The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION DEC-E2011- 170
PARTIES
Michael Murphy
(Represented by Harold Brooks B.L. instructed by Colm Burke & Co., Solicitors)
AND
An Garda Síochána
(Represented by Cathy Smith B.L., instructed by Chief State Solicitor's Office)
File reference: EE/2007/501
Date of issue: 13th September 2011
HEADNOTE
Employment Equality Acts, 1998-2008 - Sections 6 & 8 - Disability ground - Access to employment - Preliminary Issues on Jurisdiction - Sections 77(7) & 77(8) - The forum for seeking redress - Section 37(3) - Exclusion of discrimination on particular grounds in certain employment.
1. DISPUTE
1.1 This dispute concerns a claim by Mr. Michael Murphy that he was discriminated against by An Garda Síochána in a recruitment competition for appointment to An Garda Síochána on the grounds of Disability contrary to section 6(2)(g) of the Employment Equality Acts 1998-2008 in relation to access to employment in terms of section 8(1)(a) of the Acts.
1.2 The complainant referred the claim to the Director of the Equality Tribunal on 17th September 2007. On the 13th July 2010 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were requested and received from both sides. A hearing was scheduled for 8th June 2011. In the days preceding the hearing the respondent raised three preliminary issues; the third issue was only raised on the evening of the 7th June 2011. Due to the importance of these issues I decided on the day of the hearing to only deal with these preliminary issues.
2. PRELIMINARY ISSUES
The preliminary issues are summarised as follows:
The respondent maintains that the claim of discriminatory treatment on the grounds of disability made by Mr. Murphy was not made in accordance with the provisions of Section 77(7) and 77(8) of the Employment Equality Acts, and therefore the Equality Tribunal has no jurisdiction to investigate the complaint.
The respondent maintains that the complainant has asked the Equality Tribunal to consider and determine the validity of a statutory instrument, namely The Garda Síochána Recruitment (Admissions and Appointments) Regulations 1988 (as amended), and it maintains that The Equality Tribunal has no jurisdiction to investigate such a matter.
The respondent maintains that it relies on the expressed provision contained in Section 37(3) of the Employment Equality Acts, in relation to the occupational requirement for employment in An Garda Síochána.
3. Referral of Claims under Section 77 (7) and (8)
3.1 The respondent claims that Section 77(7) of the Acts states: "Where the complainant's claim for redress is in respect of discrimination by ... the Commissioner of the Garda Síochána in the course of a recruitment process for the Garda Síochána,... the complainant shall in the first instance refer the claim for redress to the Commissioners concerned or, ... the Commissioner of the Garda Síochána"; and subsection (8) confirms that a claim cannot be made to the Equality Tribunal until either the " (a) the Commissioners concerned have failed to give a decision on the claim on or before the twenty-eight day after it was referred, or (b) the complainant is not satisfied with the decision given on the claim."
3.2 The respondent claims that this was a recruitment process for the Garda Síochána and therefore the provisions of Section 77(7) and 77(8) apply. It claims that the complainant is required to refer the claim for redress to the Commissioner of the Garda Síochána which he failed to do. Therefore, the claim is not correctly before the Equality Tribunal.
3.3 The respondent claims that an identical issue was addressed in a Labour Court determination Public Appointments Service (PAS) -v- Roddy, where, in a gender discrimination case, the Labour Court decided that although a large volume of correspondence passed between the parties prior to lodging the complaint with the Equality Tribunal the complainant had failed to make any reference to discrimination on any of the nine grounds to PAS and accordingly, the Court said that, "[it] cannot accept that a claim of discrimination was referred in accordance with Section 77(7), an any event even if such a complaint had been made the respondent did not have the opportunity to address such a complaint and give its decision within the requisite twenty-eight day period. It is clear from the correspondence that the respondent could not have known that the complainant was invoking the Acts and submitting a claim of discrimination on any ground not alone the gender ground".
3.4 The complainant claims that there are no forms, statutory or otherwise, for him to notify the respondent that he wishes to seek redress under that Acts. The complainant claims that he was in communication with the Assistant Commissioner as early as 25th July 2007, some five days from the date of the respondent's letter advising him that he was unfit for full policing duties. He claims that his letter was "suggestive" of him looking for redress. He claims that his letter stated that he was disappointed with the respondent's decision and he quoted his competition reference number on this letter. The complainant said that had the respondent wanted to fully inform itself of this complaint, it could track the complainant's identity from this reference number and establish that the complainant was disabled and it could have anticipated a claim against it under the Employment Equality Acts.
Conclusion of the Equality Officer
3.5 Section 77 sets out the forum for seeking redress under the Acts. Section 77(7) clearly identifies that when seeking redress against inter alia the Commissioner for the Garda Síochána the complainant, in the first instances, must refer the claim for redress to the Commissioner for the Garda Síochána. Section 77(8) sets out the procedure and the time limits before the referral can then be sent to the Equality Tribunal.
3.6 I note the complainant wrote to the respondent on the 25th July 2007 stating his disappointment in not being given a chance to pursue a career in An Garda Síochána where he asked for some information and details as to why he was deemed unfit for the position. I note that the respondent provided that information by letter of 7th August 2007. It is clear that there are no references in the exchange of correspondence between the parties to suggest that the complainant was considering his position under the Employment Equality Acts or indeed seeking redress under the Acts for discrimination on the disability ground.
3.7 I note the complainant's evidence at the hearing where he claims that he notified the respondent of the complaint on the 11th September 2007 by using the Equality Tribunal's form, Form EE2, which is dated seven days prior to the date the claim of discrimination on the disability ground was received at the Equality Tribunal. I note that the covering letter enclosing the EE1 Form to the Tribunal is dated 13th September 2007 and it refers to the Form EE2 "sent to An Garda Síochána this even date."[my emphasis added]
3.8 It is clear that Section 77(7) does not prescribe how to make the claim for redress however, having considered the determination of the Labour Court in PAS -v- Roddy, as mentioned above in paragraph 3.3, I am satisfied that a mere letter stating his disappointment (on the 25 June 2007), without any reference to discrimination on the disability ground cannot be considered sufficient to meet the requirements as intended by the legislation.
3.9 It would appear that the complainant did set out his case to the respondent but this was not done in accordance with the requirements as set out in Section 77(8), as the complainant did not wait for the prescribed period or wait for the respondents reply before forwarding the claim to the Equality Tribunal. Accordingly, I conclude that the claims on the grounds of Disability was not satisfactorily referred to the Commissioners of An Garda Síochána and therefore I find that as the complaint is not lawfully before the Equality Tribunal, I have no jurisdiction to investigate the matter.
4. Equality Tribunal Jurisdiction
4.1 The respondent claims that the complainant has asked the Equality Tribunal to over rule a statutory instrument which it is not entitled to do. It claims that this question was addressed by Justice Charleton in a Judicial Review of the Equality Tribunal in February 2009.
4.2 It claims that the Garda Commissioner has no option when considering and accepting new entrants into the An Gardaí Síochána. It claims that the requirements are contained at Regulation 5(1)(b) of the Garda Síochána (Admissions and Appointments) Regulations 1988 (as amended by regulation 3(1)(b) of the 2001 Amendment Regulation) where it states,
"the person - (i) is certified by a registered medical practitioner, nominated by the Commissioner after consultation with the Minister, to be in good health, of sound constitution and suited physically and mentally to performing the duties of a member..."
4.3 The respondent claims that the complainant can challenge its decision via the Public Law route but not via the Equality Law route. It claims that the net effect of such a review would require the Equality Tribunal to determine if the statutory instruments was correctly implemented and it maintains that Justice Charleton has found that the Equality Tribunal does not have that Jurisdiction. The respondent quoted from paragraph 7 of that decision, where it stated that,
"The Equality Acts 2004 was specifically passed in order to give effect to Council Directive 2000/78/E.C.. It is beyond the scope of any decision that I am required to make in this judicial review as to whether that national legislation correctly implemented the directive. In circumstances where an ambiguity arises, both this Court and any administrative body, including the respondent, is obliged to construe national legislation in the light of the obligation under European law in which it had its origin. That obligation, however, does not extend to re-writing the legislation; to implying into it a provision which is not there: or to doing violence to its expressed language." It also quoted the conclusion of the decision at paragraph 11 where it states, "There is no doubt that the respondent acted from a proper zeal against age discrimination. Underlying its decision to proceed to investigate this matter, despite a clear provision in statutory instrument form that pre-determined the result, was a laudable determination that it should exercise its powers. However, the respondent could not make a ruling in breach of a statutory instrument. Elsewhere in the legislation, it is specifically mandated to do so, but not in this instance". The respondent therefore claims that I have no jurisdiction to consider the case before me.
4.4 The complainant claims that the Equality Tribunal does have jurisdiction to hear the case. He claims that the case of the Minister for Justice Equality and Law Reform and the Commissioner of An Garda Síochána v Director of the Equality Tribunal is distinguishable from the case here before me for consideration. In that case, it was deemed that the Equality Tribunal had attempted to declare that the national legislation had not properly implemented a EU Council's Directive and that Justice Charleton had stated that the Equality Tribunal was obliged to accept that the national legislation as a matter of Law.
4.5 The complainant claims that he is not challenging the validity of the regulations or statutes that set down the procedures for entry into An Garda Síochána. He said his case does not attempt to seek to ask the Equality Tribunal to declare the relevant regulations invalid with regard to its EU origins. He claims that the criteria for accepting candidates for positions into An Garda Síochána were not properly applied in an equally, non discriminatory way in this instance.
Conclusion of the Equality Officer
4.6 As I have already found that this complaint is not lawfully before the Equality Tribunal and that I have no jurisdiction to investigate the matter I do not have to make a decision on this aspect of the case.
5. Section 37(3) of the Employment Equality Acts
5.1 The respondent claims that Section 37 of the Acts provides for the exclusion from discrimination on particular grounds in certain employment. Section 37(2) expressly states that a difference in treatment in such cases shall not constitute discrimination by reason for the particular activities concerned and the need for particular requirements, such as occupational requirements. It cited Section 37(3) where it states, "It is an occupational requirement for employment in the Garda Síochána, [...] that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.".
5.2 The respondent claims that the wording here is clear; there is nothing in this section of the Acts that relates to a restricted range of duties. The wording such as "fully competent" and "fully capable to take the range of functions" is unambiguous. It said it is not open to anyone else to say what the operational requirements of An Garda Síochána are, except, An Garda Síochána itself. It claims that decisions on the interpretation of what full policing duties amount to interpretation of other Regulations that the Equality Tribunal simply has no jurisdiction under the Equality legislation to consider. Section 37(3) provides the respondent with an exclusion from discrimination as long as it can establish an occupational requirement.
5.3 The complainant claims that in essence this is the substantive case before the Equality Tribunal and requires a much deeper analysis. He claims that he is not asking the Equality Officer to construe other Regulations. He claims that given permission he would wish to look at the main points of his case in particular the criteria used by the respondent in the selection procedure for An Gardaí Síochána. The complainant wishes to open and consider the operational requirements for a position with An Garda Síochána. He claims that there is no definite list anywhere to identify the full policing duties that are required to do the job, and therefore there is nothing to outline the "occupational requirement", as mentioned in Section 37(3).
Conclusions of the Equality Officer
5.4 As I have already found that this complaint is not lawfully before the Equality Tribunal and that I have no jurisdiction to investigate the matter I do not have to make a decision on this aspect of the case.
6. DECISION
6.1 I have investigated the above issues and make the following decisions in accordance with Section 79 of the Acts:
that the claim of discriminatory treatment on the grounds of disability was not made in accordance with the provisions of Section 77 (7) and 77(8), and therefore, I have no jurisdiction to investigate the claim.
____________________
James Kelly
Equality Officer
13th September 2011