The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
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Equal Status Acts 2000-2008
Decision
DEC-S2011-020
James Neary
(represented by Frank Watters)
v.
Louth County Council
(represented by John McGahon Solicitor)
File Reference: ES/2009/102
Date of Issue: 12th May 2011
Decision DEC-S2011-020
James Neary
(represented by Frank Watters)
v.
Louth County Council
(represented by John McGahon Solicitor)
Key words
Equal Status Act, 2000 - 2008, Direct discrimination, Section 3(1) - less favourable treatment, Age - 3(2)(f), Section(2)(j) - victimisation, definition of service - Section 2(1), provision of a service - 5(1), Section 22 - frivolous, vexatious or misconceived.
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 30th September 2009. On the 18th of November 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, Marian Duffy, 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. On this date my investigation commenced. A submission was received from the complainant on the 20th July 2010 and from the respondent on 31st August 2010. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 4th of March 2011.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the age ground when the above named respondent refused to allow him to continue in his role as a volunteer coxswain with the Civil Defence on reaching the age of 65 unless he underwent a medical. He is also complaining of victimization in that the respondent subsequently introduced an age limit of 55 for all members of boat crews. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1) and 3(2)(f) and (j) of the Equal Status Acts and contrary to Section 5(1) of that Act.
2 Complainant's Case
2.1 The complainant stated that he worked as a volunteer with the Civil Defence since 1964. One of his main duties as a volunteer was working as a coxswain on a boat for Louth Civil Defence. On reaching the age of 65 he was asked to undergo a yearly medical so that he could continue in the role of coxswain. He agreed to undergo the medical on reaching the age of 65 but the following year he refused the medical and he was not allowed to continue to operate the boat. Shortly after this, Louth Civil Defence introduced a new Standard Operating Procedure and set a maximum age of 55 for all volunteer boat crews. The complainant submits that he was discriminated against on the age ground and victimised in relation to access to a service.
2.2 The complainant's representative submitted that the complainant's position as a volunteer in the Civil Defence comes within the scope of the Equal Status Acts and rejected the respondent's contention that the complaint is one which comes within the scope of the Employment Equality Acts.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against under the Equal Status Acts. Their solicitor stated that the Civil Defence is a voluntary organisation staffed by volunteers providing a range of services including first aid, search and rescue, assisting in fire fighting and acting as a back up to main stream services. The respondent accepts that they are service providers within the meaning of the Equal Status Acts but they do not accept that they were providing any service within the meaning of that Act to the complainant. The respondent submitted that the complainant, in his capacity as a volunteer with them was providing a service to the public on their behalf.
3.2 The respondent further submitted that the complainant has pursued his complaint under the wrong equality legislation and stated that the Employment Equality Act is the more appropriate Act for the complainant to pursue his complaint of discriminatory treatment. They referred to the definition of employee in that Act as a person who enters into or works under a contract of employment and also to the definition of a contract of employment which provides:
(b) "any other contract whereby --
(i) an individual agrees with another person personally to
execute any work or service for that person,"
3.3 They stated that there is nothing within the definition of a contract of employment in the Employment Equality Acts which requires that the execution of a service must be for remuneration. It was submitted that the voluntary work which the complainant carried out on behalf of the respondent comes with the scope of this definition of a contract of employment. Therefore the appropriate Act to pursue the complaint herein having regard to the relationship between the complainant and the respondent is the Employment Equality Act. Consequently the complainant has no local standi to pursue his case under the Equal Status Acts.
4. Conclusion of Equality Officer
4.1 The first matter I am going to consider is whether the complainant was in receipt of a "service" from the respondent within the meaning os the Equal Status Acts as amended. I will only consider the issue of discriminatory treatment on the age ground if I make a finding in favour of the complainant on this matter.
4.2 In Section 2 of the Equal Status Acts the term 'service" refers to
''service'' means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes --
(a) access to and the use of any place,
(b) facilities for --
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;"
4.3 Section 5 refers to the disposal of goods and provisions of services. Section 5(1) states:
"A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public."
4.4 Therefore the first matter that the complainant has to establish, in order to bring the claims within the scope of the Act, is that he is either in receipt of or is seeking a service or facility from the respondent. I am satisfied that the complainant worked in a voluntary capacity with Louth Civil Defence carrying out duties under the control and direction of that organisation. Likewise I am satisfied that the respondent was not providing any service or facility to the complainant in the context of the Equal Status Acts. Therefore the complaint does not come within the scope of the Acts.
4.5 Section 22 of the Equal Status Acts 2000 - 2008 provides that:
"The Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious misconceived or relates to a trivial matter."
The meaning and scope of the words 'frivolous and vexatious' were succinctly articulated by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [1998] ELR 256 in which he stated:
"So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious."
The meaning and scope of the word 'misconceived' has been set out by the High Court in Keane v Minister for Justice [1994] 3 IR 347. Lynch J found that the Minister for Justice had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick -on-Shannon and that her direction to the Council to this effect was therefore 'wholly misconceived and invalid'. A claim is misconceived if it is incorrectly based in law. In my view this complaint is similarly misconceived, as noted above, the respondent is not a service provider within the meaning of the Equal Status Acts. Therefore the complaints of discrimination are misconceived and cannot succeed.
5. Decision
5.1 Accordingly I dismiss the complaints under Section 22 of the Equal Status Acts 2000-2008.
___________________
Marian Duffy
Equality Officer
12th May 2011