CLIFFORD (REPRESENTED BY THE EQUALITY AUTHORITY) AND AOSDÁNA (REPRESENTED BY BEAUCHAMPS, SOLICITORS)
1. DISPUTE
This dispute involves a claim by Mr. Seán Clifford that he was discriminated against by Aosdána on grounds of age, within the meaning of section 6(2)(f) of the Employment Equality Act, 1998 and in contravention of section 13 of that Act, when it informed him in October, 2001 that he must be 30 years of age to be eligible for membership of that body.
2. BACKGROUND
2.1 The complainant is an artist by profession. The respondent defines itself as "an affiliation of artists engaged in literature, music and visual arts, established by the Arts Council, to honour those artists whose work has made an outstanding contribution to the arts in Ireland and to encourage and assist members devoting their energies fully to their art". In October, 2001 the complainant, who at that time was 26 years old, made enquiries about membership and was informed by the respondent that to qualify for membership of that body a person must be at least 30 years of age. He argues that Aosdána is a body covered by section 13 of the Employment Equality Act, 1998 and its practice of operating a minimum age requirement is unlawful. The respondent accepts that at October, 2001 membership was restricted to persons over the age of 30 years but argues that it is not a body covered by section 13 of the Act.
2.2 The complainant referred a complaint to the Office of the Director of Equality Investigations (the Equality Tribunal) on 5 April, 2002. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer on 9 September, 2002, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 16 May, 2003. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. Some delay arose as a result of difficulties in respect of matters connected with the complainant's legal representation. The necessity of a second hearing was explored with the parties by the Equality Officer and the option was declined by the parties. The Equality Officer received confirmation that the parties were satisfied that he was in possession of all relevant information from their perspective on 8 April, 2004.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is an artist by profession and at the time of the alleged act of discrimination (11 October, 2001) he was 26 years old. He states that on the day of the alleged incident he telephoned Aosdána seeking information on how one might apply for membership of that body and was informed by an employee of Aosdána that amongst the requirements of eligibility for membership, a person must be over 30 years of age. He adds that this requirement is also posted on the respondent's Internet Website.
3.2 The complainant states that the Long Title of the Employment Equality Act, 1998, ("the Act" provides, inter alia, "An Act to make further provision for the promotion of equality between employed persons; to make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies ....". The complainant submits that the Long Title of the Act does not merely prohibit discrimination in employment, but also prohibits discrimination by certain bodies. He adds that section 13 of the Act sets out, in broad terms, what type of body/organisation comprises "certain bodies" and submits that the respondent is a "professional or trade organisation" in terms of paragraph (b) of that section of the Act.
3.3 The complainant accepts that the Act does not define "professional or trade organisation" and submits in those circumstances that the expression is to be given its literal meaning. In support of this proposition he cites the judgement of O'Flaherty J in Cork County Council v Whillock1 who held "The first rule of construction requires that a literal construction must be applied. If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences". He adds that assistance in determining the ordinary and natural meaning may be gleaned from the Concise Oxford Dictionary (1990) which contains the following definitions:
"Profession - A vocation or calling, esp. one that involves some branch of advanced learning or science (the medical profession);
Trade - A skilled handicraft esp. requiring an apprenticeship (learned a trade, his trade is plumbing);
Organisation - An organised body esp. a business, government department, charity etc.".
The complainant submits therefore that the term "professional or trade organisation" is to be interpreted as meaning an organised body of persons engaged in a vocation or calling or a skilled handicraft.
3.4 The complainant submits that the respondent is an organised body of artists engaged in literature, music and the visual arts, that such artists are engaged in a profession (vocation or calling) or a trade (skilled handicraft) and the respondent is therefore a "professional or trade organisation" within the meaning of section 13(b) of the Employment Equality Act, 1998. He argues that that expression may be further illuminated by reference to the immediate context within which it occurs. He submits that a body may be "a professional or trade organisation" within the meaning of 13(b) of the Act, whilst it is neither "an organisation of workers or employers" nor a body "which controls entry to, or the carrying on of, a profession, vocation or occupation" which are specifically covered at section 13(a) and 13(c) of the Act respectively and accepts that the respondent is not a body covered by sections 13 (a) or (c).
3.5 The complainant argues that the term "professional or trade organisation" in section 13 of the Act contemplates a body which confers rights and benefits on its members and submits that the nature of the activities it pursued over a number of years (which were reported in its Annual Reports) clearly go beyond an affiliation of artists that confers honour and recognition on members, in that there was a concerted effort on its part to exert influence or pressure in areas of policy relevant to it and thus of benefit to its members. In addition, the respondent may pay members a grant (or annuity) to assist them in concentrating their energies in the full-time pursuit of their art, subject to those members applying for the grant and fulfilling the necessary qualifying conditions. The complainant submits that eligibility for this grant is a benefit restricted to members of Aosdána. The respondent also operates a pension scheme for members in receipt of a grant, an element of which is paid by Aosdána.
3.6 In summary, the complainant submits that the respondent is "a professional or trade organisation" within the meaning of section 13(b) of the Employment Equality Act, 1998 and that it discriminated against him on grounds of age by operating a policy that eligibility for membership was restricted to persons over 30 years of age and refusing him access to membership because he had not reached that age.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's contention that it is a body within the meaning of section 13 of the Act. It states that the Act seeks to outlaw discrimination in relation to, or arising out of, employment relationships. It submits that the Long Title of the Act clearly states that the Act is "to make further provision for the promotion of equality between employed persons" and that the reference to "membership of certain bodies" is in the context of the Act's objective to make provision with respect to discrimination in, and in connection with employment. In support of such a proposition the respondent states that the Act is a development on EU Directives on Equal Pay between Men and Women2 and Equal Treatment between Men and Women3, both of which relate to employment situations.
4.2 The respondent submits that section 13 of the Act, when read with section 6, makes it clear that the bodies described in that section (section 13) are not to discriminate against a person in respect of membership of a body which relate to the entry to, or carrying on of, that profession, vocation or occupation. It further submits that it is not an organisation of artists; it has no role in relation to providing a negotiation forum for terms and condition of employment or engagement for artists; it does not have any role in the areas set out at section 8(1) of the Act; nor has it any role as a lobby group, advisor or otherwise in relation to any aspect of employment or industrial relations matters for artists. It argues therefore, that as an honour system it has none of the characteristics necessary to be covered by the meaning of a body in terms of section 13 of the Act.
4.3 The respondent accepts that at the time of the alleged incident, it operated a practice which required artists to be at least 30 years of age before they were eligible for consideration for membership of Aosdána. It adds that the primary requirement for eligibility to Aosdána is that the artist must have distinguished himself or herself by the excellence of his/her art. The requirement that an artist must be at least 30 years old is a reflection of the requirement for artistic experience, development, maturity and achievement which potential members must possess. The respondent adds that potential members to Aosdána must be nominated by two existing members in the form of a strong personal recommendation by those members - and that this nominating process forms the beginning of an electoral process open to all existing members of Aosdána (which at the time of the hearing stood at 194), at the end of which membership may, or may not be granted to the nominee. It argues that it is entirely inappropriate if the assessment of such artistic distinction were subject to the same regulatory regime as applies to employers and employees. It states that the age limit no longer applies, but stresses that this should not be construed as an admission that the Act applies, rather it was reflective of its policy to comply with best practice in the context of its association with a Semi-State, Exchequer funded body (i.e. The Arts Council).
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not Aosdána is a body within the meaning of section 13 of the Employment Equality Act, 1998 and (ii) if so, whether or not its practice of restricting eligibility for membership to persons over 30 years of age, constitutes discrimination in terms of 6(2)(f) and contrary to section 13 of the Act. In reaching my decision I have taken into consideration all of the submissions, both oral and written, made to me by the parties.
5.2 The first issue for consideration by me is whether or not the respondent is a body covered by section 13 of the Employment Equality Act, 1998. The complainant submits that the Long Title of the Act does not merely prohibit discrimination in employment, but also prohibits discrimination by certain bodies. The respondent argues that the Act seeks to outlaw discrimination in relation to, or arising out of, employment relationships. Is submits that the Long Title of the Act states that the Act is "to make further provision for the promotion of equality between employed persons" and that the reference to "membership of certain bodies" is in the context of the Act's objective to make provision with respect to discrimination in, and in connection with employment. It adds that the Act is a development on EU Directives on Equal Pay between Men and Women4 and Equal Treatment between Men and Women5, both of which relate to employment situations. The two directives referred to by the respondent were originally provided for in Irish law by the Anti-Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1977 respectively, both of which were primarily premised on the fact that one party to a claim was male and the other was female. Both of these Acts were repealed by section 5 of the Employment Equality Act, 1998. Section 6 of the Employment Equality Act, 1998 defines discrimination for the purposes of the Act and also sets out the grounds upon which unlawful discrimination can arise - "the discriminatory grounds". I note that these "discriminatory grounds" include the gender ground and marital status - which are required to ensure compliance with the Directives - but extend to seven other grounds, including age, which are not required in either Directive. It is clear therefore that the Act extends a prohibition on discrimination to grounds which were not required by any EU instrument at the time it was enacted (18 June, 1998).
5.3 The respondent asserts that the Long Title of the Act seeks to outlaw discrimination in relation to, or arising out of, employment relationships; that as the complainant and respondent do not have such a relationship it would be inequitable for this Tribunal to construe the Act in such wide terms as to create the relationship of employer and employee between the parties. I do not concur with the respondent's contention that the Long Title of the Act merely applies to an employer-employee relationship, whilst accepting that the relationship between the parties cannot be considered as such. I am satisfied that the Act goes beyond such a relationship as it specifically provides for a relationship between an individual and an employment agency (section 11), an individual and a person or organisation providing a course of vocational training (section 12) and an individual and certain bodies (section 13) and outlaws discrimination in respect of each of those discrete relationships between persons.
5.4 It is section 13 that is at issue in this case. This section reflects, with some minor amendment, section 5 of the Employment Equality Act, 1977 and provides as follows:
"A body which --
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry to, or the carrying on of, a profession, vocation or occupation,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.".
The complainant submits that the first rule of statutory construction requires that the words be given their ordinary, plain, literal meaning and that this interpretation should be applied unless its gives rises to an absurd or incongruous result. This approach was set out fully in Inspector of Taxes v Kirwan6 where Henchy J held that "the words used have the meaning attached to them in common and ordinary use of language". The complainant accepts that the respondent is not an "organisation of workers or of employers" and I would concur that it is not such a body. He also accepts that it is not a body which "controls entry to, or the carrying on of, a profession, vocation or occupation" and I would also agree that this is the case. His argument is therefore that the respondent is "a professional or trade organisation.... which confers benefits, other than pension rights, provided by it or in relation to.... the carrying on of, that profession, vocation or occupation." as provided at section 13(b) of the Act. It is clear to me that the legislature intended to provide protection in respect of bodies not covered by an interpretation of sections 13(a) or 13(c) of the Act by providing a third category at section 13(b).
5.5 In Inspector of Taxes v Kirwan7 Henchy J noted that, in identifying the ordinary meaning of a word, one should look primarily not to dictionaries or other similar sources, but to his her own experience of the words. Applying this guidance to the words contained in section 13(b) of the Act I would consider the word "professional" to denote something or someone connected with or belonging to a profession, which in turn means an occupation involving some branch of advanced learning, education or training. The word "trade" to my mind denotes an occupation involving a skill or craft of a physical nature which is acquired over a number of years of apprenticeship. An "organisation" is a body comprising a number of people pursuing a common goal or objective, structured in a hierarchical manner, headed by an individual or group of individuals and governed by a system of rules or regulations. The membership of the respondent body is comprised of artists who have excelled across the disciplines of literature, music and visual arts. Whilst members may have a natural aptitude for their respective discipline, this aptitude can be developed, honed and updated over time through dedicated learning or training on their part. I am satisfied therefore that members of Aosdána are artists who have pursued their respective professions in literature, music, painting and sculpture and who have excelled in them.
5.6 It is now necessary to examine the structure and characteristics of the respondent body. The respondent states that it is "an affiliation of artists engaged in literature, music and visual arts, established by the Arts Council, to honour those artists whose work has made an outstanding contribution to the arts in Ireland and to encourage and assist members devoting their energies fully to their art". Membership is an honour bestowed on an artist following a stringent nomination and selection/electoral process involving the entire membership of Aosdána. In addition, in special recognition of the most outstanding contribution to the arts in Ireland, existing members of Aosdána may receive a special award (restricted to a maximum of five recipients at any one time) known as Saoi which is conferred by the President of Ireland, following a ballot of existing members. Both of these awards are in my view, honorary in nature and bestow no other direct benefit to the recipients. They are therefore consistent with the first objective of the respondent as set out above. Once membership to Aosdána is granted, members are entitled to apply for a financial grant, subject to the applicant fulfilling certain eligibility criteria. This grant consists of an annuity for five years and is intended to provide some form of income to the recipients to enable them devote their energies in the full time pursuit of their art. I am satisfied that this is consistent with the second objective of the respondent as set out above.
5.7 I have examined extracts from a number of Annual Reports of the respondent .These extracts indicate that Aosdána was involved in areas such as (i) the rate of VAT levied on the importation of works of art into Ireland and the consequential effect of this policy on isolating Irish arts from mainstream European and International trends and it made representations to the relevant authorities on the issue; (ii) the impact of Broadcasting legislation on the programming of new music on national radio and its general dissatisfaction with RTÉ's approach to the subject and made representation to RTÉ and the relevant Minister; (iii) discussions with the Irish Music Rights Association (IMRO) in connection with the implications posed by sophisticated information technology and EU Directives concerning copyright and other intellectual property issues for artists; (iv) the issue of prompt payment of royalties to artists by publishers and (iv) representations to the relevant Minister in respect of the arts in education. These roles clearly extend beyond the objectives set out by Aosdána in the preceding paragraph and seek to impact upon or inform policy in respect of areas of the Irish arts which the respondent considered to be deficient in some way, in an effort to benefit its members and Irish artists in general. I have also examined its Guidelines covering its membership, rules and procedures and note that ten of its members are elected on a biannual basis to oversee the administration of Aosdána. These characteristics, when combined with my comments at paragraph 5.5 above, lead me to conclude that the respondent is a body covered by section 13(b) of the Employment Equality Act, 1998.
5.8 Having found that the respondent is a body covered by section 13(b) of the Employment Equality Act, 1998, I must now decide whether or not its practice of restricting eligibility for membership to those over 30 years of age constitutes discrimination in terms of section 6(2)(f) of the Act. The respondent states that membership is restricted to a maximum of 200 persons at any one time, that an artist seeking membership must be nominated by two existing members and the nomination is subjected to a rigorous selection/electoral process in which each member is entitled to vote. I make no comment on the selection/electoral process - it is entirely open to members to select the applicants whom they consider most deserving of artistic distinction on whatever basis they deem fit - other than to say that however rigorous it may be, it cannot treat a person less favourably than another on any of the discriminatory grounds under the Act, otherwise it may fall foul of that legislation. In any event, it is not the electoral process which is at issue in this case, it is the rule that only persons over 30 years of age were eligible to pursue membership. The respondent accepts that to be considered eligible for to seek nomination to Aosdána, the person involved must be over 30 years of age and adds that the primary requirement for eligibility to Aosdána is that the artist must have distinguished himself or herself by the excellence of his/her art. It goes on to sat that this minimum age limit is designed to reflect a requirement for artistic experience, development, maturity and achievement which potential members must possess. I consider the application of this arbitrary age limit presupposes that artists younger that 30 years of age will not possess such attributes and whilst this may in fact be the case, it is, in my opinion, discriminatory to assume that nobody will. It follows therefore, that I consider the operation of the minimum age limit to constitute less favourable treatment of the complainant on grounds of age in terms of section 6 of the Act.
5.9 I must now assess the quantum of redress appropriate in the circumstances. Section 82(4) of the Employment Equality Act, 1998 provides that the maximum amount of compensation which can be awarded is €12,700. It is arguable that the complainant may not have succeeded in acquiring the necessary sponsors to support an application for membership of Aosdána and even if he had done so, he may not have succeeded in the selection/electoral process. However, due to the respondent's policy of operating a minimum age requirement in respect of eligibility for membership, he was denied the opportunity to even embark on such a process. I also note that the respondent has removed the age limit requirement with effect from January, 2003. In the circumstances I consider compensation of €2,500 to be appropriate and I order the respondent to pay the complainant that amount.
6. DECISION OF THE EQUALITY OFFICER
I find that Aosdána is a body covered by section 13(b) of the Employment Equality Act, 1998. I also find that its former practice of restricting eligibility for membership of Aosdána to persons over 30 years of age to constitute discrimination of the complainant in terms of section 6(2)(f) of the Employment Equality Act, 1998 and in contravention of section 13 of the Act. In accordance with section 82 of the Act I order the respondent to pay the complainant the sum of €2,500 as compensation for the effects of the discriminatory treatment experienced by him. This amount does not contain any element of lost income.
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Vivian Jackson
Equality Officer
23 July, 2004
1 [1993] 1 IR231
2 Council Directive 75/117/EEC
3 Council Directive 76/207/EEC
4 Council Directive 75/117/EEC
5 Council Directive 76/207/EEC
6 [1981] IR117
7 [1981] IR117