THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS
Decision No. DEC-S2011-033
PARTIES
A Complainant (on behalf of her son C)
-v-
An Airline
(represented by A&L Goodbody, solicitors)
File Reference: ES/2009/016
Date of Issue: 4th August, 2011
Equal Status Acts
Decision No. DEC-S2011-033
A Complainant (on behalf of her son C)
-v-
An Airline
Key words
Equal Status Acts - Section 3(1)(a)- Section 3(2)(g), Disability Ground - Section 4(1), Reasonable Accommodation - Section 46 - Jurisdiction - Airline - International Agreements - Chicago Convention - Montreal Convention - No Jurisdiction
1. Delegation under the relevant legislation
1.1. On 18th November, 2008, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 22nd December, 2010, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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 (hereinafter referred to as "the Acts"), on which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on Tuesday, 5th April, 2011. Further documentation was provided by the respondent on 8th April, 2011. As a submission from the respondent was provided shortly before the hearing commenced, and in the interests of natural justice, an opportunity was provided to the complainant to respond to these submissions in writing after the hearing. This response was received on 11th April, 2011.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the disability ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(g) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated her less favourably with respect to a flight she took with it and failed to provide her with reasonable accommodation with respect to that flight, contrary to Section 4(1) of the Acts.
3. Summary of the Complainant's Case
3.1. The complainant made the complaint on behalf of her son, C, who is disabled. She described his disability, in particular that he had to use nappies. She stated that she was taking the case on his behalf in accordance with Section 20 of the Acts. She is therefore the complainant in this matter and will be referred to as such herein.
3.2. The complainant stated that she and her family, including C, flew to the United States with the respondent airline. She submitted that she was not provided with reasonable accommodation by the respondent with respect to arrangements suitable for C to allow her change his nappy while en route from the United States to Ireland. The complainant stated, in relation to the s.46 application (see pars. 4.1 and 4.2 below) that when you are providing a service to passengers, it should be the same for everyone and that the Acts should apply to everyone using that service. She also submitted that, as this application was made at very short notice, it should be discounted in any event.
4. Summary of the Respondent's Case
General Summary
4.1. The respondent provided a submission shortly before the hearing commenced. In this submission, it stated that Section 46 of the Acts applied in this case which state:
"(1) The provisions of this Act shall extend to and apply in respect of any ship or aircraft registered in the State that is operated by a person who has a principal place of business or ordinary place of residence in the State, whether or not the ship or aircraft is outside the State
(2) An act which -
(a) is done on or in respect of such a ship or aircraft while subject to the jurisdiction of a country outside the State, and
(b) is required to be done to comply with the law of that country,
shall not constitute discrimination for the purposes of this Act."
4.2. The respondent submitted that this provision meant that in order for the Acts to apply the aircraft has to be registered in the State and operated by a person who has a principal place of address or ordinary place of residence in the State. It stated that neither of these requirements applies in this case as the aircraft in question is registered in the United States and the principal place of business is in the United States and the Irish branch is only a small branch. It submitted that the Acts do not in themselves cover flights outside the jurisdiction of Ireland, except in so far as s.46 applies. It stated that without that clause such flights would not be covered, and they are only covered within the limitations outlined in that clause. It submitted that the Tribunal has no jurisdiction to deal with the matter in that context.
5. Conclusions of the Equality Officer
Issue of Jurisdiction
5.1. While it should be borne in mind that the representative concerned only came on record at a late stage, the provision of the respondent's argument just before the hearing certainly caused serious difficulty to the efficient running of this case and, more importantly, to the ability of the complainant to rebut the argument raised. However, as the present argument is a key element of the respondent's case then it would be contrary to natural justice and fair procedures not to consider it in depth. Furthermore, if the argument is correct, then it would be ultra vires for me to deal with the substantive matters at issue in this complaint.
5.2. In addition, the complainant was provided with an opportunity to read the submission in question before any matters of substance were dealt with at the hearing and was also provided with an opportunity to respond to the matter in writing afterwards. In that context, I am satisfied that sufficient opportunity was provided to her to rebut the matter and she is not prejudiced by my consideration of it. Therefore, I will now proceed to consider this matter.
5.3. While the remit of the Tribunal is to investigate claims of discrimination, in this case it is necessary for me to consider International Law with respect to aviation in order to establish if I have jurisdiction to consider the matter as Section 46 must be considered in that context. The position with aircraft and ships in International Law is that they are deemed to take on the nationality of the country in which they are registered. The registration of an aircraft establishes the link of nationality between the aircraft and registering State. The National State of a ship or aircraft is, of course, entitled under international law to protect, exercise jurisdiction and subject such ship or aircraft to its laws.
5.4. The nationality of aircraft is dealt with under the Chicago convention and the following articles are of relevance:
"Article 17
Nationality of aircraft
Aircraft have the nationality of the State in which they are registered.
Article 18
Dual registration
An aircraft cannot be validly registered in more than one State, but its registration may be changed from one State."
5.5. There are various other international agreements that affect the exercise of civil jurisdiction by states. In particular, Article 28 of the 1929 Warsaw Convention on International Carriage by Air, as subsequently modified by other treaties, allowed a plaintiff a choice of jurisdiction but only in relation to damages which refer to death, bodily injury, damage to baggage or damage caused by delay. The Montreal Convention also carved out exceptions where the individual does not have to take a case in the State where the damages occurred. Again this is where death occurs or there is damage to the body or to baggage.
5.6. However, there is no international treaty which governs discrimination law. In that context, the only matters that can be heard in a Court of another jurisdiction other than the Courts in the country where the aircraft is registered are matters which arise directly under the Montreal Convention. In this context, section 46 of the Acts extends the jurisdiction of the Irish Courts (or in this case the Tribunal) over acts committed on an Irish owned aircraft even where that incident takes place outside the Irish State. It should be noted that, in the cases of Callan -v- United Travel and Neill -v- Joe Walsh Tours, the relevant complaints were addressed even though the incidents complained of took place outside the jurisdiction. However, in both instances, the service in question was obtained in Ireland and the services were requested from a company whose main place of business was Ireland.
5.7. In all the circumstances of the present complaint, then, and particularly in light of international law relating to International Aviation and Section 46 of the Acts, I consider that I do not have jurisdiction to consider this complaint. Therefore, I cannot consider the matters any further. It should be added that it is in this context that the submissions and oral evidence of the parties in relation to the substantive matters have not been outlined in this decision.
6. Decision
6.1. I find that I do not have jurisdiction to investigate the substantive aspects of this complaint as they are outside the remit of the Equality Tribunal.
_____________
Gary O'Doherty
Equality Officer
4th August, 2011