The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-010
Parties
Derek Brennan and others
(Represented by the Equality Authority, Irish Taxi Driver's Federation, SIPTU, National Taxi Drivers Union and Tiomanai tacsai na heireann)
V
Area Development Management Limited -
Taxi Hardship Payments Scheme
now POBAL
(Represented by Mr. Paul McGarry SC and Mr. Declan Murphy BL on the instructions of the Chief State Solicitor's Office)
Case refs: ES/2004/0205, 0215, 0223,
ES/2005/0021, 0031, 0035, 0037, 0041, 0059, 0068, 0206, 0231, 0244, 0531, 0675, 0689, and 0934
Issued: 21 March 2012
Keywords:
Equal Status Acts 2000 to 2004- Discrimination - Age - Provision of good and services - Jurisdiction - Circuit Court Appeal pursuant to section 22(1)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Messrs Derek Doran, Gerard O'Reilly, Anthony O'Rourke, David McGrath, Francis Rowan, James McGuire, Derek Brennan and others see appendix 1 (hereafter "the complainants") referred claims to the Director of the Equality Tribunal under the Equal Status Acts on various dates between October 2004 and November 2005. I am satisfied that the respondent was notified of these complaints in accordance with the Acts. The Director, exercising her powers under the Acts then delegated the case to me, Tara Coogan, 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 5 December 2008.
1.2. An oral hearing, which exceptionally dealt with a preliminary matter only, was held in Dublin on 26 July 2011. In the interest of efficient administration of justice - the jurisdictional matter applied to each case - the complainants were invited to a joint hearing dealing with the preliminary matter only.
2. Dispute
2.1. The dispute before this Tribunal concerns complaints of unlawful discrimination on the age ground. The complainants submitted that Area Development Management Limited now POBAL ("the respondent") discriminated against them in the manner in which the taxi hardship scheme was administered. The substantive facts vary in relation to the individual complaints. This decision is concerned with whether this Tribunal has jurisdiction to proceed with its investigation into the above complaints.
3. Background to the complaints
3.1. The Taxi Hardschip Scheme was established in response to the liberalisation of the Taxi industry on 21 November 2000. The aim of the scheme was to address some difficulties which related to the new taxi regime for some existing taxi license holders.
3.2. A number of complainants referred claims to this Tribunal in late 2004 and throughout 2005. Each of these cases was taken on the age ground [some cases referred to other grounds also] and is concerned with the manner in which the complainant's age was a contributing factor in the manner in which the respondent had excluded them from Taxi Hardship Payment Scheme.
3.3. A Circuit Court decision in Hoey v Area Development Management Limited DEC-S2008-010 issued on 31 January 2008. The decision was in favour of the complainant. The respondent exercised their right to an appeal pursuant to section 22(1). A decision to await the outcome of said appeal was taken. An attempt to schedule the remaining cases was taken in 2009 but a number of the complainants requested that the matter be put on hold while the appeal was pending.
3.4. Learned Judge Reynolds issued her judgment in the Circuit Court on the appeal on 14 April 2011. The judge found that the Tribunal erred in allowing Mr. Hoey's complaint against the respondent to proceed. Her reasoning was that the respondent was merely administering the scheme in accordance with the criteria established by the Executive. The judge found that for the respondent to have done otherwise would have been ultra vires its powers and unlawful. Furthermore, she was of the view that the Tribunal had no jurisdiction to entertain Mr. Hoey's complaint as by doing so the Tribunal was purporting to review a decision of Government, thus acting ultra vires of its powers conferred by the Equal Status Acts.
3.5. I wrote to each of the complainants informing them of the outcome of the appeal. A few complainants withdrew their cases but the reminder indicated that they now wished to have their cases heard in accordance with the Acts. A schedule for hearings was prepared in accordance with the Acts. The respondent objected to this approach arguing that it ought to be provided with an opportunity to address a preliminary matter applying to all the complaints in a more efficient manner. A decision to hold a preliminary hearing only with all the complainants in attendance was made.
4. Preliminary matter concerning jurisdiction
4.1. A late request for an adjournment was received on behalf of Mr. Brennan who had secured representation to deal with the preliminary matter from the Equality Authority. This preliminary authorisation referred to the fact that it was likely that the Authority would be granting Mr. Brennan legal representation in this matter. The respondent objected to this late request and indicated that travel arrangements had been made to have relevant people at the hearing. The adjournment request was denied as there were no exceptional circumstances justifying such a request.
4.2. A second adjournment request was made by way of 'petition' on behalf of the all of the complainants on the day. The petition claimed that the full extent of the matter was not known to the complainants and that additional time was required for the preparation of extensive submissions. Having considered the matter I declined this request as I was satisfied that the preliminary matter before this Tribunal was of such nature that the complainant's reply to the respondent's motion could be made after the complainant's had fully heard the respondent's position. The complainants were granted an exceptionally long reply period during which they could seek legal advice and representation in relation to the preliminary matter that they had now fully heard. I was satisfied that by allowing the respondent to begin its case I was ensuring that the large number of lay complainants would be in possession of the full legal argument before they prepared their replying submissions. I also noted that the parties had been on notice of the hearing for a period of 5 months and that a majority of the complainants were represented on the day by their various trade unions. I am satisfied that a copy of the Circuit Court's approved decision was sent to all of the complainants on 25 May 2011.
4.3. On the day of the oral hearing I heard the respondent's oral submission only and offered the complainants an opportunity to ask any clarifying questions. The respondent, who had requested for a stenographer to be present, provided transcripts of the hearing to the complainants' representatives. Extensive periods of time to reply were granted to both parties on their request. A reply on behalf of Mr. Brennan was received on 28 October 2011. No other replies were supplied on behalf of the complainants. The respondent's reply to Mr. Brennan's submission was received on 29 February 2012.
4.4. The respondent submitted, inter alia, that the Circuit Court's decision is binding on the Tribunal in circumstances where such a decision is a direct result of an appeal arising from the same statute and pertains to the same facts in relation to the issue of jurisdiction. It was submitted that this rationale applies equally to each complainant now before the Tribunal. It was submitted that the complaints ought to be dismissed in limine in reliance of the decision in the Hoey case. It was accepted that there is no binding decision on the binding nature of an appellant court's finding on the court of original jurisdiction in Ireland but that the Employment Appeal Tribunal's Coote v Granada Hospitality Ltd (no 2) [1999] ICR 942 is a decision of persuasive authority that cites: "the doctrine of precedent requires us to follow it [Court of Appeals decision]". This was even in circumstances where the EAT disagreed with the Court of Appeal's decision. The same rule of law only allows for a lower to court to depart from a precedent when it has been decided per incuriam.
4.5. It was also argued by the respondent that this Tribunal and indeed many of the complainants, who had elected to wait for the outcome of the appeal, had indicated by accepting such an approach that the outcome of the appeal would be determining factor in the decision whether to pursue the references.
4.6. It was submitted on behalf of Mr. Brennan that the Tribunal ought to exercise its jurisdiction under section 79 of the Employment Equality Act 1998 as amended by section 24 of the Civil Law (Miscellaneous Provisions) Act 2011 to refer questions of law to the High Court as no clarity is yet available in relation to the issues of law which arise in his claim.
4.7. Furthermore, the complainant submitted that he wished to proceed with his substantive case as he believes that Hoey was incorrectly decided in law. It was respectfully submitted that a remedy does exist under these Acts for the complainant. It was pointed out that the complainant was not a party to the proceedings in Hoey and therefore he did not enjoy a right to appeal.
4.8. No replies were received from any of the unions representing a number of the complainants.
4.9. The respondent replied to Mr. Brennan's submission on 29 February 2012.
5. Conclusion of the equality officer
5.1. I find, having used everyday language to interpret the statute, that section 24 of the Civil Law (Miscellaneous Provisions) Act 2011 does not amend the Equal Status Acts. Therefore I have no jurisdiction to refer this matter to the High Court as a case stated or in any other way. The matter can only be referred to the High Court after an appeal to the Circuit Court has concluded, on a point of law only.
5.2. It is clear that the Equality Tribunal is a quasi-judicial body with original jurisdiction to hear complaints under the Equal Status Acts. The Circuit Court is the appellant court for investigations arising from that statute. While I am not in possession of a complete decision in the Hoey case, I am in possession of an approved decision that relates to the matter of jurisdiction only. I find that in the circumstances of these cases I must respect that court's findings in relation to jurisdiction. It is a rule of law that inferior courts (including quasi-judicial bodies) obey precedents established by the appellate court for their jurisdiction. I find that in such circumstances I have no jurisdiction to go behind the Circuit Court judge's decision. It is clear that as the current precedent stands this Tribunal has no jurisdiction to investigate any of the complaints relating to the administration of the Taxi Hardship Scheme. The complaints are misconceived in law. Therefore, I find that none of the complaints pertaining to the administration of that particular scheme can succeed in this Tribunal.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation into the preliminary matter only and issue the following decision:
6.2. I find that I have no jurisdiction to examine the administration of the Taxi Hardship scheme. Therefore I dismiss these complaints as misconceived under section 22.
6.3. In accordance with section 22(2) the complainant(s) may appeal against this decision in the Circuit Court on notice to the Director specifying the grounds of the appeal. Such an appeal must be lodged no later than 42 days after the date of dismissal.
____________
Tara Coogan
Equality Officer
21 March 2012
Appendix A
Full list of complainants: Case reference:
1. Mr. Derek Doran ES/2004/0205
2. Mr. Gerard O'Reilly ES/2004/0215
3. Mr. Anthony O'Rourke ES/2004/0223
4. Mr. David McGrath ES/2005/0021
5. Mr. Francis Rowan ES/2005/0031
6. Mr. James McGuire ES/2005/0035
7. Mr. Derek Brennan ES/2005/0037
8. Mr. John Hayden ES/2005/0041
9. Mr. Anthony Groves ES/2005/0059
10. Mr. Philip O'Brien ES/2005/0068
11. Mr. Thomas Kelly ES/2005/0206
12. Mr. Brian Keenan ES/2005/0231
13. Mr. Gerard Healy ES/2005/0244
14. Mr. Dermot McCoy ES/2005/0531
15. Mr. John Hayes ES/2005/0675
16. Mr. Alan Bradley ES/2005/0689
17. Mr. Patrick Conroy ES/2005/0934