ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035634
Parties:
| Complainant | Respondent |
Parties | Jacinta Doherty | Allied Irish Bank Aib |
Representatives | Kieran O'Brien Bowler Geraghty & Company/Stephen O’Sullivan BL | Conor Fynes Eversheds Sutherland /Katherine McVeigh BL |
Complaint:
Act | Complain Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00046836-001 | 26/10/2021 |
Date of Adjudication Hearing: 28/10/2022
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This case is about an allegation concerning discrimination on the ground of gender. The Complainant is a director of a subsidiary company. It is alleged that the parent AIB Group provides services to the subsidiary that has responsibility for managing the defined benefit pension scheme. The Complainant was nominated by her Union to be the staff nominee to the subsidiary company. The Company argue that a difference in treatment arises between the directors in so far as a director is appointed because of their technical expertise in pension management; accounting, investment and legal experience who receive a payment from the Group. A director nominated because she is representative of members of the scheme, receives no payment from the Group.
The Complainant stated that it more likely that a staff nominee will be a female appointee. Once appointed to the subsidiary to be a director she must fulfil her obligation as a competent director. The mechanism of appointment may differ between the directors; however, once appointed they are all directors.
The Complainant stated that in this case a previous senior manager of the Group was appointed to be a director of the subsidiary. The Complainant stated that this director a male received a payment from the group and that at face value it did not appear that he had unique qualifications from her to justify the difference in treatment.
It is also a fact that another director also a female does not receive any payment.
The payment is made by the Group.
The pertinent facts in this case are that a male colleague with no unique technical skill set receives a payment from the Group; two female directors receive no payment; the two female directors are competent and possess comparable skills and experiences to that male comparator; the mechanism of appointment is irrelevant once appointed; the level of remuneration may vary depending on objective criteria; the subsidiary has no remuneration policy to determine how directors should be paid. These primary facts establish a prima facie case that must be rebutted by the AIB Group.
The Respondent objects to the Group being named as a party in this complaint as the Complainant is a director of a different legal entity and the Group is a stranger to this complaint. The Group does not provide services to the Complainant.
The Respondent also stated that the complaint is misconceived as the conduct complained about does not constitute a service as defined under the Equal Status Act 2000 as amended.
The Complainant maintains that the definition of a service is broadly defined in the Act and that Jurisprudence supports this view. The Complainant cited Judy Walsh’s book Equal Status Acts 2000-2011[ Blackhall Publishing 2012] as authority for this view with reference to pp 37 -49. Counsel referred to Two Complainants v Department of Education and Science [DEC-S2003-042/043] for an authority that goods and services not supplied on a commercial basis are included under the Act and Directive.
|
PRELIMINARY MATTER:
A preliminary matter was raised about whether the Equal Status Act 2000 as amended was the correct Act to bring this complaint and if the matter was properly before the tribunal.
The Act on a plain reading of the legislation would appear to relate to the provision of services to the public or to a section of the public.
In this case the complaint relates to a director of a subsidiary company who alleges that the parent discriminated against them by paying a male comparator a fee while she was paid nothing. The parent it is alleged provides a service to the subsidiary. Does this nexus between the Complainant and the Respondent constitute a service available to the public generally or a section of the public? It would appear to relate to an occupation of being a director and difference in treatment between the two directors.
It is settled law that the service can be a facility and does not have to be a commercial transaction. That point is well made in Judy Walsh’s textbook on the Equal Status Acts. However, the more relevant point is this case is whether the relationship between the Complainant and the Respondent constitutes a service.
The service provider according to the Complainant is the Group Company and that the right party in fact has been named.
Under the Equal Status Act 2000 as amended a service at section 2 is defined as:
“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—
(a) access to and the use of any place,
(b) facilities for—
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service,
but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies
Based on the plain reading of this section the relationship between the Complainant and Respondent does not constitute a service. It is not a service open to the public generally or to a section of the public. The factual matrix relates to how two directors are remunerated differently and that does not constitute a service.
I note that directors of companies may be covered by Equality Directives. In Bolger, Bruton and Kimber, Employment Equality Law [2nd Ed. 2022 Round Hall]
4-79
The Court’s decision in Danosa extends the scope of employment to which the protection of European law is applicable. The question was whether company directors are covered by the concept of workers within the Pregnancy Directive, and if so, whether art.10 of the Directive permitted the members of the board of directors of a company to remove a woman irrespective of the fact that she is pregnant. The Court determined that many company directors are covered by the Pregnancy Directive and found that the “essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration”
4-80
The Court found that the nature of the person’s legal relationship with the other party to the employment relationship is of no relevance to whether the Directive applies, but rather the issue is whether the person meets the test cited by the Court in relation to the performance of service under the direction of another person in return for remuneration
‘Gender Goods and Services Directive’ means Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. The scope of the Directive is set out at Article 3 of the Directive:
Article 3
Scope
- Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons who provide goods and services, which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which are offered outside the area of private and family life and the transactions carried out in this context.
- This Directive does not prejudice the individual's freedom to choose a contractual partner as long as an individual's choice of contractual partner is not based on that person's sex.
- This Directive shall not apply to the content of media and advertising nor to education.
- This Directive shall not apply to matters of employment and occupation. This Directive shall not apply to matters of self-employment, insofar as these matters are covered by other Community legislative acts.
The scope of the directive does not apply to an occupation. The factual matrix of this dispute relates to how two directors are remunerated differently. The nexus between the Complainant and Respondent on the plain reading of the Act does not constitute a service or facility generally available to the public or section of the public. It is a private contractual relationship between a director, a subsidiary company, and the parent company. The matters complained of relate to an occupation. I determine that the matter before me does not constitute a service as prescribed under the Equal Status Act 2000 as amended or as set out under the scope of the Directive.
Section 22 of the Act states:
22.—(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
The matter before is not frivolous or made in bad faith as understood generally; however, it is legally misconceived.
These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:
The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”
I determine I do not have jurisdiction to determine the matters before me as the nexus between the parties does not constitute a service or facility as provided for under the Equal Status Act 2000 as amended. Accordingly, I dismiss the complaint as misconceived.
Summary of Complainant’s Case:
See preliminary matter |
Summary of Respondent’s Case:
See preliminary matter |
Findings and Conclusions:
See preliminary matter. |
Decision:
Section 22 of the Act states:
22.—(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter
The scope of the directive does not apply to an occupation. The factual matrix of this dispute relates to how two directors are remunerated differently. The nexus between the Complainant and Respondent on the plain reading of the Act does not constitute a service or facility generally available to the public or section of the public. It is a private contractual relationship between a director, a subsidiary company, and the parent company. The matters complained of relate to an occupation. I determine that the matter before me does not constitute a service as prescribed under the Equal Status Act 2000 as amended or as set out under the scope of the Directive. Section 22 of the Act states: 22.—(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. The matter before is not frivolous or made in bad faith as generally understood. These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean: The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.” I determine I do not have jurisdiction to determine the matters before me as the nexus between the parties does not constitute a service or facility as provided by the Equal Status Act 2000 as amended. Accordingly, I dismiss the complaint as misconceived.
|
Dated: 09/12/2022
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Misconceived-Service |