Complainant

Respondent

Parties

  XTX Markets Technologies Limited

Aviva Investors Liquidity Funds PLC

Representatives

Lorna Lynch SC, instructed by Ledwith Solicitors

Kate Egan BL, instructed by A&L Goodbody

Act

Complaint Reference No.

Date of Receipt

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

CA-00055297-001

27/02/2023

The complainant, a corporate entity, alleges that the respondent has discriminated against the complainant on the ground of race contrary to section 3(2)(h) of the Acts in not providing the complainant with a service generally available to the public contrary  to section 5(1) of the Acts by reason of the nationality (or imputed nationality) of the complainant’s founder, co-CEO and ultimate beneficial owner, being a person associated with the complainant within the meaning prescribed in section 3(1)(b) of the Acts.

The allegation of discrimination arises from a decision by the respondent not to permit the complainant to subscribe to or invest in a number of funds operated by the respondent, including a fund denominated in Euro.   

The complainant initiated a claim under section 21 of the Equal Status Acts on 27 February 2023. It was submitted that contrary to the provisions of section 2 and 5 of the Acts, the respondent discriminated against the complainant by refusing to provide the complainant with a service by reason of (a) the nationality (or imputed nationality) of the complainant; and/or (b) the nationality (or imputed nationality) of the complainant’s founder, co-Chief Executive Officer and ultimate beneficial owner, being a person associated with the complainant within the meaning of section 3(b) of the Acts.

It was submitted that the complainant is a limited liability company, incorporated in England and Wales on 6 November 2019. The complainant belongs to a global group of companies, the XTX Group. The XTX Group was founded in July 2015 by Dr Gerko, who is its co-CEO. It was submitted that Dr Gerko has permanently resided and worked in the UK since 2006. It was submitted that neither Dr Gerko nor the XTX Group have assets or property in Russia. It was stated that Dr Gerko became a British citizen in 2016 and was a Russian citizen until December 2022. It was submitted that Dr Gerko nor any XTX Group entity is a designated person on any global sanctions regime, nor have any of them ever had a connection to or business interest in any designated persons.

The complainant submits that the respondent is a public limited company, incorporated in Ireland on 10 May 2002. It was submitted that the respondent is an investment company with the object of collective investment in transferrable securities and/or other liquid financial assets. The complainant submitted that the respondent is a person involved in the provision of a service within the meaning of section 5 (1) of the Acts.     

Jurisdictional Issue

It was submitted that the fact the complainant is a company does not prevent it having protection under the Acts. The complainant submits that the Acts provide protection to persons falling within any of the nine protected grounds. It was submitted that whilst the Acts provide a definition of “person” as it relates to those alleged to have engaged in prohibited conduct, no definition is provided of the meaning of the word “person” as it relates to those who are alleged to have suffered such discrimination.

It was submitted that section 18 of the Interpretation Act 2005 provides a statutory definition of the term “person” as: “Person” shall be read as importing 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 complainant submits that in the absence of a clear definition to the contrary in the Acts, which does not exist, the term “person” must be afforded the broad definition provided for in the Interpretation Act, 2005.

The complainant further states that the restrictive interpretation being advanced by the respondent is inconsistent with the provisions of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the Race Directive) which specifically envisages that the protections provided at national level would include protections for corporate entities against such discrimination.

The complainant submits that it is well settled that the WRC is required to interpret and apply national legislation in a manner consistent with relevant EU law.

In summary the complainant states that the Acts contain a definition of “person” as a class or category of persons engaging in prohibited conduct. It was submitted that the proper application of the maxim of statutory interpretation could only mean that any person/body who falls outside that definition of “person” is excluded as a class or category of persons engaging in prohibited conduct.  The complainant stated that definition does not apply to the class/category of prospective complainants and the maxim cannot be relied to use a definition of one category to exclude from a separate and distinct category.

Preliminary Jurisdictional Issue - Locus Standi under the Acts

As a preliminary issue, the respondent submits that the complainant, a private limited company  does not have sufficient standing to ground a claim of discrimination under the Acts and requests that the claim be dismissed.

The respondent states that “Person” as defined in section 2 appears to contemplate a corporate entity as a possible perpetrator of discrimination only, and not as a possible victim. The respondent submits that language elsewhere in the Act suggests that, in the context of referring to the victim of discrimination, the use of the term ‘person’ only applies to individuals. The respondent states that there is clear authority from the WRC and the Equality Tribunal to support this interpretation. In this regard the respondent cites the caselaw in Gloria v Cork International Choral Festival Ltd. DEC-S2008-078, Eileen Kelly McCarthy v Castlemartyr Community Council ADJ 36560, Yuriy Tykhovod t/a Prospera Ltd v FBD Insurance PLC ADJ 31425, A Worker v A Health Services Provider ADJ 5333 and Cork Deaf Club v Office of Public Works DEC-S2017-039.     

The respondent requests that the within claim be dismissed on the basis that the complainant is a private limited company and that a company cannot be regarded as having a protected characteristic and therefore could not be discriminated against within the meaning of the Equal Status Acts.

Preliminary Jurisdictional Issue - Locus Standi under the Acts

The general prohibition of discrimination on specified grounds in relation to inter alia the provision of services is set out in the Equal Status Acts, in the following terms:

Section 3(1) of the Equal Status Acts provides that discrimination occurs “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)…"

Section 3(2)(h) provides that: as between any two persons, the discriminatory grounds of race are,

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

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.  In examining this issue, I am also guided by the decision of the Equality Tribunal in the Gloria case, DEC-S2008-078 Gloria (Irelands Lesbian and Gay Choir) v Cork International Choral Festival.   The Equality Officer in that case considered in detail whether the complainant in that case had the locus standi to bring a complaint under the Equal Status Acts.    The Equality Officer concluded that a non-natural person, whether incorporated or not could not be regarded as having a protected characteristic and therefore could not be discriminated against within the meaning of the Equal Status Acts.    The Equality Officer also found that under the Equal Status Acts “person” is defined as including an incorporated or unincorporated body of persons, only by reference to who may be a respondent to a complaint, not who may bring a complaint and that the Act is drafted in such a way as to exclude potential complainant’s from the wider definition of “person” under the Act which only applies to potential respondents.

I have carefully considered the arguments advanced by both sides in the within complaint.  I am satisfied that the complainant, a private limited company, does not have locus standi to take the present claim under the Equal Status Acts as a company cannot be regarded as having a protected  characteristic within the meaning of the Acts.  Accordingly, I find that I do not have jurisdiction to investigate the complaint.

On the basis of the foregoing, I find that the complainant in the within claim does not have locus standi to bring a complaint under the Equal Status Acts. Accordingly, I find that I do not have jurisdiction to investigate the complaint.

Equal Status Acts, Jurisdiction, Locus Standi