The Equality Tribunal
Employment Equality Acts
Preliminary Decision DEC-E2012-040
PARTIES
Ravinder Singh Oberoi
(Represented by Nuala Butler, S.C., & Siobhan Phelan, B.L.
instructed by the Equality Authority)
- V -
The Commissioner of An Garda Siochána
(Represented by Maurice Collins, S.C. & Cliona Kimber, B.L.
instructed by the Chief State Solicitor's Office)
File reference: EE/2008/074 & EE/2008/150
Date of issue: 16 March 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Vocational Training - Race - Religion - Jurisdiction under the Acts
1. Background
1.1 The Equality Officer was asked to decide, as a preliminary matter, upon the issue of whether the complainant was an employee or not. In that regard and as provided for in Section 79 of the Acts, the Equality Officer proceeded to hold a preliminary hearing on 24 November 2010. Submissions were sought and provided from both parties upon this issue.
1.2 In the course of this process, the Equality Officer, exercising his investigative function as provided for in Section 79 of the Acts, asked both parties to consider the issue of whether the training to enable a person to become a member of An Garda Siochana, designated as reserve members, amounted to vocational training as envisaged by Section 12 of the Acts. Submissions were sought and received from both parties in relation to this issue too.
1.3 Additional information was sought and received from the respondent in July 2011.
2. Preliminary Issues - Employment
2.1 I have considered the submissions from both parties as some length, and have sought clarification from the respondent as to the level of remuneration or payment, if any, was payable to members of An Garda Siochána so designated.
2.2 Section 2(3)(a) of the Employment Equality Acts states that "a person holding office under, or in the service of, the State (including a member of the Garda Sıochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service"
2.3 The respondent submitted that Section 15(6) of the Garda Siochána Act 2005 as amended by the Section 43 of the Criminal Justice Act 2007 states that "a reserve member is a volunteer and does not perform his or her functions as such a member under a contract of employment".
2.4 Given that the Garda Siochána Act post-dates the enactment of the Employment Equality Acts and, notwithstanding that it does not specifically mention the Employment Equality Acts, I am persuaded by the respondent's arguments that the intention of the legislature is to prevent the "deeming" of certain members of An Garda Siochána, specifically those designated as reserve members, as employees.
2.5 I therefore conclude that the complainant is not an employee, as defined by Section 2 of the Employment Equality Acts.
3. Preliminary Issues - Vocational Training
3.1 In relation to the second point considered as a preliminary issue, specifically whether the prescribed training programme for eligibility as a member of An Garda Siochána, designated as a reserve member, amounts to 'vocational training' as defined by the Section 12 of the Employment Equality Acts.
3.2 Section 2 of the Employment Equality Acts states, inter alia, that ''vocational training'' shall be construed in accordance with section 12(2); and cognate words and expressions shall be construed accordingly.
3.3 Section 12(2) of those Acts states that "in this section ''vocational training'' means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity".
3.4 I am mindful of the following issues:
- Members of An Garda Siochána, designated as reserve members, are required to wear a specific uniform issued to them by the respondent
- Members of An Garda Siochána, designated as reserve members, have, while on duty, the same powers, immunities, privileges and duties as a person appointed to the rank of garda (Section 15(3) of the Garda Siochána Act, as amended)
- Members of An Garda Siochána, designated as reserve members, are subject to the Disciplinary Regulations of An Garda Siochána for any breach of discipline
- Members of An Garda Siochána, designated as reserve members, have to undertake specific training as prescribed by An Garda Siochána before they are eligible to become reserve members
- Members of An Garda Siochána, designated as reserve members, are not in receipt of remuneration, neither are they deemed to be employees, and therefore, on the balance of probabilities, must have some other reason to undertake the possibly onerous tasks placed upon them
- Experience gained as members of An Garda Siochána, designated as reserve members, must, in accordance with SI 509/2006 - Garda Siochána (Admissions and Appointments)(Amendment) Regulations 2006, be taken into account if/when they apply for a position as a member of An Garda Siochána, not so designated
3.5 Having considered the submissions from both parties, and on the balance of probabilities, it is difficult to conclude that any training system that places such obligations on a person, places a person under the authority of another to such a degree, and places a person in such a visible position of representation of the authority of the State, while not being an employee, can amount to anything other than the vocational training envisaged by Section 12(2) for the carrying out of an occupational activity.
3.6 I therefore conclude that this complaint falls within the ambit of Section 12 of the Acts.
4. Decision
4.1 Having given these matters considerable thought and having taken into account the written and oral submissions received to date from both parties, I have decided that the complainant has not established that he is an employee for the purposes of the Acts and this element of the complaint fails.
4.2 I have decided, however, that the induction process into the ranks of the Garda Reserve does constitute vocational training as defined in Section 12(2) of the Acts. Therefore, in accordance with the provisions of Section 79(6)(b) of the Acts, I am proceeding to an investigation of the substantive issues.
Conor Stokes
Equality Officer
16 March 2012