A Complainant AND FÁS (Represented by William Fry, Solicitors)
1.1 This dispute concerns a claim on behalf of a complainant that he was discriminated against by FÁS on the ground of disability contrary to the provisions of the Employment Equality Act, 1998 when he was not offered a work placement. As initial procedural issues fall to be determined before consideration of the substantive claim, no names have been given in this decision.
1.2 A claim by a named complainant was referred to the Director of Equality Investigations on 31 May 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director delegated the case on 23 September 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.
1.3 The respondent queried the named complainant's entitlement to proceed with the claim, as it appeared to refer to his adult son, who has a learning disability. The named complainant ("the father") declined to provide written confirmation from his son that his father was acting on his behalf and with his agreement. As this was a point which appeared to put at issue the Equality Tribunal's jurisdiction to hear the claim, the Legal Adviser to the Tribunal sought Senior Counsel's Opinion. The Opinion indicated that the father had no entitlement to bring the claim. It was copied to both parties who were invited to make any observations they wished on the jurisdiction issue. A joint hearing on this preliminary matter was arranged for 28 May 2003. The father failed to appear and no reason was provided for his absence. A letter to the father on 28 May advised that unless he provided a reason for his nonattendance within ten days, a decision would issue based on the available information. The father made no subsequent contact with the Equality Tribunal.
2. SUMMARY OF THE FATHER'S CASE
2.1 The father said that his son was engaged in a training course delivered by Health Board staff on behalf of FÁS. His son also lived in Health Board accommodation and his life generally was controlled by Health Board staff. He said his son was very conscious of his dependence on those staff and of the need to have a good relationship with them. To provide written confirmation that his father was acting with his consent would therefore seriously aggravate his situation. The father pointed out that in any case the outlawing of discrimination by section 8 of the 1998 Act was unconditional, and queried the legal basis for requiring written confirmation from his son.
2.2 The father claimed that the issue of his entitlement to refer a claim on behalf of his son had arisen previously, and had been decided by an Equality Officer in A Complainant v Civil Service Commissioners (DEC-E2002-015) and by the Labour Court on appeal in The Civil Service Commissioners and A Complainant (EDA 024). Both of these cases had proceeded on the basis that his son was the injured party. The father pointed out that if the Labour Court had been in any doubt about the matter, it could have made a reference to the High Court under section 90 (4) of the 1998 Act, which states that
During the investigation of a case by the Labour Court under section 79 or in the course of an appeal to it under this Part, the Labour Court may-
(a) refer to the High Court a point of law arising in the course of the investigation or appeal, and
(b) adjourn the investigation or appeal (if it thinks it appropriate) depending the outcome of the reference.
2.3 The father said that the Rules of the Superior Courts, and in particular Order Number 15, fully supported his acting on his son's behalf, and rejected the idea that the Senior Counsel's opinion obtained by the Equality Tribunal indicated that he could not do so.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent raised the question of the father's representation of his son in the first instance when responding to a request for information issued by the father under section 76 of the 1998 Act. Section 76 provides that a person who feels he or she has been discriminated against, dismissed, victimised or not provided with equal remuneration may obtain information from the person alleged to be discriminating, to enable the alleged victim in deciding whether to refer a claim to the Director. The respondent said that section 76 appeared to give the right to seek information only to the person alleging discrimination.
3.2 The respondent said the rights provided for under the Act were personal in nature and were there to be availed of by individuals. As the son in this case was neither a minor nor a ward of court, the respondent said he must exercise these rights himself. The respondent said that the son had demonstrated during his training that he was capable of exercising his rights if he so wished.
3.3 The respondent said it believed it would be contrary to the provisions of section 76 of the Act for it to give the father the information sought. It also believed that it would breach the confidentiality owed by the respondent to its clients for it to disclose information relating to the son to his father. The respondent confirmed that the information sought by the father was freely available to the son, at his personal request.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The father alleged that the respondent discriminated against his son on the ground of disability contrary to the provisions of the Employment Equality Act, 1998 when his son was not offered a work placement. The question to be determined by me in this decision is whether the father may refer a claim on behalf of his son. The provisions of the Employment Equality Act, 1998
4.3 Section 77 (1) of the 1998 Act provides
A person who claims-
(a) to have been discriminated against by another in contravention of this Act,
(b) not to be receiving remuneration in accordance with an equal remuneration term,
(c) not to be receiving a benefit under an equality clause, or
(d) to have been penalised in circumstances amounting to victimisation,
may...seek redress by referring the case to the Director.
There is no provision in section 77 for referral of a case to the Director by anyone other than the person claiming to be affected. Such a person may of course be represented in a claim, by a solicitor, a trade union official or any other person nominated by the complainant, and a parent may also bring a claim on behalf of a child if the child is aged under 18 years. The section does not authorise the referral of a claim on behalf of an adult without any apparent consent by that adult.
4.4 Referral of claims by someone other than the complainant is provided for in section 85 (1) of the Act, which states
Where it appears to the [Equality] Authority-
(a) that discrimination or victimisation is being generally practised against persons or that a practice referred to in section 8 (4) is being applied or operated,
(b) that discrimination or victimisation has occurred in relation to a particular person who has not made a reference under section 77 in relation to the discrimination or victimisation and that it is not reasonable to expect that person to make such a reference,
(c) that there is a failure to comply with an equal remuneration clause term or an equality clause term either generally in a business or in relation to a particular person who has not made a reference under section 77 in relation to the failure and whom it is not reasonable to expect to make such a reference,...
the Authority may refer the matter to the Director.
It would appear from the wording of this section that formal nomination of a representative is not required in circumstances where it appears to the Equality Authority that a complainant could not reasonably be expected to make the reference. However, in such circumstances, the reference may be made by the Authority. Provision is not made for reference by any other party.
Senior Counsel's Opinion
4.5 The claim raised certain important questions regarding the jurisdiction of the Equality Tribunal to accept and determine claims alleging discrimination against adults with intellectual disabilities, where the claim is brought by a parent or other relative rather than by the person allegedly affected. Senior Counsel was instructed with the facts of the claim in October 2002, and his Opinion was provided in January 2003.
4.6 Counsel noted the provisions of section 77 of the Act regarding the referral of claims to the Director. He cited the case of Telecom Éireann v O'Grady ( 3 IR 432), where Mr Justice Kearns laid out the principles of statutory interpretation as follows
"It is undoubtedly open to a court to depart from a literal construction of a statute where to do otherwise would defeat the obvious intention of the legislature...But where, as here, the legislature have plainly expressed their intention, it is not open to a court, absent any constitutional considerations, to frustrate that intention by departing from the ordinary meaning of the words used. Nor, it must be emphasized, can the literal construction in this case be said to defeat "the spirit and purpose of the Act": it is, after all, an Act intended to render unlawful certain types of discrimination in the workplace and a reading which leads to the prohibition of a particular discriminatory practice, however unfairly burdensome the result may appear to be, must be regarded as being in harmony, rather than in conflict with, the general legislative scheme."
4.7 Counsel advised that nothing in the provisions of the 1998 Act or in the spirit and purpose of the Act appeared to render it necessary to give to the words "a person who claims" in section 77 (1) a meaning other than their ordinary and literal meaning. Counsel noted that even if a person were suffering from a disability such that he or she could not bring a claim himself or herself, there were at least two methods whereby such a claim could be brought. The Equality Authority could refer the matter to the Director pursuant to section 85 (1) (b), or the necessary steps could be taken to have the person made a ward of court and the court could authorise the appropriate referral.
4.8 Counsel also referred to the judgement of Mr Justice Finnegan in the case of CK and the Health Board, reported 9 May 2002, which concerned an application for judicial review brought by CK, a sister of PK who was a ward of court. Mr Justice Finnegan noted that the original claim sought to be advanced by CK had not been properly maintained. "Such an action could be maintained by PK acting through a next friend the requirements of the Lunacy Regulations (Ireland) Act, 1871 being complied with." Mr Justice Finnegan also noted however that the President of the High Court had subsequently authorised CK as Committee of PK to continue the proceedings in the name of and on behalf of PK. In the circumstances, the judge was satisfied the action was properly before the court and no issue as to the locus standi of CK arose.
4.9 Counsel said it was clear from Mr Justice Finnegan's judgement that CK's right to bring the proceedings sprang from the order of the High Court and absent same she would not have had the locus standi to bring the application on behalf of her brother. Counsel said further that it appeared the right of PK to bring an action through a next friend existed because of the provisions of the relevant rules of court which allowed for such a course of action, and these rules would not be relevant to the referral of a claim to the Director under the provisions of the 1998 Act. There appeared to be no reason why a claim could not be referred by Committee for a ward of court, presuming of course sufficient grounds existed to have the complainant made a ward of court. If such grounds did not exist, the complainant would have to make the referral himself or herself pursuant to section 77, or the matter would have to be referred by the Equality Authority pursuant to section 85.
4.10 Counsel concluded that the father in this case did not have any legal or constitutional locus standi to refer a complaint, or to request relevant information, concerning alleged discrimination against his son. The father could represent his son, in a claim brought by his son, but it must be clear that the father is not the complainant and that the son is able and willing to bring the claim.
4.11 The father argued after receipt of Counsel's Opinion that a previous claim had been accepted by an Equality Officer and the Labour Court (references at 2.2 above) on the same basis as this one, and he requested that this claim proceed in the same way. However, having carefully examined both the Decision and the Determination referred to, it is apparent that neither the Equality Officer nor the Labour Court made a finding in relation to the question of the father's referral of a claim on behalf of his son. Throughout both documents, the father is referred to as the complainant's representative. As previously stated, there is no barrier to the father acting as his son's representative, but he consistently declined confirm either orally or in writing that his son was aware of and approved of the referral.
5.1 Based on the foregoing, I find that I do not have jurisdiction to investigate this claim of discrimination on the ground of disability, as I am not satisfied that a valid claim has been referred.
14 July 2003