DEC-S2016-058

EQUAL STATUS ACTS 2000-2004

DECISION NO. DEC-S2016-058

PARTIES

Patrick Mulvihill

(Represented by Edward Murray B.L.

instructed by Cunneen & McCarthy, Solicitors)

AND

Bus Eireann

File reference: ES/2013/0104

Date of issue: 20th  September 2016

HEADNOTES: Equal Status Act – Discrimination in provision of services- Gender-age

DISPUTE

1.1 This dispute concerns a claim by Patrick Mulvihill that he was discriminated against by the respondent on the grounds of his gender and age contrary to section 3 of the Equal Status Acts 2000 to 2004 in relation to the provision of services in terms of section 5 of the Act.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on September 27th 2013 under the Equal Status Act. On August 23rd 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Pat Brady, 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.

1.3 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 September 1st 2016.

1.4 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.

COMPLAINANT’S SUBMISSION

2.1 The complainant operates a ‘bus for hire’ company and was previously engaged by the respondent to provide school bus services on a contract basis. The contract had been renewed on a number of occasions.

2.2 The complainant reached his seventieth birthday on November 3rd 2012 and as he approached his birthday he was advised that his contract would not be renewed as the company had a policy that it would not award such contracts for school bus services to persons over that age.

2.3 As to whether this is a matter which falls within the jurisdiction of the Equal Status Act the complainant says that while the most obvious service provided by the respondent is that of transport services to the public its role in the awarding of contracts is also the provision of a service to the public and falls within the Equal Status Act.

2.4 He also says that he is in an analogous position to a complainant in a number of cases, one of which Lyamina v The Department of Education and Science (DES) DEC-S2009-016 concerned whether the DES (in the complainant’s submission in an analogous position to this respondent insofar as when it did not directly provide the service (in that case education) could it still be regarded as providing a service. The Equality officer held that it could, although ultimately deciding that the DES was not the correct respondent in the case.

2.5 The complainant is fully insured and medically certified to drive a school bus up to his seventy-fifth birthday.

2.6 The complainant also relied on the case of Jim Ross v Royal Sun Alliance PLC DEC S2003-116 which concerned the refusal of car insurance to the complainant also over seventy years of age. The Equality officer found that the failure of the respondent to adduce firm statistical evidence to justify its actions rendered the decision to decline insurance discriminatory. The complainant says that his case is similar to this in that Mr Ross and he were both denied a benefit on the grounds of their age alone which is a discriminatory act.

2.7 There were further submissions on the general issue of age limits.

2.8 The complainant continues to be engaged as a contractor by the respondent but is required to employ a bus driver who is within the age requirements specified by the company.

RESPONDENT’S SUBMISSION

3.1 The respondent did not attend the hearing.

3.2 However in a submission to the WRC dated July 12th 2016 it addressed the issue of retirement ages stating that it was entitled to ‘set individual retirement ages in an employee’s contract of employment as long as the retirement age is objectively justified by a legitimate aim and the means of achieving that are necessary and proportionate’.

3.3 It submitted that the retirement ages (sixty five in general for bus drivers, rising to sixty six this year, and seventy for school bus drivers on the basis that they do less driving) is done ‘on the grounds of safety’.

3.4 School bus drivers between the ages of sixty five and seventy must complete an annual, mandatory health examination with the Chief Medical Officer of CIE to confirm their fitness levels to continue to drive a bus. In this regard it relied on the decision in Saunders v CHC Ireland Dec-E/2011/142 which upheld a mandatory retirement age of fifty-five (in that case involving helicopter rescue ‘winchmen’).

3.5 The respondent says that it is not relevant that the complainant is fully insured and medically certified because regardless of that the mandatory retirement age is objectively justified where the work involves driving a public service vehicle

CONCLUSIONS AND FINDINGS

4.1 I am satisfied that the respondent was properly informed of the date and time of the hearing and in the absence of any acceptable explanation for their absence I proceeded to hear the case. I considered all relevant evidence that was laid before me before and in the course of the hearing.

4.2 I must consider as a preliminary matter whether this is a case that falls within the jurisdiction of the Equal Status Act. In the Act ‘Service’ is defined as in Section 1(1), the Interpretation section, as follows;

‘service’ means a service or facility of any nature which is available to the public generally, or a section of the public and …which includes

access to and the use of any place

Facilities for

Banking, insurance, grants loans, credit or financing

Entertainment, recreation of refreshment

Cultural activities, or

Transport or travel

d) Services provided by a club (etc)

d) A professional or trade service

4.3 The Irish Human Rights and Equality Commission describes the purpose of the Act’s services as follows;

The Equal Status Acts deal with discrimination within the provision of goods and services, of accommodation, and by educational establishments.

It describes a service as follows

If you receive a ‘service’, it means a person or organisation has done something for you or supplied you with something you wanted or needed.

4.4 The complainant’s argument at 2.3 above is that, in some way, when a national transport company whose primary service is the provision of transport, enters into contracts with suppliers delivering services such as are covered by the protection of the Equal Status Act then it is also providing ‘a service’ to the contracting party.

4.5 This reading of the Act is contradicted by the clear thrust of its language which is primarily aimed at protecting what might generally be described as ‘consumers’ of any services in respect of which a complaint of discrimination arises. The complainant essentially sought to argue that contractors invited to, and who subsequently do enter into commercial contracts for the supply of services are in some way themselves beneficiaries of the company’s services.

4.6 This runs entirely counter to any common understanding of what a service is. The language in the Act itself states that it must be ‘a service or facility of any nature which is available to the public generally, or a section of the public’ and so also confirms the nature of the required relationship.

4.7 Therefore, I find that the opportunity to enter into commercial contracts is not a ‘service or facility available to the ‘public generally’. There are quite specific eligibility requirements; one must be a bus owner, have specific licence and insurance cover, meet child protection regulations etc. Therefore the awarding of a contract is not the provision of a service in either its ordinary meaning or in the language of the Act.

4.8 Secondly, and by extension of that point, in reference to the case made by the complainant that he falls ‘within a section’ of the public in my view the ‘section’ of the public referred to must also be a subset of what is commonly referred to as the ‘general’ public (or, as the Act puts it, the public generally’). It cannot be construed to embrace a subset as specific as those who supply commercial services to the main service provider (Bus Eireann), and where the relationship is commercial and not that of a subset of the ‘general’ public who are the Act’s intended target.

4.9 Even the authorities submitted by the complainant assist in defining the range of potential complainants and do not assist the complainant. In Lyamina, (referred to above) for example the complainant was a school student, clearly a ‘consumer’ of education services, despite the issue arising from who was the correct respondent in that case. An analogous party to this complainant in that case would have been a school. Likewise, Mr Ross who was seeking to get car insurance as a customer indicates the scope of the Act’s intended protection and the possible nature of a complainant. Again, in the Ross case a comparable person to this complainant might have been an insurance broker.

4.10 To seek to describe a commercial contract between the respondent and the complainant as being within the range of services envisaged by the Act flies in the face of simple construction of the statute and its intended protections and the complainant’s position cannot be shoe horned into that category. The essence of a contract is mutuality between contracting parties, there is no ‘provision of a service’ in the act of entering into the contract, although it may of course be a contract to provide such services. But this does not render the entering into the contract itself the ‘provision of a service’.

4.11 This is reinforced by looking again at the IHREC definition where it states;

‘If you receive a ‘service’, it means a person or organisation has done something for you or supplied you with something you wanted or needed

4.12 There is no mutuality here of the level that exists between contracting parties, you ‘receive’ the service, something is done for you or supplied to you, and it is something you wanted or needed. Of course anything could be made to fit the last criterion of ‘something you wanted or needed’ but only at the expense of all common sense and legal context.

4.13 Therefore, I find that the complainant does not have standing to pursue his complaint against the respondent and it must fall.

4.14 In the circumstances of that conclusion the other matters raised such as the enforcement of a retirement age do not arise. However, it is worth remarking in response to the respondent’s written submission that to baldly assert that a particular age is objectively justifiedin the absence of any evidence (and taking into account the Ross decision) would fall below the standard of justification which might be required. In its own submission the respondent noted that a ‘retirement age [must be] objectively justified by a legitimate aim and the means of achieving [ it must be] necessary and proportionate. (Emphasis added).

DECISION

5.1 In accordance with Section 25 (4) of the Equal Status Acts I conclude this investigation and issue the following decision.;

That the complainant has failed to establish that his case falls within the jurisdiction of the Equal Status Act and his complaint fails.

5.2 Accordingly I dismiss the complaint.

__________________

Pat Brady

Adjudication Officer

20th September 2016