is not unusual in cases heard before the Tribunal. Having considered all of the arguments submitted on this issue I have, on balance, acceded to the respondent’s request for non-identification of the parties. Also, while I have noted the complainant’s view that the provisions of the Workplace Relations Act 2015 are not relevant to this issue since referral of her complaint predates its enactment, I consider that it is appropriate for me *42 to have regard to the intentions of the Oireachtas in providing for such general anonymity in all future cases of alleged discrimination referred under employment equality legislation. In anonymising the parties I have endeavoured to set out sufficient substantive detail in order to explain the rationale for my decision.
Burden of proof
5.6 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires complainants to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If they succeed in doing so, then, and only then, is it for the respondent to prove the contrary.
5.7 In Mitchell v Southern Health Board [2001] E.L.R. 201 the evidential burden which must be discharged by complainants before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:
“The claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”
5.8 In evaluating the evidence, therefore, I must first decide whether the complainant has established a prima facie case pursuant to s.85A of the Employment Equality Acts. As outlined above, the Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
5.9 Evidence provided by the complainant included hard copies of emails she received from the respondent, one of which stated “they were looking to recruit a male” and another explained that the respondent had intended recruiting for two roles, one of which was a gender specific (male) position and the second was subject to HSE approval. I consider that this evidence alone is of “sufficient significance” to establish a prima facie case of discrimination. Accordingly, I deem that it is for the respondent to rebut this inference.
*43
Alleged discrimination
5.10 The essential issue for decision by me, therefore, is whether the respondent discriminated against the complainant on grounds of her gender in terms of s.6 and contrary to s.8 of the Employment Equality Acts. Section 6 defines discrimination as occurring where a person is “treated less favourably than another person ……….on any of the grounds specified ….”, including the gender ground.
Section 8(1) provides that in relation to access to employment “an employer shall not discriminate against an employee or prospective employee …” There is no doubt that the complainant was a prospective employee of the respondent at the time in question.
5.11 There is considerable consensus between the parties in relation to the facts in this case, with the exception of a small number of issues, one of which is whether or not the complainant was informed at interview stage that the respondent was seeking to recruit for two roles (subject to HSE approval), one of which was a gender-specific (male) role.
5.12 The respondent accepts that the initial advertisement for the job(s) did not contain any gender-specific element. It contends, however, that all candidates were advised at interview stage that one of the posts was (male) gender specific and, in that regard, it presented evidence from two other female candidates who attended for interview on the day confirming that they were so advised. While I accept the respondent’s evidence, it does not necessarily follow that the complainant was informed. For example, the respondent’s interview team may have overlooked the complainant when advising other candidates. Alternatively, she may have been informed at some stage but may have missed the point due to the intensity of the selection process and the need to focus on her own performance at interview. Either way, I have no doubt that the fact that the complainant was not aware that the primary post being competed for was gender-specific resulted in increased disappointment and frustration when she was subsequently advised that she was not awarded the post because “they were looking to recruit a male”.
5.13 I consider that the primary issue for consideration in determining whether discrimination has occurred is whether the post in question was genuinely gender- specific within the meaning of the legislation and also whether the respondent’s defence is valid and in accord with the Employment Equality Acts.
5.14 I find the series of events as described by the respondent to be reasonable, i.e. that it had originally planned to recruit a minimum of two people (ideally three) for posts as “support workers” pending the outcome of deliberations with the HSE, but that the additional posts-which were to be gender neutral-did not materialise at the time. While I find it unusual that the respondent would have undertaken such a comprehensive competitive process in the mere hope of securing HSE agreement for recruitment at a later date, nonetheless I accept that that is what happened. While the interview process was very onerous for the *44 complainant, the respondent would also have expended significant resources and effort into organising and managing the entire process. Therefore, I accept that the respondent genuinely believed that HSE agreement would be forthcoming and that additional gender-neutral posts would have come on stream in due course following the selection process. Otherwise why would the respondent have gone to the trouble and expense of holding such an in-depth process? Had it been clear from the start that there was only one gender-specific (male) position on offer, then the respondent could have refined the selection process via appropriate non-discriminatory gender-specific means.
Nature of the post
5.15 The complainant has challenged the respondent’s view that that the post in question was gender-specific as she believes it was essentially a caring role for which she had a wealth of training and experience. She accepts that the individual requiring the care was a man who had a troubled history of convictions for sexual offences involving females and who, at the time, had been resident in a secure nursing home facility. Nonetheless, she is confident that she had the appropriate expertise and skills necessary to fulfil the role.
5.16 The respondent explained that it initially provided day care services at its care centre to assess the viability of the client who was being released from a secure environment into a supported living community. The respondent states that during this time the client displayed a lack of social awareness and disinhibition in all matters relating to interactions with females. It conducted a risk assessment in relation to the client and concluded that he was “high risk” in relation to females. The respondent states that this assessment was consistent with previous professional psychological assessments which had concluded that the client should not be left alone with females (staff or otherwise). A previous psychological assessment was presented in evidence which concluded along similar lines, i.e. that the person should not be left alone with female staff.
5.17 The respondent also explained that, as the role in question included the need for 24 hour one-to-one contact between client and carer due to the client’s medical condition, this necessitated the carer to sleep over in the client’s accommodation on a regular basis. In light of the foregoing, I accept that the post in question was a male gender-specific role. I consider that staff welfare should be a priority for all employers and it would have been grossly negligent to expose any female employee to such a high level of risk as may have arisen in this case. If the employer had done so, in my opinion it would have been leaving itself exposed to significant legal challenge on a number of fronts.
The relevant derogation
5.18 As outlined previously, the respondent is relying primarily on s.25 of the Employment Equality Acts which provides for a derogation from the general *45 principle of non-discrimination on grounds of gender. Section 25(1) reads as follows
A difference of treatment which is based on a characteristic related to the gender ground in respect of access to employment in a particular post shall not constitute discrimination under this Part or Part II where, by reason of the particular occupational activities concerned or of the context in which they are carried out–
a. the characteristic constitutes a genuine and determining occupational requirement for the post, and
b. the objective is legitimate and the requirement proportionate.”
5.19 Section 25 essentially recognises the fact that, in certain limited circumstances, working arrangements may require an acceptable category of gender discrimination where gender is a bona fide occupational qualification. Under s.25, therefore, it is not unlawful to confine a post to a man or woman where gender is such a bona fide occupational requirement. A similar derogation is provided for in art. 14(2) of the Recast Equal Treatment Directive-Council Directive 2006/54 [2006] O.J. L204/23 – which permits the gender of a worker to be a determining factor as regards access to employment where such a characteristic constitutes a genuine and determining occupational requirement. I consider that, in the particular circumstances of this case, the respondent is permitted to avail of the protections provided at s.25 of the Employment Equality Acts. Indeed, it would be difficult to envisage a situation where the application of s.25 would be more appropriate than in the current case.
5.20 For completeness, I consider that s.16 of the Acts, which deals with employers’ obligations in certain cases, is also relevant in considering this matter. In particular, s.16(1)(b) states that:
“Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position … if the individual … is not fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.”
5.21 While I am satisfied that the complainant would generally be fully competent and available to undertake, and fully capable of undertaking, the duties attached to a position of “support worker”, I consider that, in respect of the circumstances of the particular role in question, that the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed were such that it was a genuine gender-specific (male) role.
5.22 In summary, I have no doubt that the complainant suffered a great deal of disappointment and frustration as a result of the manner in which the selection *46 process was managed, particularly in relation to the expectation created and the way in which she was informed of the outcome of the process. However, I do not consider that there was any breach of the Employment Equality Acts. Indeed I understand that other successful female candidates, who had opted to have their names retained “on file” by the respondent, were subsequently offered appointments in 2013. I have also noted the respondent’s comments at the hearing that it would have welcomed the opportunity to recruit the complainant had it been possible to do so at the time and that it would have no difficulty in doing so in the future should the opportunity arise.
6. Decision of Equality Officer
6.1 I have completed my investigation of this complaint and, in accordance with s.79(6) of the Employment Equality Acts, I hereby make the following decision. 6.2 I find that the respondent did not discriminate against the complainant on the grounds of her gender in terms of s.6 and contrary to s.8 of the Employment Equality Acts.
Paul Cunningham v BMS Sales Ltd
DEC-E2007-006
Equality Tribunal
1 February 2007
[2008] 19 E.L.R. 165
Background
The complainant submits that the respondent provided him with a registration form requesting his age and date of birth. He completed the form and gave an incorrect age but did not give his date of birth. A few days later, the respondent sought to pursue the matter with him and he was told that without the information in relation to his age, the respondent would not progress his application. The responded submits that had the complainant not proved to be evasive and uncooperative in providing the respondent with information followed by deliberately providing incorrect information, it would have had no reservations in representing him. The respondent also submitted that the complainant indicated when it pursued the matter with him that he no longer had an interest in dealing with the respondent.
The complainant referred a complaint under the Employment Equality Acts and 2004 to the Director of Equality Investigations on January 18, 2005. On March 16, 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on May 8, 2006 and from the respondent on June 16, 2006. A joint hearing of the claim was held on January 11, 2007 having previously been adjourned.
Summary of the complainant’s submission
The complainant met with Mr H of the respondent in their offices in College Green on November 19, 2004. The receptionist asked him to complete a registration form with his personal details. On meeting Mr H, the complainant submits that he pointed out that a lot of the information was irrelevant and invasive. Questions such as “living with parents/renting/mortgaged accommodation”, “number of children”, “age” and “date of birth”. He replied that prospective employers use this information to decide if a candidate is likely to remain with them if offered employment. The complainant queried why he needed to give his age as it was not relevant to his employment. Mr H stated that when he is face to face with a possible employer and is asked the question as to the age of the candidate, he felt that if he was not able to answer accurately, he would not be doing his job. The complainant submits that he gave his age as 37 and that he did not state his date of birth.
Mr H then asked him to join him in an interview room. He went over his CV with him in detail, questioned him on previous employments, what his future plans were and made extensive notes on his application form which he had filled in earlier. He said that he had a few possible opportunities available but one in particular would be suitable to his skill sets. He said that the company in question were looking for people with IT sales skills particularly with storage and server sales experience. The complainant submits that he had both skills which were detailed on his CV. Mr H said that he would get an interview set up with the company as soon as possible and would revert when same was arranged.
On Monday, November 22, he received a phone call from Mr H querying his age. Mr H said that he noticed his age on the application form and that he wanted to check a few things against it. The complainant submits that he again reminded Mr H that his age was not relevant to the employment opportunity that he was putting him forward for. He again insisted that he discuss his age. The complainant submits that he stated to Mr H that he felt he had enough information to put his name forward as he had said on the previous Friday. The complainant said that he was not willing to discuss any further details in relation to his age. Mr H persisted in asking further details and stated that without further information on the complainant’s age, he would not put him forward for employment.
*168
On December 21, 2004, the complainant had a conversation with Mr H. At that stage, he told him that there were other factors in not putting his name forward. He said that if the complainant was not willing to give him all the information he required that he must be hiding something.
The complainant believes that he had the skill sets and experience for the post referred to by Mr H. The particular job for which the respondent was recruiting was for a professional sales person who would be selling server and storage solutions directly to the prospective customers. He had previously sold servers and storage solutions and had been one of the highest achievers in his section and he had the customer experience required from his time with another employer when he met customers in a face to face sales environment.
He believes that he was discriminated against on the basis of his age. At the time he was 47 years old although he appeared younger and he submits that he was shocked a few days after submitting his application form when he received a phone call from Mr H insisting on obtaining his date of birth.
Summary of the respondent’s submission
The respondent submits that applicants are assessed purely on their experience and sales ability. It submits that they regularly meet applicants from many backgrounds and different walks of life and endeavour to help them in their search for sales opportunities, placing and representing many applicants over the age of 47.
The complainant stated on his application form that his age was 37 despite being 47. As a responsible sales recruiter, there has to be a confidence that the details provided by candidates are correct and accurate in order to build a successful working relationship. In addition, the respondent maintains a duty of care to both clients and candidates alike and information must be correct information.
On interviewing the complainant, Mr H, consultant on behalf of the respondent submits that he was more than happy to represent the complainant given his background, however, it was obvious after the interview by looking at his CV and in particular, the number of years he had been in employment that the details pertaining to his age were misleading. If any candidate is found to have intentionally provided incorrect information to the respondent in any area whether this is in the area of previous employment, salaries, qualifications or personal details, the respondent as responsible recruiters would not be able to confidently represent the individual to any of its clients.
The respondent submits that had the complainant not proved to be initially evasive and uncooperative in providing the respondent with information, followed by deliberately providing incorrect information, he would have had no reservations in representing him given his strong sales background.
*169
Conclusions of the Equality Officer
In this case, the complainant alleges that the respondent directly discriminated against him on the age ground in relation to access to employment. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of s.6(2)(f) of the Employment Equality Acts 1998 and 2004 and in contravention of s.8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
“Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, … (in this Act referred to as “the age ground”),
Case law on establishing a prima facie case of direct discrimination
I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of Southern Health Board v. Mitchell [2001] E.L.R. 201 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
“… ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not *170 discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
Subsequently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
“It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this court in Mitchell v Southern Health Board [2001] E.L.R. 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.” [Flexo Computer Stationary Limited v Coulter Determination No. EED0313 (October 9, 2003)]
More recently, the Labour Court stated in a case concerning discrimination on the age ground in relation to access to employment:
“It is accepted that if the complainants make out a prima facie case of discrimination, the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this court in Mitchell v Southern Health Board [2001] E.L.R. 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent.” [Stevedores v Nevins Determination No. EDA051 (February 11, 2005)]
Direct discrimination
The respondent in this case stated in its written submission to the Tribunal that:
“On interviewing the candidate I was more than happy to represent him given his background, however, it was obvious after the interview; that by looking at the curriculum vitae provided by Mr Paul Cunningham; and in particular the number of years he had been in employment, that the details pertaining to his age were misleading (when cross referenced to the information, that he had filled out on his application form)”
*171 The statement continued:
“Had Mr Cunningham not proved to be initially evasive and uncooperative in providing BMS with information, followed by deliberately providing incorrect information I would have had no reservations in representing him given his strong sales background.”
The latter paragraph cites two reasons for the respondent not representing the complainant, the first being that the complainant was initially evasive and uncooperative in providing the respondent with information and the second being that the complainant deliberately provided incorrect information. Based on the written statement of the respondent, it is clear that the respondent considered the complainant evasive and uncooperative in relation to providing the information on his age and date of birth.
Whilst the respondent was legally represented at the hearing, Mr H did not attend on behalf of the respondent to give evidence. I have therefore made my decision without the benefit of hearing his oral evidence. A copy of the registration form completed by the complainant was provided by the respondent’s solicitor at the hearing and it is the case that the form sought the age, date of birth, marital status, nationality and number of children of applicants. The complainant had a difficulty with providing the information sought and provided an incorrect age. When Mr H phoned the complainant on Monday November 22, 2004 to pursue the matter of the complainant’s age, a disagreement ensued between the parties. The respondent in its written evidence to the Tribunal stated that the complainant “did not meet the client’s criteria for the role. The applicant was informed of this by telephone and was approached politely concerning this and also to clarify certain areas which remained unclear on a standard form filled out by Mr Cunningham prior to the interview”. The complainant gave oral evidence at the hearing that on Monday November 22, 2004, Mr H phoned him and kept insisting that his age was relevant to his application and he insisted that it was not. He also gave oral evidence that he did not state that he did not have an interest in dealing with the respondent. This is contradictory to the respondent’s written statement on the matter and as Mr H was not present to give evidence on the issue, the evidence of the complainant is to be preferred.
The Labour Court has stated in relation to age discrimination “evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has *172 not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration”. [Stevedores v Nevins Labour Court Determination No. EDA051 (February 11, 2005)] The Labour Court went on to find in that case that “…, the question put to Mr Flood at interview concerning his age and the data concerning the age profile of those recruited by the respondent since 1992, establishes an evidential nexus between the unfair treatment of he complainants and their age. These are facts of sufficient significance to establish a prima facie case of discrimination and so shift the probative burden to the respondent”.
The respondent sought the complainant’s date of birth and age on the registration form. He refused to provide his date of birth and gave an incorrect age and the respondent pursued the matter with him a few days later. I note the respondent’s statement that it would have had no reservations in representing the complainant given his strong sales background had he not been evasive and uncooperative in providing the information in relation to his age followed by deliberately providing incorrect information. It therefore appears to be the case that as the complainant was reluctant to provide the information and then provided an incorrect age, his application to register with the respondent was not progressed. In this case, on the basis that the respondent sought the complainant’s age and date of birth on the registration form and subsequently pursued the matter with him, I find that the complainant has established a prima facie case of discrimination on the age ground in relation to the respondent’s refusal to represent him in respect of sales opportunities with clients.
The respondent made available a copy of its equal opportunities policy and I am not satisfied as to the adequacy of the policy which refers only to U.K. legislation and does not appear to have been drawn up for this jurisdiction. I shall therefore be referring to this matter in my order for redress.
Decision
On the basis of the foregoing, I find that the respondent discriminated against the complainant on the age ground in terms of s.6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Acts in relation to the respondent’s refusal to represent him in respect of sales opportunities with clients.
In accordance with s.82 of the Acts, I hereby order that the respondent:
(i) pay to the complainant the sum of €5,000 compensation in respect of the act of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(ii) draft an equal opportunities policy relevant to this jurisdiction.
Teresa Mitchell v Southern Health Board (Cork University Hospital)
AEE/99/8
Labour Court
15 February 2001
[2001] 12 E.L.R. 201
Background
The full background of the case is set out in the Equality Officer’s Recommendation No. EE16/1998.
The appellant was employed as a locum consultant physician in general medicine, diabetes and endocrinology at Cork University Hospital from July 1990 to December 1995. In December 1994, the post she occupied was advertised in a permanent capacity. The appellant applied for the post but was unsuccessful, with a male candidate being appointed to the post.
The Equality Officer in his recommendation found that the Southern Health Board did not discriminate against the appellant, contrary to the provisions of the Employment Equality Act 1977.
The appellant appealed the recommendation to the Labour Court on 23 September 1998, on the following grounds: *203
(i) the Equality Officer erred in law and in fact in finding that the Southern Health Board did not discriminate against the appellant contrary to section 3 of the 1977 Act;
(ii) the Equality Officer erred in law and in fact in finding that the Southern Health Board was not responsible for the appointment given that the board’s chief executive made the appointment following a recommendation from the Local Appointments Commission;
(iii) the Equality Officer erred in law and in fact in not awarding an appropriate remedy to the appellant for the discrimination experienced by her and the consequent distress to her;
(iv) on all grounds submitted during the Equality Officer’s investigation and such grounds as may arise during the course of the appeal.
The appellant claims that she:
• had greater experience in general medicine, diabetes, endocrinology and metabolism than the successful candidate (details supplied to the Court);
• was better qualified than the successful candidate;
• had more publications, more first authorship, more supervisory authorship, more publications in diabetes than the successful candidate;
• the successful candidate submitted additional data to update his CV on the day of interview;
• there was no correlation between remarks made about candidates at interview and final ranking of these candidates;
• the interviewers did not appear to refer to referees re candidates.
The appellant also claims that she was the subject of discriminatory remarks before the interview. She believes that her experience and academic achievements were ignored at the interview.
The board denies that any discriminatory remarks were made to the appellant, either before or during the interview, or that any sexual discrimination took place. While it accepts that the appellant was sufficiently suitable/experienced/qualified for the post, it asserts that the successful candidate was more suitable/experienced/qualified and that this has been borne out since the appointment.
A Labour Court hearing took place on 28 November 2000. The following is the Court’s determination.
Determination
The appellant claims to have suffered discrimination on grounds of her sex in not being appointed to the post of consultant physician in general medicine, diabetes and endocrinology with the Southern Health Board (Cork University Hospital). The selection for the post was carried out by the Local Appointment Commission pursuant to section 14 of the Health Act 1970. The disputed appointment was made in April 1995. The appellant had held the post for the previous five *204 years in a locum capacity.
The appellant made a complaint to the Court pursuant to section 19 of the Employment Equality Act 1977 (the Act) in June 1996. The Court referred the dispute to an Equality Officer for investigation and recommendation. The Equality Officer concluded that section 12 of the Act precluded him from investigating the substance of the complaint, since the disputed appointment had been made on foot of a recommendation made by the Local Appointments Commission. The Equality Officer found that the named respondent, the Southern Health Board, did not discriminate against appellant as it had not made the selection which formed the subject of the complaint. It was against that finding that the appellant appealed to the Court.
The appeal opened before the Court on 24 March 1999. Having received submissions from both parties, the Court issued Determination DEE 992, dated 2 July 1999. In that determination, the Court held that section 22 of the Act did not preclude an investigation of the appellant’s complaint under the Act. The Court adjourned the hearing on the substantive complaint, so as to allow the parties to make submissions on how the Court should proceed with the investigation in the light of its findings on the issue of jurisdiction.
The Southern Health Board then appealed the Determination of the Court to the High Court on a point of law. That appeal came on for hearing before Barr J on 25 February 2000. In an ex tempore judgment, the court struck out the proceedings, holding that they were premature since this Court had not made any finding on whether or not the appellant had been discriminated against.
Following the judgment of the High Court, this Court invited the parties to make written submissions on how it should proceed in the investigation of the substantive complaint. Solicitors for the appellant submitted that the Court should refer the dispute back to an Equality Officer for investigation. They claimed that the appellant was entitled to a hearing of all the evidence at first instance before an Equality Officer, with the possibility of a full appeal to the Labour Court. The Southern Health Board did not make any submission on this point.
Having considered the submission received, the Court concluded that it had no statutory authority to refer the case back to an Equality Officer, and was obliged to make a definitive determination on the complaint of discrimination. The Court’s reasoning was formulated by way of a preliminary conclusion and was conveyed to the parties by letter dated 21 July 2000. The parties were again invited to make submissions on the view taken by the Court. Neither party demurred from that view.
The substantive case
The submissions of the parties
The appellant’s claim is grounded on a number of assertions, namely: *205
(i) That prior to the interview for the post, a named member of the interview board subjected her to discriminatory remarks.
(ii) That she was better qualified for the post and more experienced than the successful candidate.
(iii) That the interview was not fairly conducted.
Full particulars in relation to each of these assertions were provided to the Court.
The respondent made its submission to the Court without prejudice to its contention that it was not a proper party to the proceedings, as it had not exercised any discretion in the selection or appointment to the disputed post.
The respondent’s defence was essentially a contradiction of the appellant’s claims. They denied that the named member of the interview board had subjected the appellant to discriminatory remarks, either before the interview or at all. They said that six candidates were interviewed for the post; they were all excellent candidates and each of them was qualified and suitable for appointment. The successful candidate was, however, considered to be outstanding, and for that reason was recommended for appointment.
Onus of Proof
Counsel for both parties made submissions to the Court on how the evidential burden should be applied in this case. Counsel for the appellant submitted that, once the appellant makes out a prima facie case, the onus falls on the respondent to rebut the presumption of discrimination. He relied on the decision of the Northern Ireland Court of Appeal in Wallace v. South Eastern Education and Library Board [1980] NI 38; [1980] IRLR 193.
Counsel for the Health Board submitted that the onus is on the claimant to prove, on the balance of probabilities, that she did suffer discrimination.
Council Directive 97/80 of 15 December 1997, on the Burden of Proof in Cases of Discrimination Based on Sex, sets out the procedural rules to be followed in applying the evidential burden in discrimination cases. Article 4.1 of the Directive provides that, where a plaintiff in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
This Directive has not yet been transposed into Irish law. The date for implementation is 1 January 2001, and it cannot have direct effect before that date. However, in the preamble to the Directive, it is expressly stated that its provisions are derived from the case law of the ECJ. It would appear, therefore, that the aim of the Directive is to formalise in legislation the case law of the ECJ as it presently stands, rather than to introduce a new procedural requirement.
With regard to the Wallace case, this decision of the Northern Ireland Court of Appeal is of persuasive rather than binding authority. It was, however, fol *206 lowed by this Court in Gleeson v. Rotunda Hospital and Mater Misericordiae Hospital [2000] ELR 206.
Wallace is authority for the proposition that, where it is established that a person suffered discrimination in the filling of a post, the onus shifts to the employer to establish that the discrimination did not arise from the gender of the unsuccessful candidate. To that extent, it is consistent with Article 4 of the Onus of Proof Directive and the case law of the ECJ on which it is based.
On that basis, the Court accepts that the principles set out in Wallace and Article 4 of the Directive provide the appropriate procedural rule to be applied in the present case.
It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.
Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.
The evidence
The original defence made by the respondent was that section 12(3) of the Act precluded an investigation by the Court into the selection by the Local Appointments Commissioners of a person to an office or position. In interpreting the Act in conformity with European law, the Court held in DEE 992 that the Local Appointments Commissioners are immune from liability in a claim of discrimination, but that no such immunity can be extended to the respondent as the prospective employer.
Having so decided, the Court expressed the view that by virtue of section 12(3) of the Act, evidence in relation to the selection process of the Local Appointments Commission might not be compellable in relation to the substantive case. In the event, the Local Appointments Commission co-operated fully with the Court in its investigation of this case and provided the Court (and the parties) with a complete file of all documents in its possession relating to the filling of *207 the disputed post.
These included the curricula vitae of all candidates interviewed for the post, the notes of the interview, and the marking sheet on which the results were recorded. This file also contained a copy of the report of the interview board to the Local Appointments Commission. This report set out the attributes that the board considered necessary for the post, and the reasons for its decision to nominate the successful candidate for appointment.
Oral evidence was given by the appellant and by four witnesses called by the respondent. All of this oral and documentary evidence, together with the demeanour of the witnesses, has been taken into account by the Court in reaching its conclusions,
The appellant gave her evidence with conviction and clarity. She told the Court that some time before the interview a named member of the interview board told her that she had two disadvantages — she is a locum and a woman. In his evidence to the Court, which was given with equal conviction and clarity, the person named strenuously denied having made this or any similar comment. The appellant also told the Court of having mentioned the offending remark to a medical colleague after the result of the competition became known, and of having raised it at a meeting with the hospital administrator some time later. Both persons gave evidence for the respondent, and neither had any recollection of being told of this remark.
The appellant also told the Court of her professional qualifications and experience, including research and publications, which she claimed were superior to that of the successful candidate. She also told the Court that, in her opinion, all but one of the other candidates for the post were unsuitable for appointment.
Medical witnesses called by the respondent, who had participated in the interview board, said that the appellant had different qualifications and experience to that of the successful candidate, but they did not accept that it was of superior quality. These witnesses accepted that the appellant was an excellent candidate. However, they told the Court that the interview board was unanimous in the view that the doctor recommended for appointment was an outstanding candidate.
It was common case that, once it became known that the appellant was not successful in her application for the disputed post, the hospital management sought to retain her valued services. To this end, management attempted to create a restructured post, at a similar level as the locum post that the appellant had occupied, and to which the appellant could be appointed. Whilst this initiative was being actively pursued for some time, it was discontinued when the appellant commenced the present proceedings.
With regard to the interview, the appellant said in evidence that she felt that she was being hurried and that the board seemed uninterested in her work and experience. The members of the board who gave evidence said that the appel *208 lant’s interview was conducted no differently to that of other candidates.
Conclusions of the Court
The onus of proving the factual basis on which unlawful discrimination may be presumed rests with the appellant.
The Court found the appellant to be an impressive witness. She appeared to have a clear recollection of the disputed events to which she averred. She was also firm in her opinion as to the superiority of her own qualifications and experience relative to that of the successful candidate. These recollections and opinions were, however, unsupported by any evidence beyond that of the appellant herself. They were also hotly contradicted by equally impressive witnesses called by the respondent.
The Court fully accepts that the appellant had provided five years satisfactory service as a locum in the disputed post. The Court also accepts that the appellant might reasonably have expected that her past service and clinical experience would have been a decisive factor in her favour. However, in the Courts view, these considerations could not of themselves establish that the, selection made was so irrational or unfair as to raise a presumption of unlawful discrimination.
Taking the evidence as a whole, the Court has concluded, with some hesitation, that the appellant has not discharged the evidential burden which she carries. Accordingly, her claim cannot succeed.
There is, however, one further aspect of this case on which the court considers it appropriate to comment. The interview board established by the Local Appointments Commission comprised five members, all of whom were men. There was no evidence to indicate that the Commissioners made any effort to secure the services of a suitably qualified woman to serve on the board.
Relying on the determination of this Court in the Gleeson case, counsel for the appellant submitted that such a gender imbalance in the composition of the interview board is sufficient to establish a prima facie case of discrimination. The relevant statement by the Court in Gleeson must, however, be read in context. In that case, the Court found five instances of unfairness in the selection process, the cumulative effect of which resulted in a prima facie finding of discrimination. The composition of the board was but one of these instances.
The Court considers it highly undesirable to constitute an interview board made up entirely of men. This is particularly the case where, as in the medical profession, there is a dominance of men at the most senior professional level. Gleeson cannot be regarded as authority for the proposition that gender imbalance in an interview board must, in itself, lead to a prima facie finding of discrimination in every case. Nonetheless, the Court considers that such a practice is potentially discriminatory and can form part of the evidential chain on which a claim of discrimination could be made out.
*209
The Court would strongly urge all appropriate parties to have full regard to the now accepted need to ensure gender balance at all levels in the process of selection for appointment.
Determination
It is the determination of the Court that the complaint before it is not well founded, and that the appellant did not suffer discrimination within the meaning of section 2(a) of the Employment Equality Act 1977. The complaint herein is dismissed.
GS -v- The Commissioner of an Garda Siochana
Garda Vetting Fair Procedures
[2017] IEHC 190
JUDGMENT of Mr. Justice McDermott delivered the 10th day of March, 2017
1. By notice of motion dated 10th April, 2014 the applicant seeks inter alia the following reliefs;
(i) an order of mandamus compelling the first and second named respondents to retract the vetting disclosure made to the third named respondent and to restate same without reference to non-convictions;
(ii) an order of certiorari quashing the decision of the second named respondent to communicate two non-convictions relating to the applicant through the vetting process;
(iii) a declaration that the vetting system operated by the first and second respondents is unconstitutional, breaches the applicant’s right to fair procedures, does not adequately respect his right to earn a livelihood and that the system infringes his rights under Article 8 of the European Convention on Human Rights Act, 2003.
The applicant also seeks damages for breach of constitutional rights pursuant to the European Convention on Human Rights Act, 2003 and an order for costs for the present proceedings.
Background
2. The applicant commenced a degree course in Psychiatric Nursing at Trinity College in September 2013. This course involved a number of practical placements before which it was necessary for students to undergo Garda vetting for the purpose of the protection of children and vulnerable persons.
3. The Garda Vetting Disclosure procedure was operated by An Garda Síochána subject to a Code of Practice: it was an administrative non-statutory process. Bona fide organisations might register to avail of Garda Vetting disclosures. Vetting could only be carried out with the consent of the person who was the subject of the vetting. Disclosures could then be made to a designated individual within an organisation. This individual was referred to as an authorised signatory and trained in the procedure.
4. The applicant signed a Garda Vetting Application Form on the 17th October, 2013 whereby he consented to the following process:-
“I, the undersigned who have applied to work as/employed as Student Nurse/General/Children’s Intellectual Disabilities/Mental Health hereby authorise An Garda Siochána to furnish the Health Service Executive (HSE) a statement that there are no convictions recorded against me in the Republic of Ireland or elsewhere, or a statement of all prosecutions, successful or not, pending or completed in the State or elsewhere as the case may be.” [Emphasis in original]
In the body of the form the applicant declared that he had never been convicted of an offence in the Republic of Ireland and though asked to provide the details “of all prosecutions successful or not, pending or completed in the State or elsewhere” left the box provided for the details thereof blank. The vetting was processed by Ms. Frances McHugh. An application was sent to the Central Vetting Unit, following which a disclosure was made to Ms. McHugh on the 13th of December, 2013.
5. The relevant chronology of events is as follows:-
(i) Superintendent Meyler made the Vetting disclosure to Ms McHugh the HSE Garda Vetting Liaison Officer on 13th December, 2013. The records established that on the 22nd December, 2007 (when he was twenty years old) the applicant had been convicted in the District Court of intoxication in a public place and fined €100 contrary to s.4 of the Criminal Justice (Public Order) Act, 1994. On the 17th May 2010 a charge laid against him for unlawful possession of drugs contrary to s.3 of the Misuse of Drugs Act, 1977 as amended, was struck out in the District Court. On the 18th February 2011 a charge of criminal damage contrary to s.2 of the Criminal Damage Act, 1991 was also struck out.
(ii) The applicant was due to begin his first placement on the 6th January, 2014.
(iii) Having undergone the vetting procedure, he attended a meeting in early January. Present at this meeting were Ms. Maria McGuinness of Cherry Orchard Allocations and Mr Colum Bracken, Director of Nursing. He claimed that this meeting was “conducted in an accusatorial fashion where the applicant was effectively cross-examined.” He informed them that he was unaware that the payment of the fine was recorded as an actual conviction. He believed that he had paid money into the court “poor box”. He accepted the record in respect of this conviction. He explained in his affidavit that the drugs charge arose from the improper furnishing of his name to Gardaí by another and that he was not present at the location of the alleged offence. The case was struck out when he attended court and the Garda realised that he was not the same person. He stated that the criminal damage charge was made by a former girlfriend who did not make a statement or attend court. The issue concerned alleged damage to what he states was his own television during a domestic “occurrence”. It was struck out after it had been set down for hearing.
(iv) The applicant was informed that he would not be permitted to take part in the placement as a result of the disclosures. The applicant authorised the HSE to obtain further details in respect of the drugs and criminal damage charges from the Garda Vetting Office.
(v) It was alleged that Mr. Bracken misunderstood the meaning and effect of an order striking out a charge and accused the applicant of trying to hide convictions. The applicant denied this assertion. He explained that he viewed the criminal damage charge which was struck out as a vexatious claim by an ex-girlfriend and the s.3 charge as a case of mistaken identity and believed them to be irrelevant. In relation to the s.4 offence, the applicant believed he had made a donation to charity but accepted he had been convicted and fined. The applicant noted that he had previously worked in many placement locations and did not understand why the Garda vetting would preclude him from taking part in placements. It is stated that Mr. Bracken surmised that the applicant had previously incorrectly filled out Garda vetting forms and should not have worked at the locations in question. At the end of the meeting Mr. Bracken and Ms. McGuinness expressed their dissatisfaction with the applicant’s explanations.
(vi) The applicant was asked to attend a second meeting on the 7th February, 2014 and was asked to provide a comprehensive written explanation of the matters which had been struck out and to obtain three letters; (i) a letter from the Garda who prosecuted the s. 3 of the Misuse of Drugs Act, 1977 offence to clarify the sequence of events leading to the strike out; (ii) a letter from the applicant’s former employer Three Q to include a character reference and details of their knowledge of the applicant’s criminal history and previous vetting during that employment; and (iii) a character reference from Dorset College.
(vii) The applicant submitted his written explanation of matters as well as the first two letters sought. The explanation was forwarded by Mr. Bracken to Ms. McHugh on the 6th of March, 2014. It was confirmed by the second respondent that the applicant’s explanation was correct.
(viii) The applicant attended a third meeting in early March 2014. Having missed the first ten week placement, he was informed that he could complete the placement, at his own expense, during the summer of 2014. Due to the ongoing uncertainty, he was unable to progress in his course without completing the placement and the applicant did not return to lectures when they resumed on the 18th March, 2014.
(ix) The applicant contacted Mr. Fintan Sheerin, of the Trinity College School of Nursing, to discuss his options. Mr. Sheerin presented the applicant with two options;
(a) he could go ‘off the books’ for a year, that is, he could return to college and attend lectures while awaiting Garda clearance;
(b) he could repeat the year and pay full fees, contingent on Garda clearance.
(x) Due to financial considerations these options were not viable for the applicant.
6. In a letter dated 12th June, 2014 the solicitors for the fourth named defendant informed the applicant that following a risk assessment he would be permitted to complete the placement. An accommodation was reached with the third and fourth named respondents. The applicant completed the placement and repeated first year; his fees were waived. By a letter dated 23rd of July, 2014 the first and second respondents requested that the case against them be struck out with no order. The applicant on the 27th August, 2014 sought an undertaking from the Garda respondents that the strike-out orders would not be disclosed in future vetting applications. This was not forthcoming. Consequently, the applicant wished to continue with his claim against the first and second named respondents. The court directed that a statement of opposition be filed and that the case proceed on the 26th January 2015.
7. A statement of opposition on behalf of the respondents was filed with an affidavit of Superintendent Sarah Meyler of the Garda Central Vetting Unit, dated 16th of February, 2015. The respondents restated their position that the vetting procedures were lawful. They had been carried out with the applicant’s consent. The information disclosed was not of a private nature and was factually correct. The respondents do not accept that the applicant’s constitutional rights to fair procedures, to earn a livelihood and/or privacy or his Article 8 right to respect for his private life were infringed. It was claimed that the main difficulty encountered by the applicant, namely the stalling of his degree course, was a consequence of the actions of the third and fourth named respondents, the registered organisations for the purposes of Garda vetting disclosures to which the report was furnished.
8. The striking out of a criminal charge in the District Court is a procedure that occurs regularly. It may arise at any stage of the proceedings. A prosecution is initiated by way of complaint and the formulation of a charge against the accused. The accused is given notice to attend at the District Court or is arrested and brought to court. Article 34.1 of the Constitution provides that “justice shall be administrated in courts established by law … and, save in such special and limited cases as may be prescribed by law, shall be administered in public”. Thus there is an overriding mandatory constitutional requirement that criminal proceedings be conducted in public. The outcome cannot be predicted but the procedures are clearly established: the accused may be acquitted or convicted and sentenced: the charge may be dismissed without prejudice or struck out. Every element of the case must be conducted in a public forum. As a result, it is likely that the criminal proceedings will come to the attention of relatives, friends, neighbours, acquaintances, fellow employees or putative employers or employers of the accused. If a person charged with an offence is later acquitted or the charge is withdrawn or struck out, he/she retains the presumption of innocence in respect of the charge. It is unavoidable that the experience will be uncomfortable and embarrassing. This is an inevitable consequence of the administration of justice in public in a democratic society.
9. The striking out of a charge is an order of the District Court. The District Court is a court of record under s. 13 of the Courts Act 1971. The order to strike out a charge is permitted under O. 23, r. 3 of the District Court Rules 1997 when the accused attends court but the prosecution is not present. Under O. 38, r. 1(4) if the offence charged does not constitute an offence known to the law or if neither the prosecution or the accused appears, the court may strike out the charge. If the court considers that it has no jurisdiction to deal with the charge it may strike it out (per Barr J. in Carpenter v. Kirby [1990] ILRM 764).
10. The question that arises in this case is whether the fact that the applicant was charged with two offences in the District Court which were struck out by order of the district judge ought to have been disclosed under the vetting system. It was operated for the purpose of the protection of children and vulnerable persons from persons who were unsuitable for employment in close contact with those groups. A disclosure of prior convictions and/or orders related to the striking out of criminal charges may have a potentially damaging effect on a person’s career prospects. The disclosure during the vetting process had an immediate effect in this case because it became a source of conflict and prejudicial comment in the course of an interview for a placement which the applicant was obliged to undertake in his course of study. It is clear that part of the problem encountered by the applicant was the failure on the part of the interviewers to understand the nature of the process which led to the striking out of the charges, the effect of those orders and the factual background to the charges which was not furnished as a part of the disclosure. The applicant was effectively accused of trying to hide convictions. This was incorrect. An Garda Síochána had simply reported the making of the orders based on the record of court proceedings. Their obligation was to report truthfully as to whether there were any convictions in respect of the applicant and whether there were any prosecutions pending or which had been unsuccessfully completed against the applicant.
11. It is submitted by counsel for the applicant that the actions of the first and second respondents, in the disclosure of non-convictions to the HSE and Trinity College, resulted in the applicant initially losing his placement, the stalling of his education and the necessity to repeat the first year of his degree course. It is claimed that the disclosure of the two orders was unnecessary and irrelevant to the placement sought and that before it was made the applicant ought to have been given the opportunity to make submissions as to why it should not have been made and/or to ensure that the full factual background to the records was made clear.
12. The applicant does not accept that in signing the consent form he gave a true voluntary consent to the furnishing of the information by the Garda Vetting Office to the HSE or Trinity College Dublin or that he is estopped thereby from maintaining these proceedings. Counsel relies upon O’Connell v. The Turf Club & Anor [2015] IESC 57. In that case the applicants, when applying for licences, agreed to be bound by the Rules of Racing. It was held that the applicants could not be estopped from bringing the proceedings based on those agreements. It was stated by Hardiman J. that:-
“It is true that Mr. O’Connell followed the occupation of a jockey under a licence from the Club. It is also true that he had absolutely no option but to seek that licence from the Club if he wished to work as a jockey. The application for such a license is in no real sense voluntary so as to constitute a contract freely entered into.”
I am satisfied that the applicant is not estopped from bringing or maintaining these proceedings. In effect he could not have proceeded with the course or the placement if he did not sign the consent.
13. The vetting procedures in issue in these proceedings are administrative and were introduced by An Garda Síochána for the purpose of the protection of children and vulnerable persons under the Code of Practice. The Vetting Unit made the disclosure but it was for the registered organisation to consider the relevance of its contents. Disclosures were made to authorised signatories who could discuss the disclosure with the data subject and where necessary clarification could be sought from the Garda Vetting Office.
14. The Code of Practice at s. 1(h) provided that it was the responsibility of the authorised signatory to ensure that information in disclosures was managed within the decision making process as established by the registered organisation. The Garda respondents submit that it makes clear that they bore no responsibility for how the information disclosed might be used. The introduction to the Code states inter alia:
“The decision to engage in Garda Vetting of personnel as part of normal recruitment and selection practices is underpinned by the imperative to observe best practice in the protection of children and vulnerable adults, to whom personnel within a Registered Organisation may have unsupervised access by virtue of their position within the organisation”
15. Paragraphs 2(g) and 5(d) provided that it was the responsibility of the authorised signatory to manage all disclosures made within a “Legislative, Human Rights and Natural Justice framework”. Paragraph 6 provides
“Decision Making in respect of Garda Vetting Disclosures
a) Details contained in a Garda Vetting Disclosure should be verified with the Vetting Subject in advance of any decision being made which may affect them.
b) A Decision Maker …should be appointed within a Registered Organisation to assess Garda Vetting Disclosures received in respect of Vetting Subjects.
c) The decision making process in relating to Garda Vetting Disclosures should be established solely as a mechanism to assist the Registered Organisation in assessing the suitability of a Vetting Subject for a position within the organisation, vis-à-vis the details contained in the Disclosure.
d) Decisions in respect of the suitability of a Vetting Subject for a position within a Registered Organisation are the responsibility of the Decision Maker/Decision Making Committee within the organisation and the Garda Central Vetting Unit will have no input into any such decisions.”
16. A dispute mechanism existed under the scheme whereby the Vetting Subject might dispute any detail in respect of the data contained in a disclosure issued in his case. Paragraph 7 provided a procedure whereby the subject could outline the basis of the dispute and submit it in writing to the authorised signatory. Further checks could be requested. It is again emphasised in paragraph 7(e) that at the conclusion of any dispute process the decision in respect of the suitability of the subject remained the responsibility of the organisation and that the Garda Vetting Unit had no input into same. A clarification process was followed in this case. The conviction was accepted but the applicant’s explanation of the other two records required further clarification by the Vetting Office which was provided after further enquiries.
17. In March 2014, an Administrative Filter for Garda Vetting Disclosures was introduced. This had the effect that certain minor offences over seven years old need no longer be disclosed. In the future, therefore, the s. 4 conviction in 2007 would not have been disclosed. However, this would not necessarily affect the striking out orders of 2010 and 2011 as these might be disclosed under para. D albeit following the application of a procedure which reflects those set out in the 2012 Act discussed below which it anticipates. Under the Filter non-convictions would be disclosed if they were thought to give rise to a bona fide concern that the subject may harm a child or a vulnerable person. The Filter was not applicable at the time of this disclosure in December 2013.
18. The vetting process is now regulated by statute. The National Vetting Bureau (Children and Vulnerable Persons) Act, 2012 as amended by the Criminal Justice (Spent Convictions and Certain Disclosures) Act, 2016 incorporates some of the protections previously available prior to its enactment but also provides a number of statutory rights to the subject of a vetting application. Part 3 of the Act sets out the procedure applicable to Vetting Disclosures since its commencement on the 29th April 2016 by the National Vetting Bureau (Children and Vulnerable Persons) Act. 2012 (Commencement) Order, S.I. No.214 of 2016. Section 12 provides as follows:-
“12. – (1) A relevant organisation shall not-
(a) employ (whether under contract of employment or otherwise) any person to undertake relevant work or activities,
(b) enter into a contract for services with any person for the provision by that person of services by that person of services which constitute relevant work or activities,
(c) permit any person to undertake relevant work or activities on behalf of the organisation (whether or not for commercial or any other consideration),
(d) in a case where the relevant organisation is a provider of any course of education, training or scheme, including an internship scheme, place or make arrangements for the placement of a person as part of such education, training or scheme, if a necessary and regular part of such placement requires the participation by the person in relevant work or activities, unless the organisation receives a vetting disclosure from the Bureau in respect of that person.”
The new procedures apply to “relevant work and activities” in respect of children and vulnerable persons more particularly described in Part 1 of Schedule 1 to the Act. A “vetting disclosure” in respect of a person means a disclosure made by the National Vetting Bureau of the Garda Síochána under s.14 of the act. An application for vetting disclosure under s.13 from a relevant organisation must contain various details in respect of the person to be vetted including the relevant work or activity to which the application relates. On receipt of the application the Bureau shall, under s. 14:-
“(a) make such enquiries of the Garda Síochána as it deems necessary to establish whether there is any criminal record or specified information relating to the person, and
(b) undertake an examination of the database to establish whether it contains particulars of any record of, or specified information relating to, the person concerned.”
Section 2 defines “criminal record” as:-
(a) the record of the person’s convictions, whether within or outside the State, for any criminal offences, together with any ancillary or consequential orders made pursuant to the convictions concerned, or
(b) a record of any prosecutions pending against the person, whether within or outside the State, for any criminal offence”
An order striking out a charge is not contained within the definition of ‘criminal record’ which is to be the subject of a mandatory vetting under s.12.
“specified information” means “information concerning a finding or allegation of harm to another person that is received by the Bureau from-
(a) the Garda Síochána pursuant to an investigation of an offence or pursuant to any other function conferred on the Garda Síochána by or under any enactment or the common law, or
(b) a scheduled organisation.”
A striking-out order in respect of an allegation of harm to another qualifies as “specified information”. Section 15 sets out in detail the procedure to be followed by the Bureau in assembling the specified information, the provision of notice to the person who is subject to the vetting of that information and an opportunity to make a written submission in respect thereof. The Bureau must then assess the specified information but should not make a disclosure of same unless it reasonably believes that the information is of such a nature as to give rise to a bona fide concern that the person may be a source of harm to a child or vulnerable adult under s.15 (a) and that disclosure is necessary, proportionate and reasonable in the circumstances for the protection of children or vulnerable persons under s.15(b). Section 15(4) requires the Bureau, in making its assessment to take account inter alia of the relevance of the information to the relevant work or activity to which the application for disclosure relates. These provisions did not apply in this case as they were not in force at the time.
19. It is submitted that this section seeks to codify the fair procedures applicable to a vetting application and is a useful template against which the procedure followed in this case may be measured and that any such measurement must lead to a conclusion that the procedure adopted in this case was deficient by reference to that standard. It is clear that the procedure is markedly different from that adopted in the Code of Practice but that of itself does not mean that the administrative procedure applied was unfair.
20. The constitutional right to fair procedures under Article 40.3 of the Constitution is said to have been breached because the Garda Vetting Office did not engage with the applicant before the disclosure was made. No attempt was made to assess which records concerning the applicant, if any, were relevant to the inquiry made. It is claimed that the Garda Vetting Office ought to have ascertained and determined the relevance of the records it held to the placement proposed prior to disclosure. If it proposed to make a disclosure it ought then to have informed the applicant and given him an opportunity to make submissions as to why disclosure ought not to have been made in the circumstances. At that stage it ought to have considered any such representations and made its decision. This would have given the applicant the opportunity to proffer the explanations later given and accepted as correct in relation to the records. Clearly, the drugs charge record was completely irrelevant to his previous life as it was accepted by An Garda Síochána that he was an innocent victim of identity misuse by another. His explanation of how the criminal damage charge came about and was ultimately struck out was also accepted as correct. If given notice of intended disclosure these issues might have been addressed and he might have avoided the negative interviews concerning his failure to explain the records as disclosed and the ensuing consequences. It is claimed that this caused him serious hardship in the pursuit of his studies and placed a question-mark over the pursuit of his chosen career. At the time I have no doubt that this was a legitimate and serious concern for him. It set back his progress for a year.
21. It was clear to the Vetting Unit that the vetting was sought in respect of a placement involving the care of children or the vulnerable within the health service. The context of the concerns was provided by the source and nature of the application. The relevance of criminal damage committed by a person whether in domestic circumstances or otherwise, or his/her unlawful possession of drugs to such a placement was readily apparent – if he had been convicted. It seems to me that their disclosure would also have to be considered under the 2012 Act as relevant information, though a different procedure would have been followed prior to any disclosure contemplated under the Act.
22. The applicant did not give a fully accurate account of his engagement with the criminal justice system in his application form, claiming that he had no prior conviction and omitting details of his previous prosecutions which ended with the striking out orders. It is clear that the HSE before accepting him for placement was anxious to establish his history in a clear and forthright manner. It made the request to the applicant to reveal prior convictions or previously unsuccessful criminal proceedings brought against him. That necessarily required a full and truthful answer from the putative employee or placement candidate.
23. An employer is entitled to a truthful answer to such a question if it is lawfully asked, as a condition precedent to or a condition of employment. It is difficult to see, absent a statutory or constitutional prohibition on such a contractual condition, how the asking of the question is unlawful. This is all the more important to the employer if the existence of criminal convictions is of direct relevance to its business or statutory function and obligations. A bank will not normally wish to employ a convicted fraudster or bank robber. The HSE will not wish to employ a convicted child sex offender in a hospital or child care service. That is common sense. However, there are some circumstances where it will be inappropriate to require disclosure, e.g. if a conviction is spent. This is now clearly addressed in respect of vetting concerning the protection of children and vulnerable persons by, inter alia, ss. 14 and 14A of the 2012 Act as amended, s.6 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 and s.258 of the Children Act 2001.
24. In any employment application or vetting system the truth is of supreme importance. Thus the court is not greatly impressed by the applicant’s answers which were clearly wrong when completing his application form. However, there is also a clear implication in the submissions made that the broad nature of the question posed was itself too wide and should not have encompassed the two striking out orders which were a number of years old. I am not satisfied that this is so. The question posed was an important one for the third and fourth respondents who have extremely important duties of care to protect children and the vulnerable.
25. The applicant however, also submits that the decision maker should not have been given his complete record in the form provided and allowed to determine whether it was relevant to the applicant’s suitability because the charges recorded gave rise to a disproportionate prejudice to him in that he was demonstrably innocent of one charge and enjoys the presumption of innocence in respect of both. At common law there was nothing to stop the employer from asking the question. There was no statutory protection from disclosure of prior convictions at that time and a person duly convicted of a minor offence years previously had no right to shield himself by not telling his potential employer about it: that is now to a limited extent changed under the statutory provisions outlined earlier.
26. The very broad questions posed were answered by the Vetting Office under the Code of Practice. The issues that arise in this case were largely resolved for the future by the Administrative Filter and the 2012 Act in that, in any future vetting application, the subject of the vetting is now allowed an opportunity to contest the record in relation to error and/or relevance before the disclosure is made. The opportunity to correct the record or dispute any detail, in this case, arose only after disclosure was made under the former administrative system. The subject might, after disclosure, raise a dispute by way of a written report in respect of any detail in the disclosure but by that stage prejudice had been suffered. It should be noted that the nature and extent of the information covered by the questions answered by the applicant are somewhat wider than the more focussed vetting process under the Act.
27. The HSE is a public body and in conducting a placement process with Trinity College was obliged to conform with fairness of procedures. It is charged with the onerous duty of protecting and vindicating the personal rights to bodily integrity and health of those children and vulnerable persons entrusted to its care. If it wished to exclude persons who has been convicted or charged with certain criminal offences from appointment to a position in which they would be in contact with children or vulnerable persons, thereby given rise to a risk of injury or abuse, it could do so. It was entitled to adopt a vetting procedure which had regard to a person’s previous character and to rely upon the disclosure of relevant records held by An Garda Síochána to achieve that end. Of course, nothing of such gravity was recorded in respect of the applicant in this case. However, the scope of any such measures, whether administrative or statutory must be fair and proportionate to that objective. I am satisfied that prior to making the disclosure in this case the Vetting Unit should have accorded natural justice to the applicant and he should have been informed of the terms of the disclosure and given a reasonable opportunity to respond or object to it or make such submissions as he thought appropriate to ensure that the full circumstances relating to the disclosure were made known (see M.Q. v. Gleeson [1998] 4 IR 85).
28. In Cox v. Ireland [1992] 2 I.R.503 the applicant, a teacher, challenged the constitutionality of s.34 of the Offences Against the State Act, 1939, which provided, inter alia that a person convicted of a scheduled offence would forfeit his/her public employment and be disqualified from holding any such employment for a period of seven years following their conviction. The Supreme Court held that the provision was invalid. It was satisfied that the provision when applicable
“potentially constitutes an attack, firstly on the unremunerated constitutional right of that person to earn a living and secondly, on certain property rights protected by the Constitution, such as the right to a pension, gratuity or other emolument already earned, or the right to the advantages of a subsisting contract of employment.
It constitutes a major inroad on these rights, for having regard to the number of activities in which persons employed are funded by State funds…an inability of a person convicted in this manner, not only to continue his pre-conviction employment, but to take up employment in any of the other categories of employment coming within the provisions of s.34, is a major curtailment of his earning capacity.”
29. The Court was satisfied that the State was entitled, for the protection of public peace and order, and for the maintenance and stability of its own authority, by its law to provide onerous and far-reaching penalties and forfeitures as a major deterrent to the commission of such crimes and to ensure that persons who commit such crimes are not involved in carrying out the functions of the State. The section applied only to those convicted by the Special Criminal Court of a scheduled offence and that venue could only be avoided by a decision of the Director of Public Prosecutions in respect of which the accused had no right to be heard. The Court was therefore satisfied that the provision failed to protect the constitutional rights of the citizen and was “impermissibly wide and indiscriminate”. I am satisfied that the administrative Code of Practice as operated in this case engages the applicant’s right to earn a livelihood and fair procedures. The State and its agencies are obliged to protect and vindicate the personal rights of children and vulnerable person by ensuring that unsuitable persons are not given access to them or cause them harm but any vetting procedure adopted to achieve that purpose must be fair, necessary and proportionate to that end.
30. In Webster v The Commissioner of An Garda Síochána, Ireland and the Attorney General [2013] IEHC 449, the applicant challenged the system of Garda Vetting disclosures. He argued that by maintaining, distributing and relying on records of non-convictions the respondents had failed to vindicate his good name and reputation. He had been first on a panel for a job as a fire fighter at Urlingford Fire Station. Garda vetting disclosed a number of previous charges which had not resulted in convictions. His application was unsuccessful based on this information. It was argued by counsel for the applicant that the system was unreasonable, disproportionate and not in accordance with constitutional principles. The action was settled during the judicial review proceedings, in favour of the applicant. He subsequently sought an undertaking from the respondents to the effect that the information relating to non-convictions would not be disclosed in future vetting disclosures. The defendants refused. The applicant sought declarations that the Garda Vetting Procedure failed to vindicate the plaintiff’s right to his good name, reputation and livelihood and a declaration under s. 5 of the European Convention on Human Rights Act 2003, that the vetting procedure was incompatible with the State’s obligations under the Convention. It was also claimed that the future dissemination of records of charges of which he was not convicted in a vetting disclosure constituted a violation of his constitutional and convention rights. However, Laffoy J., dismissed the case as an abuse of process because of the prior settlement between the parties of proceedings in which these elements of the claim had not been, but might have been advanced. Thus the substantive issues concerning future vetting were not determined by the court.
31. In G v. The Minister for Justice, Equality and Law Reform [2007] IEHC 52, (Unreported High Court, Quirke J. 17th January 2007), a nephew of Mr. G who had been convicted of serious sexual offences had been allowed to live for a short time with the family. This fact was recorded in confidential documents compiled and distributed within An Garda Síochána. The details of his residence were confirmed to the media. This resulted in widespread knowledge of the fact and considerable abuse, harassment and intimidation of the family which obliged them to leave their home permanently. Quirke J., held that it was unlawful and a violation of the Plaintiffs’ rights to privacy for An Garda Síochána to disclose confidential and sensitive information to the media arising from a request from a journalist for verification of information which was already in the journalist’s possession unless the disclosure was made in order to protect the constitutional rights of others or was in the interests of the common good; “the wrong was the unlawful disclosure of confidential and sensitive information procured by the State” (at p. 21: see also Kennedy v. Ireland and the Attorney General [1987] 1 I.R. 587). I am satisfied that the disclosure of information which should and would in the normal course be withheld by a State agency may engage the right to privacy but the right is not absolute and is subject to disclosure which is made to protect the constitutional rights of others or the common good.
32. The two orders disclosed in this case though made in public were recorded by agents of the State. They were held by An Garda Síochána and would not and could not have been disclosed to any third party unless to protect another’s constitutional right or in the interests of the common good. However, that was the very purpose of disclosure in this case. I am satisfied therefore that the real issue is one of the fairness of procedures adopted before the disclosure was made. If the disclosure was made in compliance with fair procedures, its purpose would clearly be to protect the rights of children and vulnerable persons and could not be regarded as a violation of the applicant’s right to privacy.
33. The procedures applicable are also informed by the requirements of Article 8 of the European Convention on Human Rights which provides:-
“(1) Everyone has the right to respect for his private…life…
(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals and for the protection of the rights or freedom of others.”
34. It was established that the retention and disclosure of a citizen’s information engages the right to private life under Article 8. In Rotaru v Romania (2000) 8 BHRC 449, the Court considered the implications of the storage and disclosure of criminal records. The applicant’s complaint centred on the retention of information and the lack of a mechanism to correct or remove untrue information. The Court rejected the state’s argument that Article 8 was not applicable as the information concerned related to the applicant’s political activities and criminal record and was thus related not to his private life but to his public life. The Court stated that:-
“43. … public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person’s distant past.
44 In the instant case the Court notes that the RIS’s letter of 19 December 1990 contained various pieces of information about the applicant’s life, in particular his studies, his political activities and his criminal record, some of which had been gathered more than fifty years earlier. In the Court’s opinion, such information, when systematically collected and stored in a file held by agents of the State falls within the scope of “private life” for the purposes of Article 8 § 1 of the Convention.”
I am satisfied that the right to private life is engaged by the retention of data by the State concerning the applicant’s previous record of engagement with the criminal justice system as a person charged with criminal offences and its subsequent disclosure notwithstanding the fact that the two orders were made in open court.
35. In R(L) v. Commissioner of the Metropolis [2010] 1 AC 410 the United Kingdom Supreme Court (UKSC) considered the disclosure by the police of child neglect information on a criminal record certificate issued pursuant to statute which the applicant was obliged to seek to continue her employment as a midday supervision assistant in a secondary school. She had no criminal convictions. Her employment was not renewed. A challenge was made against the disclosure. The Court of Appeal rejected the challenge on the basis that the relevant statutory provision permitted the disclosure of non-criminal conviction information if that was thought to be relevant to her suitability for a post involving the supervision of children.
36. The UKSC dismissed the appeal on its particular facts. The information disclosed was found to be true and relevant to the position to which the applicant was appointed and ought to have been disclosed. However, the court in analysing the application of Article 8 reviewed its previous jurisprudence and the case law of the European Court of Human Rights (ECHR). The statutory provisions under which disclosure was made, s. 115, subs. 6 and 7 of the Police Act 1997 as amended permitted disclosure by certificate to a prospective employer under consideration for appointment to a position involving the care of children. The court accepted that the disclosure could constitute an interference in the private life of the applicant. Lord Hope of Craighead stated that it was established that the scope of the right to respect for private life embraces the disclosure of information collected and stored in central records (including convictions) and that its release would interfere with an applicant’s private life. He acknowledged that it was in one sense public information in that convictions took place in open court. However, the systematic storing of the information in central records meant that it was available for disclosure long after the event when everybody other than the person concerned was likely to have forgotten about it. He stated that as a conviction receded into the past, it became part of the person’s private life which must be respected. He noted that much of the other information that might be disclosed under the 1997 Act related to things which happened behind closed doors such as a caution given in private. Section 115(7) required a Chief Constable to form an opinion as to whether the information might be relevant and ought to be included in the disclosure. Lord Hope stated that in forming an opinion under the section on relevance the officer must ask himself whether the information might be true and then consider the degree of connection between the information and the purpose described, if he thought it might. Even though the evidence might be relevant, the opinion must also be formed as to whether it “ought” to be included in the disclosure under the section. In each such case it must be considered whether there is likely to be an interference with the applicant’s private life and if so whether that interference can be justified. Lord Hope stated:-
“42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place.
…
46. In cases of doubt, especially where it is unclear whether the position for which the applicant is applying really does require the disclosure of sensitive information, where there is room for doubt as to whether an allegation of a sensitive kind could be substantiated or where the information may indicate a state of affairs that is out of date or no longer true, Chief Constables should offer the applicant an opportunity of making representations before the information is released. … But it will not be necessary for this procedure to be undertaken in every case. It should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant. The risks in such cases of causing disproportionate harm to the applicant outweighed the inconvenience to the Chief Constable.”
Lord Hope concluded that there was no doubt that the information disclosed about the applicant was relevant for the purpose for which it was required and he did not consider that insufficient weight was given to the applicant’s right to respect for her private life. The facts that were conveyed were true. It was information that bore directly on the question of whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or playground. It was therefore for the employer to decide what to make of the information but he noted that it was not at all surprising that a decision was made to terminate her employment.
37. Lord Neuberger (concurring) stated:-
“81. Having decided that information might be relevant under s. 115(7)(a), the Chief Officer then had to decide under s. 115(7)(b) whether it ought to be included and, in making that decision, there will often be a number of different, sometimes competing, factors to weigh up. Examples of factors which could often be relevant are the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material … both in terms of her prospects of obtaining the post in question and more generally. In many cases, other factors may also come into play, and in other cases, it may be unnecessary or inappropriate to consider one or more of the factors I have mentioned. Thus, the material may be so obviously reliable, relevant and grave as to be disclosable however detrimental the consequential effect on the applicant.
82. In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the Chief Officer is minded to include material in [a certificate] on the basis that he inclines to the view that it satisfies s. 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicant’s Article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that will be required. However, I would have thought that, where the Chief Officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included.”
38. In MM v. United Kingdom [2012] ECHR 1906, the disclosure of a caution and the lack of safeguards in the system governing the retention and disclosure of such data gave rise to a breach of the applicant’s Article 8 rights. The case which originated in Northern Ireland concerned a non-statutory regime operated at the time. Disclosures were made, under common law powers, to a prospective employer, which concerned a caution received by the applicant for child abduction. It occurred when the applicant took her grandchild in a desperate if futile attempt to try to bring the parents back together and discourage the child’s mother from returning with the child to Australia. It was accepted by the police that there was no threat to the welfare of the child. The Court recognised the difficulties that would be caused by future disclosures as the impugned data would be stored for life and would be disclosed whenever the applicant applied for employment falling under the scope of the Police Act, 1997. The Court concluded:-
“206. In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under s. 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed, the time which has elapsed since the offence took place or the relevance of the data to the employment sought.
207. The cumulative effect of these shortcomings is that the court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of article 8 of the Convention in the present case. This conclusion obviates the need for the court to determine whether the interference was ‘necessary in a democratic society’ for one of the aims enumerated therein.”
39. The two striking out orders in this case gave minimal information. The difficulty in transmitting such incomplete information results from a complete absence of any context in the disclosure made. The orders were disclosed in a process which suffered from most, if not all of the inadequacies described in MM . The orders were made in public but much of what transpired was unexplained by the bare record. It was essential to the applicant and the potential placement supervisor and employer that this information be disclosed at the same time, but the deficiencies of the process did not allow for this. While the background facts are not required in all cases of disclosure (e.g. where the nature and relevance of a criminal conviction is obvious), the process should have included the safeguards thought to be essential in MM .
40. In Regina (T) v Chief Constable of Greater Manchester Police and others [2014] UKSC 35, the UKSC heard joined cases involving two claimants. The first had received warnings from the defendant police force when he was 11 years old for the theft of two bicycles. He sought to enrol in a sports degree course when he was 18. As the course involved teaching children the university sought and received an enhanced criminal record, which revealed the police warnings. The second claimant was a 40 year old woman who had received a caution from the police for failing to pay for an item taken from a store. A number of years later, having completed a training course to work in the care sector, a criminal record check revealed the caution. She was thereafter refused the opportunity to work with vulnerable people. A third claimant had been involved in a carjacking incident with her boyfriend which resulted in a fatal stabbing. The claimants sought judicial review seeking a declaration that the disclosure provisions as operated under s.113B of the Police Act, 1997, were not compatible with the right to private life under Article 8 of the Convention.
41. The Court of Appeal held that the statutory regime as set out in s. 113B of the Police Act, 1997 which prescribed a system of mandatory disclosure of all convictions, cautions and warnings relating to recordable offences recorded on a police database, was disproportionate. This blanket disclosure went beyond the aims of protecting vulnerable adults and children as well as enabling employers to assess the suitability of prospective employees for such work because it was not made on appropriate criteria such as relevance, the seriousness of the offence, the offender’s age, the sentence imposed, the manner of disposal of the charge, the time since the commission of the offence and whether the offender had subsequently re-offended and the nature of the work.
42. The Court of Appeal found that the scheme, operating on the basis of a bright line rule, was not proportionate. It was noted that it would be possible for the legislature to produce a proportionate scheme which did not insist on a thorough examination of the facts in every case. It was held that the system of disclosure provisions under the 1997 Act were not compatible with Article 8 of the Convention. Both cases were appealed to the UKSC which upheld the judgment of the Court of Appeal.
43. The UKSC applied the principles set out in M.M. v. United Kingdom. Lord Reed in his judgment stated that legislation which required the indiscriminate disclosure by the State of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interference with Article 8 rights. He said:-
“114. This issue may appear to overlap with the question whether the inference is “necessary in a democratic society”: a question which requires an assessment of the proportionality of the interference. These two issues are indeed interlinked, as I shall explain, but their focus is different. Determination of whether the collection and use by the State of personal data was necessary in a particular case involves an assessment of the relevance and sufficiency of the reasons given by the national authorities. In making that assessment, in a context where the aim pursued is likely to be in the protection of national security or public safety, or the prevention of disorder or crime, the court allows a margin of appreciation to the national authorities, recognising that they are often in the best position to determine the necessity for the interference. As I have explained, the court’s focus tends to be on whether there were adequate safeguards against abuse, since the existence of such safeguards should ensure that the national authorities have addressed the issue of the necessity for the interference in a manner which is capable of satisfying the requirements of the Convention. In other words, an order for the interference to be “in accordance with the law” there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question.
…
119. In the light of the judgment in M.M. v. United Kingdom it is plain that the disclosure of the data relating to the respondent’s cautions is an interference with the right protected by Article 8.1. The legislation governing the disclosure of the data, in the version with which these appeals are concerned, is indistinguishable from the version of Part V of the 1997 Act which was considered in M.M. That judgment establishes, in my opinion persuasively, that the legislation fails to meet the requirements for disclosure to constitute an interference “in accordance with the law”. That is so, as the court explained in M.M., because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data under section 113A.”
Lord Reed also agreed with Lord Wilson that the disclosure of the respondents’ cautions could not in any event be regarded as necessary in a democratic society. The disclosure of warnings for dishonesty which had been given to one of the applicants when a young child bore no rational relationship to the aim of protecting the safety of children with whom, as an adult, he might come into contact. In respect of the second respondent the impact on her private life of the disclosure of her caution for minor dishonesty many years earlier was disproportionate to its likely benefit in achieving the objective of protecting people receiving care.
Conclusion
44. I am satisfied that the Garda Vetting Disclosure procedure applied in this case operated on a blanket disclosure basis and does not satisfy the test of proportionality. I am persuaded by the judgments of the UKSC and it is clear from the jurisprudence of the ECHR that it is necessary for a valid police vetting system to operate with due regard to its legitimate aims. It is undoubtedly appropriate to have a Garda Vetting process for the stated purpose of protecting children and vulnerable adults. Nevertheless, the test of fairness and proportionality must also be satisfied. This required that the provider place the strike out orders as well as minor previous convictions and other information in their proper context. In some, if not many instances, not involving convictions, that will require a review of the background to the case and engagement with the subject, in order to establish the facts and their relevance. The inflexible system operated by the Garda Síochána Vetting Unit which, as a matter of course disclosed striking out orders fails the test of fairness and proportionality.
45. I am also satisfied that the respondents have not identified any discernible aim which was satisfied by the disclosure of the impugned information. In contrast to the case law based on the disclosure of cautions in the United Kingdom, it is notable in the present case that a striking out order does not involve acceptance that one has committed the offence. Indeed, it is acknowledged that the applicant was not guilty of the s. 3 charge and that his version of the circumstances leading to the criminal damage charge was accepted.
46. I am satisfied that the disclosure policy of the respondents failed to respect the applicants right to fair procedures in a decision which impinged upon his right to earn a livelihood. That right could have been adversely and unfairly affected by future similar disclosures. The facts as later clarified following the “dispute” raised by the applicant, did not indicate any relevant reason for the inclusion of the two orders whether based on its reflection of the applicant’s character or his suitability to work in his chosen profession with children or vulnerable people. The disclosure procedure was not governed by statute and there was no mechanism for correction or alteration of information prior to disclosure. I am satisfied therefore that the decision to disclose the two orders was fundamentally flawed and in breach of the applicant’s constitutional and Convention rights.
The Remedy
47. Counsel for the first and second respondent submits that the applicant’s argument has been rendered moot following the resolution of issues with the third (Trinity College) and fourth (HSE) named respondents. A full and final settlement was reached with the fourth respondent. The applicant agreed not to proceed against the HSE which agreed to pay the applicant fifty percent of his costs as recorded in an Order of the Deputy Master made the 14th October 2014. On the 26th January 2015, on the applicant’s application for costs it was directed that the first and second respondents deliver a Statement of Opposition and that the applicant pay to the said respondents their costs of that application. It would appear that absent an undertaking in the form of the orders sought in respect of future vetting, the court was informed that the case was not moot against the first and second respondents. A statement of Opposition and verifying affidavit were delivered.
48. The respondents claim that the applicant’s argument centres on the reaction of Mr. Bracken to the disclosure made by the second named respondent, rather than the disclosure itself. As Mr. Bracken was not employed by the first and second respondent, nor acting as their agent, they cannot be responsible for his actions. Counsel refuted the contention that the actions of the respondents precipitated the applicant’s withdrawal from lectures and it is asserted that any negative impact on the applicant was not the fault of the respondents.
49. I am not satisfied that the applicant’s claim at the time it was initiated was unreasonably brought. It is correct that the correspondence indicates that the applicant was greatly concerned about any future vetting that might result in the same disclosure. Indeed, absent the commencement of the 2012 Act, I am satisfied that the court would have been constrained to grant an order of certiorari of the second respondent’s decision to disclose the two orders. The proceedings were reasonably initiated and maintained. It was only following the conclusion of legal argument in the case that the 2012 Act was brought into force. The Administrative Filter was introduced in 2014. Leave to apply for judicial review was granted on the 7th April, 2014. The Deputy Master made an order on the 14th October, 2014 recording the full and final settlement of the proceedings against the fourth named respondent. The case against all respondents continued well into 2014.
50. I am satisfied that the system of vetting operated by the respondents on the basis of the case law and principles cited above constituted a violation of the applicant’s right to fair procedures and earn a livelihood and his right to private life under Article 8 of the Convention. The practical consequences of the disclosure made and the manner in which it was made had to be addressed by the applicant and caused him embarrassment and upset and a setback in his studies and career. This was addressed to some degree in the settlement reached with the fourth named respondent and recorded in October 2014. The applicant had legitimate concerns in relation to the future vetting which he might face when applying for other placements or employment involving children or vulnerable persons. While it now seems likely, on an analysis of the case law set out above and on the commencement of the 2012 Act that he will not be faced with a vetting procedure which is flawed and constitutes a breach of his constitutional and convention rights, the applicant submits that it was necessary to continue the proceedings in 2015 because an undertaking that a disclosure of a similar kind would not be made in the future was not forthcoming.
51. The charge under s. 3 of the Misuse of Drugs Act 1977 could not be the subject of disclosure since it is entirely irrelevant to the applicant. It is accepted that he is innocent of that charge. The second charge of criminal damage which was struck out was the subject of an explanation ultimately accepted by An Garda Síochána. It seems to me that in respect of this charge the applicant was entitled to the fair procedures described above which were not applied in the initial vetting. It also seems to me that had such procedures being applied there is a strong possibility that this charge might not have been the subject of disclosure. There was always an argument to be made that the disclosure of either of the striking out orders was entirely lacking in proportionality and unnecessary in the circumstances, but the applicant was not accorded an appropriate and fair procedure within which to make it prior to the disclosure: this contributed to the set-backs in his studies already described.
52. The decision to make the disclosure, which was made prior to the administrative and statutory changes subsequently introduced was fundamentally flawed. However, the consequences of the disclosure have now been addressed by the parties and the applicant has been allowed to proceed with a placement with due account taken of the flawed process and its consequences and in particular, the facts behind the two striking out orders. It does not appear to the court that that process should be further disrupted by the making of orders that might in some way suggest that issues which are now somewhat historical should be re-opened. If the applicant is subject to future vetting, I am satisfied that he will be dealt with under the 2012 Act in a compliance with its provisions, the Constitution and Article 8.
53. In those circumstances I do not consider that an order of certiorari is appropriate in respect of the disclosure. I am satisfied that the court should exercise its discretion not to grant that relief while accepting that the process was fundamentally flawed. The court will grant a declaration that the process operated by the first and second respondents as applied in this case was in breach of the applicant’s right to fair procedures and earn his livelihood under Article 40.3 of the Constitution and his right to private life under Article 8 of the Convention.
Okedina v Chikale
Illegality
[2019] EWCA Civ 1393 (31 July 2019)
Lord Justice Underhill:
INTRODUCTION
Both parties in these proceedings are Malawian nationals. The Appellant, Mrs Ivy Okedina, and her husband have lived in the UK, where both have businesses, for some time. In July 2013 she brought the Respondent, Ms Judith Chikale, to whom I will refer as “the Claimant”, to this country to work for her as a live-in domestic worker. She had previously worked for her and her sister in Malawi looking after their parents. The Appellant applied for a domestic worker visa for the Claimant, giving a good deal of false information: the visa was granted for a six-month period, expiring on 28 November 2013.
Following the expiry of her visa the Claimant remained in the UK and continued to work for the Appellant. The Appellant, who kept the Claimant’s passport, told her that the necessary steps were being taken for her visa to be extended, and she left matters entirely in the Appellant’s hands. The Appellant did indeed make an application for an extension, in the Claimant’s name and forging her signature, on the false basis that she was a family member. That application was refused, and an appeal to the First-tier Tribunal, lodged by the Appellant in the Claimant’s name but without her knowledge, was eventually dismissed in January 2015.
The Claimant continued to work for the Appellant and her family until 18 June 2015. During the entirety of her employment she was required to work seven days a week, for very long hours, and was paid only some £3,300. She was dismissed summarily, and ejected from the house, after she asked for more money.
In July 2015 the Claimant brought proceedings in the Employment Tribunal (“the ET”) against the Appellant complaining of unfair and wrongful dismissal; unlawful deductions from wages, by reference both to the terms of her contract and to the National Minimum Wage Regulations 1999 (“the NMWR”); unpaid holiday pay; breaches of the Working Time Regulations 1998; failure to provide written particulars and itemised payslips; and race discrimination. Following the distinction recognised by the Supreme Court in Hounga v Allen [2014] UKSC 47, [2014] ICR 847, all those claims except the discrimination claim can be characterised as “contractual”, in the extended sense that they either are made under the contract of employment or arise out of it; the discrimination claim, by contrast, is in respect of a statutory tort.
The claim was heard in London South before a tribunal chaired by Employment Judge Elliot over three days in October 2016. The Claimant was represented by Mr David Reade QC, instructed by Freshfields Bruckhaus Deringer: he and they (and also Mr Graham Anderson, whom he leads before us) have acted for her throughout the proceedings on a pro bono basis. The Appellant was represented by a solicitor.
The only relevant issue in the ET for our purposes was whether the Appellant could raise a defence of illegality in respect of the period after 28 November 2013. It was her case that as from that date the contract was illegal, or illegally performed, because the Claimant no longer had leave to remain and that accordingly any contractual claim was unenforceable.
By a judgment with written reasons sent to the parties on 21 October 2016 the Tribunal rejected the illegality defence. It upheld the Claimant’s contractual claims, in the extended sense noted above, but dismissed the discrimination claim. A remedy hearing took place in May 2017 and the Appellant was ordered to pay the Claimant £72,271.20. Of that amount some £64,000 was in respect of unlawful deductions from wages.
The Appellant appealed against the liability decision to the Employment Appeal Tribunal (“the EAT”). The appeal was permitted to proceed only on a single ground relating to the ET’s reasoning on the illegality issue. It was heard by HHJ Eady QC on 30 November 2017, together with an appeal against a refusal by the ET to reconsider its original decision. The Appellant was represented by Mr Joseph England of counsel. By a judgment handed down on 15 January 2018 Judge Eady dismissed both appeals.
This is an appeal against that decision in so far as it relates to the original ET decision. The Appellant’s original grounds of appeal were not drafted by lawyers. The application for permission to appeal was considered by Lewison LJ. He carefully analysed the various ways in which the illegality defence appeared to have been put and gave permission limited to a single question, which he formulated as follows:
“… limited to the question whether the effect of sections 15 and 21 of the [Immigration Asylum and Nationality Act 2006] precludes an employee from pursuing contractual claims or claims arising out of a contract of employment where those claims arise at a time when the employee’s leave to remain has expired.”
He directed the Appellant to file amended grounds and a skeleton argument limited to that issue.
The Appellant did not originally comply with that direction, but she belatedly instructed solicitors, and I gave permission to file amended grounds and skeleton argument out of time. The skeleton argument was drafted by Ms Laura Prince and Ms Emma Foubister of counsel. They have represented the Appellant before us. The written and oral submissions of both parties’ counsel were of very high quality.
Mr Reade observed that the Appellant’s amended grounds and skeleton argument departed in some respects from how the case had been put in the ET and the EAT. He made it clear that he took no point on that, but it means that it is more useful to proceed directly to an explanation of the issue as it now stands rather to explain at this stage the reasoning of the tribunals below.
The essential starting-point is to recognise that there are two distinct bases on which a claim under, or arising out of, a contract may be defeated on the ground of illegality. These are nowadays generally referred to as “statutory” and “common law” illegality. Put very briefly:
(1) Statutory illegality applies where a legislative provision either (a) prohibits the making of a contract so that it is unenforceable by either party or (b) provides that it, or some particular term, is unenforceable by one or other party. The underlying principle is straightforward: if the legislation itself has provided that the contract is unenforceable, in full or in the relevant respect, the court is bound to respect that provision. That being the rationale, the knowledge or culpability of the party who is prevented from recovering is irrelevant: it is a simple matter of obeying the statute.
(2) Common law illegality arises where the formation, purpose or performance of the contract involves conduct that is illegal or contrary to public policy and where to deny enforcement to one or other party is an appropriate response to that conduct. The nature of the rule has long been controversial, but the controversy has been resolved by the decision of the Supreme Court in Patel v Mirza [2016] UKSC 42, [2017] AC 467. The majority of the Court adopted an approach based on an assessment of what the public interest requires in a particular case, having regard to a range of factors. At para. 101 of his judgment Lord Toulson, with whom the majority agreed, said:
“One cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without (a) considering the underlying purpose of the prohibition which has been transgressed, (b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and (c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality.”
Patel v Mirza is not directly concerned with statutory illegality, though there are references to it in Lord Toulson’s judgment – particularly at para. 40 and the beginning of para. 109 (pp. 484-5 and 501 G-H).
The formulations in the first sentences of (1) and (2) above are gratefully adopted (with slight editing) from section 44 of Professor Burrows’ Restatement of the English Law of Contract.
Traditionally employment lawyers have tended to refer to the judgment of Peter Gibson LJ in Hall v Woolston Hall Leisure Ltd [2001] ICR 99 as the authoritative statement of the distinction between the two kinds of illegality (see paras. 30-31 (p. 108 E-H)), with statutory illegality being referred to as the second category of illegality and common law illegality as the third[1]. Peter Gibson LJ identifies the touchstone for the availability of a defence in “third category” cases as being that the employee has knowingly participated in the illegal performance of the contract – so-called “knowledge plus participation” (para. 31, quoting Scarman LJ in Ashmore, Benson, Pease & Co Ltd v. A V Dawson Ltd [1973] 1 WLR 828).
The Appellant’s grounds of appeal rely on both forms, but in her submissions before us Ms Prince focused almost entirely on statutory illegality. Any defence of common law illegality faces the obvious difficulty of the Claimant’s lack of knowledge, because she was unaware that her visa had not been extended after 28 November 2013; and, to anticipate, I believe the ET was right to reject it. This feature distinguishes her case from most of the reported cases involving illegality in the employment field. Typically the employee is well aware of his or her immigration status, though they may seek to conceal it from the employer. Here the boot is on the other foot: it is the Appellant who concealed from the Claimant the fact that her visa had not been extended. That is why only the absolute bar created by statutory illegality can give the Appellant any defence.
THE STATUTORY ILLEGALITY ISSUE
THE BACKGROUND LAW
We were referred to a good deal of authority about the circumstances in which a contract is to be regarded as prohibited within the meaning of the statutory illegality rule. The basic principles emerging from those authorities are not in doubt, and I can take them relatively shortly.
I start with a point about terminology. In alternative (a) in the formulation at para. 12 (1) above I refer to the question being whether the statute “prohibits the making of a contract so that it is unenforceable by either party”. The language of “prohibiting” the contract is found in several of the authorities, but other language is also used, including whether the contract is “illegal” or “forbidden” or whether there is an intention to “nullify” the contract or render it “void”. These are all expressions of the same concept, namely that the statute intends to deprive the contract of any legal effect, with the result, reverting to Professor Burrows’ phraseology, that it is unenforceable by either party.
The question whether the statute has that effect depends purely on its proper construction. As Devlin J put it in St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267, at p. 287:
“The fundamental question is whether the statute means to prohibit the contract. The statute is to be construed in the ordinary way; one must have regard to all relevant considerations and no single consideration, however important, is conclusive.”
In Archbolds (Freightage) Ltd v S. Spanglett Ltd [1961] QB 374 this Court endorsed that approach. At p. 390 Devlin LJ added to what he had said in St John Shipping, “one must have regard to the language used and the scope and purpose of the statute”. Both cases were followed and applied in Hughes v Asset Managers Plc [1995] 3 All ER 669.
The example of an express prohibition most often cited is Re an Arbitration between Mahmoud and Ispahani [1921] KB 716. In that case an Order had been made under the Defence of the Realm Regulations providing that no person should without a licence “buy or sell or otherwise deal in” various foodstuffs. The defendant buyer reneged on a contract to buy a quantity of oil. When the seller sued, the buyer took the point that he had no relevant licence and that the contract was accordingly unenforceable. This Court held that the contract was unenforceable. As Bankes LJ put it at p. 724, the Order expressly “makes it illegal, on the part both of the buyer and of the seller, to enter into a contract prohibited by the clause [emphasis supplied]”: see, to the same effect, per Scrutton LJ at pp. 727-9 and Atkin LJ at p. 731.[2] It was common ground that the seller was in fact unaware that the buyer had no licence, but that made no difference: if the contract was prohibited by statute that is an absolute bar to its being enforced.
More commonly, however, the statute contains no express prohibition of the kind found in Mahmoud and Ispahani and the issue is whether such a prohibition must be implied. It follows from the basic principle stated in St John Shipping that that issue must be resolved according to the ordinary methods of statutory interpretation. But some points emerge from the authorities to which we were referred which are of relevance to the construction exercise in the present case.
The first point is that in the absence of an express prohibition a court should only find that Parliament has intended to prohibit a contract of a particular kind, or in particular circumstances, where the implication is clear. In St John Shipping Devlin J said, at p. 288:
“A court should not hold that any contract or class of contracts is prohibited by statute unless there is a clear implication, or ‘necessary inference,’ as Parke B. put it [in Cope v Rowlands (1836) 2 M&W 157], that the statute so intended. If a contract has as its whole object the doing of the very act which the statute prohibits, it can be argued that you can hardly make sense of a statute which forbids an act and yet permits to be made a contract to do it; that is a clear implication. But unless you get a clear implication of that sort, I think that a court ought to be very slow to hold that a statute intends to interfere with the rights and remedies given by the ordinary law of contract.”
The next point clearly made in the authorities is that it does not necessarily follow from the fact that one party is prohibited from entering into a contract, and/or made subject to a penalty if they do so, that Parliament intended to “prohibit” the contract itself in the relevant sense of rendering it unenforceable by either party. Whether that was the intention must depend on a consideration of all relevant factors including matters of public policy.
That point is most clearly stated in Phoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd [1988] QB 216. This was concerned with the enforceability of contracts of insurance entered into by underwriters who were said not to have the necessary authorisation under the Insurance Companies Act 1974. Section 2 (1) of the Act provided that no unauthorised person “shall carry on … insurance business of [the relevant kind]”. Section 11 (1) provided that a person who carried on business in contravention of the relevant part of the Act was guilty of an offence. Section 83 defined the business in question as “the business of effecting and carrying out contracts of insurance [emphasis supplied]”: the precise language of the definition is important, as will appear below. The issue of illegality did not in the event fall for decision because the decision of the Commercial Court that the underwriters did not have the necessary authorisation was overturned. It was, however, fully considered because of its importance to the insurance industry, and the leading judgment of Kerr LJ is to all intents and purposes authoritative. At pp. 267-273 he reviewed the previous authorities about statutory illegality, including St John Shipping and Archbolds. He quoted statements in them to the effect that where a statute imposes penalties on one party for entering into a contract it does not follow that the public interest requires the statute to be construed as rendering the contract itself void, which might cause serious injustice to the other party. There was plainly such a risk on the facts of the instant case. At pp. 273-4 he said:
“The problem is … to determine whether or not the Act of 1974 prohibits contracts of insurance by necessary implication, since it undoubtedly does not do so expressly. In that context it seems to me that the position can be summarised as follows:
(i) Where a statute prohibits both parties from concluding or performing a contract when both or either of them have no authority to do so, the contract is impliedly prohibited: see In re Mahmoud and Ispahani and its analysis by Pearce L.J. in Archbolds (Freightage) Ltd. v. S. Spanglett Ltd., with which Devlin L.J. agreed.
(ii) But where a statute merely prohibits one party from entering into a contract without authority, and/or imposes a penalty upon him if he does so (i.e. a unilateral prohibition) it does not follow that the contract itself is impliedly prohibited so as to render it illegal and void. Whether or not the statute has this effect depends upon considerations of public policy in the light of the mischief which the statute is designed to prevent, its language, scope and purpose, the consequences for the innocent party, and any other relevant considerations. The statutes considered in Cope v. Rowlands and Cornelius v. Phillips fell on one side of the line; the Foods Act 1984 would clearly fall on the other[3].”
He goes on to consider on which side of the line the relevant provisions of the 1974 Act fell. I will have to come back to that later, but at this stage I am concerned only with the identification of the correct approach.
Kerr LJ’s reference to the consequences for innocent parties reflects a point made in several of the authorities. In Hughes v Asset Managers (above) the claimant investors sued on a contract made by a stockbroker who did not have the licence required by the Prevention of Fraud (Investments) Act 1958; dealing without such a licence was an offence. Saville LJ said, at p. 674b:
“It … must be remembered, as Kerr LJ pointed out in [Phoenix], that rendering transactions void affects both the guilty and the innocent parties. The latter, just as much as the former, cannot enforce a void bargain or obtain damages for its breach.”
The Court held that the public interest did not require the Court to construe the statute as rendering contracts made with an unauthorised dealer a nullity: it was sufficiently vindicated by the criminal sanction. Hirst LJ said, at p. 675f:
“I think the public interest under this statute was fully met by the exaction, in appropriate cases, of the quite severe penalties prescribed by s 1(2) of the 1958 Act. I would therefore hold that these contracts are not impliedly forbidden by the statute … .”
There are similar observations in the judgment of Devlin LJ in Archbolds: see at p. 390.
In Archbolds Pearce LJ makes the related point that declining to nullify the contract does not mean that it will be enforceable by a party who knowingly acts in breach of the statutory prohibition, because the defence of common law illegality will still be available. As he puts it at p. 387:
“If the court too readily implies that a contract is forbidden by statute, it takes it out of its own power (so far as that contract is concerned) to discriminate between guilt and innocence. But if the court makes no such implication, it still leaves itself with the general power, based on public policy, to hold those contracts unenforceable which are ex facie unlawful, and also to refuse its aid to guilty parties in respect of contracts which to the knowledge of both can only be performed by a contravention of the statute … or which though apparently lawful are intended to be performed illegally or for an illegal purpose … .”
THE RELEVANT STATUTORY PROVISIONS
The Appellant’s statutory illegality case depends on the two provisions identified by Lewison LJ in giving permission, namely sections 15 and 21 of the Immigration, Asylum and Nationality Act 2006. They form part of a group of sections headed “employment”. I take them in turn.
Section 15 provides for a civil penalty to be imposed on an employer in the circumstances specified. So far as material, and as it stood at the material times, it reads:
“(1) It is contrary to this section to employ an adult subject to immigration control if –
(a) he has not been granted leave to enter or remain in the United Kingdom, or
(b) his leave to enter or remain in the United Kingdom –
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment.
(2) The Secretary of State may give an employer who acts contrary to this section a notice requiring him to pay a penalty of a specified amount not exceeding the prescribed maximum.
(3) An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment.
(4) But the excuse in subsection (3) shall not apply to an employer who knew, at any time during the period of the employment, that it was contrary to this section.
(5)-(7) …”
Sections 16-20 provide for a number of ancillary matters.
Section 21 provides for a criminal offence. Its terms were amended with effect from 12 July 2016, but at the material times it read (so far as relevant):
“(1) A person commits an offence if he employs another (‘the employee’) knowing that the employee is an adult subject to immigration control and that –
(a) he has not been granted leave to enter or remain in the United Kingdom or,
(b) his leave to enter or remain in the United Kingdom –
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment
(2)-(3) …”
Section 25 defines some of the terms used in the preceding sections. For our purposes I need only note that it provides, at (c), that:
“a person is subject to immigration control if under the Immigration Act 1971 he requires leave to enter or remain the United Kingdom.”
In the course of her oral submissions Ms Prince acknowledged that her stronger case was on the basis of section 21: the fact that employing a person without the necessary immigration status is made a criminal offence is inherently a stronger indication that the contract of employment may be prohibited than the imposition of a civil penalty. Nevertheless she made it clear that she relied on both sections. Despite the conceptual difference between a civil penalty and a criminal offence, I will for convenience, save where it is necessary to distinguish, refer to the two sections as imposing “penalties” on the employer.
I should also note here the terms of section 24 (1) of the Immigration Act 1971. These are not relied on as founding any defence in this case, but they are relied on in some of the authorities to which I will have to refer later. As it stood at the material times (it has been amended since), the sub-section read, so far as material:
“A person who is not a British citizen shall be guilty of an offence … in any of the following cases: —
(a) if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave;
(b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either—
(i) remains beyond the time limited by the leave; or
(ii) fails to observe a condition of the leave;
(c)-(f) … .”
As I have said, section 24 (1) has been relied on to raise an illegality defence to a contractual claim (and indeed to a claim in tort). In the case of heads (a) and (b) (i), any such defence should be characterised as one of common law rather than statutory illegality: the employment itself is not in breach of the provision but it cannot be performed except by the employee remaining in the UK in breach of it. But, where it is a condition of the leave to enter/remain that the employee should not work, being employed will be an offence under head (b) (ii) (at least if he or she acts knowingly). One reason why section 24 could not be relied on in the present case is that this was not a case of breach of a condition of leave; rather, the Claimant had no leave at all.
I should spell out that there was at the material time no equivalent to section 21 of the 2006 Act: that is, it was not an offence, as such, for a person without the necessary immigration status to work in the UK (though, as noted above, some such cases would fall within section 24 (1) (b) (ii) of the 1971 Act). That is no longer the case. With effect from 12 July 2016, i.e. after the period relevant to this case, a new section 24B has been inserted into the Immigration Act 1971, rendering it an offence for a person subject to immigration control to “work” (which includes, though it is not limited to, working under a contract of employment) when they are, and know or have reasonable cause to believe that they are, disqualified from working by reason of their immigration status.
THE APPELLANT’S CASE
Ms Prince acknowledged that neither section 15 nor section 21 in terms prohibits a contract of employment where the employee is subject to immigration control and has no current leave to remain: all that they expressly do is to impose a penalty on the employer for employing person. But she contended that in a case which attracted the operation of the sections the necessary implication was that the contract was “prohibited” and accordingly that it was unenforceable by either party. Her essential point was that although the legislation imposed penalties only on the employer it was plainly the statutory intention that any contract of employment with a person who had no leave to remain should be prohibited and that neither party could enforce it. There could logically be no distinction between the positions of the employer and the employee: if the former was prohibited from employing the latter, the latter must equally be prohibited from being employed by the former. As for the considerations relating to the protection of the innocent party emphasised in the authorities noted at paras. 22-24 above, those were apt to cases where the legislation in question was directed at the protection of parties dealing with a provider of services – she referred us to Anderson Ltd v Daniel [1924] 1 KB 138 – but they had no application in the present kind of case. There was no public interest in allowing employees with no immigration status to work, and typically (though admittedly not in the present case) the employee would be at least equally culpable with the employer.
In support of her submissions Ms Prince relied on a number of authorities, which I take in turn.
First, she relied on how Kerr LJ in Phoenix applied the principles which I have set out at para. 22 above to the facts of the particular case. As I have noted, section 83 of the 1974 Act defined the “business” which could not be carried on without authorisation as “the business of effecting and carrying out contracts of insurance”. Immediately following the passage which I have quoted Kerr LJ continued:
“(iii) The Insurance Companies Act 1974 only imposes a unilateral prohibition on unauthorised insurers. If this were merely to prohibit them from carrying on ‘the business of effecting contracts of insurance’ of a class for which they have no authority, then it would clearly be open to the court to hold that considerations of public policy preclude the implication that such contracts are prohibited and void. But unfortunately the unilateral prohibition is not limited to the business of ‘effecting contracts of insurance’ but extends to the business of ‘carrying out contracts of insurance’. This is a form of statutory prohibition, albeit only unilateral, which is not covered by any authority. However, in the same way as Parker J. in [Bedford Insurance Co. Ltd. v. Instituto de Resseguros do Brasil [1985] Q.B. 966] I can see no convincing escape from the conclusion that this extension of the prohibition has the unfortunate effect that contracts made without authorisation are prohibited by necessary implication and therefore void. Since the statute prohibits the insurer from carrying out the contract — of which the most obvious example is paying claims — how can the insured require the insurer to do an act which is expressly forbidden by statute? And how can a court enforce a contract against an unauthorised insurer when Parliament has expressly prohibited him from carrying it out? In that situation there is simply no room for the introduction of considerations of public policy. As Parker J. said in the Bedford case, at p. 986A: ‘once it is concluded that on its true construction the [Act] prohibited both contract and performance, that is the public policy.’
Ms Prince submitted that the position in the present case was analogous. To “employ” a person was, necessarily, not simply to enter into a contract of employment with them but to perform the contract, inter alia by paying wages. The Claimant was relying on an obligation on the part of the Appellant to do the very thing that the statute prohibited.
Secondly, she relied on Mohamed v Alaga & Co [2000] 1 WLR 1815. In that case the plaintiff had introduced clients to a firm of solicitors under an agreement whereby he would be paid half of the fees received. He brought a claim for payment under that agreement. The firm raised a defence of statutory illegality, relying on rule 7 (1) of the Solicitors Practice Rules (made under the Solicitors Act 1974) which provided that, subject to certain immaterial exceptions, “a solicitor shall not share or agree to share his or her professional fees with any person”. The plaintiff, who was unaware of the effect of rule 7 (1), argued that the effect of the rule was not to render a claim under such an agreement unenforceable. This Court rejected that argument. The leading judgment was delivered by Lord Bingham CJ. He gave his reasons in a series of numbered points. Those relevant for our purposes read (p. 1824 A-C):
“(4) By rule 7 solicitors are prohibited from sharing fees or agreeing to do so.
(5) Thus there is a prohibition on the making by solicitors of agreements of the kind assumed to have been made in this case.
(6) Although it is true that the prohibition is only imposed in terms on solicitors, and they alone are liable to imposition of a professional penalty for breach, a contract requires the concurrence of at least two parties and the effect of the prohibition, if observed, is to outlaw the making of such agreements.
(7) There are substantial reasons why, in the public interest, such agreements should be outlawed, some of those reasons being described by Lightman J [in the decision appealed from].
(8) It follows that it would defeat the public interest, which rule 7 in particular exists to promote, if a non-solicitor party to a fee-sharing agreement could enlist the aid of the court to enforce against a solicitor an agreement which the solicitor is prohibited from making.
(9) If the court were to allow its process to be used to enforce agreements of this kind, the risk would inevitably arise that such agreements would abound, outwith the knowledge of the Law Society, to the detriment of the public.”
Ms Prince relied particularly on point (6). She submitted that a contract of employment likewise requires the concurrence of at least two parties and that it followed that the effect of the prohibition was accordingly to prohibit the contract in its entirety.
Finally, Ms Prince referred us to a number of cases in which employees whose immigration status did not permit them to work had been held to be unable to enforce claims against their employers. In her oral submissions she acknowledged that none of them was in fact on all fours with the present case, partly at least because in all of them the employee knew that they were not entitled to work; but she drew some support from them as evidence that a strict approach is taken by the EAT and the Courts to the enforceability of contractual claims in this context.
In Vakante v Governing Body of Addey and Stanhope School (no 2) [2004] EWCA Civ 1065, [2005] ICR 231, an asylum-seeker entered into an employment contract in breach of a prohibition in the letter from the Home Office which regulated his position pending a decision on his claim. This Court upheld the dismissal of his claim of racial discrimination. The case proceeded on the basis that he was in breach of section 24 of the 1971 Act (see para. 30 above) and thus that there had been “illegal conduct”: see para. 18 of the judgment of Mummery LJ (pp. 237-8). The specific provision of section 24 said to have been breached is not identified, but what matters is that the case was treated as one of common law illegality. That being so, it is of no direct relevance for our purposes.
In Blue Chip Trading Ltd v Helbawi UKEAT/0397/08, [2009] IRLR 128, a foreign student took on full-time employment in breach of a condition in his student visa that he should not work for more than twenty hours per week. He brought a claim under the NMWR. It seems from para. 30 of the judgment of Elias P in the EAT that the case was put primarily on the basis of common law illegality. At para. 32 of his judgment (pp. 130-1) Elias P said:
“The question whether a contract is expressly or impliedly prohibited by the statute is not always an easy one to determine in particular circumstances. However, in this case it is the clear intention of Parliament to prevent a person from working save within the terms specified by the Secretary of State, and that analysis is consistent with the conclusion of the Court of Appeal in Vakante. In those circumstances, in my judgment when the claimant was exceeding the time stipulated he was doing the very thing which he was forbidden to do. Moreover, this was a feature of the contract. It was not just a matter of an occasional unlawful act committed in the course of performing an otherwise lawful contract.”
It is clear that, however it had been put, Elias P treated the case as one of statutory illegality. The provision relied on appears from references earlier in the judgment to have been section 24 of the 1971 Act, and on the face of it the claimant would have been in breach of sub-section (1) (b) (ii). The application of the defence was therefore straightforward. But section 24 (1) is not relied on in the present case.
In Zarkasi v Anindita UKEAT/400/11, [2012] ICR 788, the claimant, who was Indonesian, obtained a passport in a false identity in order to obtain leave to enter the UK from Indonesia to work for her employer as a domestic. She brought proceedings for unfair dismissal and unlawful deduction of wages by reference to the NMWR. The EAT (chaired by Langstaff P) upheld the employer’s defence of illegality. As in Vakante, on which the EAT relied, the case was treated throughout as one of common law illegality, and no doubt for that reason no reliance was placed on any particular statutory prohibition: it was clear that the employee’s conduct was illegal.
Finally, there is Hounga v Allen [2014] UKSC 47, [2014] ICR 847. The claimant was brought by the respondents to the UK from Nigeria as a child to work as a live-in domestic. She obtained a visitor’s visa on what she knew were false documents and remained after the visa expired. Unlike the Claimant in the present case she knew that she was not entitled to work. Following her dismissal she brought proceedings in the employment tribunal: some of her claims were contractual, in the broad sense identified above (see para. 4), but she also made a claim of race discrimination. In the ET her contractual claims were dismissed on the ground of illegality, and that decision was upheld in the EAT (UKEAT 0326/10). It appears from para. 33 of the judgment of Silber J in the EAT that the case was treated as one of common law illegality: unlike the present case, there was on the facts “participation plus knowledge”. The claimant did not seek to appeal further in respect of those claims. Her discrimination claims, however, succeeded in the ET (at least in part). The EAT upheld that decision, but it was reversed in this Court. That was the only issue that came before the Supreme Court. It upheld the claimant’s appeal on the basis that, in summary, because of her vulnerability as, in substance, a victim of trafficking, public policy did not require her claim to be disallowed.
The judgment of the majority was given by Lord Wilson. He distinguished between the contractual claims, which were not before the Court, and the (statutory) tortious claim, which was. As regards the former, he said, at para. 24 (p. 855 F-H):
“The application of the defence of illegality to a claim founded on contract often has its own complexities. But, in that it was unlawful (and indeed a criminal offence under section 24(1)(b)(ii) of the Immigration Act 1971) for Miss Hounga to enter into the contract of employment with Mrs Allen, the defence of illegality in principle precluded her from enforcing it. In this regard a claim for unfair dismissal might arguably require analysis different from a claim for wrongful dismissal. But a claimant for unfair dismissal is nevertheless seeking to enforce her contract, including often to secure her reinstatement under it. In Enfield Technical Services Ltd v Payne [2008] ICR 1423, the Court of Appeal, while rejecting its applicability to the two cases before it, clearly proceeded on the basis that a defence of illegality could defeat a claim for unfair dismissal. This present appeal proceeds without challenge to the conclusion of the tribunal, upheld by the appeal tribunal, that the defence indeed precluded Miss Hounga’s claim for unfair dismissal. Equally there is no challenge to the dismissal on that same basis of her claim for unpaid wages although the considerations of public policy to which I will refer from para 46 onwards might conceivably have yielded a different conclusion.”
No doubt because the contractual claims were not before the Court, that passage is quite abbreviated, and it is, with respect, not entirely clear whether Lord Wilson positively accepted that a defence of illegality was well-founded as regards the contractual claims, and if so on what basis. The first half reads as if he did, at least as regards the wrongful dismissal claim, because it was “unlawful … for Miss Hounga to enter into the contract of employment with Mrs Allen”. The reference is to statutory illegality: since the claimant had entered on a visitor visa her working was a breach of the conditions of leave to enter and consequently, as Lord Wilson identifies, a breach of section 24 (1) (b) (ii). But, after canvassing the possibility that a different approach might be justifiable as regards the unfair dismissal claim, in the final sentence he suggests that the defence might not apply even to the claim for arrears of pay, which are clearly contractual.
Lord Hughes, who gave the judgment of the minority, concurring in the result but for different reasons, observed at the end of para. 54 of his judgment (p. 865 E-F) that the claimant was right not to pursue an appeal against the dismissal of her contractual claims, adding at para. 59 (p. 2909C) that “her whole employment was forbidden and illegal”. But, again, that issue was not before the Court, and Lord Hughes does not explain his reasoning further.
In fairness to Ms Prince, she did not place any great weight on Hounga v Allen, recognising that the issue of statutory illegality was not before the Court. I have only felt it necessary to consider the case in the little detail that I have because, given the ground-breaking nature of the decision in this field, practitioners are likely to wish to understand why in truth it does not directly assist in the present case.
DISCUSSION AND CONCLUSION
The starting-point must be the fact that we are not here concerned with a statutory provision, like that in Mahmoud and Ispahani, which says in terms that neither party may do the thing which is the subject-matter of the contract – in that case, buy/sell; in this case, employ/be employed. Neither section 15 nor section 21 of the 1996 Act says that no person shall be a party to a contract of employment where the employee does not have the appropriate immigration status, or that such a contract should be unenforceable by either party. They fall short of saying so in two respects. First, they do no more than provide for a penalty in the event of such employment. Second, they impose the penalty only on the employer. The authorities cited above make it clear that in such a case the legislature is not necessarily to be taken to have intended to prohibit the contract in the sense with which we are concerned: see in particular the passage from the judgment of Kerr LJ in Phoenix quoted at para. 22.
Although that starting-point is accepted by Ms Prince, its importance must not be overlooked. It is a healthy principle that Courts should be slow to give a statute an effect that is not expressly stated. Parliament should say what it means.
The question thus is whether an intention can be implied into section 15 and/or 21 that a contract of employment where the employee does not have the appropriate immigration status should be unenforceable by either party. In answering that question it is necessary, as Kerr LJ puts it under head (ii) in the passage cited from Phoenix, to have regard to “considerations of public policy in the light of the mischief which the statute is designed to prevent, its language, scope and purpose, the consequences for the innocent party, and any other relevant considerations”. The test is of course one of necessity.
I start with the mischief which the statute is designed to prevent. I accept Ms Prince’s submission that this case cannot be equated with cases of the Phoenix or Hughes v Asset Managers type, where a provision that the contract should be unenforceable would risk injuring the very class of person whom the statute is intended to protect. The provisions of the 2006 Act relied on are clearly not aimed at the protection of employees without immigration status. On the contrary, it is clear not only from the provisions in question but from the scheme of immigration control more generally that it is contrary to public policy for persons to be employed in the UK without the relevant immigration status: I will use the convenient shorthand “working illegally”, but without prejudice to the issue whether “illegal working” is prohibited in the sense with which we are concerned.
However, that does not exhaust the public policy aspect. Although typically a person who is working illegally will know that they are doing so, that will not always be the case, as the facts of the present case illustrate. Most obviously, there is a well-recognised problem of vulnerable foreign nationals being brought to this country for exploitation of various kinds: usually, though this is not of the essence, they will be victims of trafficking within the meaning of the Anti-Trafficking Convention. Sometimes they will know that their presence and/or their employment is illegitimate, but sometimes they will be told, and believe, that it is legitimate when it is not. And even outside that context there may be circumstances where an employee is genuinely mistaken about his or her immigration status, sometimes because of their own mistakes but sometimes also because of their employer’s (it is of course not unusual for larger employers to take responsibility for obtaining the necessary permissions for foreign employees). Nor will such mistakes necessarily be unreasonable: some aspects of the relevant rules are complicated or unclear, and wrong advice can be given, sometimes by the Home Office itself. In short, not all cases of illegal working involve culpability on the part of the employee.
It does not seem to me that public policy requires a construction of these sections which would have the effect of depriving the innocent employee of all contractual remedies against the employer in circumstances of that kind. The observations of Pearce LJ quoted at para. 24 above are apposite. We are only concerned here with whether the blunt weapon of statutory illegality requires to be deployed. The common law illegality rule remains available in cases in which the employee knowingly participates in the illegality in question; and that rule appears to give the courts and tribunals all they need in order to reach a proportionate result in a particular case.
What all that leads to is that I do not believe that it can be said that the undoubted public interest in preventing foreign nationals from working illegally requires sections 15 and 21 to be construed as evincing a clear statutory intention that contracts of the kind to which they refer should be unenforceable.
I turn to Ms Prince’s arguments based on the authorities on which she relied.
As for Phoenix, there are three potential points of distinction from the present case. First, section 2 (1) of the 1974 Act contained an express prohibition on unauthorised insurers carrying out contracts of insurance, albeit reinforced in section 11 by a criminal sanction, whereas here the Appellant’s case has to be based on an inference from the existence of the criminal sanction alone. Secondly, Kerr LJ felt compelled, with avowed reluctance, to treat a prohibition on “carrying out” a contract of insurance as necessarily implying that the contract itself was prohibited: that phrase, he believed, connoted specifically the performance of the contract. I do not accept that the language of sections 15 and 21 of the 2006 Act is equally unambiguous: the act of “employing” need refer only to the fact of the contractual relationship and does not necessarily connote the performance of obligations under it. Third, liability under section 11 is strict, whereas liability under both section 15 and section 21 depends on culpability – in the case of section 21 straightforwardly on knowledge of the illegality, and in the case of section 15 on non-compliance with various procedures. I need not consider whether any one of those distinctions would be sufficient on its own, though I am inclined to think that at least the latter two would be. What matters is that when taken cumulatively they are in my view sufficient to mean that Kerr LJ’s conclusion in Phoenix does not govern the present case.
As for Mohamed v Alaga, I do not believe that Lord Bingham’s “point (6)” can be treated as enunciating a universal proposition that, because a contract requires the concurrence of at least two parties, any prohibition on one party entering the contract necessarily renders it unenforceable by the other. That would be wholly contrary to the authorities reviewed above, which require a case-by-case assessment of the public interest. It is clear that his proposition was directed to a contract of the kind in question, and that indeed appears from the following points (7)-(9) which directly address the public interest in that case.
I have already identified why the decisions referred to by Ms Prince concerning employees knowingly working illegally do not assist on her case of statutory illegality. Indeed Hounga v Allen might be thought to assist the Claimant. The final sentence of the passage from Lord Wilson’s judgment quoted at para. 40 above appears to suggest that if the statutory illegality claim had been before the Court the strong public policy in favour of protecting victims of trafficking might have led it to conclude that the relevant statutory provision did not prohibit the contract.
Mr Reade made a further point of a different character. He pointed out that section 98 (2) of the Employment Rights Act 1996, which identifies the potentially fair reasons for the dismissal of an employee, includes at head (d) the case where:
“… the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment”.
He submitted that that showed that Parliament contemplated that a contract of employment would remain legally effective even if entered into in breach of a statutory prohibition. That is a fair point as far as it goes, but it cannot of course establish that that was the intention of the particular statutory provisions with which we are concerned here.
For those reasons I do not believe that sections 15 and/or 21 of the 2006 Act can be read as impliedly prohibiting contracts of employment, in the sense of rendering them unenforceable by either party, where the employee does not have the requisite immigration status.
As I have already noted, the issues were rather different in the ET and the EAT than before us. In particular, the statutory illegality question was understood to depend on whether the contract was unlawful at its inception, a point which is not now pursued. However, in the EAT Judge Eady did also consider whether a defence of statutory illegality could be raised in any event. At para. 49 of her judgment she said:
“… I would also agree with the Claimant that the statutory provisions relied on by the Respondent did not clearly invalidate any contract entered into in 2013. Legislation that provides for a potential criminal offence on the part of an employer (sections 15 and 21 IANA) says nothing about the validity of any contract entered into by that employer (a contract, moreover, that could be fairly terminated should it become apparent that the employee could not continue to work without contravention of a duty or restriction imposed by or under an enactment, see section 98(2)(d) ERA). And although I allow that regard should be had to the broader, underlying purpose of the prohibition in question (and thus to the Claimant’s potential breach – by virtue of the Immigration Rules – of her leave to remain), that simply brings into play the balancing of public policy considerations (as allowed in Hounga and Patel), in a way that is entirely consistent with the ET’s characterisation of this as a case falling within the third category in Hall; that is, a case where illegal performance of a contract may mean it cannot be enforced by a party who knowingly participated in the illegal performance.”
Though more broadly stated – reflecting the very limited argument which it is clear she heard on the point – Judge Eady’s conclusion, and the essence of her reasoning, is to the same effect as mine. Although a purist might say that the second half of the passage inappropriately conflates (a) the exercise required in deciding whether a statute implicitly prohibits a contract in the relevant circumstances with (b) the exercise required in deciding whether the contract is unenforceable at common law, the distinction is in truth largely at the level of theory, since the same underlying principles are involved. It is noteworthy that the language used in the penultimate sentence of Kerr LJ’s “head (ii)” in the passage quoted at para. 22 above from Phoenix is very similar to that used by Lord Toulson at para. 101 of his judgment in Patel v Mirza: see para. 12 (2) above.
THE COMMON LAW ILLEGALITY ISSUE
Although, as I have said, Ms Prince focused primarily on statutory illegality, she did briefly develop an alternative submission based on common law illegality. The ET’s reasons for rejecting the Appellant’s common law illegality defence are given at para. 139 of its Reasons as follows:
“We have found above that the claimant relied on the respondent to take care of her visa situation. We have also found that it entirely suited the respondent and her husband to keep the claimant away from the immigration appeal hearing because they were relying on false information. We also found above that she did not sign the application form. We therefore find that the claimant did not knowingly participate in any illegal performance of her contract and that following Woolston Hall … the illegality does not render the contract unenforceable.”
In the EAT Mr England for the Appellant argued that that approach did not involve the kind of careful assessment of the public interest and of the requirements of proportionality required by Patel v Mirza. Judge Eady summarised his submissions at para. 25 of her judgment as follows:
“… [I]n considering whether it would be disproportionate to refuse relief to the Claimant in the circumstances of this case – and having regard to the guidance laid down on this issue by Lord Toulson in Patel (see paragraphs 93 and 108): (i) here the contract was clearly contrary to immigration law and public policy in that field; (ii) the Claimant must be taken to have known that she was entering into a contract that was in breach of her visa requirements; (iii) the illegality was, further, central to the contract; (iv) denial of enforcement was serious but not in the same way as might be in other cases; and (v) would plainly further the purpose of the immigration provisions in issue; and (vi) would further act as an appropriate deterrent; as well as (vii) ensuring the Claimant did not profit from her illegal conduct; thereby (viii) maintaining the integrity of the legal system.”
Judge Eady dealt with that case at para. 50 of her judgment as follows:
“In this case, the ET found that the Claimant did not knowingly engage in any illegal performance of her contract of employment, and was thus not complicit in any illegality that arose after 29 November 2013 (see, e.g., ET at paragraph 139). In the circumstances, it was satisfied that the illegality identified by the Respondent did not render the contract unenforceable by the Claimant. Given that the Respondent was not given permission to appeal the ET’s findings as to the Claimant’s knowledge, the challenge to the ET’s substantive Judgment must therefore be dismissed.”
Ms Prince submitted that that was an inadequate answer to Mr England’s point. Mr Reade submitted that it had not been necessary for the Tribunal on the facts of this case to carry out an elaborate analysis by reference to the particular factors enumerated; though he also submitted that if it had done so the result would have been the same. I agree on both points. In his judgment in Patel v Mirza Lord Toulson was attempting to identify the broad principles underlying the illegality rule. His judgment does not require a reconsideration of how the rule has been applied in the previous case-law except where such an application is inconsistent with those principles. In the case of a contract of employment which has been illegally performed, there is nothing in Patel v Mirza inconsistent with the well-established approach in Hall as regards “third category” cases. As Mr Reade put it, Hall is how Patel v Mirza plays out in that particular type of case. Accordingly the ET was quite right to treat its findings about the Claimant’s “knowledge plus participation” as conclusive; and the EAT was right to endorse that approach.
DISPOSAL
I would dismiss the appeal.
Lord Justice Davies:
I agree entirely with the judgment of Underhill LJ.
In my view, the key to this case lies in the fact that s.15 and s.21 of the 2006 Act are directed at the employer. They are not, in my opinion, directed at the employee. I do not, in this regard, consider that the words “employ” and “employs”, as used in those two sections respectively, are required to be taken as extending the unlawful conduct in question to employees who carry out their employment obligations. Cases such as Phoenix are accordingly distinguishable. On that basis, and given further the finding of fact in this case that the claimant did not know of the illegality, it follows that the defences based on statutory and common law illegality must both fail. Such a conclusion fortunately also accords with the merits of this particular case.
Lady Justice Nicola Davis:
I agree with both judgments.
Note 1 I need not trouble with why the Court recognised three categories rather than two. [Back]
Note 2 The Order also provided that any infringements constituted criminal offences, but the Court made it clear that that was not necessary to its reasoning: see per Bankes LJ at p. 724 and Atkin LJ at p. 731. [Back]
Note 3 I need not elucidate these particular references, save to note that Cornelius v Phillips [1918] AC 199 was a case under the Moneylenders Act 1900. In such cases the public interest clearly favoured the conclusion that a loan entered into by an unlicensed moneylender was unenforceable: it was not the borrower who would suffer. [Back]