FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : IRISH AVIATION AUTHORITY (REPRESENTED BY A& L GOODBODY SOLICITORS) - AND - BRIAN BROPHY (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2011
BACKGROUND:
2. The Claimant appealed the decision of the Equality Officer to the Labour Court on the 11th June, 2013. Labour Court hearings took place on the 17th October, 2014, 20th October, 2014 and 3rd November, 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal against the decision of an Equality Officer in a claim of discrimination by Mr Brian Brophy against the Irish Aviation Authority.For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Brian Brophy will be referred to as “the Complainant” and the Irish Aviation Authority will be referred to as “the Respondent”.
The claim relates to the refusal of the Respondent to approve the Complainant’s appointment to a post of Flight Operations Manager for which he had been selected by his employer. The Complainant contends that in so doing the Respondent discriminated against him on grounds of disability. In the alternative it is contended that the Respondent failed to take appropriate measures so as to allow him to take up the position in issue notwithstanding his disability. The claim was taken under the Employment Equality Acts 1998- 2011 (the Acts).
The Complainant referred his claim under the Acts to the Equality Tribunal on 19thNovember 2010.
The Complainant failed to attend the scheduled hearing before the Equality Officer. For reasons outlined to the Tribunal, his representative applied for an adjournment. The Equality Officer refused the adjournment request, proceeded with the hearing and dismissed the claim in the absence of any evidence supporting the Complainant’s contentions. The Complainant appealed this Decision to the Court.
Approach of the Court
Prior to this appeal being set down for hearing the Court convened a case management conference for the purpose of defining the issues arising in the case. It became clear that the outcome of the case may turn on two significant questions of law. This Court has previously held that issues arising in a case should be disposed of by was of a preliminary determination in circumstances analogous to those in which the ordinary Court’s will order the trial of a preliminary issue. Those circumstances were explained by O’Higgins CJ inTara Exploration and Development Co. Ltd v Minister for Industry and Commerce[1975] IR 246 as arising where there is a pure question of law to be decided which can be disposed of without a requirement to take evidence. In addition, the Chief Justice pointed out that the Court must be satisfied that the resolution of that question of law will reduce significantly the range of other issues to be decided in the case thus leading to savings in time and expense.
The Questions of Law arising
There are two significant issues of law arising in this case:-
i. Is the Respondent Properly Impleaded
The Respondent is impleaded pursuant to Section13 of the Acts. That section provides: -
- “Membership of certain bodies”
13.—A body which—
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry to, or the carrying on of, a profession, vocation or occupation,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.
ii. Has the Respondent a Statutory Immunity against Liability
The Respondent contends that even if it is amenable to the jurisdiction of the Court (which is denied) it enjoys a statutory immunity from liability in respect of the matter upon which the within claim is grounded by operation of Section 17(3) of the Acts.
That subsection provides: -
- (3)In relation to discrimination on the age ground or the disability ground, nothing in this Act shall render unlawful any act done in compliance with any provision made by or under—
(a)sections 5,9,11and16of theAir Navigation and Transport Act, 1946(b)section 12of theMerchant Shipping Act, 1947,
(c)section 29of theTransport (Miscellaneous Provisions) Act, 1971,
(d)sections 3and8of theMerchant Shipping (Certification of Seamen) Act, 1979, or
(e)sections 5,14,58and60of theIrish Aviation Authority Act, 1993.
It is the Respondent’s case that the impugned act of refusing to authorise the Complainant’s deployment in the post of Flight Operations Manager was in compliance with Section 14 of the Irish Aviation Authority Act 1993. Consequently, it was submitted, Section 17(3)(e) provides it with a full defence to the within claim.
In the alternative, the Respondent contends that Section 36 (5) of the Act provides it with a further defence. That subsection provides: -
- Nothing in this Part [PartIV] or Part 1/ shall make it unlawful for a body controlling the entry to,or the carrying on of, a profession, vocation or occupation to require a person carrying on or wishing to enter that profession,vocation or occupation to hold a specified educational,technical or other qualification which is appropriate in the circumstances.
It was submitted on behalf of the Complainant that in so far as those statutory provisions purport to limit the application of the principle of equal treatment enshrined in Directive 2000/78/EC (the Framework Directive), as a matter of European Law they should not be applied by the Court. In advancing that submission the representative of the Complainant relied upon the doctrine of supremacy of European Law.
The Court is satisfied that these are questions of pure law concerning the true construction of the relevant statutory provisions which can be decided without taking evidence. Moreover, their resolution at this stage could, potentially, dispose of the whole case thus saving considerable time and expense. Accordingly, the Court, with the agreement of the parties, decided to deal with these questions by way of a preliminary submissions and hearing.
As the Court is dealing with preliminary points of law in the first instance it will not address refuted questions of fact relating to the substance of the case. Consequently, the facts of the case will be recited only in so far as is necessary to give background to the questions that fall for consideration.
Background – The Complainant
The Complainant is an employee of CHC Ireland Limited. Hehas been a professional pilot since 14thAugust 1991,holding licences to fly helicopters and aeroplanes.He originally served in the Irish Air Corps and in 2002 he joined CHC Ireland Limited where he was employedin various posts in the aviation sector, both flying and in managerial roles, including supervision of flying staff, instructing on Sikorsky S61Helicopters for line training purposes, instructing new pilots in the helicopter simulator located in Stavangar, Norway and examining pilots for licensing purposes.
In April 2009,the Complainant suffered a mild spontaneous cerebral haemorrhage on the left side of his brain, as a result of which hispilot's medical certificate (without which he cannot legally fly) was temporarily revoked.Within a short period the Complainant made a full recovery and in July 2009 he was given the 'all clear'by his medical consultant.However,on 21st August 2009,the Complainant was
informed by the Respondent’s medical specialist that it was unlikely he would everbe allowed to fly again as it was necessary to satisfy the'1% rule', i.e. statistics would have to exist to suggest that the chances of having a similar occurrence would be less than 1% per year.
In May 2010 the Complainant was successful in his application for a promotion to a senior management position - Flight Operations Manager, with his employer. In order to fulfill the role the Complainant was required to be deemed acceptable by the Respondent. By letter dated21stMay 2010 the Respondent informed the Complainant that it required the Flight Operations post holder to hold a valid licence appropriate to the type of aircraft operated. As the Complainant did not hold such a licence it was deemed that the Respondent did not approve him for the post.
The Complainant claimed that the Respondent’s refusal to certify him suitable for the post amounted to discrimination on the ground of disability contrary to the Acts. He submitted that the Respondent is a body which falls within the purview of Section 13(c) of the Acts.
Background - The Respondent
The Respondent is prescribed by Section 14 of the Irish Aviation Authority Act 1993 and is responsible for the certification and licensing of aircraft operators,aircraft andaircraftpersonnel.Itensures that Irish civil aviation operatesto internationaland European safety standards and systems in accordance with international agreements.
The Respondent'sresponsibilities to regulate Irish civil aviation include licensing of individuals and aerodromes,certification ofair operators and other organisations,registration of aircraft,certificates ofairworthiness,oversight of maintenanceorganisations and matters of that nature. TheRespondent regulates to standards laid down by theInternational Civil Aviation Organisation and by theEuropean Union.
The Respondent submitted that for large complex structures like CHC, post holders are expected to satisfy the Respondent that they possess the appropriate experience and licensing requirements required for the type of operations undertaken by the air operator. This was particularly so where CHC were involved in specialised activities such as search and rescue work and were introducing a new fleet of helicopters, Sikorsky S-92A. In order to train crews on the new helicopter it was necessary for the post holder to hold a current Type Rating Instructor licence on the Sikorsky S-92A and be familiar with its use in hostile environment operations in search and rescue work.
Conclusions of the Court on the Preliminary Issues
The Complainant contends that in the exercise of its function in licensing, certifying and approving individuals to work in civil aviation the Respondent controls entry to a profession of occupation. On that basis it is submitted that it is a body that comes within the purview of Section 13 of the Act.
The Respondent submitted that it is not a body that affords membership to any person and that the statutory functions that it performs are not properly described as a benefit. The nomination of post holders is part of a wider process of addressing safety issues connected with an air operation and post holders are just one of the many elements.
It could be argued that in the exercise of its licensing and certification role the Respondent controls entry to those occupations and professions that come within its remit. Hence, paragraph (c) of Section 13 of the Acts, if read in isolation, appears to bring the Respondent within the ambit of the section.
However, the Respondent is not an organisation of workers or of employers nor is it a professional or trade association and has none of the characteristics of such bodies. Moreover, it cannot grant or refuse membership to any person. It’s licensing and certification role is performed pursuant to the Act of 1993 and could not be regarded as a benefit in the same sense as an advantage that could be derived for membership of a body similar to an organisation of workers or employers, a professional body or a trade association.
It seems reasonable to infer that in enacting Section 13(c) of the Acts the Oireachtas must have intended that there would be some limitation on its application. There are a number of both private and public bodies that exercise some regulatory role that impacts on access to employment, which range from the Road Safety Authority, which issues licences to drivers, to Ministers and the Courts that issue licences necessary to undertake particular professions. It seems unlikely that the Oireachtas intended to confer a jurisdiction on this Court to entertain complaints that the exercise of such bodies of their statutory role contravened the Acts. Rather it seems more likely that the purpose of the provision was to prohibit discrimination by bodies, membership of, or associated with, which is formally orde factoa condition of entry to a particular occupation or profession.
For these reasons it seems reasonable that paragraph (c) of the Section should be ascribed a restricted meaning in the context of the section as a whole. However, as the Respondent accepts that it has a function in respect of pilots’ entry to or the carrying on of their profession in Ireland, but that it does not do so in respect of the post of Flight Operations Manager, the Court does not believe that it should express any concluded view on that point.
The Respondent contends that it enjoys a statutory immunity from liability by operation of Section 17 of the Acts. If it is correct on this point - and for reasons which will follow, the Court has concluded that it is – the Complainant could derive no practical benefit from having Section 13 interpreted in the manner for which he contends. In these circumstances the first question posed in this preliminary hearing is moot.
The action of the Respondent complained of by the Complainant was in in compliance with a duty imposed on it by Section 14 of the Act of 1993. The plain and ordinary language of Section 17 provides it with an immunity from liability under the Act, the import of Section 17(3)(e) is very clear. Notwithstanding that the representative of the Complainant urged the Court to dis-apply the subsection as inconsistent with the wording and purpose of Directive 2000/78/EC. In advancing that submission the representative of the Complainant submitted that the Respondent is an emanation of the State and that the doctrine of direct effect of European Law requires the Court to apply Union law and if necessary to set aside any conflicting provision of domestic law. That principle has been restated by the Court of Justice of the European Union in a line of authorities starting with the decision in case C-106/77Amministrazione delle Finanze dello Stato Simmenthal[1978] ECR 629.
For the reasons that follow the Court does not accept that there is any inconsistency between Section 17 of the Act and Directive 2000/78/EC.
There are two provisions of the Directive that are relevant in this case.
Article 2.5 of the Directive provides: -
- This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.
- Notwithstanding Article 2(1) and (2), member states may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
At paragraph 55 of the judgment, in relation to Article 2.5 of the Directive, the Court said: -
- In adopting that provision, the EU legislature, in the area of employment and occupation, intended to prevent and arbitrate a conflict between, on the one hand, the principle of equal treatment and, on the other hand, the necessity of ensuring public order, security and health, the prevention of criminal offences and the protection of individual rights and freedoms, which are necessary for the functioning of a democratic society. The legislature decided that, in certain cases set out in Article 2(5) of the Directive, the principles set out by that latter do not apply to measures containing differences in treatment on one of the grounds referred to in Article 1 of the Directive, on condition, however, that those measures are 'necessary' for the achievement of the abovementioned objectives.
- As regards air traffic safety, it is apparent that measures that aim to avoid aeronautical accidents by monitoring pilots' aptitude and physical capabilities with the aim of ensuring that human failure does not cause accidents are undeniably measures of a nature to ensure public security within the meaning of Article 2(5) of the Directive.
- Under Article 4(1) of the Directive 'member states may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 [of the Directive] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate'.
It is apparent from the wording of that provision that, in order not to constitute discrimination, the difference in treatment must be based on a characteristic related to one of the grounds referred to in Article 1 of the Directive and that characteristic must constitute a 'genuine and determining' occupational requirement. The Court has held that it is not the ground on which the difference in treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement (see caseC-229/08Wolf[2010] IRLR 244, paragraph 35).
As regards airline pilots, it is essential that they possess, inter alia, particular physical capabilities in so far as physical defects in that profession may have significant consequences. It is also undeniable that those capabilities diminish with age (see, to that effect, with regard to the profession of fireman, Wolf, paragraph 41). It follows that possessing particular physical capabilities may be considered as a 'genuine and determining occupational requirement', within the meaning of Article 4(1) of the Directive, for acting as an airline pilot and that the possession of such capabilities is related to age.
It is clear that the need to ensure that those involved at all levels in aviation possess the necessary attributes to ensure the safety of aircraft is a legitimate objective of every Member State of the European Union. It is also clear beyond argument that it is entirely appropriate and necessary that the role in deciding what is required to meet that objective be entrusted to an expert body such as the Respondent. In enacting Section 17(3)(e) of the Acts the Oireachtas gave expression to that general principle. It is to be presumed, as this Court must presume, that in exercising the role entrusted to it by the Oireachtas the Respondent would act honestly and in accordance with the statute by which it derives its powers. If it does not a remedy lies in judicial review. In these circumstances this Court cannot assume a role in deciding what is appropriate and necessary in order to ensure the protection of air safety and it must defer to the Respondent in that regard.
That is the purpose and effect of Section 17(3)(e) of the Act and the Court can find no inconsistency between that provision and the wording and purpose of Directive 2000/78/EC.
In these circumstances it is unnecessary to address the submissions made in relation to Section 36 of the Act.
Determination
For the reasons set out herein the Court is satisfied that the within claim cannot succeed. Accordingly the Complainant’s appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th December, 2014______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.