Eagle Star Life Assurance Company of Ireland Ltd -v- Director of the Equality Tribunal & Anor, [2009] IEHC 124 (2009)

Docket Number:2006 1478 P
Party Name:Eagle Star Life Assurance Company of Ireland Ltd, Director of the Equality Tribunal & Anor
Judge:Hedigan J.
 
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THE HIGH COURT2006 1478 JR

BETWEEN

EAGLE STAR LIFE ASSURANCE COMPANY OF IRELAND LIMITED APPLICANTAND

THE DIRECTOR OF THE EQUALITY TRIBUNAL and HUGH O'NEILL ACTING AS TEMPORARY EQUALITY OFFICERRESPONDENTSAND

BERNADETTE TREANORNOTICE PARTY

Judgment of 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.I. Factual and Procedural Background

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 13th 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 1st 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 28th of August 2002 which he had received from the applicant on the 15th 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 6th 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 25th 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...

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