Complainant

Respondent

Parties

Yuriy Tykhovod T/A Prospera Ltd.

FBD Insurance PLC

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041803-001

05/01/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation.  Both parties were permitted to cross examine the witnesses.

The WRC facilitated the attendance of a member of the public at this hearing.

The complainant submitted that he was treated less favourably than a third party when the insurance company settled a claim against his policy.  He also submitted that he was penalised when the respondent refused to renew his policy.

The complainant, a Irish citizen of non-national origin, submitted that the respondent treated him differently on the basis of his national origin and would not have treated an Irish national in this fashion.

The respondent submitted that arising from a claim against the policy for the complainant’s company, and subsequent High Court proceedings, it entered negotiations and concluded a compromise settlement agreement for 20% of the possible exposure in relation to a claim on the policy, a six-figure sum.  This compromise agreement was acceptable to the High Court.

The respondent submitted that they concluded the settlement on the basis of the detail of the claim, the Garda report, the assessment of its engineering, medical and legal consultants and that the settlement in no way reflected upon the complainant’s nationality.

The respondent noted that the insurance policy was not with the complainant but rather was with a limited company of which he is a director.

The respondent submitted that in 2017 it decided not to offer renewal terms to the complainant’s company.  However, following the standard procedure where it is not possible to obtain a quote for renewal on the market, a quote for renewal was offered to the complainant’s company.  This quote was not accepted.

The complainant confirmed in his testimony that the policy was not in his name but was issued to a limited company of which he is a director. The complainant also confirmed that the company sought a renewal of the policy in 2017.  In his submissions relating to the complaint and the ES1 form, the complainant consistently refers to himself by name as ‘Yuriy Tukhovod T/A Prospera Ltd’.  Therefore, it appears that the service was being provided to a company rather than the complainant as an individual.

Section 3 of the Equal Status Act, 2000 – 2021 states that:

3.— (1) For the purposes of this Act discrimination shall be taken to occur —

(a) where 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 in subsection (2) or, if appropriate, subsection (3B), (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) where 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 of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

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

…

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

…

Section 21(1) of the Act provides that – “A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.”

In the case of Gloria v Cork International Choral Festival (DEC-S2008-078), the Equality Officer, Mr Murphy, deliberated on the possibility of an organisation to take a complaint of discrimination under the provisions of the Equal Status Act (the locus standi of an organisation).

Citing the forgoing sections of the legislation Mr Murphy noted at paragraph 5.2. that  

As can be seen from the legislation, discrimination shall be taken to occur where one person is treated less favourably than another on any of the stated discriminatory grounds.  The stated discriminatory grounds refer to the position as between any two persons who are, for example, of different sexual orientation.  In addition, a person who claims that prohibited conduct has been directed against him or her can seek redress by referring his or her case to the Director of the Equality Tribunal.  I am of the opinion that the discriminatory grounds are set out in such a manner as to apply only to individuals and not to bodies i.e. a body cannot be of a particular gender, marital status, family status religion etc.  In relation to “person”, section 2(1) of the Equal Status Acts provides as follows:

                 “’Person’ as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or entity”

This definition sets out the particular context in which “person” shall be taken to include an organisation, public body or entity i.e. where the Act refers to a potential respondent to a claim of discrimination.  I note that the definition does not, however, provide that a potential complainant shall include an organisation, public body or entity.

Mr Murphy continued his consideration of the matter in subsequent paragraphs:

5.3 In considering this issue further, I note that when interpreting provisions of statute, the fundamental objective is to give effect to the intention of the legislature.  This requires legislative text to be given a literal interpretation.  Where the literal interpretation is plain and unambiguous, that plain and unambiguous meaning will be applied.  Where the literal interpretation results in ambiguity, other interpretative criteria will be applied to ascertain the correct legislative intent.  The Interpretation Act, 2005 sets out provisions regarding statutory interpretation which apply to all enactments whether passed before or after the 2005 Act.[3]  Section 18 of the Interpretation Act, 2005 includes the following definition of a “person”

“’Person’ shall be read as incorporating a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of ‘person’ shall be read accordingly.”

The definition of “person” in the Interpretation Act, 2005 includes unincorporated bodies and in applying this definition to the term as used in the Equal Status Acts it would appear to result in the term “person” including bodies such as the complainant in the present case.  However, the definition in the Interpretation Act, 2005 will not apply where a contrary intention appears in the Equal Status Acts.  I am of the view that the following points give rise to such a contrary intention arising from the Act:

·        That the stated discriminatory grounds of inter alia gender, marital status, family status, sexual orientation etc. clearly only apply to individuals;

·        That the definition of “person” contained in the Equal Status Act specifically refers only to a “person” who is a possible respondent as including an organisation, public body or entity.

Having regard to the stated discriminatory grounds, I am of the opinion that that the clear intention of the legislature is to protect individual persons as opposed to bodies or organisations from discrimination.  This view is based primarily on the manner in which the discriminatory grounds are set out in that these grounds refer to states such as gender, marital status, family status, sexual orientation etc. which bodies or organisations simply are not capable of possessing. 

5.4 Section 5 of the Interpretation Act, 2005 provides as follows:

“In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) –

(a)  that is obscure or ambiguous, or”

(b)  that on a literal interpretation would be absurd or would fail to reflect the plain intention [of the legislature]

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from any Act as a whole”

This section requires that in the event of an ambiguity arising when construing a provision of an Act; the plain intention is to be given where that can be ascertained from the Act as a whole.  Looking at the Act as a whole achieves essentially the same result as ascertaining whether or not any contrary intention appears from the Act.  In applying this reasoning to the present case, it would appear that the manner in which the discriminatory grounds are set out and the particular definition of “person” contained therein are relevant in ascertaining the plain intention of the legislature.  In relation to the definition of “person”, applying the linguistic cannon of expressio unius exclusio alterius[4], results in the inference being drawn that when referring to complainants, it means individuals only.  This conclusion emanates from the fact that as the definition of “person” in the Equal Status Acts specifically includes an organisation, public body or entity in the one context i.e. where a “person” is prohibited from discriminating against another or is required to comply with certain provisions – it thereby excludes the inclusion of an organisation, public body or entity where the term “person” is otherwise used i.e. in relation to a “person” against whom discrimination is alleged.  Given that the general legal definition of “person” includes corporate and unincorporated bodies, the definition in the Equal Status Acts would be unnecessary, unless the legislature intended that the term “person” was to some extent only to mean individuals.  I am therefore satisfied that it is clear from the definition of the legislation that it was the intention that “person” would only include an organisation, public body or entity in the context specifically provided and in any other context, the word would refer to individuals only.

5.5 Having regard to the foregoing, I am of the view that the Equal Status Acts should be interpreted as limiting complainants to individuals.  Whilst the term “person” is usually interpreted broadly to include corporate and unincorporated bodies, I am satisfied that a contrary intention is evident from the Equal Status Acts given the manner in which the discriminatory grounds are set out and the particular definition of “person” as contained in the Acts.  I am therefore of the view that the legislative intent in this regard was to protect individuals and not bodies from discrimination.  In the circumstances, I find that the complainant in the present case i.e. Gloria (Ireland’s Lesbian & Gay Choir) does not have the locus standi to make a complaint under the Equal Status Acts, 2000 to 2008.  Accordingly, I find that I do not have jurisdiction in relation to the substantive complaint of discrimination on the sexual orientation ground contrary to the terms of the Equal Status Acts, 2000 to 2008.

In concluding his deliberation Mr Murphy decided as follows:

6.1              On the basis of the foregoing, I find that the complainant in the instant case does not have the locus standi to make a complaint under the Equal Status Acts, 2000 to 2008 and accordingly, I find that I do not have jurisdiction in relation to the substantive complaint of discrimination on the sexual orientation ground contrary to the terms of the Equal Status Acts, 2000 to 2008.

Having regard to the written and oral submissions of both parties, I find that that the service provided, which was alleged to be discriminatory, was provided to a limited company rather than to a person.  Following the reasoning outlined in the deliberations of Mr Murphy, I find that the company Prospera Ltd does not have the locus standi to make a complaint under the Equal Status Acts, 2000 – 2021 and accordingly, I find that I do not have jurisdiction in relation to the substantive complaint of discrimination on the ground of race contrary to the terms of the Act.

Notwithstanding the foregoing, I also note that the acts complained of occurred in 2017 – the renewal of the policy and November 2019 – the settlement of the claim.

The respondent submitted that the complainant was first notified of the settlement of the claim against the policy in 2019 and that this was reiterated in subsequent correspondence, the date of the last reiteration of this decision was April 2020.  The complainant confirmed the receipt of these letters and outlined their contents to the hearing.

Section 21(6) and (7) of the Equal Status Acts state that

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

  (b) On application by a complainant the  Director of the Workplace Relations Commission  or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The complainant submitted his complaint to the Workplace Relations Commission on 5 January 2021 at which time the possible twelve months for taking a claim envisaged had elapsed. Accordingly, I also do not have jurisdiction on this basis in relation to the substantive complaint of discrimination

On the basis of my findings above, my decision is that the complainant does not have locus standi to pursue this complaint.

Also, on the basis of my findings above, my decision is that this complaint was made outside of the time limits envisaged by the Equal Status Act 2000 – 2021.

Equal Status Act – locus standi – time limits