Complainant

Respondent

Anonymised Parties

A Complainant

A Medical Facility

Representatives

None - Self

 No Appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055520-001

09/03/2023

CA-00055520-001 Claim pursuant to Section 77 of the Employment Equality Act 1998 (as amended).  

The Complainant appeared in person and was unrepresented. There was no appearance by or on behalf of the Respondent. The Respondent did however provide a written communication in advance of the adjudication hearing by email to the WRC dated the 1st of September 2023 and it was confirmed at the hearing that the Complainant had received this communication as well.

Noting that the Respondent was on notice of the time, date and venue of the adjudication hearing, I decided to proceed with the hearing in the absence of the Respondent.

The Complaint made was one of alleged discrimination on the part of the Respondent pursuant to the Employment Equality Acts 198-2014 (“the Acts”). The grounds cited were gender, disability and failure to provide reasonable accommodation.

The Complainant was not represented. The Complainant wants to become an airline pilot. In order to pursue this plan, the first step is to obtain a Class 1 Medical certification which, if granted, is then passed on to the Irish Aviation Authority which is the regulatory authority who can then issue the necessary certification which then enables an aspiring airline pilot to take up training with a view to obtaining the required polit’s licence. It is the responsibility of the aspiring pilots themselves to organise the medical examination and this the Complainant did. The Complainant explained that following the medical examination process the results are automatically forwarded by the medical examiner to the regulatory authority.

The Complainant had provided certain documentation and submissions in support of the allegations of discrimination on the part of the Respondent. However, a fundamental preliminary issue arose as regards the status of the Complainant and whether the complaint was capable of being pursued under the Employment Equality Acts.

The Complainant confirmed at the hearing that the Complainant was not an employee or prospective employee of the Respondent at any time.

Although the Respondent did not appear at the adjudication hearing, the Respondent did submit a written response to the complaint by email to the WRC dated the 1st of September 2023 which was copied to and received by the Complainant. The Respondent denied all of the allegations made by the Complainant.

Section 79 Subsection 3A of the Acts (where relevant to the present case) permits the investigation by way of preliminary issue where a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including whether the complainant is an employee.

The terms “employee” and “employer” are defined in Section 2 of the Acts as follows:

“employee”, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person's home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

Subsection (3) is not relevant to the present case.

Section 8 of the Acts prohibits discrimination in the following terms

“(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

[Emphasis added]

The underlined text makes it clear that the prohibition relates (where relevant to the present case)  to “an employer [who] shall not discriminate against an employee or prospective employee”. In the circumstances of the present claim, relief under the Acts is restricted to situations where the parties are: an “employee or prospective employee” and an “employer” respectively. The Acts do not provide a remedy in the present case where the situation is otherwise. In the present case the Complainant was not at any time and is not, an “employee” or “prospective employee” of the Respondent and the claim is misconceived for the purposes of Section 77 (A) (1) 

I find that in accordance with Section 77(A) 1 of the Employment Equality Act 1998 (as amended), the complaint as submitted is misconceived and will be dismissed on that basis with no further hearing required.

CA-00055520-001 Claim pursuant to Section 77 of the Employment Equality Act 1998 (as amended).  

Having considered the submissions of both parties, I find that the complaint is misconceived and is therefore, not well founded.

Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 - Statutory Instrument 359/2020 -Employment Equality Acts 1998-2015 – Sections 2, 8, 77 (A)(1), 79 (2), 79 (3A), 82 – definition of employee – complainant not an employee or prospective employee - Misconceived