DEC-E2018-015

EMPLOYMENT EQUALITY ACTS 1998-2011

DECISION NO. DEC-E2018-015

PARTIES

XY

(Represented by Gallen Alliance Solicitors)

AND

Matrix Shipping Ltd.

(Represented by Waters and Associates Solicitors)

File reference: EE/2013/684 & EE/2014/018

Date of issue:  10  August 2018

1. Dispute

This case concerns complaints by XY that he was discriminated against by Matrix Shipping Ltd. on the ground of age, gender and disability contrary to sections 6(2) of the Employment Equality Acts in relation to his conditions of employment and discriminatory dismissal in terms of section 8 of those Acts, failure to provide reasonable accommodation, victimisation and discriminatory dismissal.

2. Background

The complainant referred complaints under the Employment Equality Acts to the Director of the Equality Tribunal on 23 December 2013 and 23 January 2014. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations commission delegated the cases on 16 November, 2015 to me, Emile Daly, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation.

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.

I proceeded to aHearing on 23 November 2015 involving the complainant, the respondent and Irish Ferries Ltd, and subsequently issued a decision (DEC-E2016-051) which found that the complainant was not employed by Irish Ferries Ltd (IFL). I proceeded to a second hearing on 9 May 2016 involving the complainant and Matrix Shipping Ltd (the respondent). The complainant was present and represented by Adrian Twomey Solicitor of Gallen Alliance Solicitors. The respondent was present and represented by Conor Power S.C. and Jim Waters, Waters and Associates Solicitors.

3. Preliminary Application

A preliminary application has been brought by the Respondent. The Respondent seeks a ruling that the Equality Tribunal in Ireland has no jurisdiction for two reasons:

(a)  That the terms of the employment contract expressly states that in the event of a dispute, grievance, conflict or arbitration the parties will submit to the jurisdiction of the Republic of Cyprus.

 (b)  The jurisdiction over contracts of employment is determined by reference to Article 19 of the Council Regulation (EC) No. 44/2001 and the interpretation of Article 19, urged by the Respondent, is that where an employee is peripatetic and his place of work is a ship travelling between Member States; that the jurisdiction is determined either by the flag state of that ship or by the location of the business head office. In both cases, this is Cyprus. 

Consequently the Respondent submits that as there is no jurisdiction to bring these proceedings in Ireland and insofar as any relief may be sought, it must be sought in Cyprus.

4. Agreed Facts

At the hearing, the following facts were agreed:

1. 1. The Respondent is a company which maintains and supplies crew to ferry ships. For the purpose of these proceedings it is the crewing aspect of the Respondent’s business that is relevant. 
   2. The companies that own the ships are separate and distinct from the Respondent. All the ships that are owned by the company, IFL, are crewed by the Respondent. These ships ferry passengers, typically on a daily basis, between Ireland and the UK and Ireland and France.
   3. The Respondent also services and crews other ferry ships in the Black Sea (owned by a Romanian company), cruises liners (owned by UK company) and to merchant tanker vessels, which travel worldwide.
   4. In total the Respondent employs 783 employees. All of which are under the same contract of employment and bar eleven employees, all work on-board ships, the majority work on ferries ships that travel between Ireland, UK and France. The eleven employees that are land based, work in the Respondents headquarters office in Limassol, Cyprus and work in the areas of Human Resources, Purchasing and Accounts.
   5. The Respondent also has a satellite office in Dublin port, beside the IFL offices.
   6. The Complainant worked as a Senior Purser on the ship the “Isle of Inishmore”. This ship travels between Rosslare, Ireland and Pembroke, Wales.
   7. Prior to his employment with the Respondent the Complainant worked directly for IFL, the owner of the “Isle of Inishmore”, until 2006, when he was made redundant. He then worked for a crewing company (DFML) who maintained and crewed the “Isle of Inishmore” until January 2012, at which point the Respondent took over the contract with IFL. There is a dispute as to whether these transfers constituted transfers of undertaking but this is a matter that is not necessary to consider at this stage. It is common case that the Complainant ceased working for DFML in January 2012 and started working for the Respondent. However it appears that it was not until June 2013 that he signed a contract of employment with the Respondent.
   8. In any event, in June 2013, the employment contract between the parties was agreed. Insofar as it is relevant, the location of the signing of the agreement was as follows: the managing director of the Respondent signed the terms and conditions of the employment in Dublin and the Complainant subsequently signed the agreement on board the “Isle of Inishmore.” The port of engagement is identified, in the contract as being Rosslare, Ireland.
   9. The registered office of the Respondent is in Limassol, Cyprus.
   10. The ship sails under the Cypriot flag and therefore, insofar as it is relevant, the flag state is Cyprus.
   11. A dispute arose between the parties and the Complainant issued proceedings to the Equality Tribunal
   12. In terms of the preliminary objection, insofar as the parties accept that Council Regulation EC No. 44/2001 (commonly referred to as Brussels I) applies, the parties agree that Council Regulation 1215/2012 (Brussels recast) does not amend the original wording of Council Regulation EC No. 44/2001 articles 18-21, which govern the jurisdiction of individual contracts of employment. They accept that Cyprus is a signatory to the Council Regulation EC No. 44/2001.

13.  They agree that, as the company is registered in Cyprus that the Respondent is domiciled in Cyprus. This is in keeping with Article 60 (1) and (2) of Council Regulation 44/2001, whereby companies and legal persons have their domicile in the place where their registered office is or their central administration or their principal place of business.

14. They agree that a contract may not be determinative and Article 19 may take precedence over what is expressly agreed. Article 3.3 of Council Regulation (EC) 593/2008 (Rome I) which must be read consistently with the provisions of Council Regulation (EC) 44/2001 states:

“when all other elements relevant to the situation at the time of choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provision of the law of that other country which cannot be derogated from by agreement.”

It is accepted by both parties that Article 18 – 21 of Council Regulation (EC) 44/2001 is the applicable law, determining jurisdiction, in such circumstances.

15.  Therefore in order to succeed in the preliminary application the Respondent needs to demonstrate that not only that the chosen jurisdiction was Cyprus but also that an interpretation of Article 19, favours the jurisdiction, being Cyprus.

5. Submissions on Jurisdiction

Council Regulation (EC) 44/2001, Article 18 states

1. In matters relating to individual contracts of employment, jurisdiction shall be determined by   this Section, without prejudice to Article 4 and point 5 of Article 5.
2. Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.

Article 19

An employer domiciled in a Member State may be sued:

1. In the courts of the Member State where he is domiciled; or
2. In another Member State:

1. (a)  in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so, or

      (b)  if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

On behalf of the Respondent

1. The head office of the Respondent is in Limassol, Cyprus. It was submitted that the reason for this are numerous. Cyprus is the biggest shipping hub in the world only second to Singapore, there is a well-established regulatory scheme, there are more opportunities for business development and the legal/ accountancy and other professional services associated with the shipping industry are of a high quality. Also the Cypriot government provides tax incentives for shipping companies to register their companies there.
2. The Equality Act 1998 is silent on jurisdiction where the employment is transnational.
3. In cases involving transnational issues, the jurisdiction must be determined by reference to Council Regulation (EC) 44/2001.
4. Applying the wording of Article 18 and 19 to the facts the Respondent submits that Article 18 does not apply to the case, in that Article 5 (5) governs only disputes which arise out of the operations of a branch agency or other establishment of the company. It is not contended by the Complainant that the decisions that were made, in relation to his employment, came from anywhere other than head office, in Cyprus. It is accepted that the remainder of Article 18 is inapplicable.
5. In interpreting Article 19.1 the Respondent accepts that they can be sued in Cyprus, as this is the courts of the Member State where, the company is domiciled (ie where their registered office is, their central administration is or their principal place of business is.)
6. Under Article 19.2 the Respondent submits that “the place where the employee habitually carried out his work is the ship, the “Isle of Inishmore.” The Complainant was the Chief Purser for the ship, his work was conducted on board the ship as it travelled between Ireland and the UK. As such, if “place” means ship, then “the courts” for the ship are determined by the flag state of that ship, namely the flag under which it sails and the place where the vessel is registered. They submit this pertains, even though the Respondent has no control over where the ship is registered or which flag she sails under (the vessel not being owned by the Respondent.) To support the interpretation of “place” as meaning “ship”, the Respondent refers to the decision of the German Federal Labour Court Case No. 305/08 (issued 24 September 2008, hereafter referred to as GFLC No. 305/08.)This is a case involving ship workers who worked on a ferry route between Rostock and Hanko, Finland. The contract, in that case, stated that the jurisdiction could be brought before the court with jurisdiction for the ship’s home port and Helsinki however the law chosen must not contradict the flag state of the ship, namely Greece.The German Federal Labour Court, a third instance appellate court,   interpreted “place of habitual work in Article 19.1 as being “a ship”. In doing so, it the overturned a decision of the lower Land Labour Court, which had decided that the “habitual place of work” was where the workers were based, their point of embarkation / disembarkation. No ruling was made on the interpretation of Article 19.2 (b) as the jurisdiction had already been established under “habitual place of work.”
7. Under Irish Maritime law and under Article 91 of United Convention on the Law of the Sea (UNCLOS, 10 December 1982), of which Ireland is a signatory, the nationality of a ship is determined by the registration of a ship to a territory and the flag under which the ship sails, which in this case is Cyprus. Again in GFLC Case No. 305/08 a similar ruling was made, based on the German maritime code and Germany being a signatory to UNCLOS.
8. Therefore the Respondent submits, as the place is a ship, the “courts for the place where the employee habitually carries out his work” is Cyprus.
9. Their alternative submission is, that if the reference to “place” does not mean ship but rather means a country or a Member State (and the reference to “courts for the place” in Article 19.2 (a) might support that, as other than through the flag state contention, there are no courts for ships) then Article 19. 2 (a) cannot apply because the Complainant did not carry out his work in any one country or Member State because, for each day he worked, he travelled between Ireland and the UK, across the Irish Sea, therefore between two Member States.
10. The Respondent submits that as the Complainant did not habitually carry out his work in any one country, Article 19.2 (b) applies and he can sue “in the courts for the place where the business which engaged the employee is or was situated”
11. They submit that if “place” is a country or Member State then the reference “place where the business which engaged the employee is or was situated” raises a number of other necessary interpretations in the wording of Article 19.2 (b) namely; what is meant by “business” and what is meant by “engaged the employee” and what is meant by “situated?” In the absence of any definitions in the Council Regulation (EC) No. 44/2001, the Respondent again relies on the GFLC Case no. 305/08 to interpret Article 19.2 (b).
12. They submit that the “place where the business which engaged the employee” in accordance with the GFLC Case no. 305/08, means “the principal place where the company comes into contact with the market, the effective head office of the company, the focal point of the enterprise’s external commerce must be at this place of business, which presupposes a concentration of significant human and material resources.” Which the Respondent submits is the head office in Limassol in Cyprus.
13. The Respondent submits that as a whole, Article 19 provides alternative jurisdictions where an Employer may be sued by his employee. That even if it is not accepted that “place” means a “ship” and that rather it means a country or Member State, then “place” must mean one place, one country. The purpose of the Convention was to provide clarity in terms of civil jurisdiction, to provide for a predictability in terms of “the place” where jurisdiction may be exercised. If “business” was interpreted as “business activity” as opposed to the head office of the business, then one is still left with the business activity being straddled across the Irish Sea, between two Member States, UK and Ireland, in which case concurrent proceedings could be issued in two jurisdictions, which was not in keeping with the intention of Council Regulation 44/2001, as expressed in the preamble “to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States” (preamble (15) of Council Regulation 44/2001)
14. The other reason the Respondent rejects the contention that “business” means business activity as opposed to the head office of the company, is that if it is “business activity” then this confines the parameters of jurisdiction to the same definition as is provided for in Article 19.2 (a). If business activity is the same as habitual place of work, then there would be no need for Article 19.2 (b) at all. It is submitted that Article 19.2 (b) is there to provide for an alternative to the place where the employment is habitually carried out. Hence “business activity” is not what is meant by “business which engaged the employee.”

Complainant’s Submissions

1. 1. It is accepted by the Complainant that Council Regulation EC 44/2001 sets out the rules governing jurisdiction for transnational issues and it is accepted that section 6 (Articles 18-21) determines jurisdiction. 

    2.  Is the expressed jurisdiction in the contract, determinative?

    3.  It is accepted that the contract, signed by the Complainant states the jurisdiction as being Cyprus.

    4. Council Regulation (EC) no. 44/2001 must be read consistently with Council Regulation (EC) 595/2008 (Rome I). Article 3.3 of Rome I provides (in relation to choice of law in contracts)

1. “when all other elements relevant to the situation at the time of choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provision of the law of that other country which cannot be derogated from by agreement.”

   5.  Article 8.1 of Council Regulation (EC) 593/2008 (choice of law in employment contracts) states “an individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not however have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by any agreement under the law that, in the absence of choice, would have been applicable..”

   6.  Article 8.4 goes on “ where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated… , the law of that other country shall apply.”

      7.  Therefore, the Complainant submits, the choice of jurisdiction in the contract is not solely determinative. All the circumstances of the case and where the work is performed, are relevant. 

      8. Article 19 Council Regulation (EC) 44/2001

      9.  As the choice of jurisdiction in the contract is not determinative, the provisions of Article 19 of Council Regulation (EC) 44/2001 must be applied in order to determine jurisdiction.

1. 10. The Complainant submits that Article 19.2 (a) and (b) of Council Regulation (EC) 44/2001 should be interpreted in the Complainant’s favour in determining the issue of jurisdiction,

   11. He submits that in interpreting Article 19, account should also be taken of the recitals and general provisions of Council Regulation (EC) 44/2001. Article 5.1 (a) states that “in matters in contract a person domiciled in a Member State may be sued in another Member State in the courts for the place of performance of the contract.” Therefore the place of performance, rather than where a company has its main office should be considered.

2. 12.  He submits that the recitals of Council Regulation (EC) 44/2001 , support an interpretation favourable to the Complainant insofar as Recital 13 states that “in relation to …employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rule provides for.” He submits that if there are two possible interpretations of Article 19, one favourable to and one not favourable to the employee, that the interpretation favourable to the employee should be applied.

3. 13.  He accepts that Article 19.1 permits an employee to sue where the Employer is domiciled, which is Cyprus.

     14. He submits that jurisdiction under Article 19.2 (a) is an alternative to domicile. It is determined by “the habitual place of work.” He submits that “place of work” is not the pursuer’s office or the ship itself but rather, the country, where the employee was based. The Complainant lives in Youghal in Co. Cork, Ireland. He starts work in Rosslare, Ireland travels aboard the ship to Pembroke, Wales and later returns back to Rosslare. His salary is paid into an Irish bank account. He pays tax in Ireland and no tax is paid in respect of his employment to the Cypriot tax authorities.

1. 15.  It is submitted that his “habitual place of work” is Ireland, where he lives and is based. There are a number of UK and Irish cases which support this interpretation which consider where the employee starts and ends his working day. Although he accepts that none of these cases deal with an interpretation of Article 19.

   16.  On the Respondent’s contention that Article 19.2 (a) does not apply because the Complainant works between two Member States; he replied that Ireland was his base, where he resided, where he returned to when he finished work. He refers to the European Court of Justice case, Rutten v. Cross Medical Ltd [1997] ECRI-57 which is an Article 5 (1) case which held that the employee’s habitual place of work to be the place “where he organises his activities for his employer and to which he returns after each business trip abroad.”

   17.  The Complainant accepts however that this case is different from the present in that firstly, it is not a case that deals with an interpretation of Article 19. Rather, it pertains to land based peripatetic employees who travel for work between Member States but their work was not performed on a moving vessel which travels between Member States.

   18.  In Rutten and again in the case of Weber v. Universal Ogden Services Ltd [2002] ECR I-2013, “habitual place of work” will be the place “where it is least expensive for the employee to commence proceedings against his employer or to defend himself in such proceedings.” (paragraph 22-24 of the Rutten judgement).

   19.  He submits further that if, the Respondent is correct in their secondary argument that Article 19.2 (a) does not apply because, there cannot be two habitual places of work, (which he does not accept, rather he says that the place of work could either be construed as being two places; UK or Ireland), then Article 19.2 (b) must apply.

   20. He submits that the GFLC Case no. 305/08 is not an authority for the construction of Article 19.2(b) urged by the Respondent, because it did not deal with Article 19.2 (b). It was determined, on, in his view, an erroneous interpretation of Article 19.2 (a).

   21.  He submits that when considering Article 19.2 (b) the wording “engaged the employee” means the place where the engagement of business and employee, took place. He submits that “business” means a “business undertaking” not business head office. He says that it must mean something other than domicile, because this is already dealt with by Article 19.1.

   22.  He submits that “situated” does not mean where the head office is located, but rather means the place where the business engaged with the employee.

   23.  He submits that in construing the wording “place where the business which engaged the employee is or was situated,” this must mean where the employee was recruited or where the engagement of the employee, as an employee, occurred. Where the employees were when the business engaged them.

   24.  He says that Article 19.2 (b) is open to this interpretation and that this construction would be in keeping with providing the employee a jurisdiction to which he is connected to, other than his habitual place of work, in which he can exercise his rights at the relatively lowest cost.  

      25.  Convenient Forum

      26.  He submits that the registration of the head office in Limassol, Cyprus, was a cynical attempt by the Respondent to exclude employees from enforcing their legal rights, in a place other than a Member State that is as far from Ireland as is possible within the EU which renders any attempt to enforce his legal rights as being impractical, due to cost.

      27.  Only 11 of the 783 employees of the business work in the Cyprus. If none of the remaining 772 employees have access to litigation, other than though the courts in Cyprus, other lower value cases, such as under Payment of Wages or Minimum Notice legislation will be cost prohibitive to exercise. This would result in an employment contract which cannot be enforced for cost reasons.

       28.  He submits that the Complainant has never been to Cyprus, his contract was not formed in Cyprus. He began work “on the boats” in 1971 on what was previously the Irish State owned B+I line and his career continued under different employers but on the same ferry route, between Ireland and the UK. He had no part to play in whether the Respondent or its predecessor managed or crewed the ship, this being a matter wholly outside his control. He was informed that his employment was transferring to the Respondent in January 2012 and he worked for the Respondent for 16 months on the same terms as he had worked for its predecessor, until he was required to sign a contract, containing the jurisdiction clause, in June 2013. 

      29.  Flag State

      30.  He submits that the “flag state” of the ship determines the place of work, is not supported by any other case, bar GFLC Case no. 305/08. If this were to be followed it would present an aberration in terms of the ECJ judgments which favour the employee having an ease to litigate proceedings proximate to where they work.

       31.  He submits that GFLC Case no. 305/08 has been subject to criticism but even taking it on its own terms, that case can be distinguished from the present case on a number of bases:

(a)  the contract in GFLC Case no. 305/08 still permitted some degree of a local hearing; in that as well as suing in the head office in Athens, they could still also sue in Helsinki, which was the receiving port of the ship workers so the access to justice argument was not at issue.

 (b)  Unlike the German workers, the Complainant’s salary is directly into his Irish bank account

 (c)   No social security tax or income tax is deducted by the Respondent in Cyprus. No income tax is paid by the Respondent to the Cypriot government and the Complainant organises his own tax affairs and pays tax to the Irish Revenue

 (d)  There was no other administrative office in GFLC Case no. 305/08 other than the head office, unlike the present case, where the Respondents have an office in Dublin port

  (e)  It is unclear from the translated version of the judgement in GFLC Case no. 305/08 , but it appears that the contract of the Rostock ship workers expressly stated that the chosen jurisdiction would not contradict the flag state of the ship (paragraph 3, page 2 of the judgement). Something that was not express in the contract document in the present case. 

Decision on Preliminary Application

Jurisdiction Clause in the Contract

The employment contract expressly states “.. the laws of the Republic of Cyprus shall apply to any disputes, grievances, conflicts or arbitration in relation to the terms and conditions.” This is clear and unambiguous.

However a contractual term is not determinative if “all other elements relevant to the situation at the time of choice are located in a country other than the country whose law has been chosen”   (Article 3.3 of Council Regulation (EC) 595/, which must be read consistently with the provisions of Council Regulation (EC) no. 44/2001).

The Respondent company was incorporated in Cyprus. Its documents of compliance for safety at sea were issued from Cyprus. The registered head office of the company is in Cyprus. Under Article 60 of Council Regulation (EC) no. 44/2001, it is clear that the domicile of the Respondent is in Cyprus.

However, in terms of performance of the Complainant’s employment contract, the link to Cyprus ended there. The Complainant was/is based in Ireland; he was paid by the Respondent into his Irish bank account, he paid tax in Ireland, social security contributions were not paid for him in Cyprus, where he worked was not in Cyprus.

As all other elements that are relevant to the situation located in a country, other than that which has been chosen, I do not find that the choice of jurisdiction in the contract to be determinative and therefore the jurisdiction under Article 19 of Council Regulation (EC) no. 44/2001 must be applied in order to determine jurisdiction.

Article 19 of Council Regulation (EC) no. 44/2001

I am advised by both parties that, other than, GFLC Case No. 305/08 there is no other case which involves an interpretation of Article 19.2 (a) in which the work that is performed is on a vessel which moves between two or more Member States. The only type of worker that a case under Article 19.2 could effect would be other transport workers; train operators, airline pilots, bus drivers, long haul lorry drivers etc. Those that do a regular return trip from one Member State to another.

GFLC Case No. 305/08 case is not authority for the interpretation of Article 19.2 (b) urged by the Respondent, because the German case 305/08 was decided on an interpretation of Article 19.2 (a) not Article 19.2 (b). So there is no authority to guide this Tribunal on the correct interpretation of Article 19.2 (b) where there employment is on board a travelling vessel from one Member State to another.

Place

The meaning of “place” in Article 19.2 is ambiguous and requires interpretation. “Courts for the place” could mean either a geographic place or it could mean a ship, but it must be a place that has courts.

Contrary to the GFLC case 305/08 ruling that “place” in Article 19.2 is a “ship” I prefer the Complainant’s submission and the Respondent’s alternative submission, that “place” means a geographical place within a Member State that possesses a court. I am not convinced of the flag state contention when firstly it is not in the express terms of the contract, as it was in GFLC Case No. 305/08 and secondly because the flag state is determined by a ship owner, who is a stranger to the employment contract.

Article 19.2 (a)

I accept the submission of the Respondent that Article 19.2 (a) does not apply. I accept that the purpose of Council Regulation (EC) 44/2001 is to ensure that concurrent proceedings do not issue in different Member States. I accept the contention that as the Complainant’s place of work is two different Member States that Article 19.2 (a) is not applicable. I do not accept the Complainant’s submission that the “habitual place of work” can be two places; UK and Ireland.

I find, rather, that Article 19.2 (b) is applicable, because the employee, in this instance did not habitually carry out his work in any one country.

Article 19.2 (b)

In relation to the interpretation of Article 19.2 (b) urged by the Respondent, I am not persuaded by it.

The Respondent submits that the word “business” in “business which engaged the employee” in Article 19.2 (b) cannot merely be a repetition of “habitual place of work” so therefore “business” cannot, as suggested by the Complainant, mean “business activity.” Which I accept.

However similarly if “business” means, the place where the business head office is located, then this is merely a repetition of jurisdiction based on domicile as found in Article 19.1. If it was intended that the “place where business which engaged the employee is or was situate” means the same as a company’s domicile, then Article 19.2 (b) is otiose.

Mr. Power on behalf of the Respondent, submitted that each section of Article 19 should be read alternatively and each section must afford an alternative to that which came before. Which I accept. His contention that “place of business” in Article 19.2 (b) cannot mean “business activity” (as urged by Mr. Twomey for the Complainant) because that is a repetition of “habitual place of work” in Article 19.2 (a). And I accept that. But it is also not the administration or principal place of business as this would be a repetition of jurisdiction based on domicile in Article 19.1.

Recital 12 of Council Regulation (EC) No. 44/2001 states that in addition to the defendant’s domicile, there should be alternative grounds of jurisdiction. Therefore “the place” in Article 19.2 (b) should not be interpreted to be something that has already been provided for.

To stress test this interpretation a little (because the domicile of a company will always mean the same as its head office.) Might there be circumstances where an employer is other than a company, which could result in a different jurisdiction based on “domicile” than “business” under Article 19.2 (b). What if the employer were a private individual? Could her domicile, the place where she lives, be a different place to “where the business which engaged the employee was situate?” In which case Article 19.2 (b) would not be otiose. This argument that would favour the Respondent.

To set an example; if the employer is a private individual who lives in Milan, Italy. For the past year, once a month, she requires a private plane to bring her from London to Dublin and back to London on the same day. She uses a commercial airline to get from Milan to London. Let us assume that she located a pilot through her associates who do the same trip each month and in order to agree the terms and conditions of the contract, she met him in Heathrow airport and agreed terms. In terms of jurisdiction, where can this pilot sue when this employer fails to pay him?

He could sue in Italy, where his employer lives and is domiciled. He cannot sue where he habitually carries out his work, as this is one of two places, UK and Ireland.

Where is “the place where the business which engaged the employee?” in this instance it cannot mean a company head office because she employs the pilot in a personal capacity. It cannot mean place where decisions are taken because that is the same as domicile, already catered for in Article 19.1. So must mean something other than that.

“The place where the business which engaged the employee is or was situated?”

The word “engaged” and “is or was” suggests the place at a point in time, that the business engaged the employee. The question to be answered is, what does this mean if it is to mean something other than that already covered by the other sections? If it is capable of meaning the place where the employee was engaged by the business of the Respondent, then I believe that this construction is the correct one.

The engagement between the Respondent and Complainant took place when the employment transferred from the Respondent’s predecessor. The terms of the engagement were formalised when the contract was signed. Where did this take place? The letter of appointment signed by the Respondent on 17 June 2013 identifies the place as being Dublin. The letter was signed by the Complainant on 24 June 2013 was on board the “Isle of Inishmore.” The “Port of Engagement” is identified as Rosslare, Co. Wexford.

Conclusion of preliminary application

I am satisfied therefore that the “courts for the place where the business which engaged the employee is or was situated” in Article 19.2 (b) means the place where the Respondent business engaged the Complainant. As this was in Ireland, I find that there is jurisdiction to hear the substantive claim.

Legislation and Authorities Considered:

Irish Legislation

Equality Act 1998 (Ireland)

Merchant Shipping (Medical Examination) Regulations 2005

EU regulations:

Council Regulation (EC) 44/2001 (Brussels I)

Council Regulation (EC) No. 593/2008 (Rome I)

Council Regulation (EU) No. 1215/2012 (Brussels recast)

Council Regulation (EC) 712/2007 (Lugano)

UN Conventions

UN Convention of the High Seas 1958

UN Convention on the law of the Seas

Other International Convention

Maritime Labour Convention 2006

European Court of Justice Decisions

Mulox IBS v. Geels C 125/92

Rutten v. Cross Medical Ltd. Case No C- 383/95

Weber v. Universal Ogden Services Ltd. Case C-37/00

German Decision

BAG [German Federal Labour Court] 8 Case Co. 305/08

UK Decisions

Diggins v. Condor Marine Crewing Services Ltd [2009] EWCA Civ 1133

Lawson v Serco Ltd. [20006] UKHL 1 [2006] ICR 250

Botham v. Ministry of Defence [2006] UKHL 1 [2006] ICR 250

Crofts v. Vita Ltd. [ 2006] UKHL 1, [2006] ICR 250

Fleet Maritime Services (Bermuda) Ltd . The Pensions Regulator [2015] EWHC 3744 (Admin)

Irish Decisions

Zimmerman v. Der Deutsche Schuliverein. UD 373/98

McIlwraith v. Seitz Filtration (GB) Ltd. UD 797-95

Roche v. Sealink Stena Line Ltd. [1993] ELR 89

Substantive Case

Introduction

Having determined that there was jurisdiction to hear the substantive complaint under the Employment Equality Acts 1998-2011, the hearing proceeded and evidence was taken over dates between 3 April until 11 September 2017.

The complaints are that the Respondent discriminated against the Complainant and dismissed him for reason that are discriminatory. Lastly there is a complaint under the Payment of Wages Act 1991 for minimum notice.

The Respondent denies all allegations and submits that on the facts and under law the Complainant has failed to establish a prima facie case of discrimination.

Initially the complaint also included unfair dismissal and further that the Respondent discriminated against the Complainant on the bases of age and gender contrary to sections 6(2) of the Employment Equality Acts and victimisation. At the hearing these complaints were withdrawn and the remaining complaints proceeded namely; minimum notice under the Payment of Wages Act 1991, under the Employment Equality Acts 1998-2011; discriminatory dismissal on grounds of disability, discriminatory treatment in relation to his conditions of employment on grounds of disability and a failure to make reasonable accommodation.

Complainant’s case

1. The Complainant is a Senior Chief Purser. He commenced working in 1971 on board to B&I Line, which later became Irish Ferries Ltd. Following a restructure of the work force of Irish Ferries he was made redundant from IFL in 2005 but his work continued for the new owner of the company, Dobson Fleet Management. In January 2012 the Complainant’s employment was transferred to the Respondent, Matrix Ship Management Ltd. and the Complainant worked for the Respondent until his contract ended in November 2013 and he was not re-appointed. The Complainant worked as a Senior Chief Purser on board the MFV Isle of Inishmore for many years. He submits that he was instructed to come off contract with the MFV Isle of Inishmore in November 2013 and was dismissed on 7 January 2014 when, despite being certified as fit to return to work, the Respondent would not give him his position back.
2. The Complainant contends that the events that led up to his dismissal on 7 January 2014 were as follows:

     (a) The Complainant’s role as Senior Chief Purser was a split shift role, shared with a colleague of the same title.

     (b) His working relationship with this colleague deteriorated and following a disagreement over decisions taken by his colleague which effected his work, the Complainant approached the Captain of the Isle of Inishmore to mediate the issues.

     (c)  Following the discussion, it was agreed that the colleague would endeavour to communicate more with the Complainant in relation to decisions which affected them both.

     (d)  Following the meeting the Complainant discovered that his colleague had a friendship with the managing director of the company.

     (e)  Soon afterwards on 8 November 2013 without warning the managing director of the company telephoned the Complainant and instructed him that he was being transferred onto another vessel. He was to fly to Messina, Italy and take up the role of chief purser on a new boat (MFV Epsilon) which had recently been acquired by Irish Ferries Ltd. His role was to assist in bringing the vessel into service and to sail it back to Ireland.

     (f)  The Complainant objected. He had not brought in a new ship into service for 13 years and he feared that this was a punishment for criticising his colleague. On the telephone call the Complainant stated that he believed the position to be more appropriate for a younger employee and the managing director told him that he must accept the post or otherwise he would be considered to be “off contract.” The words used were that if he did not accept the transfer that “he could find something else to do.”

     (g)  In a follow-up email dated 14 November 2013 to the managing director, the Complainant explained, something which was already known to the managing director, that he had a medical condition of pan-hypopituitarism. This had resulted from the removal of a tumour from the Complainant’s pituitary gland in 2003 and again in March 2013, eight months previously. This medical condition and the recent surgery were within the knowledge of the Respondent as he had informed them had to relied on the company sick leave scheme at that time.

     (h)  The Complainant explained that following the surgery he was reliant on daily medication, some of which involved self-injection to replace lower hormone levels and that for all those reasons, he felt that was not fit to take on the training of the new vessel.

     (I)  He stated that due to the managing director’s threat of dismissal and his refusal to consider the Complainant’s request to get someone else, that the Complainant had developed a work related acute anxiety. He attached a G.P. certificate which stated that due to work related acute anxiety the Complainant required sick leave for one week from 11-18 November 2013.

     (j)  He requested that he be accommodated by being allowed remain on in the position he had and that someone else be chosen instead to perform the MFV Epsilon post.

     (k)  The managing director responded by email on 15 November 2013 refusing the Complainant’s request. He stated that he had not known that the Complainant was on a medication regime and that, as a result, the Complainant was in breach of the company Drug and Alcohol Policy by failing to disclose that he was on such medication. Furthermore, there was a failure by him to disclose to company management that he was “prone to anxiety” which should have been disclosed given the emergency duties that were incumbent on him as a member of senior management on board.

     (l)  The managing director denied dismissing the Complainant. Instead he stated that as the Complainant had refused to take up the transfer to the MFV Epsilon he was putting himself “off contract.” This was his choice. The contract expressly permitted the Respondent to assign him to other vessels and as he said that he could not take up the post of Chief Purser on the new vessel, the Respondent did not have any other positions vacant for him to fill, especially in light of his anxiety condition, which was counter indicated for a senior position at sea.

     (m)  The managing director informed him that should a suitable vacancy arise he would contact him.

     (n)  On 18 November the Complainant emailed the managing director and expressed that he was not unfit for the work that he had been doing on the MFV Isle of Inishmore, but that he was unable to take on the extra duties and responsibilities that were involved in bringing a new vessel into service. He sought clarification as to what is meant by “off contract” and whether this meant that he was dismissed. He also inquired whether he would be returned to his duties on board the MFV Isle of Inishmore when he was certified as medically fit.

     (o)  An email on 18 November from the managing director to the Complainant restated that the Complainant was not dismissed but was “off contract” in accordance with his terms and conditions of employment and his letter of appointment. Also, it stated that the Complainant was in breach of the company Drug and Alcohol Policy.

     (p)  The Complainant replied on 18 November and denied that he was in breach of the drug and alcohol policy in that all the medication was fully declared to the Company doctor.

     (q)  On 26 November the Complainant received an email requesting that he return all keys that were in his possession. The email confirmed that the Complainant would not be returning to the MFV Isle of Inishmore.

     (r)  On 6 December the managing director repeated to the Complainant that he was “off contract” as he was not medically fit to join any vessel.

     (s)  The Complainant submitted at the hearing that at this stage was he was not requested by the Respondent to attend a company medical examination or undergo an ENG II assessment. The ENG II assessment that he had most recently undergone was still valid.

     (t)  As far as the Complainant was concerned the significant event that occurred was that due to an unreasonable request by the Respondent to transfer ships he was put ‘off contract’ and was treated disrespectfully. Consequently, he developed a reactive anxiety, that he usually did not suffer from.

     (u)  The Complainant gave evidence that, at this time he suffered from a significant anxiety. He had panic attacks as his future, which had seemed so certain, had been suddenly taken from him.

     (v)  Following the Christmas break, on 7 January 2014 the Complainant was declared as medically fit to return to work by his G.P. however the note was conditional on him returning to work in the role that he had possessed before namely on the MFV Isle of Inishmore.

     (w)  The managing director responded that he was still “off contract” and that there were no suitable positions available, but should they become available, he then would be considered.

     (x)  The person who had filled his position as Senior Chief Purser on the MFV Isle of Inishmore was the former assistant chief purser on the MFV Isle of Inishmore and from then onwards, she shared the split shift arrangement with the Complainant’s former colleague. The Complainant submits that the assistant chief purser could have been given the MFV Epsilon role which would have allowed the Complainant’s request to remain aboard the MFV Isle of Inishmore to be accommodated, but this was not even considered.

     (y)  The Complainant contends that the material events in this case occurred between 8 November 2013 and 7 January 2014. Thereafter the Complainant was dismissed and the employment relationship was defunct.

3.  The Complainant submits that the Respondent expressly discriminated against him on grounds of disability by dismissing him for being unfit to serve on board a vessel. The act of putting him “off contract” is a de facto dismissal

4.  The Complainant further submits that by failing to engage with him in relation to his request to remain on board the MFV Isle of Inishmore given that he was only 8 months post-surgery for a condition that required daily medication, was unreasonable. The fact that he was older and post-surgically vulnerable and therefore not suited to take on extra duties on a new ship was not evidence that he was unable to continue doing the job that he had been doing.

5.  The task of training in a new vessel was beyond his capacity at that time and this fact was medically evidenced in the GP certificates, which advised that the Complainant should be allowed to keep working at the position he was in. In this respect the Complainant maintains that there was a failure to reasonable accommodate him. The fact that there were other employees that could have trained in the new ship, but were not selected, is evidence a failure to take account of its obligation to reasonably accommodate the Complainant.

6.  The Respondent’s submission that the Complainant frustrated the process because he failed to show that he was ENG II compliant, is a contrivance. No request was made that he attend an ENG II assessment or any medical assessment in the period 8 November 2013 to his dismissal on 7 January 2014.

 7.  The Respondent’s submission that he was in breach of the Company Drug and Alcohol Policy is also a contrivance. At all times the Respondent was informed of his medical condition and the medication that he was on, at each ENG II assessment since 2003. In 2012 when the Respondent took over the undertaking, they would have had knowledge of this.

8.  In March 2013 the Respondent had given him certified sick leave for surgery on his pituitary gland and by that stage the Complainant had already been taking hormone replacement medication for ten years on board. He had been provided with a fridge by the ship engineer in order to keep his medication cool. If the Respondent claims not to have known about his medication, it could only be that they had never examined the Complainant’s ENG II reports that were in their possession.

9.  The Respondent’s defence arguments are rolling arguments; initially they said it was his choice to come off contract by refusing to transfer. When he explained the unsuitability of him taking on the new role on the basis of his medical condition, they said that it was because he was in breach of their drug and alcohol policy. When he said that he was suffering from anxiety, they said he was not mentally fit to work at sea on any vessel. When he was declared by his GP as being fit for work, they refused to re appoint him on the basis that he was ‘off contract.’ Despite this rolling reasoning, which was evidence that they did not intend to change their mind from the decision made on 8 November, some of the express reasons that were provided are discriminatory on their face. Discriminatory for reasons of disability.

10.  The Complainant submits that when they refused to reappoint him after7 January 2014, that this was the dismissal event. It was a discriminatory dismissal in that it’s reasoning was three-fold, two of which reasons are discriminatory.

     (a)  Because he was on a medical condition or a treatment for a medical condition of pan hypo-pituitarism which he had not disclosed in breach of the drug and alcohol policy

     (b)  Because his mental health could not be assured at sea

11. The Complainant alleges that the breach of drug and alcohol policy is a trumped-up reason. In a conversation in January 2014 the managing director criticised the Complainant for giving a false impression that post surgery in 2013, he was fully fit when he was not (because he needed to take daily medication). This conversation demonstrates that at least in part the reason that he was put off contract in November was because, in the opinion of the managing director, his post-surgery medication made him unfit to go to sea. The other basis for his dismissal was that despite his GP declaring him as no longer being unfit – in that he no longer was suffering from an acute anxiety - they did not accept that he was medically fit – although as no reasons were provided after 7 January 2014 (other than to repeat that he was off contract for the reasons supplied before Christmas) it is unclear whether the reasons that he was being kept off contract was because they did not accept that he was no longer suffering from anxiety or because of the medication he was on. And yet either way, their view was formed without any medical examination of the Complainant being conducted.

12.  In reply to the Respondent assertion that as there was no up to date ENG II form this precluded them from offering him work, the Complainant replies that the request by the Respondent for ENG II certification only arose in March 2014, in a solicitor’s letter. By this stage the working relationship of the parties had broken down.

13.  Likewise, the submission by the Respondent that his failure to take up the position on the now-in-service MFV Epsilon in March 2014 was a failure to mitigate his loss, the Complainant replies that this suggestion only came after the relationship between the parties had broken down and therefore no failure to mitigate arose. 

Payment of Wages Act 1991

14. The Complainant submits that as an employee he should not have been summarily dismissed and that he is entitled to minimum notice. He claims that this employment started 2005 when he was first employed by Dobson Fleet Management Ltd and that he worked continuously from 2005-13 without a break in service. As the Complainant’s service was eight years, he claims minimum notice be calculated on the basis of eight years of service.

Respondent’s case

15.  The Respondent submits that the Complainant lacks credibility and that the evidence for this is that a number unsustainable and specious claims were made both before and during the hearing which were subsequently abandoned

16.  The Respondent says that no dismissal occurred in November 2013, the Complainant merely came off contract initially through his choice and he was not put back on contract. The reasons for doing so are valid in fact and in law.

17.  From January 2014 the Complainant did not have the requisite ENG II form, which is a statutory requirement, without which they could not have put him back to sea. Under Article 10 of the Terms and Conditions of Employment for Personnel on Sea Services the ENG II assessment is the responsibility of the sea farer, ie the Complainant to ensure compliance.

18.  In law the complaint falls between two stools; neither of which amounts of discrimination.

19.  Work related stress is not a disability; the Complainant accepts in his evidence that his stress was a reactive anxiety caused by a request by the managing director that he transfer vessels – something that is expressly stated in his contractual terms and conditions (Article 7.2) as being a condition of his work. The Complainant’s work related anxiety lasted for a temporary period between 8 November 2013– 7 January 2014. It is denied that the Complainant can rely on this period of work related stress as constituting a disability within the meaning of section 2 of the 1998 Act.

20.  It is denied that a dismissal occurred. The Complainant was legitimately required to transfer on a new vessel and refused to do so, in breach of his terms and conditions. In doing so, he put himself off-contract. The refusal to put him back to sea in January 2014 was because they had not received adequate evidence that he was medically fit to work on any vessel.

21.  The Respondent is precluded by law, namely the Merchant Shipping (Medical Examinations) Regulations, from allowing the Complainant, or indeed any employee, to work aboard a vessel if the Respondent has evidence of unfitness for work – either physically or mentally. Until he could demonstrate fitness for work – under the appropriate assessment – an ENG II examination – the Respondent was precluded by statute from allowing him to be placed on contract. It is accepted that the first time that the Respondent raised the issue of medical certification or an ENG II certificate was subsequent to 7 January 2013. It was raised in March 2014.

22.  The alleged unfair treatment that the Complainant alleges by being put off contract is not evidence of discrimination, which is a very specific complaint.

23.  The claim that putting him off contract occurred as a result of his pan-hypopituitarism is completely denied. The reason that he was not put back on contract, following the refusal to transfer, was because he declared himself as suffering from an acute anxiety condition which of itself, rendered him as unfit for work at sea but also because he had admitted to a breach of the company drug and alcohol policy. This is a serious matter for a senior member of ship management, which would be a justification in itself, for putting an employee off contract. And whilst the medication may have been disclosed by the Complainant at the ENG II assessment, there was a separate obligation on all employees to disclose any medication - to be recorded on the ship record. This was not done. The Complainant cannot conflate a breach of the drug and alcohol policy reason with an erroneous belief that hypopituitarism was the reason that he was put off contract.

24.  Therefore, the reasons why he was put off contract was either work anxiety which does not constitute a disability or for breach of a fundamental ship protocol - which the Respondent is entitled to respond to in a manner warranted by the offence. Either way he has not demonstrated that the complained of adverse treatment occurred as a result of a disability.

25.  The last reason is a failure by the Complainant to undergo a ENG II assessment and this is a requirement of statute (Merchant Shipping (Medical Examinations) Regulations 2005) This need emerged after the Complainant produced a doctor’s certificate of fitness which was inadequate in that once the anxiety issue was raised, it required an appropriate investigation by way of an ENG II assessment and also because the doctor’s opinion on wellness was conditional on the Complainant being returned to work on the MFV Isle of Inishmore, which was not a proper certification of fitness on board a ship.

26.  From an assessment of fitness point of view, an employee is required to be fit to cope all the varied and sometimes challenging duties on board a passenger vessel, any passenger vessel, not the one that the Complainant chose. Also in accordance with the terms and conditions of the employment, the onus to have an up to date ENG II assessment lies with the Complainant.

27.  In terms of claims for losses arising from a discriminatory dismissal the Respondents say that there was a failure to mitigate loss in that they offered him a post on the now-in -service MFV Epsilon in March 2014 and he refused to take up that post. 

Payment of Wages Act 1991

A claim under for Minimum Notice under the Minimum Notice and Terms of Employment Act 1973 excludes employments under Part II or Part IV of the Merchant Shipping Act 1894 and this covers this employment therefore this claim is excluded

Decision on the Substantive Case

I find the evidence of the Complainant to be compelling consistent and candid. I do not accept the contention of the Respondent that his evidence was unreliable.

Having considered the evidence and the areas of dispute between the parties I am of the view that the following criteria should be applied to the facts of this complaint, in order to determine whether there has been a breach under the Employment Equality Act 1998

1. Was there a dismissal?
2. If so, did the dismissal occur because of a disability possessed by the Complainant?
3. Was the Complainant treated adversely at work due to his disability other than being dismissed?
4. Was there a failure to provide reasonable accommodation?

For reasons that I will set out below I address these criteria with the following answers:

1. Yes
2. Yes
3. Yes
4. Yes. 

1.  Was there a dismissal?

I am not persuaded by the contentions raised by the Respondent that he voluntarily came off contract or that coming off contract is not the same as being dismissed. The Complainant wished to continue working on board the MFV Isle of Inishmore. Following being put off contract in November 2013 meant that he was no longer paid, he was not doing any work, he was asked to return keys, he was told that he would not be returning to work on board the MFV Isle of Inishmore and the best prospect of a return to work was on the basis of “should a vacancy arise.” It is accepted by the Respondent that he did not wish to leave his position.

There was some debate at the hearing as to when the alleged dismissal occurred. The Complainant was put off contract on 8 November 2013 but then went on sick leave. At the hearing the date of dismissal was elected to be 7 January 2014 (the date upon which he declared himself fit for work but the Respondent refused re-instate him). I accept this date as being the date of dismissal. There is no suggestion that he wished to resign his post, indeed the contrary was the case, he was distraught at being put “off contract.”

I do not accept that the contractual arrangement with the Complainant allowed the Respondent put employees on and off contract, without the protective legislation coming into effect and therefore as he wished to remain working and he was told that he could not, I am of the view that a dismissal as a matter of fact took place on this date.

The issue of whether the Respondent was entitled to move him from one vessel to another in this context would be relevant as a defence in an unfair dismissal case, but as that is not at play here, all that needs to be determined is whether a dismissal occurred as a matter of fact, which I believe it did.

2.   Was the dismissal as a result of the Complainant’s disability?

For this to be addressed the Complainant must have had a disability. I am satisfied that the Complainant has established that the dismissal occurred as a result of the Complainant’s disability, within the meaning of the Acts. I find that this is proven in relation to the work-related anxiety but not in relation to pan-hypopituitarism, that is, I am satisfied that while both conditions may constitute a disability within the meaning of the Act, I find that one of the medical conditions was an express reason for the dismissal but the other was not. The two reasons advanced for the dismissal were that he was suffering from anxiety. The second reason was because he had breached the company drug and alcohol policy.

In relation to the Respondent’s finding that he had breached under the drug and alcohol policy, while this finding seems on its face to be unfair (because it was not properly examined and the Complainant disclosed the medication at several medical appointments arranged on behalf of the Respondent, the results of which would be open to the Respondent to consider) it not relevant in an equality as opposed to an unfair dismissal case.

The reason expressed by the Respondent in correspondence at this time (November 2013-Janaury 2014) is a failure to report the use of medication, not the medical condition itself and therefore I do not accept that it has been proven that the dismissal occurred due to the Complainant’s pan-hypopituitarism.

The other reason for the dismissal was he was dismissed because he was suffering from acute anxiety. I am persuaded that acute anxiety is a disability within section 2 of the 1998 Act (even if lasted only two months and only developed because of a dispute between the managing director and the Complainant.) Acute anxiety can amount to “a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.” It was for this anxiety that he was certified for sick leave and the evidence of Complainant describing panic attacks and constant sense of anxiety was compelling.

If the Respondent contend, as they do, that the Complainant’s anxiety did not come within the section 2 definition, they could have investigated this but chose not to. Consequently, I have only the Complainant’s evidence of this medical condition to consider.

Acute anxiety may result in symptoms that, however temporary, can be severe and disabling and I accept fully the evidence of the Complainant that unfortunately that this was his experience. I find that due to the broad wording of section 2(3) that acute anxiety comes within the wording of section 2 (3) and that it constitutes a disability for the purpose of the Act.

Once he reported this to the Respondent, they had an obligation to medically assess him, before making any decisions to terminate his employment. If they had done so, they might have been able to justify the decision that was taken, but they did not.

It is worth noting that the dismissal also may or may not have arisen because the Respondent believed erroneously that the Cyprus jurisdictional clause protected them from any litigation and that they could dismiss without recourse to the accepted norms of fair procedure that usually accompany these processes, however again this is irrelevant for the purpose of an equality case.

Instead I am proceeding on the basis of the reasoning as expressed by the Respondent for putting him off contract during the period 8 November 2013 and 7 January 2014. Dismissing him because he was not mentally fit to work as sea, without having medically assessed him meets the prime facie test of discrimination.

Therefore, I find that the Respondent’s decision to dismiss the Complainant was in part based on the fact that he was suffering from a disability, of acute anxiety and this therefore is a discriminatory dismissal.

No evidence has been put forward as an objective justification for this.

3. Was the Complainant treated adversely at work due to his disability other than being dismissed?

I find that the initial taking him off contract on 8 November 2013 to be unfair but not discriminatory in that it was only after he was taken off contract that his anxiety disability developed. The steps that followed rolled from being unfair but non-discriminatory conduct to discriminatory conduct in the form of a dismissal. Initially he was put off contract because he would not transfer vessels. This changed to that he was in breach of a drug and alcohol policy and lastly that that he was mentally unfit the latter of which has been found to be the discriminatory act. He informed the Respondent that he was suffering from acute anxiety on 14 November 2013 and between then and his dismissal on 7 January 2014 the less favourable treatment due to his disability was the continuing decision to keep him off contract. I find that the decision to put him off contract on 8 November and the refusal to countenance an alternative to that plan – despite the Complainant’s requests to do so – up until his dismissal on 7 January 2014, to be adverse treatment in his terms and conditions of employment other than his dismissal.

4. Was there a failure to provide reasonable accommodation?

In some ways this is the clearest aspect of the case because it brings the Complainant’s condition of pan-hypopituitarism, which clearly comes within the definition of disability within the meaning of section 2. In November 2013 the Complainant was eight months post- surgery and was on a complex medication regime. When on 14 November he requested not to be transferred or asked that someone other than him be transferred, the Respondent failed to consider of these alternatives and instead he was put off contract. The decision to do so was taken on the morning following the day that he had made the request. The short time period involved is relevant. The reasons given at the hearing were that they required an experienced chief purser to train in the new vessel. However, they failed to accept the bona fides of his medical condition, failed to consider his request for reasonable accommodation and failed to discuss with him any alternative. What should have been met with some degree of empathy was not.

Again, one wonders did the Respondent felt immune from suit when they acted in this way.

In his email of 14 November 2013 the Complainant set out a series of alternatives available to the Respondent. There were a number of options available to the Respondent to treat the situation differently than they did, any of which might have constituted reasonable accommodation of the Complainant’s condition. They could have transferred another chief purser but no reason was given at the hearing as to why this was not considered. They could have considered sending the Complainant’s split shift colleague. At the very least they could have medically assessed the Complainant to determine whether his fears of incapability were valid or not. None of this was done however and with an absence of any real discussion to understand the concerns of the Complainant, he was put off contract on 15 November 2013 and they refused to resile from this position over the following two months.

In failing to accept his disability and in failing to consider alternatives that were open to him and in failing to have him medically assessed I find that there was a failure on the part of the Respondent to reasonably accommodate the Complainant in breach of section 16 (4) of the Employment Equality Act 1998.

Payment of Wages Act 1991

The Complainant does not contest the assertion by the Respondent that this employment is excluded under section 3 (1) (f) of the Minimum Notice Act 1973. Therefore, I find that I do not have jurisdiction to consider a complaint under the Payment of Wages Act for a minimum notice payment in this case.

Remedy

The remedy sought in this case is reinstatement and compensation. I do not consider that reinstatement is an appropriate remedy when that would involve putting the Complainant back into a working environment where the working relationship has been destroyed. I instead am of the opinion that an award of compensation is a more appropriate remedy.

Award 

The significant issues occurred during the period 8 November 2013-7 January 2014.

By March 2014 the relationship between the parties had broken down and therefore no mitigation of loss argument arises from the Complainant declining the post on the MFV Epsilon when it was offered to him in March 2014. I reject the defence contention in this regard. Furthermore, awards in equality cases are not limited to loss of earnings as in unfair dismissal cases and therefore I do not confine myself to this.

Awards in equality cases must both provide adequate compensation for the Complainant and also operate as a deterrent to discriminatory practice. I find that the treatment of the Complainant by the Respondent had a significant detrimental effect on his well-being. I take in to account that the Complainant attempted to resolve the matter at an early stage but that this was met with inexplicable resistance. I also take into account that while the history of this particular employment was short, that he had 43 successful years of service with previous incarnations of the Respondent which represents a life-times’ work. His work gave him a sense of personal pride and self-worth but this was lost due to the events that occurred in mid-November 2013. It is inexplicable that this matter was allowed to escalate in the manner that it did but I find that this occurred mainly due to the unfortunate handling of the situation by the Respondent.

To compensate the Complainant, I make an in the sum of €80,000.00. An award of less than this would not operate as an adequate deterrent to a large undertaking such as the Respondent. This is a lump sum award and takes account of the claims of; discriminatory dismissal, discrimination in relation to his terms and conditions and failure to make reason accommodation, all of which are upheld.

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Emile Daly

Equality Tribunal

10 August 2018