Complainant

Respondent

Parties

Seamus  Eager

Minister For Employment Affairs And Social Protection

Representatives

none 

Claire Hogan, B.L., instructed by the Chief State Solicitor's Office  

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00036257-002

20/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00036257-001

20/05/2020

The complainant completed his referral to the Workplace Relations Commission (WRC) and said that his complaint fell under the Employment Equality Act. However, it is clear from the statement he made on the form that his complaint falls under the Equal Status Acts. The respondent raised a preliminary issue that I did not have the jurisdiction to investigate the claim as it was not taken under the correct legislation.

With regard to this preliminary matter, I refer to the decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, (unreported, High Court, McGovern J. 24th July 2009). This decision provides a clear authority to allow me to investigate additional acts once the nature of the claim is the same. In Brannigan, McGovern, J said, “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time…Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”

Accordingly, with reference to the above decision, I am satisfied the nature of the complaint was submitted in error under the Employment Equality Act but the case within is the same to that which should have been submitted under the Equal Status Act. The respondent submits the details of the claim are vague. The WRC complaint form is not a statutory document but the statement provided by the complainant in the complaint form makes the nature of the complaint clear and I am satisfied the respondent knew the case being made. Therefore, the procedures have been fair and reasonable and in compliance with the principles of natural and constitutional justice. On that basis I do not uphold the preliminary issue raised by the Respondent and will proceed to complete my investigation of the complaint under the Equal Status Acts.

The complainant submits he was working on a self-employed basis when the Covid-19 Pandemic struck in March 2020. He applied for the Pandemic Unemployment Payment (PUP) and on 9 April 2020 was refused the payment because he was 66 and over and in receipt of the full state contributory old age pension.

He says this is discriminatory on the grounds of age, because he was refused the payment because of his age. He receives the state pension but submits that people who were paid the PUP would be in receipt of other state supports, such as HAP, Rent Allowance, FIS etc. Also, others who are 66 and over, and in receipt of the old age pension, could benefit as employees, and receive up to 85% of their wages, where their employer applied to Revenue under the Temporary Wage Subsidy Scheme (TWSS).

The respondent submits that in response to the global emergency caused by Covid-19 it was necessary for the State to put in place emergency measures aimed at supporting the public. The PUP was introduced by the respondent as a time-limited, emergency income support measure to meet the dramatic surge in unemployment, designed to ensure eligible claimants were paid as quickly as possible. The emergency payment was introduced to support persons of working age between 18 and up to 66 years old who had lost their employment due to the pandemic and where they were not being paid by their employer. To qualify for the PUP a person must be between the ages of 18 and 66 and in employment on or after 13 March 2020. This is consistent with other Social Protection income supports paid to working age persons.

The primary State income support in respect of people who are aged 66 or over is the State Pension.

In bringing in the PUP the respondent relied on the provisions of Section 202 0f the Social Welfare Consolidation Act 2005 (the 2005 Act), which provides for the grant of Supplementary Welfare Allowance in cases of urgency. On 16 March 2020 the respondent issued internal departmental circular No. 16/20 with instructions and information for staff regarding the new Jobseeker’s Emergency Payments. The circular stated; “This is an emergency payment for anyone aged between 18 and 66 who becomes unemployed due to the Covid Pandemic”. There were various updates but the age of eligibility remained the same. The initial information to the public set out the qualifying conditions, including the age limitations to those aged between 18 and 66.

The respondent submits the PUP is consistent with jobseeker’s payments, and the eligibility criteria were aligned with the other schemes, including the age criteria, as set out in the 2005 Act.

Section 202 of the 2005 Act permitted a rapid response to the crisis but it was intended for short term, urgent needs payments. The PUP scheme was placed on a discrete statutory footing by the Social Welfare (Covid-19) (Amendment) Act 2020, which came into effect on 5 August 2020. Section 68L sets out the age eligibility, which remained the same as when the scheme was established in March 2020.

People aged 66 and over have pension entitlements and are not required to demonstrate an employment related contingency to receive their pension. Someone in receipt of the contributory pension can earn an income and retain that pension. Those aged under 66 do not have entitlement to a State pension, and so, when faced with a loss of employment, have a need for State support.

The respondent submits the complainant has been in receipt of the Contributory State Pension since his 66th birthday in 2014 and therefore had no entitlement to the PUP. This is not discriminatory but based on the eligibility criteria which was set out in the 2005 Act at the time of the complainant’s application for the payment.

In these circumstances the respondent submits the complainant is unable to establish a prima facie case of discrimination.

The respondent further relies on the following provisions in the Equal Status Act in submitting no discrimination has taken place:

·       Section 14(1)(a) states: “Nothing in this Act shall be construed as prohibiting-

(a)    The taking of any action that is required by or under … any enactment or order of a court.”

The respondent cited O’Malley J in the High Court Case of G v The Department of Social Protection [2015] IEHC 419, who stated the Equal Status Act could not override the terms of another statutory scheme. The PUP was a statutory scheme.

·       Section 14(1)(b) states: “Nothing in this Act shall be construed as prohibiting-

(b)    Preferential treatment or the taking of positive measures which are bona fide intended to-

(i)      Promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or

(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.”

The respondent submits the PUP answered special needs at the time it was instigated.

·       Section 5(2)(h) states: “Subject to subsections (4) and (4A), subsection (1) [which is the prohibition on discrimination in the provision of service] shall not apply in respect of-

(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purposes of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests.”

The respondent submits the difference in treatment on age grounds which the PUP scheme involves is for the bona fide purpose of promoting the special interests of those who have lost their employment due to the pandemic. 

The facts of this claim are straightforward and uncontested; the complainant did not qualify for PUP because he was over 66, according to the age criteria set out in the scheme.

The complainant says this amounts to discrimination because of his age

The respondent says the PUP age criteria reflected those already set out in the 2005 Act for unemployment payment applicants. The PUP was a separate scheme because of the unique circumstances of the pandemic.

Firstly, I am going to consider the exemptions put forward by the respondent under sections 14(1)(a), 14(1)(b) and 5(2)(h) of the Equal Status Acts. They are exemptions, in that the provisions of the Equal Status Acts do not apply in certain specific circumstances or may allow for positive action. Sections 14(1)(b) and 5(2)(h) refer to “special interests” of people in particular categories. I do not think the Equal Status Act intended that “an emergency payment for anyone aged between 18 and 66 who becomes unemployed due to the Covid Pandemic” should be considered in the terms of either section, when the PUP was clearly intended to apply for many thousands of people.  Information provided by the respondent show that in the first week in May over 600,000 were in receipt of the payment.

Section 14 (1) (a) (i) of the Equal Status Acts provides:

“Nothing in this Act shall be construed as prohibiting (a) the taking of any action that is required by or under - (i) any enactment or order of a court,”

And Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.

I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre (at page 8-28), he stated:

“Actions required by law: This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under “any enactment or order of a court”. This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning.”

In a legal opinion sought by the Equality Tribunal in relation to the construction of Section 14 (a) (i) in respect of another case the Senior Counsel’s opinion included: “[the complainant] has chosen to make a claim under the Act, rather than proceeding by way of judicial review. If he wishes to challenge an administrative decision that is ordinarily done by way of judicial review. If he wishes to assert that a statutory regime violates his personal rights as a citizen, it is open to him to so by constitutional challenge, whether by way of judicial review, or by plenary proceedings. Likewise, if he wishes to assert that the regulations contravene the European Directive, he can issue proceedings to assert that claim. What Section 14 (a) (i) makes clear is that he is not entitled to avail of the Equal Status Act 2000 for the purpose of impugning a statutory regime as one might do for example in a constitutional challenge.”

When the PUP was initially set up the respondent relied on the provisions of Section 202 of the Social Welfare Consolidation Act 2005 (the 2005 Act), which provides for the grant of Supplementary Welfare Allowance in cases of urgency. The respondent submits the PUP is consistent with jobseeker’s payments, and the eligibility criteria were aligned with the other schemes. Including the age criteria, as set out in the 2005 Act.

When it was realised the emergency was continuing the PUP scheme was placed on a discrete statutory footing by the Social Welfare (Covid-19) (Amendment) Act 2020, which came into effect on 5 August 2020. Section 68L sets out the age eligibility, which remained the same as when the scheme was established in March 2020.

It is clear that the PUP was set up on a statutory basis and later consolidated into discreet legislation. The age criteria for the PUP were consistent with those already established on a statutory basis for the Jobseekers’ schemes.

I conclude that the complainant’s application for PUP was considered by the respondent in accordance with those criteria, which were established on a statutory basis and therefore falls within the exemption granted under section 14(1)(a).

Section 22 of the Equal Status Act states: “The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.”

In a decision of the High Court in Patrick Kelly v The Information Commissioner: [2014] IEHC 479: it was stated at paragraph 99:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail. Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

In another case before the High Court, Flanagan v Kelly (no 1997, no 3832P) Mr Justice O’Sullivan stated that there is satisfactory evidence that “the proceedings are unsustainable in the sense that they must fail. In these circumstances the Court must stay the action.”

It is my view that this claim has no prospect of success, as it falls within the exemption granted by section 14(1)(a).

As this claim falls under the exemptions granted in section 14(1)(a) of the Equal Status Acts it has no prospect of success. I find this claim is “misconceived” and I dismiss the claim in accordance with section 22 (1) of the Equal Status Acts.

Equal Status Acts section 14(1)(a) misconceived