FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : FÁS - AND - BURKE DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal under Section 83 of The Employment Equality Act, 1998 - Dec-E2004-016.
BACKGROUND:
2. The Labour Court investigated the above matter on the 18th November, 2004. The Court's determination is as follows:
DETERMINATION:
The Dispute
Mr Gerard Burke (the complainant) brought a complaint against FÁS (the respondent) alleging that he suffered discrimination on the age ground when the respondent published an advertisement on behalf of Telecom Ltd seeking to fill a vacancy for a Trainee Telecoms Engineer. The advertisement contained the words “an ideal opportunity for a young candidate”
The facts of the case are not in dispute and can be summarised as follows:
The advertisement was placed by Telecoms Ltd in the FÁS jobs bank on 29th July 2002. It was one of some 2000 advertisements placed with the respondent on a weekly basis. The offending wording went unnoticed by the respondent’s staff. The advertisement was then posted in the respondent’s Employment Services Offices.
The complainant saw the advertisement at the respondent’s office at D’Olier Street, Dublin. He asked for and received a printout of the advertisement and applied for the vacant post. The complainant was 45 years of age at the material time. He did not receive any response from the advertiser. He concluded that the reason why his application was ignored was because of his age.
The complainant referred a complaint to the Equality Tribunal pursuant to section 77 of the Employment Equality Act 1998 (the Act). The complaint was investigated by an Equality Officer who held that the complainant did not have locus standi to bring the complaint. The complainant appealed to this Court.
Conclusion.
The only issue for determination is whether the complainant is entitled to bring a complaint against the respondent as the publisher of the offending advertisement.
Section 10 of the Act provides as follows:
- 10.—(1) A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an intention.
(2) For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which—
- (a) connotes an individual of a particular sex or an individual having (in terms of any of the discriminatory grounds) a particular relevant characteristic, or
- (b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by members of one sex or only by individuals having such a particular relevant characteristic,
- (a) connotes an individual of a particular sex or an individual having (in terms of any of the discriminatory grounds) a particular relevant characteristic, or
then, unless the advertisement indicates a contrary intention, the advertisement shall be taken to indicate an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.
It is clear beyond argument that the advertisement giving rise to this complaint contravened this section. The only question is whether the complainant has legal standing (locus standi) to bring a complaint against the respondent as the publisher of the advertisement.
Section 85 of the Act provides that a complaint concerning the publication or display of an advertisement of a type prohibited by Section 10 may be prosecuted by the Equality Authority. The Act does not provide for the prosecution of such a complaint by an individual and it is clear that the Oireachtas intended that the exclusive power to do so would be vested in the Authority. Consequently, the complainant lacks locus standi to bring this complaint and it cannot be entertained by the Court.
The appeal is disallowed and the decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
14th_December, 2004______________________
JBChairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.