Complainant

Respondent

Parties

Michael  O'Reilly

Enterprise Ireland

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Christina Moran A&L Goodbody. Niamh Mc Gowan BL

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-00058932-001

23/06/2023

The Complainant alleges that he was discriminated against by the respondent in relation to utterances made during an application for funding. The Respondent denies the allegation and in addition states that the applicant has no locus standi to being the within claim.

It is accepted that it was the Company, LendRB, that applied for the funding from the Respondent. However, it was Mr. O’ Reilly and his two co-founders that spoke on behalf of the Company. The discrimination occurred against Mr. O’ Reilly as an individual. It was not against the Company LendRB. The comment was directed to the Complainant and his colleagues. It was suggested that they didn’t have enough diversity within their Company. Mr. O’ Reilly stated that it was he Mr. O’ Reilly together with Mr. Yorke and Mr. Keenan who were directly affected by the comment. The company is owned and run by them so it was run by people. Mr. O’ Reilly, Mr. O’ Reilly and Mr. Keenan are those people.  The three of them hold shares in the company. The comment made was made to them as individuals and therefore they should be able to bring a claim.

In relation to the Employment Equality act claim, Mr. O’ Reilly concedes that it is a hypothetical point as the application for funding was not successful. However, Mr. O’ Reilly argues that at some point, if their application was successful that the Respondent may have become their employer. There is no way of knowing that at present. He accepts that at the time of the alleged discrimination that he was not an employee. However, he argues that there was a professional relationship between them.  He states that at that point he was seeking the services of the Respondent to be employed or at the very least to continue that professional relationship. The relationship was one of coaching and mentoring.   

Preliminary application: 

The Respondent argues that the Complainant has no locus standi to bring this claim before the WRC, either under the Equal Status Act or under the Employment Equality Act.  On the Complainant’s own account, the application for the funding was made in the name of the Company. Section 5 of the Equal Status Act states “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” The particular funds in question were open to be applied for by individuals, but in this case, it was the Company that made the application. The Company’s applications are exhibited to the Respondent’s submission. It is clear therein that it was the Company that applied for the funding and not Mr. O’ Reilly personally. Mr. O’ Reilly’s name is on the form but only as a contact person for the Company.  In circumstances where Mr. O’ Reilly did not seek to avail of the services of the Respondent, he can’t say that he was discriminated against under the Equal Status Act.

The Complainant’s complaint form refers to the Employment Equality Acts. Therein he states that he was discriminated against in relation to access to employment, conditions of employment, training or experience for or in relation to employment. It goes on to deal with the provider of agency work. It would appear from the Complainant’s submission that the Complainant is making a comparison between the role and function of Enterprise Ireland as somehow being an employment agency. The Respondent is not an employment agency. Mr. O’ Reilly was never an employee of the Respondents. However, in the complaint filed by Mr. O’ Reilly there seems to be some suggestion that if the application to the CSF was successful and Enterprise Ireland took their 10% stake in the business then they might be partly employed by Enterprise Ireland. An organisation that takes equity in a business does not in doing so create an employee/employer relationship between themselves and those in the company who were successful in getting funding. In any event the Company was not successful in securing funding, so the argument made by the Complainant is hypothetical and there is no scope under the Act to deal with hypothetical situations.

It is on that basis that the Complainant does not have Locus Standi to bring the within claim. 

This matter has been brought pursuant to Section 77 of the Employment Equality Act. Despite that it is everyone’s understanding that the matter should have been brought pursuant to the Equal Status Act. In the interests of fairness and because the Complainant is not legally represented, I will deal with both Acts in my decision.

Equal Status Act:

The issue to be determine is whether or not, Mr. O’ Reilly has Locus Standi to being this claim. Mr. O’ Reilly accepts that the application to Enterprise Ireland, for funding, was made by the Company LendRB and not by himself or his co-founders personally. However, he argues that in reality the comments about lack of diversity were made to him personally as the Company itself does not have a voice. The Company is made up of the people who formed it and run it.  He, in this instance, was the voice of the Company and it was he, who was discriminated against.

It is not in dispute that the application for funding was made by LendRB.  It was not made by the Complainant personally. Therefore, it was the company who was seeking the “provision of a service” from the Respondent not the applicant.  There are two matters arising from that set of facts. Firstly, it is well established in law that a company cannot be discriminated against within the meaning of the Equal Status Act.

In Gloria ( Ireland’s lesbian and Gay Choir) V Cork International Choral Festival Limited DEC-S2018-78 the Adjudication officer decided “the Equal Status Act should be interpreted as limiting complainants to individuals”

Secondly, the Complainant wasn’t seeking a service from the Respondent. The company was. There is no dispute about that. Mr. O’ Reilly states that the comments were made to him personally as spokesperson for the LendRB.  That’s simply can’t be. Any comments made about a lack of diversity could only have been made about the Company as an individual cannot lack diversity and as Mr. O’ Reilly was not personally seeking the “ provision of a service” within the meaning of the Act, he cannot have been discriminated against in relation to it.

Employment Equality Act:

 I note from the complaint form that the complaint is made pursuant to the Employment Equality Act. I can only assume this is an error firstly because LendRB notified Enterprise Ireland of its intention to bring a complaint under the Equal Status Acts 2000 to 2015 by email dated 20 December 2022. Secondly, because Mr Yorke is not now nor ever was an employee of the Respondent nor is he ever likely to be in the future.  Mr. O’ Reilly attempted to argue that the Respondent is an Employment agency and had they secure funding from them, a quasi-employer/employee relationship would have been established. That is not so. The Respondent is not an Employment agency. They are an enterprise development agency who invest in and support the development of Irish owned Companies. There is no set of circumstances that could have led to Mr. O’ Reilly and his co-founder becoming employees of the Respondent arising out of this or any other application.  The Act does not provide for hypothetical situations. It deals with facts and not fiction. On that basis I find that this part of the complaint is frivolous.

Time Limits:

The allegations of discrimination related to the decision made on the 12.04.2022. The notification of the unsuccessful application was sent by the Respondent on the 13.05.2022. This complaint was filed with the WRC on the 23.06.2023. LendRB notified the Respondent in writing of the nature of the allegation on the 20.12.2022.

Section 21 (2) (a) provides that:-Before seeking redress under this Section the complainant –

(a)         Shall, within two months after the prohibited conduct is alleged to have occurred, or, where           more than one incident or prohibited conduct is alleged to have occurred, within two months after the last such occurrence, notify the respondent in writing of-

(i)           The nature of the allegation,

(ii)         The complainant’s intention, if not satisfied with the respondent’s response to the allegations and

(iii)        may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit court, question the respondent in writing so as to obtain material information and the respondent may if the respondent so wishes, reply to any such question.

Section 21(2)(a) uses the word “Shall” meaning that the requirement is a mandatory one. However,

 S21(3)(a) does provide for an extension of the two months, by a further two months if the complainant can show reasonable cause as to why the notification could not be made within the two months period. No application was made in that regard. Even if it was, the period of time taken to notify the respondent exceeds even the extended period of time.

Section 21(6) of the Act, which provides that a claim for redress in respect of prohibited conduct may not be referred after the end of the period of six 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. Pursuant to Subsection 6(b) that time can extended to a time period not exceeding 12 months but only if reasonable cause can be shown.  The allegations of discrimination related to the decision made on the 12.04.2022 and communicated to the complainant on 13.05.2022 as a such is statute barred by virtue of both Section 21(2) and S21(6) of the Equal Status Acts.  The Complainant’s did not make any submissions on the point, nor did he make and application pursuant to S21 (3)(a) for and extension of time. I agree with the Respondent’s submissions and in all of the circumstances I find that the Equal Status matter is statute barred.

Similarly in relation to the Employment Equality Act, Section 41 (6) Workplace Relations Act 2015 states “ Subject to subsection (8) an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”  Subsection (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in Subsection (6) above or(7) ( but not later that 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within  that period was due to reasonable cause. 

As set out above the allegations of discrimination related to the decision made on the 12.04.2022 and communicated on 13.05.2022. The complaint was filed on the 23.06.2023. Therefore, even if there was an employer/employee relationship, which there is not, that claim too would be statute barred. 

In all of the circumstances I find that the complaint is not well founded. Mr. O’ Reilly as no locus standi to being this claim. Even if he did have locus standi, the claims under both acts are statute barred.  Accordingly, the complaint fails. 

The complaint fails.

Discrimination. Equal Status. Employment Equality. Locus Standi. Time Limits.