Commissioner of an Garda Síochána v Ravinder Singh Oberoi

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 30 May 2013
• Neutral Citation: [2013] IEHC 267
• Court: High Court
• Docket Number: [2012 Nos. 136 & 174 MCA]
• Date: 30 May 2013

[2013] IEHC 267

THE HIGH COURT

[No.136 MCA/2012]

[No. 174 MCA/2012]

Cmsr of An Garda Siochana v Oberoi & Director of the Equality Tribunal

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 79(7) OF THE EMPLOYMENT EQUALITY ACTS 1998 - 2004

BETWEEN

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

APPELLANT

AND

RAVINDER SINGH OBEROI

RESPONDENT

AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL

NOTICE PARTY

BETWEEN

RAVINDER SINGH OBEROI

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

EMPLOYMENT EQUALITY ACT 1998 S79(7)

EMPLOYMENT EQUALITY ACT 1998 S8

EMPLOYMENT EQUALITY ACT 1998 S12

EMPLOYMENT EQUALITY ACT 1998 S12(2)

EMPLOYMENT EQUALITY ACT 1998 S79(3)(A)

EMPLOYMENT EQUALITY ACT 1998 S2(3)

EMPLOYMENT EQUALITY ACT 1998 S6

EMPLOYMENT EQUALITY ACT 1998 S8(1)(C)

EMPLOYMENT EQUALITY ACT 1998 S6(1)

EMPLOYMENT EQUALITY ACT 1998 S6(2)(E)

EMPLOYMENT EQUALITY ACT 1998 S6(2)(H)

GARDA SIOCHANA ACT 2005 S3

GARDA SIOCHANA ACT 2005 S15

EMPLOYMENT EQUALITY ACT 1998 S2(3)(A)

GARDA SIOCHANA (RESERVE MEMBERS) REGS SI 413/2006

GARDA SIOCHANA ACT 2005 S15(6)

CRIMINAL JUSTICE ACT 2007 S43

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS)(AMDT) REGS SI 509/2006

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS)(AMDT) REGS SI 509/2006 REG 5(1)

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS)(AMDT) REGS SI 509/2006 REG 5(1)(E)

GARDA SIOCHANA ACT 2005 S16(6)

CRIMINAL JUSTICE ACT 2007 S15(6)

EQUALITY ACT 2004 S2

EQUALITY ACT 2004 S3

NI EILI v ENVIRONMENTAL PROTECTION AGENCY 1997 2 ILRM 458

DPP v GRAY 1986 IR 317

EMPLOYMENT EQUALITY ACT 1998 S2

CABLE & WIRELESS PLC v MUSCAT 2006 1 ICR 975

EMPLOYMENT RIGHTS ACT (UK) 1996

X v MID SUSSEX CITIZENS ADVICE BUREAU & ANOR 2012 UKSC 59

DISABILITY DISCRIMINATION ACT 1995 (UK)

EEC DIR 2000/78

EEC DIR 2000/78 ART 3(1)(A)

EEC DIR 2000/78 ART 3(1)

EEC DIR 2000/78 ART 3

EQUALITY ACT 2010 (UK) S39(1)

X v MID SUSSEX CITIZENS ADVICE BUREAU & ANOR 2011 ICR 460

EMPLOYMENT

Discrimination

Equality - Discrimination - Membership of Garda Reserve - Applicability of Equality legislation - Statutory interpretation - "Employment contract" - "Vocational training" - Whether Garda Reserve member employee - Whether training for garda reserve vocational training - Whether Equality Tribunal having jurisdiction to determine dispute - Words and phrases - "Vocational training" - Garda Reserve - Whether training for Garda Reserve vocational training - Whether training exclusively concerned with training for an occupational activity - Cable & Wireless plc v Muscat [2006] EWCA Civ 220, [2006] 1 ICR 975; Carmichael v National Power Plc [1999] 1 WLR 2042; [1999] 4 All ER 897; Clark v Oxfordshire Health Authority [1998] IRLR 125; DPP v Grey [1986] IR 317; Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612; Ní Eilí v EPA [1997] 2 ILRM 458;Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497; X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59, [2013] 1 All ER 1038; Garda Síochána (Admissions and Appointments) Regulations 1988 (SI 164/1998), reg 5 - Garda Síochána (Reserve Members) Regulations 2006 (SI 413/2006) - Garda Síochána (Admissions and Appointments)(Amendment) Regulations 2006 (SI 509/2006) - Employment Equality Act 1998 (No 21), ss 2, 6, 8, 12 and 79 - Equality Act 2004 (No 24), s 3 - Garda Síochána Act 2005 (No 20), ss 3 and 15 - Criminal Justice Act 2007 (No 29), s 43 - Directive 2000/78/EC, art 3 - Appeal of applicant dismissed; appeal of respondent allowed (2012/174MCA & 2012/136MCA - Feeney J - 30/5/2013) [2013] IEHC 267

Singh Oberoi v Commissioner of An Garda Síochána

Facts: The proceedings concerned an appeal and cross appeal relating to two preliminary decisions made by the Equality Appeal Tribunal. The claimant had claimed discrimination whilst in employment on grounds of religion and ethnicity, as he was prevented from completing his training to become a member of the Garda Reserve due to a rule necessitating a Garda hat be worn, which would have resulted in him being unable to wear his turban.

The issues before the court were, firstly whether the applicant as a member of the Garda Reserve constituted an "employee" within the meaning of the Equality Acts and secondly, whether the Director of the Equality Tribunal had been correct in determining that the applicant"s training fell within the Equality Acts by virtue of s.12(2).

Mr Justice Feeney held that a Garda Reserve member could not be held to work under a contract of employment, and no mutual obligations or remuneration existed as the membership was voluntary, X v. Mid Sussex Citizens Advice Bureau & Anor [2012] UKSC 59 adopted. The Garda Síochána Act 2005 under s. 15(6) only further clarified that the Garda Reserve did not come within s.2 of the Employment Act 1998.

A person volunteering to be a Garda Reserve was held not to be exclusively carrying out an occupational activity, and s. 12(2) demanded vocational training to be for that purpose.

The appeal brought by the Garda Commissioner was allowed, and the appeal by the claimant refused.

1 Judgment of Mr. Justice Feeney delivered on 30th day of May, 2013.

2 2 1.1These proceedings are an appeal and a cross-appeal brought pursuant to s. 79(7) of the Employment Equality Act 1998 (as amended) (hereinafter "the Equality Acts"). Section 79(7) of the Equality Acts provides:

"..., the complainant or respondent may appeal to the High Court on a point of law from a decision made by the Director under this section."

3 As there is an appeal and a cross-appeal for ease of reference Ravinder Singh Oberoi will be referred to in this judgment as the complainant and the Commissioner of An Garda Síochána shall be referred to as the respondent.

4 3 2.1 The complainant made a complaint under the Equality Acts which complaint was referred to the Equality Tribunal. The complainant claimed that he had been discriminated against on the grounds of religion and/or ethnicity contrary to s. 8 of the Equality Acts. The complainant is a member of the Irish Sikh community and in accordance with the requirement of his Sikh faith he does not shave his beard and wears a turban. Unshaved hair and the use of a turban are part of the articles of faith of Sikhism. The complainant is a follower of Sikhism and a member of the Sikh people. The complainant's complaint arose in circumstances where he had applied to join the Garda Reserve and had met the selection criteria for entry and had completed the first three stages of training when he was informed, at the commencement of the fourth stage, that he was required to wear a full Garda uniform, including a Garda hat, during training and would not be permitted to wear a turban. As a result of that requirement the complainant claims that he was unable, due to his religious beliefs and ethnicity, to continue his training and thereby become a member of the Garda Reserve.

5 4 2.2 In making his complaint under the Equality Acts, the complainant claimed that he had been treated less favourably in accessing employment, in his conditions of employment and in relation to training for employment and/or in relation to vocational training due to his religion and his ethnicity in that he was prohibited from wearing his turban and so was unable to complete his training and become a member of the Garda Reserve.

6 5 2.3 The complainant's complaint came on for hearing before the Equality Tribunal on the 24 ^th November, 2010 and the Garda Commissioner (the respondent) raised a preliminary issue in relation to the jurisdiction of the Equality Tribunal to hear and determine the complainant's complaint. That issue was raised on the basis that it was claimed that the Equality Acts do not apply to members of the Garda Reserve as they are not "employees" within the meaning of the Equality Acts. The decision in relation to that preliminary issue was given by the Equality Tribunal in March 2012. The decision of the Equality Officer was communicated by letter dated the 16 ^th March, 2012. The decision set out in the letter stated that the Equality Officer had decided that the complainant was not an employee for the purpose of the Equality Acts and that the Equality Officer would "provide detail of this consideration on the preliminary issues in my final written decision". The Equality Officer further determined that the complainant was correct in his submission where he had placed reliance on s. 12 of the Equality Acts and that the induction process into the ranks of An Garda Síochána constituted vocational training within the meaning of s. 12(2) of the Equality Acts.

7 6 2.4 The preliminary decisions determined by the Equality Officer resulted in one decision in favour of the complainant and one in favour of the respondent. The complainant has appealed the determination of the Equality Tribunal that he is not an employee within the meaning of the Equality Acts and that the respondent, has appealed the interpretation made by the Equality Tribunal of s. 12(2) of the Equality Acts. Section 79(3A) of the Equality Acts provides that a decision on a preliminary issue can be made by the Equality Tribunal. It is the two preliminary decisions which are the subject matter of the appeal and cross-appeal brought to this Court. The preliminary decisions were, ultimately, set out in a letter of the 5 ^th April, 2012 from the Equality Officer wherein a written reasoned decision was set out. The Equality Officer purported to backdate that decision to the date of the original decision contained in the letter of the 16 ^th March, 2012. No issue arises from either of the parties in relation to the date of appeal and both parties have proceeded on the basis that the decision set out in the letter of the 5 ^th April, 2012 is the decision of the Equality Officer and it is that decision which is the...