DEC-S2008-078 - Full Case Report

Equal Status Acts, 2000 to 2008

Equality Officer Decision

DEC-S2008-078

Gloria (Ireland’s Lesbian & Gay Choir)

(represented by Mr. Hugh Hannigan, Solicitor,

Simon McAleese Solicitors)

-v-

Cork International Choral Festival Ltd.

(represented by Mr. Patrick Bradley, Solicitor,

J.W. O’Donovan Solicitors)                                                                                                                                                      File Ref: ES/2004/0206                                                                                                                      

Date of Issue: 28^th October, 2008

Delegation under the Equal Status Acts, 2000 to 2008

This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004.  On 22^nd February, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000, the Director has delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008, on which date my investigation commenced.  The hearing of the case took place on 27^th March, 2008.  Further correspondence was received from the parties and the final correspondence was received on 3^rd September, 2008.  

1.         Dispute

1.1              This dispute concerns a claim by the complainant, Gloria (Ireland’s Lesbian & Gay Choir) that it was discriminated against by the respondent, the Cork International Choral Festival Ltd. on the grounds of its sexual orientation in terms of Sections 3(1)(a) and 3(2)(d) of the Equal Status Act, 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004. 

2.                 Issue of Jurisdiction

2.1              Following the hearing of the complaint, the Equality Officer raised an issue with the respective parties regarding whether or not the complainant, Gloria (Ireland’s Lesbian and Gay Choir) as a body, rather than an individual person, has the locus standi to refer a complaint under the provisions of the Equal Status Acts, 2000 to 2004.  The Equality Tribunal sought and obtained Counsel’s Opinion regarding the issue of locus standi and a copy of this Opinion was forwarded to both parties for consideration on 30^th June, 2008.  Both parties were afforded an opportunity to forward their respective observations regarding Counsel’s Opinion on this issue.  On 24^th July, 2008, the complainant forwarded submissions and a further Opinion which it had sought from its own Counsel regarding the issue of the locus standi in the context of the present complaint.  On 31^st July, 2008, a copy of Counsel’s Opinion that had been submitted by the complainant was forwarded to the respondent for information and it was afforded an opportunity to make observations regarding the issues raised therein.  On 3^rd September, 2008, the respondent forwarded its observations regarding the issue of locus standi and Counsel’s Opinion which had been submitted by the complainant.  The respondent’s observations in this regard were, in turn, forwarded to the complainant.  No further correspondence or observations were subsequently received from the respective parties regarding this issue.  In the circumstances, I must therefore decide, as a preliminary issue, whether or not the complainant, Gloria (Ireland’s Lesbian and Gay Choir) as a body, rather than an individual person, has the locus standi to refer a complaint under the provisions of the Equal Status Acts, 2000 to 2004.  

3.              Summary of the Complainant’s case regarding the issue of jurisdiction

3.1              I have summarised the complainant’s case in relation to the issue of its locus standi, as a body, rather than an individual person, to refer a complaint under the Equal Status Acts, as follows:

.       The complainant, Gloria (Ireland’s Lesbian & Gay Choir) is an unincorporated body of persons and there is no rule at common law that an unincorporated body of persons could not have or exercise rights.  It submits that the question as to whether the Equal Status Acts confers rights on unincorporated bodies of persons, such as the complainant, is a matter of interpretation and that it is not correct to say that unincorporated bodies of persons cannot be of a particular religious or sexual orientation.  An unincorporated body of persons, such as the complainant, can of itself have a distinct character and mission and a distinct reputation which adheres to the members of the congregation.  The complainant referred to the case of Murray –v- High Commission to Inquire into Child Abuse [2004] 2 IR 220 in which the High Court held that the Christian Brothers, an unincorporated body of persons, were entitled to locus standi under the Act where it stated that “the so called charism of the congregation may be sufficient to bring it within the target of examination of the committee under the statute”.  The complainant submits that Section 21 of the Equal Status Acts should be interpreted based on the view that an unincorporated body of persons has the locus standi to make a complaint (and be heard) under Section 21. 

·        The complainant submitted that there are three possible starting points for the meaning of the word “person” within Section 21 of the Equal Status Acts in the context of the present case.  The first possible meaning is contained in Section 11 of the Interpretation Act, 1937 (the complainant argues that the Interpretation Act, 1937 rather than the Interpretation Act, 2005 is applicable in the present case as the matters arising occurred prior to the enactment of the latter Act).  A second possible meaning appears in the definition of the word “person” in Section 2 of the Equal Status Acts and the third possible meaning is the layman’s meaning, which is “an individual human being”.  The complainant submits that person as defined in Section 2 of the Equal Status Acts includes the usual meaning of the word “person”, which is to be found in the Interpretation Acts, as well as the additional persons specified therein.  Accordingly, “person”, as that term is used in or in relation to any provision of this Act that prohibits that person from committing any other act that requires a person to  comply with a provision of this Act or regulations made under it includes:

“a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as an individual, organisation , public body or other entity”

The complainant submits that the defined meaning of person in Section 2 of the Equal Status Acts does not apply to Section 21 as this Section is not a provision of the Acts that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it.

·        The Oireachtas, when drafting legislation, if it wishes to make reference to a human person generally will use the term “individual”, however the Oireachtas did not use that term in Sections 3 or 21 of the Equal Status Acts.  If it was the case that the Oireachtas intended Section 21 to apply to individuals only it would have been easy for it to say so and to use the standard drafting term.  In fact the Oireachtas uses the term “individual” on four occasions in the Act and does so when it intends to refer to a single human person.

·        The Section 2 definition, when properly understood, does not exclude unincorporated bodies of persons or individuals and as such expressio unius does not arise from the definition in section 2 at all.  The purpose of the Section 2 definition is for particular types of enactment in the Act, and the inference to be drawn is that the general meaning of person is to apply outside of those specific enactments.  That general meaning has been set down by the Oireachtas in the Interpretation Acts.  The purpose of the Interpretation Act definitions is precisely so that those definitions do not have to be repeated in each and every Act.  The fact that the Oireachtas chose to add the Interpretation Act definition in respect of certain enactments does not lead at all to the inference that it wished to take away from the definition in other contexts.

·        The meaning of person in section 21 should be considered in light of the Act’s purpose.  Far from the Act being limited to individual persons, the purpose of the Act is to promote equality and prohibit types of discrimination, harassment and related behaviour in respect of services and opportunities to which the public or a section of the public has access.  Many sections of the Acts also make express reference to protecting not just the public but sections of the public.  Looking at the scheme of the Acts in light of the long title and section 23 it would appear that the Oireachas intended that the Act to extend well beyond the protection of just individual persons, and individual persons alone and that there is no incompatibility with particular sections or bodies of individual persons being dealt with under section 21.

·        It is evident from the characteristics, membership, aims and name that the complainant is a gay group.  It is submitted that unincorporated bodies of persons such as the complainant can and does embody the charism of homosexuality.  Discrimination of such bodies and unincorporated bodies of persons is precisely a section of the public which the Act has been passed to protect. 

·         It is submitted that the provisions of Section 3 of the Equal Status Acts apply to the complainant and there is no difficulty in reading sections 3(1) and 3(2) in the context of a dispute between Gloria (Ireland’s Lesbian and Gay Choir) and the Cork International Choral Festival Limited. 

4.            Summary of the Respondent’s case regarding the issue of jurisdiction

4.1              I have summarised the respondent’s case in relation to the issue of the locus standi of the complainant, as a body, rather than an individual person, to refer a complaint under the Equal Status Acts, as follows:

·        It is submitted that unincorporated bodies are neither “natural” nor “legal” persons and therefore, the unincorporated body itself has no independent legal standing and cannot enter into contracts, debts or exercise constitutional rights.  Similarly, an unincorporated body of persons cannot sue and accordingly, where a body feels it is necessary to take legal action, then as appropriate, one or more of its members ought to instigate proceedings in their own names in a representative capacity.  In no instance, could the unincorporated body take legal action by and of itself as it is not a legal entity.

·        It is clear that an unincorporated body such as the complainant cannot have a particular gender, marital status, religion, sexual orientation or other such attribute and cannot acquire same from its members.  The respondent submits that the Murraycase[1] does not support the complainant’s position in the context of the present case.

·        It was submitted that the Legislature specifically defined “person” widely within the meaning of the Equal Status Acts to include incorporated and unincorporated bodies where that word refers to a Respondent.  It was submitted that this clearly shows an intention by the Legislature that the wider definition of person should only apply to Respondents and not to Complainants.  If this had not been intended, they would have extended the definition of person contained in Section 2 of the Equal Status Acts to make reference to Complainants as well as Respondents, which would have simplified the tortuous wording of that definition.  The Legislature made specific reference to corporate persons for the purposes of Respondents because it understood that term to mean individualperson when applied to complainants.  The Legislature by clearly defining the term “person” for the purpose of the Act to include unincorporated bodies where such a body was the Respondent expressly excluded any interpretations that such a body could be a Complainant.

·        It was submitted that the word “person” is the Oireachtas’ preferred term when it wishes to refer to a single individual.  In this regard, the respondent referred to Irish legislation in general and submitted that there is recurrent use of the word “person” where the Legislature can only mean “individual person” and as an example, it referred specifically to section 3 of the Road Traffic Act, 2006 and section 4(2) of the Criminal Law (Rape)(Amendment) Act, 1990.  The  respondent submitted that in interpreting section 3(1) of the Equal Status Acts, the reference to “person”, being a person discriminated against on the grounds of sexual orientation, can only be read as referring to an individual natural person and not to an unincorporated body of persons.

·        The respondent contends that an absurdity[2] would arise were the definition of a “person” contained in the Interpretation Act, 1937 which includes references to unincorporated bodies as well as incorporated bodies to be applied to the provisions of the Equal Status Act in the context of a Complainant.  Neither of these bodies can have a gender, marital status, family status, religion or sexual orientation and accordingly, if one applied the definition of “person” in the Interpretation Act, 1937 to the Complainant, an absurdity would arise.           

·        The respondent submitted that interpreting “person” for the purposes of a complainant as only referring to an individual natural person is also in keeping with ordinary reason and common sense for only an individual natural person can have a sexual orientation, a family status, a gender, a disability etc.  Clearly, the Oireachtas envisioned protecting sections of the public such as homosexuals, members of the Travelling community, married or unmarried persons etc. however, just as clearly, the Oireachtas only ever envisioned that the persons which would be discriminated against and who would instigate claims for redress against any such discrimination would be individual members of such bodies.  

·        The ordinary and plain meaning of the word “person”, is that of an individual natural person and there is no “counter indication” to be found in the legislation to cause one to eschew that ordinary meaning.  Indeed, the fact that the Legislature specifically referred to non-natural and legal entities when defining “person” for when it refers to a respondent, confirms that it was itself thinking of complainants as individual natural persons.  It is clear from the above that the Tribunal must in relation to the Complainant give the word “person” the ordinary and plain meaning of that word i.e. an individual natural person. 

5.            Conclusions of the Equality Officer regarding the issue of jurisdiction

5.1              In making my decision in this matter, I have taken cognisance of the oral and written submissions made by the parties and also Counsel’s Opinion that was sought by the Tribunal.  The issue that arises for determination in the present case is the precise definition to be given to the term “person” as used in the Equal Status Act and in particular whether or not the term includes bodies such as the complainant or whether or not it is confined to individuals.  The general prohibition of discrimination on specified grounds in relation to inter alia the provision of services is set out in the Equal Status Acts, 2000 to 2008 in the following terms:

Section 3(1) provides:

“For the purposes of this Act, discrimination shall be taken to occur –

(a)                          where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which

(i)    exists

(ii)  existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned.

(b)                          where a person who is associated with another person

(i)    is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated is a comparable situation, and

(ii)  similar treatment of that other person on any of the discriminatory grounds, would by virtue of paragraph (a), constitute discrimination

or

                   (c)             where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”. 

Section 3(2) provides:

                              “As between any two persons, the discriminatory grounds (and the descriptions

                               of those grounds for the purposes of this Act) are:

                                     (d) that they are of different sexual orientation (the sexual orientation

                                        ground)”

Section 21(1) provides:

                            “A person who claims that prohibited conduct has been directed against him or 

                               her may, subject to this section, seek redress by referring the case to the

                               Director”

5.2              As can be seen from the legislation, discrimination shall be taken to occur where one person is treated less favourably than another on any of the stated discriminatory grounds.  The stated discriminatory grounds refer to the position as between any two persons who are, for example, of different sexual orientation.  In addition, a person who claims that prohibited conduct has been directed against him or her can seek redress by referring his or her case to the Director of the Equality Tribunal.  I am of the opinion that the discriminatory grounds are set out in such a manner as to apply only to individuals and not to bodies i.e. a body cannot be of a particular gender, marital status, family status religion etc.  In relation to “person” , section 2(1) of the Equal Status Acts provides as follows:

                 “’Person’ as that term is used in or in relation to any provision of this Act that prohibits

                   that person from discriminating or from committing any other act or that requires a

                   person to comply with a provision ofthis Act or regulations made under it, includes an

                   organisation, public body or entity”

This definition sets out the particular context in which “person” shall be taken to include an organisation, public body or entity i.e. where the Act refers to a potential respondent to a claim of discrimination.  I note that the definition does not, however, provide that a potential complainant shall include an organisation, public body or entity.

5.3              In considering this issue further, I note that when interpreting provisions of statute, the fundamental objective is to give effect to the intention of the legislature.  This requires legislative text to be given a literal interpretation.  Where the literal interpretation is plain and unambiguous, that plain and unambiguous meaning will be applied.  Where the literal interpretation results in ambiguity, other interpretative criteria will be applied to ascertain the correct legislative intent.  The Interpretation Act, 2005 sets out provisions regarding statutory interpretation which apply to all enactments whether passed before or after the 2005 Act.[3]  Section 18 of the Interpretation Act, 2005 includes the following definition of a “person”

“’Person’ shall be read as incorporating a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of ‘person’ shall be read accordingly.”

The definition of “person” in the Interpretation Act, 2005 includes unincorporated bodies and in applying this definition to the term as used in the Equal Status Acts it would appear to result in the term “person” including bodies such as the complainant in the present case.  However, the definition in the Interpretation Act, 2005 will not apply where a contrary intention appears in the Equal Status Acts.  I am of the view that the following points give rise to such a contrary intention arising from the Act:

·        That the stated discriminatory grounds of inter alia gender, marital status, family status, sexual orientation etc. clearly only apply to individuals;

·        That the definition of “person” contained in the Equal Status Act specifically refers only to a “person” who is a possible respondent as including an organisation, public body or entity.

Having regard to the stated discriminatory grounds, I am of the opinion that that the clear intention of the legislature is to protect individual persons as opposed to bodies or organisations from discrimination.  This view is based primarily on the manner in which the discriminatory grounds are set out in that these grounds refer to states such as gender, marital status, family status, sexual orientation etc. which bodies or organisations simply are not capable of possessing. 

5.4              Section 5 of the Interpretation Act, 2005 provides as follows:

“In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) –

(a)  that is obscure or ambiguous, or”

(b)  that on a literal interpretation would be absurd or would fail to reflect the plain intention [of the legislature]

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from any Act as a whole”

This section requires that in the event of an ambiguity arising when construing a provision of an Act; the plain intention is to be given where that can be ascertained from the Act as a whole.  Looking at the Act as a whole achieves essentially the same result as ascertaining whether or not any contrary intention appears from the Act.  In applying this reasoning to the present case, it would appear that the manner in which the discriminatory grounds are set out and the particular definition of “person” contained therein are relevant in ascertaining the plain intention of the legislature.  In relation to the definition of “person”, applying the linguistic cannon of expressio unius exclusio alterius[4], results in the inference being drawn that when referring to complainants, it means individuals only.  This conclusion emanates from the fact that as the definition of “person” in the Equal Status Acts specifically includes an organisation, public body or entity in the one context i.e. where a “person” is prohibited from discriminating against another or is required to comply with certain provisions – it thereby excludes the inclusion of an organisation, public body or entity where the term “person” is otherwise used i.e. in relation to a “person” against whom discrimination is alleged.  Given that the general legal definition of “person” includes corporate and unincorporated bodies, the definition in the Equal Status Acts would be unnecessary, unless the legislature intended that the term “person” was to some extent only to mean individuals.  I am therefore satisfied that it is clear from the definition of the legislation that it was the intention that “person” would only include an organisation, public body or entity in the context specifically provided and in any other context, the word would refer to individuals only.

5.5              Having regard to the foregoing, I am of the view that the Equal Status Acts should be interpreted as limiting complainants to individuals.  Whilst the term “person” is usually interpreted broadly to include corporate and unincorporated bodies, I am satisfied that a contrary intention is evident from the Equal Status Acts given the manner in which the discriminatory grounds are set out and the particular definition of “person” as contained in the Acts.  I am therefore of the view that the legislative intent in this regard was to protect individuals and not bodies from discrimination.  In the circumstances, I find that the complainant in the present case i.e. Gloria (Ireland’s Lesbian & Gay Choir) does not have the locus standi to make a complaint under the Equal Status Acts, 2000 to 2008.  Accordingly, I find that I do not have jurisdiction in relation to the substantive complaint of discrimination on the sexual orientation ground contrary to the terms of the Equal Status Acts, 2000 to 2008.

6.            Decision

6.1              On the basis of the foregoing, I find that the complainantin the instant case does not have the locus standi to make a complaint under the Equal Status Acts, 2000 to 2008 and accordingly, I find that I do not have jurisdiction in relation to the substantive complaint of discrimination on the sexual orientation ground contrary to the terms of the Equal Status Acts, 2000 to 2008.

Enda Murphy

Equality Officer

28^th October, 2008