EDA044

FULL RECOMMENDATION

ADE/03/13

DETERMINATIONNO.EDA044

SECTION 83, EMPLOYMENT EQUALITY ACT, 1998

PARTIES :

FÁS
(REPRESENTED BY WILLIAM FRY SOLICITORS)

- AND -

A COMPLAINANT

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal under Section 83 of the Employment Equality Act, 1998 DEC-E2003-029

BACKGROUND:

2. The complainant referred the case to the Labour Court on the 20th of August, 2003. The following is the Court's determination:

DETERMINATION:

This matter came before the Court by way of an appeal by the Complainant against a decision of an Equality Officer of the Office of the Director of Equality Investigations (the Equality Tribunal). In that decision, delivered on the 14th July 2003, the Equality Officer held that she did not have jurisdiction to embark upon an investigation of the complaint submitted because the complainant lackedlocus standito maintain the proceedings. The Court decided that it would first consider, as a preliminary matter, whether the Equality Officer was correct on her conclusions on the question oflocus standiand jurisdiction. Accordingly, this determination deals only with that preliminary issue.

Background:

The complainant referred a complaint to the The Equality Tribunal on the 31st May, 2002, pursuant to Section 77 of the Employment Equality Act, 1998, (the Act). The substance of the complaint is that the complainant’s son was discriminated against by FÁS on grounds of disability when he was not offered a work placement. The son is of full age and suffers from an intellectual disability.

The Equality Tribunal queried the complainant’s entitlement to maintain the proceedings in his own name and sought confirmation that the proceedings were being brought by the complainant on behalf of the son, and with the son’s agreement. The complainant declined to provide such confirmation. The Equality Tribunal sought the opinion of Senior Counsel in the matter, which opinion advised that the complainant lackedlocus standito maintain the proceedings before the Tribunal. A copy of the said opinion was provided to the parties who were invited to make observations in relation to the jurisdiction andlocus standiissues. Following a hearing, which the complainant did not attend, the Equality Officer declined to investigate the complaint for the reasons previously stated.

Proceedings before the Labour Court:

As is normal, both parties made written submissions to the Court. The complainant made a second submission in writing in which he addressed points raised by the respondent in its written submission. By letter dated 18th December, 2003, the complainant informed the Court that he did not wish to make any contributions to its deliberations in the case beyond his two written submissions and that he would not be attending the Court hearing. The complainant did not attend the Court hearing, and the Court proceeded on the basis that his entire case was contained in his written submission. The respondent, through Counsel, presented its written submission to the Court which was augmented by oral argument.

There is a net point to be considered by the Court, namely whether the complainant is entitled to maintain these proceedings in his own name and on his own initiative.

The relevant statutory provision is contained at Section 77 of the Act and provides as follows:

77.—(1) A person who claims—
- (a) to have been discriminated against by another in contravention of this Act,
  (b) not to be receiving remuneration in accordance with an equal remuneration term,
  (c) not to be receiving a benefit under an equality clause, or
  (d) to have been penalised in circumstances amounting to victimisation,
may, subject to subsections (2) to (8), seek redress by referring the case to the Director.

The respondent submitted that the statute is clear in providing that only a person who claims to have been discriminated against may seek redress by referring a complaint to the Equality Tribunal. They submitted that if a claim is not properly instituted before the Equality Tribunal, the Court cannot have jurisdiction to consider and determine an appeal by way of a de novo hearing of the case.

The respondent relied on the dicta of Hamilton CJ and Keane J (as he then was) inTelecom Eireann v O Grady [1998] IR 432, as authority for the proposition that if there is nothing to modify, alter or qualify the language which a statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.

The complainant referred, inter alia, to Directive 2000/78/EC (General Framework for Equal Treatment in Employment and Occupations) in support of his contention that he is entitled to maintain the within proceedings. Article 9 of the Directive provides as follows:

“Member states shall ensure that associations, organisations, or other legal entities which have, in accordance with the criteria laid down by the national law, a legitimate interest in ensuring the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant with his or her approval, in any judicial or administrative procedure provided for the enforcement of obligations under this Directive.”

Whilst the complainant did not expressly raise the point, the doctrine of direct effect in European Community law may be relevant to the case that he seeks to advance. In circumstances in which the respondent is professionally represented and the complainant is not, the Court regards it as appropriate to consider all points of law which may be relevant to the unrepresented party’s case whether or not they were raised.

In a line of cases starting withVan Duyn v The Home Office [1974] ECR 1337and ending withMarshall v Southampton & South West Hampshire Health Authority [1986] ECR 723it has been held by the ECJ that in certain circumstances a Directive can create rights which may be relied upon by an individual in proceedings before a National Court.

The conditions which must be fulfilled before a Directive can have direct effect are:

1. The relevant provision of the directive must be unconditional and sufficiently precise.

2. The time limit for implementation must have passed.

3. The Action must be against the State.

With regard to point 3, the ECJ has given the State a wide meaning and includes bodies that emanate from the State. InFoster v British Gas Plc [1990] ECR 3313, it was held that a body is an emanation of the State if:

(a) it is under the control of the State,
(b) it is responsible for the provision of public services, and
(c) it has special powers beyond those which result from the normal rules applicable to relations between individuals.

The Court is satisfied that the respondent in this case is an emanation of the State by the application of that test. However, the Directive cannot avail the complainant in this case for two reasons. Firstly, the date by which member states were expected to implement the Directive was 2nd December, 2003. It cannot have direct effect in respect of a complaint made before that date. Secondly, it is clear that this provision in the Directive requires the establishment of associations, organisations, or other legal entities which can be charged with the responsibility of assisting complainants in bringing claims before National Courts. It does not afford individuals the right to take cases on behalf of other individuals. In Ireland, the Equality Authority is a body of the type envisaged by Article 9 of this Directive.

Finally, it is noteworthy that Article 9(1) of the Directive provides that member states shall ensure judicial and/or administrative procedures are available for the enforcement of obligations under the Directive to all personswho consider themselves wronged(emphasis added) by failure to imply the principal of equal treatment to them. It is clear that, like the Act, this Directive (which is not yet transposed in Irish Law) requires only that persons who consider themselves the victim of discrimination may have a cause of action under the Directive.

The complainant further submitted that the Court, in Determination EDA024, had heard and determined a case brought by the same complainant in respect of his son in circumstances similar to the instant case. In that case, the question of the complainant’slocus standihad not been raised at first instance, and the Court proceeded in the appeal as if the complainant was the son. Furthermore, the issue oflocus standiand the jurisdiction of the Court has been put in issue in this case and must be addressed on its merits.

Conclusion.

For the reasons set out above, the Court is satisfied that no basis exists upon which it could legitimately depart from the literal meaning of the words and phrases used in section 77 of the Act. The Labour Court is a creature of statute and cannot exercise any jurisdiction beyond that which it derives from statute. The Court’s appellate jurisdiction is derived from a valid complaint having been made to the Equality Tribunal in accordance with the Act by a person statutorily authorised in that behalf.

In that regard, there is no ambiguity whatsoever in the language used at Section 77 of the Act. It clearly confines the right to seek redress under the Act to a person who claims to have suffered discrimination on one of the discriminatory grounds. Since the complainant herein is not a person who claims to have been discriminated against under the Act, it follows that he cannot maintain these proceedings.

Determination.

For all of these reasons, the Court is satisfied that the complainant in this case does not havelocus standito bring the within proceeding and that, accordingly, the Court has no jurisdiction to hear or determine this appeal.

Accordingly, the decision of the Equality Officer is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court

Kevin Duffy
26th January, 2004______________________
CONChairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.