DEC-E2020-001

Equality Officer’s Decision No: DEC-E/2020/001

Parties

Fitzpatrick

(Represented by Ms. Kiwana Ennis BL – Instructed by IHREC)

And

Public Appointments Service

(Represented by Mr. Anthony Kerr SC and Mr. Des Ryan BL

– Instructed by CSSO.

File No: EE/2007/587

Date of issue: 5 October2020

1. DISPUTE

            This dispute involves a claim by Mr. Brian Fitzpatrick that he was discriminated against by the Public Appointments Service on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts, when it declined to progress his application for selection to become a member of An Garda Síochána because he had exceeded the age for entry to the police force.

2. BACKGROUND

2.1       The complainant states that he is a sworn member of the Garda Reserve since 2006 and as a result, inter alia, of his experience he applied to be a member of An Garda Síochána in October 2007 through a competition conducted by the respondent. The complainant states that within a few days he received a response from the Garda Recruitment Unit of the respondent advising him that he was ineligible for consideration as he was over thirty-five years of age – which was the upper age limit that applied. The complainant contends that this amounts to discrimination of him on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 8 of those Acts. The respondent rejects the assertion that it discriminated against the complainant, stating that it acts as an agent for the Commissioner of An Garda Síochána and as such it had no option but to implement the Regulations as required by the Commissioner.

2.2       The Equality Authority (as it then was – now the Irish Human Rights and Equality Commission (IHREC)) referred a complaint on the complainant’s behalf under the Employment Equality Acts, 1998-2004 to the Equality Tribunal (as it was then) on 13 November 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 1 May 2008 - the date it was delegated to me. As the complaint is against the Public Appointments Service (“PAS”) the complainant is required to comply with the terms of section 77(7) of the Acts and refer the matter to the respondent in the first instance. The complainant wrote to the respondent on 23 October 2007 in this regard and received a response on 26 October 2007. It is submitted on his behalf that this correspondence complies with the requirements under section 77(7) of the Acts.

2.3       This complaint is one of several linked cases which were the subject of judicial review proceedings which commenced in 2008, when the Minister for Justice, Equality and Law Reform challenged the Equality Tribunal’s jurisdiction to procced to hear the matter. On 17 February 2009 the High Court (Charlton J) held that the Equality Tribunal, as a body whose powers were defined by statute, was not entitled to commence a Hearing that had a result which enabled that Tribunal to overrule or disapply a Statutory Instrument made by the Minister for Justice, Equality and Law Reform (as it then was) even in circumstances where it considered that the Regulations were inconsistent with the Framework Directive[1]. The Equality Tribunal appealed the High Court judgement and in June 2017 the Supreme Court, whilst upholding the judgement of the High Court, decided to refer a question to the Court of Justice of the European Union (“CJEU”) under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”). The question referred was, in essence, whether a national body established by law, with a general jurisdiction to enforce EU law (in this case equality law) must be taken to have jurisdiction to disapply national legislation that was in breach of the relevant EU law, notwithstanding that jurisdiction also lay with the High Court. The CJEU delivered its judgement on 4 December 2018[2] (the functions of the Equality Tribunal transferred to the Workplace Relations Commission on 1 October 2015). It held that EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation which restricted a national body established by law to ensure the enforcement of EU law in a particular area (such as the Workplace Relations Commission), including the jurisdiction to disapply a rule of national law that is contrary to EU law. In light of the judgement of the CJEU, the Supreme Court set aside the judgement of Charlton J in the High Court and the Workplace Relations Commission proceeded to Hearing on the complaints. Hearings took place on 12 July 2019, 20 November 2019 and 21 November 2019.

3. SUMMARY OF COMPLAINANT’S CASE

3.1       The complainant states that he submitted an application to the respondent on 12 October 2007 in response to an advertisement inviting applications in respect of an Open Competition for Selection of Garda Trainees in An Garda Síochána. The complainant further states that he received a response from the Garda Recruitment Unit of the respondent on 15 October 2007 advising that applicants had to be between the age of 18-35 years on 2 September 2007 to be eligible and that as he was 38 years old at the relevant time, his application could not be processed further and the invitation to examination was withdrawn. The complainant adds that he considered this to be discrimination of him on grounds of age contrary to the Employment Equality Acts 1998-2004 and he wrote to the respondent on 23 October 2007 advising it of his opinion and that he intended to pursue the matter to the Equality Tribunal in due course. The complainant further states that he received a reply from the respondent on 26 October 2007 advising that the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004[3] prescribed an upper age limit of eligibility of 35 years and that the respondent was required to conduct the competition in accordance with those Regulations. It is submitted on behalf of the complainant that the aforementioned correspondence complies with the requirements prescribed at section 77(7) of the Employment Equality Acts 1998-2004.

3.2       The complainant states that the respondent repeated the position detailed in the previous paragraph in its letter to the (then) Equality Authority on 22 February 2008. It is submitted on behalf of the complainant that the respondent acts as an agent for the Garda Commissioner/Minister for Justice, Equality and Law Reform and as such it comes within the definition of “employment agency” in section 2 of the Employment Equality Acts 1998-2004 and consequently it is prohibited from discriminating against the complainant in accordance with section 11 of those Acts. Counsel for the complainant also relies on section 15 of the Employment Equality Act 1998-2004 in that subsection 2 of that section provides that anything done by a person acting as an agent for another person, with the authority of that other person, shall be treated for the purposes of the Acts, to have been done by that other person.

4. SUMMARY OF RESPONDENT’S CASE

4.1       The respondent rejects the assertion that it discriminated against the complainant on grounds of age, or at all, contrary to the Employment Equality Acts 1998-2004 in respect of the Open Competition for Selection of Garda Trainees in An Garda Síochána which it conducted in October 2007. Mr. A, who is the Head of the Unit which oversees the Garda recruitment process in the respondent, attended the Hearing in November 2019. He detailed the role that PAS initially conducted in the course of the competition for Garda Trainees in 2007. He clarified that PAS assessed the application forms received to determine if the applicants met the age requirements – that on 2 September 2007 applicants were between the age of 18 and 35 years of age. He confirmed that if the application forms indicated that the applicant fell outside of this age range, the application was rejected. He further confirmed that the complainant’s name was not on the list sent to the relevant Unit in the Department of Justice, Equality and Law Reform following the initial assessment of applications in October 2007.

4.2       Mr. A states that the respondent acted as an agent for the Garda Commissioner in respect of the recruitment process at issue and confirms that PAS must conduct the competition in accordance with the instructions provided by the Commissioner. He adds that it was required to assess the applications and reject those which did not meet the age conditions provided to it by the Commissioner. This position was corroborated by Ms. D, an official who works in the Garda Recruitment Division in the (now) Department of Justice and Equality. Mr. A accepted that the correspondence issued to the complainant and his representative at the time confirms that his application was rejected because he did not meet the relevant age criteria. Finally, Counsel for the respondent stated that the respondent did not accept that it was an “employment agency” in terms of section 2 of the Employment Equality Acts 1998-2004 but argued that it could rely on the defence provided at section 11(2) of those Acts.

5. CONCLUSIONS OF EQUALITY OFFICER

5.1       The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to sections 8 or 11 of those Acts when it declined to progress his application to become a member of An Garda Síochána after the initial stage of the selection process because he had exceeded the age for entry to the police force at the date of application. In reaching my decision on this matter I have taken into account all of the oral and written arguments made by both parties. 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 of the Workplace Relations Act 2015.

5.2       This complaintconcerns an allegation of less favourable treatment by the Public Appointments Service and the complainant must, in the first instance, comply with the provisions of section 77(7) of the Employment Equality Acts 1998-2004 and refer the matter to that Service. The complainant made such a reference by letter dated 23 October 2007 advising the respondent of his opinion that it had discriminated against him on grounds of age contrary to the Acts and that he intended to pursue the matter to the Equality Tribunal in due course. The respondent replied on 26 October 2007. I have reviewed this correspondence and I am satisfied that it complies with the requirements of section 77(7) of the Acts. The complainant was not satisfied with the response he received. Section 77(8) of the Acts provides that he is permitted to refer a complaint to the Equality Tribunal in those circumstances and he exercised his right to do so – the complaint was received by the Tribunal on 13 November 2007. In light of the foregoing I am satisfied that the complaint is properly before me for investigation.

5.3       Section 85A of the Employment Equality Acts 1998-2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of the Equality Tribunal, the Workplace Relations Commission and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer/Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required of him his case cannot succeed.

5.4       The complainant furnished correspondence from the respondent which clearly states that his application cannot progress to the next stage of the selection process because he was over the age of 35 years on the date he submitted his application for the Open Competition for Selection of Garda Trainees in An Garda Síochána. He was therefore excluded from proceeding to the next stage of the process solely because of his age. This position was confirmed by Mr. A in the course of the Hearing. In Donnellan v The Minister for Justice, Equality and Law Reform[i][4]McKechnie J held that the imposition of a mandatory retirement age is prima facie discrimination on grounds of age in terms of the Framework Directive[5] - which is transposed into Irish law by the Employment Equality Acts 1998-2004. The view expressed by McKechnie J must equally apply to the operation of a mandatory upper recruitment age. I therefore find that the complainant has established a prima facie case of discrimination on grounds of age and the burden shifts to the respondent to rebut the inference raised.

5.5       Counsel for the complainant argues that the respondent is an “employment agency” in terms of section 2 of the Employment Equality Acts 1998-2004 and is therefore prohibited from discriminating against the complainant on grounds of age contrary to the Acts. Counsel for the respondent argues that the respondent is not an “employment agency” in terms of the Acts and submits that it is entitled to rely on the defence at section 11(3) of the Acts. Section 2 of the Acts defines “employment agency as follows –

                            “employment agency” (when not defined by reference to the Employment Agency Act, 1971) means a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employee or the supplying of employees to employers.

            Section 11 of the Acts provides as follows-

                            “(1) Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person ……

                            (2)   Subsection (1) does not apply to the extent that the employment in question is such that an employer could lawfully refuse to offer it to the person concerned.

                            (3)   An employment agency shall not be under any liability under this section if it proves-

                                                (a)       that it acted in reliance on a statement made to it by the employer concerned to the effect that, by reason of the operation of  subsection (2), its action would not be unlawful, and

                                                (b)       that it was reasonable for it to rely on that statement.”.

5.6       It is clear, in the first instance, that the respondent must be an “employment agency” in terms of section 2 of the Acts before section 11 applies to it. The respondent argues that it is not an employment agency in terms of section 2 of the Acts. If this is correct, then it would not be entitled to avail of section 11(3) of the Acts. I have examined the services provided by the respondent in the instant case. It is clear that it was involved in identifying suitable applicants for progression to the remaining stages of the Open Competition for Selection of Garda Trainees in An Garda Síochána in 2007. It provides this service to other public sector bodies on a without profit basis. I am therefore satisfied that when acting as an agent for the respondent in respect of the competition in October 2007 it was doing so as an “employment agency” as defined at section 2 of the Acts.

5.7       In light of my conclusion in the preceding paragraph that the respondent is encompassed by section 11 of the Employment Equality Acts 1998-2004 it is therefore prohibited from treating any person less favourably on any of the prescribed grounds at section 6(2) of the Acts as regards the provision of any services it provided in its role as an employment agency. Section 11(3) of the Acts provides the respondent with absolute protection from liability in certain circumstances. To avail of this protection the respondent must be able to rely on a statement made to it by the employer (in this case either the Commissioner of An Garda Síochána or the Minister for Justice, Equality and Law Reform) that it was lawful for it to behave the way it did – refusing to process the complainant’s application beyond the initial stage of the selection process because he was over the age of 35 years – and that it was reasonable for it to do so. It is clear that both the Commissioner and the Minister were of the view that the upper age limit prescribed in the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004[6] was lawful and that the respondent was aware of this position. The respondent had no authority to depart from the competition criteria provided to it and the upper age limit was set by Ministerial Order. In the circumstances I am satisfied that the conditions required by subsections (2) and (3) of section 11 of the Acts prevailed at the time and the respondent is therefore entitled to rely of the protection provided at section 11(3) of the Acts.

5.8       Both parties contend that the respondent was acting as an agent when discharging its functions as regards the competition for appointment as a Garda Trainee in 2007. Counsel for the complainant refers to section 15 of the Employment Equality Act 1998-2004 in this regard. Subsection 2 of that section provides that anything done by a person acting as an agent for another person, with the authority of that other person, shall be treated for the purposes of the Acts, to have been done by that other person. The section does not therefore fix any liability on the respondent in its own right. Rather it provides that if the actions of the agent are found to be contrary to the Acts then the person who engages that agent to perform those functions is vicariously liable for those actions, notwithstanding that person did not engage in the unlawful activity himself/herself. In light of the foregoing I find that section 15 is not relevant in the instant case as the respondent was at all times acting as an agent at the express request, and with the express authority, of the Commissioner of An Garda Síochána and/or the Minister for Justice, Equality and Law Reform.

6. DECISION OF THE EQUALITY OFFICER

            I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I find as follows:

                        (i)        the complainant has established a prima facie case of discrimination on grounds of age in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 11 of those Acts in respect of the manner with which the respondent processed his application in respect of an Open Competition for Selection of Garda Trainees in An Garda Síochána in October 2007;

                        (ii)       the respondent was operating as an “employment agency” in terms of section 2 of the Employment Equality Acts 1998-2004 at the time and is covered by section 11 of the Acts.

                        (iii)      the respondent is entitled to rely on the defence provided at section 11(3) of the Employment Equality Acts 1998-2004

            and the complaint fails

            _______________________________________

            Vivian Jackson

            Adjudication Officer/ Equality Officer

            5 October 2020

 FOOTNOTES:

[1] Council Directive 2000/78/EC

[2] Minister for Justice & Equality v Workplace Relations Commission (Case 376/17)

[3] SI 749/2004

[4] [2008] IEHC 467

[5] Council Directive 2000/78/EC

[6] SI 749/2004