Eagle Star Life Assurance Company of Ireland v Director of the Equality Tribunal and Treanor (Notice party)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan, |
| Judgment Date | 18 March 2009 |
| Neutral Citation | [2009] IEHC 124 |
| Court | High Court |
| Docket Number | RECORD NO. 1478 JR/2006 |
| Date | 18 March 2009 |
BETWEEN:
AND
AND
[2009] IEHC 124
THE HIGH COURT
TRIBUNALS
Equality Tribunal
Jurisdiction - Disability - Allegation of discrimination on ground of disability - Definition of disability - Fair procedures - Audi alteram partem - Limits of right to be heard - Whether applicant having right to have submissions on appropriate exercise of its jurisdiction considered by respondent - Equal Status Act 2000 (No 8), ss 2 and 38 - State (Cork County Council) v Fawsitt (Unrep, McMahon J, 13/3/1981) and Doherty v South Dublin County Council [2007] 2 IR 696 applied; Wiseman v Borneman [1971] AC 297; Lewis v Heffer [1978] 1 WLR 1061 and O Ceallaigh v An Bord Altranis [2000] 4 IR 54 considered - Relief refused (2006/1478JR - Hedigan J - 18/3/2009) [2009] IEHC 124
Eagle Star v Equality Tribunal
Facts: The applicant was a company providing insurance and sought inter alia an order of certiorari by way of judicial review to quash the decision of the first named respondent as they had no jurisdiction under s. 38 Equal Status Act 2000 to dismiss the complaint of the notice party against the applicant and that the definition of disability as contained in the Act of 2000 did not include the condition from which the notice party suffered. The notice party was the subject of a loading of 100% on her normal insurance premium by reason of the fact that she was clinically obese. The issue also arose as to whether fair procedures had applied.
Held by Hedigan J. that the decision of the respondents not to exercise their powers under s. 38 was not made in error of law or natural justice. The second named respondent did have jurisdiction to entertain the complaint of the notice party and the reliefs sought would be refused.
Reporter:E.F.
LEWIS v HEFFER 1978 1 WLR 1061
WISEMAN v BORNEMAN 1971 AC 297
O'CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54
STATE (CORK CO COUNCIL) v FAWSITT UNREP MCMAHON 13.3.1981 1981/143
DOHERTY v SOUTH DUBLIN CO COUNCIL 2007 2 IR 696
COOK v RHODE ISLAND DEPT OF MENTAL HEALTH 1993 10 F 3D 17
Mr. Justice Hedigan, delivered on the 18th day of March, 2009
1. The applicant is a limited liability company and a registered provider of insurance services in Ireland.
2. The first named respondent is the senior official within the Equality Tribunal ('the Tribunal'), the body charged with investigation of complaints made under the Equal Status Acts 2000-2004.
3. The second named respondent is the Registrar of the Labour Court and has been appointed as an independent party to investigate the notice party's allegation of discrimination against the applicant.
4. The notice party is an Equality Officer, employed as part of the staff of the Tribunal.
5. The applicant seeks the following relief by way of judicial review:
(a) An order of certiorari quashing the decision of the first named respondent to the effect that the first named respondent had no jurisdiction under section 38 of the Equal Status Act 2000 ('the 2000 Act') to dismiss the complaint made by the notice party against the applicant;
(b) A declaration that the first named respondent's decision is invalid and/or ultra vires and/or wrong in law;
(c) An order of certiorari quashing the decision of the second named respondent to refuse to exercise his power under section 38 of the 2000 Act to dismiss the complaint made by the notice party against the applicant;
(d) A declaration that the second named respondent's decision is invalid and/or ultra vires and/or wrong in law;
(e) A declaration that the first and second named respondent had no jurisdiction to make any decision in the matter having regard to the fact that the complaint form sent to the first named respondent did not disclose any disability within the meaning of the 2000 Act;
(f) A declaration that the definition of disability contained in the 2000 Act does not include any condition from which the notice party has ever suffered and/or any condition imputed to her and/or any condition which existed in the past but ceased to exist;
(g) A declaration that the notice party does not come within the protection of the 2000 Act on grounds of disability or otherwise and in those circumstances the first and second named respondents do not have and never had jurisdiction under that Act to adjudicate upon any claim made by the notice party against the applicant; and
(h) An order of prohibition preventing the second named respondent from adjudicating on the complaint made by the notice party against the applicant.
6. The notice party took up her current position as an Equality Officer in September 2001. As a result of this, she was required to make a submission to the applicant in order to ensure that her income continuance cover would continue. She ultimately made this submission by means of a group scheme operated by her trade union. However, because more than six months had passed since her promotion, she was required to undergo a new medical examination.
7. The notice party underwent a medical examination with a doctor other than her regular general practitioner. The doctor advised her that he was recommending that the applicant should offer her cover under the normal terms. The notice party also submitted documentation to the applicant relating to a previous visit which she had made to a heart specialist. During that consultation, the notice party had been informed that the complaint was not serious and the problem in question ultimately resolved itself within one month.
8. By letter dated that 13 th of August 2002, the notice party was informed by the applicant that she had been accepted to the income continuance plan but only subject to a loading of 100% on the normal premium. No reason was advanced for the loading but, in light of the examining doctor's comments, the notice party presumed that this had been applied on the basis of her visit to the heart specialist. Specifically, the notice party surmised that the applicant had incorrectly imputed a significant heart condition to her.
9. The notice party then attempted to contact the applicant's chief medical officer, in order to obtain an explanation for the loading on her premium. When she failed to receive a satisfactory response, the notice party issued notifications and complaints of discrimination under section 21 of the 2000 Act, on the 1 st of October 2002. Again the notice party did not receive a response from the applicant.
10. The notice party subsequently visited her own general practitioner in February 2003, who presented her with a letter dated the 28 th of August 2002 which he had received from the applicant on the 15 th of October 2002. The letter indicated that the reason for the application of the loading to the notice party's premium was the fact that she was clinically obese and was therefore at a greater risk of being absent from work.
11. On the 6 th of February 2003, the notice party issued a fresh notification and complaint of discrimination against the applicant. She also issued a notification and complaint of victimisation on the 25 th of July 2003, pursuant to section 3(2)(j)(4) of the 2000 Act. The notice party issued the latter complaint on the basis of the decision of the applicant's chief medical officer to directly contact her general practitioner. This is something which she contends is prohibited by the code of practice on life assurance of the Irish Insurance Federation, save in cases where a potentially serious illness has been diagnosed by the examining doctor. The notice party suggests that this conduct of the applicant amounted to an attempt to remove the complaint from the jurisdiction of the Tribunal. This is not something which it is necessary for me to consider for the purposes of the present application, nor is there sufficient evidence before the Court to reach even the most tentative of conclusions as to the probity or otherwise of the applicant's motives.
12. Following the issue of the complaint in February 2003, a considerable volume of correspondence was exchanged between the parties. For example, on the 24 th of February 2003, the first named respondent wrote to the applicant and indicated that owing to the employee status of the notice party, the case would need to be heard by an independent, temporary equality officer. The applicant replied by letter dated the 24 th of March 2003, emphasising the importance, for the sake of all parties, that the complaint be dealt with in an entirely impartial forum.
13. By letter dated the 20 th of October 2003, the applicant's solicitor contacted the first named respondent requesting a preliminary investigation into the issue of the jurisdiction of the Tribunal to consider the notice party's complaint in light of the definition of disability prescribed by the 2000 Act. The applicant's solicitor wrote once again to the first named respondent on the 24 th of November 2003 requesting clarification of certain matters which had arisen during the correspondence. Neither of these letters received a response from the first named respondent and a considerable period of time proceeded to elapse before any further inter partes contact occurred.
14. It was not until the end of May 2006 that the first named respondent received clearance to appoint a temporary equality officer to hear and determine...
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