EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-100
PARTIES
Aleksandra Kotarzewska
AND
Department of Justice and Equality
(Represented by ClionaKimber B.L. instructed
by Chief State Solicitors Office)
File reference: EE/2013/639
Date of issue: 7th July 2016
HEADNOTES: Employment Equality Acts – Race – Access to Employment
1. Dispute
1.1. The Complainant alleges that she had been discriminated against by reason of her race and that she had been treated unlawfully by the Respondent in discriminating against her getting a job.
1.2. This complaint, under the Employment Equality Acts, was received in the Equality Tribunal on 6th December 2013.On 5 May 2016 in accordance with his powersunder section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Roger McGrath an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 18 May 2016.
1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. Complainant's Written Submission
2.1. The Complainant submitted a written submission outlining her case.
2.2. The Complainant is a Polish national who has worked in the Dept. of Justice and Equality since July 2008.
2.3. The Complainant submitted that on 4th June 2013 an Office Notice was issued by the Dept. in relation to a competition for assignment to posts at HEO/AO/Head of Visa Section, EO/Visa Officer and CO Assistant Visa Officer in Visa Sections at Irish Embassies abroad. Under paragraph 2. Eligibility the notice stated:
2.4. "It is usual for civil servants being posted abroad to be issued with Irish diplomatic or official passports and, for some locations, for the Department of Foreign Affairs and Trade would regard that as practically essential for the purposes of residence in the foreign state and recognition by and interaction with the various authorities of the host government. Similar considerations would apply with regard to members of the immediate family of officers. Under the 2008 Passport Act, Irish passports, whether standard, official or diplomatic, may only be issued to Irish citizens. It is a matter for the individual staff member to obtain an Irish passport in advance of any posting, the commencement of same cannot be delayed on this basis."
2.5. In the Complainant's view this advertisement appeared to be in breach of the Employment Equality Act, 1998 and 2004 and the Equal Status Act, 200 and 2004, in that it was discriminatory with regard to employment and access to employment and advertising.
2.6. The Complainant referenced section 1.10 of the Equal Status Acts which, she said, states that a person shall not publish or display, or cause to be published or displayed, an advertisement which indicates an intention to discriminate, harass, sexually harass, or might reasonably be understood as indicating such an intention.
2.7. The Complainant acknowledged that section 36 of the Employment Equality Act allows for certain restrictions, including restrictions in relation to citizenship, to be imposed on civil servants. However, she submitted that it was her understanding that European law takes precedence over any norms of national law and that under the European directive 2004/38 and the European Communities (Free Movement of Persons) Regulations 2006-2008 European citizens residing in the State should be treated in all respects concerning employment in the like manner as Irish citizens.
2.8. It was the Complainant's contention that the department advertisement clearly indicated an intention to discriminate against any employee who was not an Irish citizen, moreover that it indicated an intention to discriminate against an employee whose immediate family members were not Irish citizens.
2.9. The Complainant went on to propose that the positions advertised for were not diplomatic posts and therefore an Irish passport is not essential in order to carry out the duties required by Visa Officers. The Complainant stated that she had previously worked as a Visa Officer in the Irish Naturalisation and Immigration Service as an Assistant Visa officer, and that colleagues of the same grade have been posted abroad, access to these postings seemed to be restricted to only those in possession of Irish passports.
2.10. In June 2013 the Complainant sought clarification from the Department's HR Division however as an adequate response was not forthcoming the Complainant lodged a complaint with the Equality Tribunal on 6 December 2013. The Complainant stated that at the time she submitted her complaint to the Equality Tribunal she put the date of the publication of the office notice (04/06/2013) as the most recent date of discrimination, however it was her view now that this was incorrect and in fact the discrimination stretched to July 2015 as the panel established as a result of the competition remained in place until that time. In any case on 25 August 2015 a new completion for assignment to posts in Visa Sections of Irish embassies abroad was announced by way of another office notice. This later office notice contained the same wording relating to eligibility that the Complainant had found objectionable previously.
2.11. In questioning the Complainant stated that when she applied for the position in 2013 she did get an interview, that the "selection process was not a problem", that she had "no concerns about not being selected". She went on to say that the procedures used in the selection process were fair, that her difficulty lay solely with the advertisement and the wording used which she believed indicated an intention to discriminate.
2.12. The Complainant went on to say that she did not feel she received an adequate response from the HR Section of the Dept. when she first raised her concerns about the advertisement and that it was regrettable that clarification had been so long in coming.
3. Respondent's Written Submission
3.1. The Respondent submitted a detailed written submission.
3.2. At the outset of their submission the Respondent raised a preliminary point; that there is a complete defence of the complaint by virtue of section 36 of the Employment Equality Act which permits a provision requiring Irish citizenship in relation to holding office as a civil servant.
3.3. The Respondent also submitted that a similar exception is set out in EU law and that in any event, Irish law applies in proceedings before the WRC, as the Equality Tribunal or WRC does not have jurisdiction to set aside national law.
3.4. It was the Respondent's contention that the purported complaint under the Equal Status Act was not admissible as that Act makes it clear that it does not apply if the matter falls within the scope of the Employment Equality Acts. The Respondent also put forward a view that the Equal Status act applies to discrimination in relation to the provision of goods or services or discriminating clubs and therefore is not pertinent to this case. Furthermore, the Respondent believes, the section of legislation quoted by the Complainant in her statement relating to advertising is a paraphrasing of section 10(1) of the Employment Equality Acts, thus it is the Employment Equality Acts which apply.
3.5. The Respondent then outlined the circumstances surrounding the selection process for the appointment of Visa Officers. Circular 52/2013 inviting applications for assignment to posts for Visa Officers for Irish Embassies abroad was posted on the 4th June 2013, with closing date for applications being the 18th June 2013.
3.6. The Complainant applied for the positions and was interviewed for inclusion on the panel on 26th July 2013. She was assured prior to interview that placement on the panel would be made with no reference as to whether someone had an Irish passport or not.
3.7. The Complainant was not successful in her interview.
3.8. Without prejudice to their argument that there is a complete defence in Irish and EU law to requirements of nationality for public service provisions, the Respondents pointed out that as the claimant was not offered any position, she did not therefore suffer any discrimination and was not prevented, by virtue of nationality, from taking up any position that she was offered. The Respondent is of the view that the claim is therefore hypothetical, and therefore a moot case and not within the jurisdiction of the Equality Tribunal/WRC.
3.9. The Respondent then elaborated on Section 36 of the Employment Equality Acts, stating that this section provides a complete defence to the Complainant's claim of discrimination in relation to employment, or discriminatory advertisement or otherwise. Section 36 refers to holding office and in this instance that is holding office in an embassy abroad, where the holding of an Irish diplomatic passport is deemed essential. It is the Respondent's case that Section 36(1) exempts positions which have a provision relating to citizenship from the operation of the non-discrimination provisions in the Employment Equality Acts.
3.10. The Respondent then went on to address the Complainant's argument that European Law should take precedence over national law, and her assertion that Directive 2004/38 and the European Communities (Free Movement of Persons) Regulations 2006-2008 that European Citizens should be treated in all respects concerning employment in like manner as Irish citizens.
3.11. In response the Respondent submitted that the WRC does not have jurisdiction to overrule or set aside express provisions of Irish Legislation. The Respondent cited Commissioner of An Garda Siochanna v the Director of the Equality Tribunal and Boyle [2009] ELR 116. It was submitted by the Respondent that the Judge in this case ruled that the Equality Tribunal could not make a ruling contrary to the provisions of a statutory instrument without a specific mandate to do so. The Respondent further cited the Judge in the above case;
"Mr. Justice Charleton went on to say that the correct response of the Equality Tribunal to the complaint by the applicants should have been to point out to them that by legislation it could not seek to remedy the complaint that they had made and the proper approach of the applicants would then have been to seek a declaration from the High Court that national law had proposed to overrule a European law obligation."
3.12. The Respondent submitted that in Boyle therefore, Mr. Justice Charlton held that there is no principle of European law that allows an administrative body or a court of limited jurisdiction to exceed its own authority in order to remedy deficiencies in national legislation even if it considers that the legislation has not properly implemented European law. This applies to the WRC in exactly the same way as it applied to its forerunner, the Equality Tribunal.
3.13. The Respondent went on to submit that EU law also contains an exemption for employment in the public service. The Respondent cited Article 45(4) of the Treaty of the Functioning of the European Union, submitting that "non-discrimination on grounds of nationality do not apply to employment in the public service. To support this the Respondent referred to case 149/79 Commission v Belgium [1980] ECR 3881.
3.14. The Respondent went on to outline the reasons why the practice of holding an official or diplomatic passport is required.
3.15. In conclusion the Respondent reiterated that section 36 of the Employment Equality acts provides a full defence, that EU cannot set aside an express provision of Irish Law and that in any event, EU law also contains an exception to the equal treatment principle for employment in the public sector.
4. Findings and Conclusions
4.1. In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2. In relation to the preliminary point raised by the Respondent it would seem to me that section 36 of the Employment Equality Act does indeed provide for the requirement for Irish citizenship in relation to holding office as a civil servant. However, in this case the need to utilise that defence is not required.
4.3. In the course of the Hearing it became apparent that the Complainant's issue was not the fact that she was unsuccessful in the selection process but rather she felt the advertisement used indicated an intention by the Respondent to discriminate on the grounds of race. The Complainant accepted that the selection process itself was fair and that her race was not a factor in her non-selection for the role. The Complainant agreed that she had not been treated any less favourably because of her race.
4.4. The requirement for a passport is not for my consideration because this matter never became an issue in the Complainant's non-selection. The Complainant's suggestion that the requirement for an Irish passport might have come against her had she been successful in the selection process is a matter of conjecture, a hypothetical situation and I cannot deal with hypothetical situations.
4.5. With regard to the advertising, section 10 of the Employment Equality Act provides as follows:
10.—(1) A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an intention.
(2) For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which—
(a) connotes or refers to an individual of one sex or an individual having a characteristic mentioned in any of the discriminatory grounds (other than the gender ground), or
(b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by the members of one sex or individuals having such a characteristic,
then, unless the advertisement indicates a contrary intention, the advertisement shall be taken as indicating an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.
4.6. However, there is no provision for an individual complainant to refer a claim of discriminatory advertising. Section 85 provides that such claims may be referred to the Irish Human Rights and Equality Authority (Power granted to Irish Human Rights and Equality Authority to serve an equality and human rights compliance notice on persons who have contravened or are contravening subs. (1) (1.11.2014) by Irish Human Rights and Equality Commission Act 2014 (25/2014), s. 36(1)(b), S.I. No. 449 of 2014.)
4.7. In Burke v FAS EDA 18/2004 the Labour Court said that it was clear that the intention of the legislature was to vest in the Equality Authority (now a role for the IHREC) the exclusive power to institute proceedings against discriminatory advertisements. Therefore the complainant lacks the legal standing (locus standi) to bring a complaint against the Respondent as publisher of the advertisement.
5. Decision
5.1. The Complainant lacks the legal standing to bring this complaint and therefore I have no jurisdiction to investigate the claim under the Equal Status Acts and the claim fails.
________________
Roger McGrath
Adjudication Officer/Equality Officer
7th July 2016