Navan Education Centre T/A National Behaviour Support Service (Represented by Mason Hayes Curran) v Brendan Lydon (Represented by Anne Marie Giblin BL Instructed by Jos Solicitors)

• Jurisdiction: Ireland
• Judgment Date: 11 December 2018
• Judgment citation (vLex): [2018] 12 JIEC 1101
• Date: 11 December 2018
• Court: Labour Court (Ireland)
• Docket Number: FULL RECOMMENDATION,DETERMINATION NO.EDA1848,DEC-E2018-003 EE/2014/310

Labour Court

FULL RECOMMENDATION

ADE/18/12

DETERMINATION NO.EDA1848

DEC-E2018-003 EE/2014/310

PARTIES:

Navan Education Centre T/A National Behaviour Support Service (Represented by Mason Hayes Curran)

and

Brendan Lydon (Represented by Anne Marie Giblin BL Instructed by Jos Solicitors)

DIVISION:

Chairman: Ms O'Donnell

Employer Member: Mr Marie

Worker Member: Ms Tanham

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

SUBJECT:

1 1. Appeal of Adjudication Officer Decision No: DEC-E2018-003

BACKGROUND:

2 2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 6 March 2018. A Labour Court hearing took place on 17 July 2018. The following is the Court's Determination:

DETERMINATION:

Introduction

3 This is an appeal by Brendan Lydon (the Complainant) against Adjudication Officer Decision DEC-E2018-003 in a claim of discrimination on the ground of disability against his Employer Navan Education Centre t/a National Behaviour Support Services (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998–2015 (the Acts).

4 A preliminary issue arises in this case in relation to the locus standi of the Complainant. The Adjudication Officer found that the Complainant had locus standi but that the complaint was not well founded.

Background.

5 The Complainant does not have a disability, but it is his contention that the Respondent discriminated against him in a competition for a post when it treated a person with a disability more favourably. It is his contention that this treatment went beyond reasonable accommodation. It is the Complainant's position that because the comparator in this case had a disability at the time of the discrimination he can in accordance with s 6 (2) of the Act take a case. The Respondent disputes that it discriminated against the Complainant and in any event a literal reading of the legislation is that only a person with a disability can take a case. The Court decided to deal with the preliminary issue of locus standi first.

Complainant's case

6 The Complainant is bringing his claim under S6(2) (g) of the Act which states “ that one is a person with a disability and the other either is not or is a person with a different disability (in this act referred to as “the disability ground”)”. It is not disputed that at the material time the comparator had a disability and he had not. It is the Complainant's contention that it is not set out in this section that to bring a claim the Complainant must have a disability. The Complainant relying on s.5(2) of the Interpretation Act 2005 argued that on a literal reading of s 6 (2)(g) of the Act the Complainant would have locus standi. The Complainant's representative drew the Courts attention to a number of cases in particular Kalanke v Freie Hansestadt Bremen (C-450/93) where the European Court of Justice gave consideration to positive action taken on the part of an employer to address in equality in a minority group. In that case the ECJ held that a rule that, where candidates of different sexes shortlisted for promotion were equally qualified, women were automatically to be given priority in sectors where they were under-represented, was contrary to art.2(1) of the Equal Treatment Directive 76/207, in that it “involves discrimination on grounds of sex” and could not be included among the positive actions referred to in art.2(4). It is the Complainant's case that the same principle applies to the facts of this case. The Respondent's representative also referred to Coleman v Attridge Law (c-303/06) here they argued it was held that if an employee suffers direct discrimination on the grounds of disability, an interpretation of the Directive which restricted its application only to people who possessed the necessary...