Complainant

Respondent

Parties

Matthew  Murtagh

Financial Services and Pensions Ombudsman

Complainant

Respondent

Anonymised Parties

Representatives

Lauren Tennyson B.L., instructed by Jack O'Connor of Eversheds Sutherland LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00066119-001

19/09/2024

This complainant alleges that he made a complaint to the respondent and that they dealt with it unsatisfactorily.

The respondent raised a number of preliminary issues regarding my jurisdiction to investigate this complaint.

The first matter I have to decide is whether I have jurisdiction to investigate this claim. Section 14 (1) (a) (i) of the Equal Status Acts provides:

“Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court,”

And Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.

I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre(at page 8-28), he stated:

“Actions required by law: This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under “any enactment or order of a court”. This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning.”

4.2 In a legal opinion sought by the Equality Tribunal in relation to the construction of Section 14 (a) (i) in respect of another case the Senior Counsel’s opinion included: “[the complainant] has chosen to make a claim under the Act, rather than proceeding by way of judicial review. If he wishes to challenge an administrative decision that is ordinarily done by way of judicial review. If he wishes to assert that a statutory regime violates his personal rights as a citizen, it is open to him to so by constitutional challenge, whether by way of judicial review, or by plenary proceedings. Likewise, if he wishes to assert that the regulations contravene the European Directive, he can issue proceedings to assert that claim. What Section 14 (a) (i) makes clear is that he is not entitled to avail of the Equal Status Act 2000 for the purpose of impugning a statutory regime as one might do for example in a constitutional challenge.”

In this claim it is clear that the respondent was established by the Financial Services and Pensions Ombudsman Act 2017 and Part 6 of this legislation sets out their role in investigating complaints.

This complaint is based on an investigation carried out by the respondent under the provisions of the Financial Services and Pensions Ombudsman Act 2017. This is an enactment and as such falls under section 14 (1) (a) (i) of the Equal Status Acts. Accordingly, I find that I have no jurisdiction to investigate the complaint.

This complaint is based on an investigation carried out by the respondent under the provisions of the Financial Services and Pensions Ombudsman Act 2017. This is an enactment and as such falls under section 14 (1) (a) (i) of the Equal Status Acts. Accordingly, I find that I have no jurisdiction to investigate the complaint.

Enactment – no jurisdiction