EDA1848

This is an appeal by Brendan Lydon (the Complainant) against Adjudication Officer Decision DEC-E2018-003 in a claim of discrimination on the ground of disability against his Employer Navan Education Centre t/a National Behaviour Support Services (the Respondent).The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts).

A preliminary issue arises in this case in relation to thelocus standiof the Complainant. The Adjudication Officer found that the Complainant hadlocus standibut that the complaint was not well founded.

Background.

The Complainant does not have a disability, but it is his contention that the Respondent discriminated against him in a competition for a post when it treated a person with a disability more favourably. It is his contention that this treatment went beyond reasonable accommodation. It is the Complainant’s position that because the comparator in this case had a disability at the time of the discrimination he can in accordance with s 6 (2) of the Act take a case. The Respondent disputes that it discriminated against the Complainant and in any event a literal reading of the legislation is that only a person with a disability can take a case. The Court decided to deal with the preliminary issue oflocus standifirst.

Complainant’s case

The Complainant is bringing his claim under S6(2) (g) of the Act which states “that one is a person with a disability and the other either is not or is a person with a different disability (in this act referred to as “the disability ground”)”.It is not disputed that at the material time the comparator had a disability and he had not. It is the Complainant’s contention that it is not set out in this section that to bring a claim the Complainant must have a disability. The Complainant relying on s.5(2) of the Interpretation Act 2005 argued that on a literal reading of s 6 (2)(g) of the Act the Complainant would have locus standi.The Complainant’s representative drew the Courts attention to a number of cases in particularKalanke v Freie Hansestadt Bremen(C-450/93) where the European Court of Justice gave consideration to positive action taken on the part of an employer to address in equality in a minority group. In that case the ECJ held that a rule that, where candidates of different sexes shortlisted for promotion were equally qualified, women were automatically to be given priority in sectors where they were under-represented, was contrary to art.2(1) of the Equal Treatment Directive 76/207, in that it“involves discrimination on grounds of sex”and could not be included among the positive actions referred to in art.2(4). It is the Complainant’s case that the same principle applies to the facts of this case. The Respondent’s representative also referred toColeman v Attridge Law(c-303/06) here they argued it was held that if an employee suffers direct discrimination on the grounds of disability, an interpretation of the Directive which restricted its application only to people who possessed the necessary characteristics of having a disability themselves would “deprive that directive of an important element of its effectiveness and… reduce the protection which it is intended to guarantee.”

It is the Complainant’s position that a symmetrical approach to the implementation of the legislation is both the intention of the legislature and is in fact its effect. It is the Complainant’s submission that the Court has jurisdiction to allow the Complainant lodge a claim pursuant to the Act as a non-disabled person.

Respondent’s case

In transposing Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (the Framework Directive) Ireland chose to include a definition of disability that is wide and comprehends a disability that currently exists and a disability that may have existed in the past or may exist in the future. The definition further provides for where a particular disability is imputed to a person in circumstances where the person concerned does not have that disability. The Complainant in this case has never contended that he had a disability or that a disability was imputed to him. It is not in dispute between the parties that the colleague to whom he is comparing himself was suffering from a disability at the material time.

The Act also makes provision for a situation where a person is discriminated against because of their association with a person who comes within one of the discriminatory grounds. In relation to the case of Coleman v Atridge Law (C-303/06) it is the Respondent’s position that this case supports their contention that the Complainant does not have locus standi to take a case on the disability ground.

In particular the Respondent drew the Court’s attention to the concluding opinion of the Advocate General where it was stated that the Directive “protects people who although not themselves disabled, suffer direct discrimination and/or harassment in the field of employment and occupation because they are associated with a disabled person”. In this instant case there was no disability and no association with a person with a disability. The ECJ when it issued its judgment which was narrower than that of the Advocate General stated that the Directive

• “and, in particular Articles 1 and 2(1) and (2) (a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).

It is the Respondent’s position that the discriminatory grounds set out in the Act operate differently. Both men and woman are recognised genders and accordingly it follows that men and woman have locus standi on the gender ground. However, to take a case on the Traveller community ground you must be a member of the Traveller community. Disability is defined in a similar manner in the legislation and the logic is therefore it must be dealt with in the same manner. The Complainant must have a disability, have one imputed to them, or be associated with someone with a disability to take a case on the disability ground.

The Law

Interpretation.

2.— (1) In this Act, unless the context otherwise requires

disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

‘ discrimination ’ includes the issue of an instruction to discriminate and, inPart VandVI, includes prohibited conduct within the meaning of theEqual Status Act 2000, and cognate words shall be construed accordingly;

“the discriminatory grounds” has the meaning given bysection 6(2);

The Complainant does not dispute that he does not have a disability in accordance with the definition set out above nor has he had one imputed to him

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination. ]

The Complainant does not dispute that this section of the Act does not apply to him

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different F15 [ civil status ] (in this Act referred to as “theF15[civil status]ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the F16 [ Traveller ] community and the other is not (in this Act referred to as “theF16[Traveller]community ground”).

The Complainant is seeking to rely on section 6 (2) (g) of the Act.

Discussion and Decision

S 6(1) of the Act sets out the circumstances in which discrimination occurs contrary to the Act. The Complainant must have been treated less favourably on the basis of a discriminatory ground that “exists, existed but no longer exists, may exist in the future, is imputed to the person, or was so treated by virtue of association with a person who falls under one of the discriminatory grounds. The Complainant in this case does not meet that criteria. Having regard to s 6(1) of the Act ,the Directive and ECJ judgment in the case ofColeman v Attridge Lawcitied by both parties, the Court finds that in the circumstances of this case the Complainant does not havelocus standito pursue his claim of discrimination on the grounds of disability. The Adjudication Officers Decision is amended accordingly.

The Court so decides.



Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
11 December 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.