1. The first case, a Decision of the Supreme Court relates to Judicial Review proceedings taken by Bisi Adigun against the Equality Tribunal. The Court did not uphold any of the points argued by Mr. Adigun. Indeed, had the Tribunal continued as sought by Mr. Adigun it would have been in “clear breach of its statutory remit”.

2. The second case, EDA 1517 finds that sections 16(3) and 16(4) provide a free-standing cause of action even where the employer does not claim the defence in 16(1) and accepts a decision not to amend the working hours of other workers when considering reasonable accommodation.

1. 2011/310JR, Bisi Adigun and The Equality Tribunal Issues:

Tribunal finding unreasonable and irrational, holding a preliminary hearing a breach of fair procedures, not proceeding to substantive hearing a breach of legitimate expectation, no other legal remedy existed, High Court did not provide a remedy The complainant in this case lodged a complaint with the Equality Tribunal in respect of arrangements he had with the Abbey Theatre.

Based on submissions it appears the Equality Officer decided to hold a preliminary hearing as to whether the complainant had been, in fact, an employee as required by the Employment Equality Acts. At the preliminary hearing arrangements were made for the date of the substantive hearing. However, the Equality Officer decided that the complainant was not an employee for the purposes of the Acts and issued a Decision on that basis which disposed of the case and removed the requirement to hold a substantive hearing.

The complainant pursued a Judicial Review of the Tribunal rather than an appeal to the Labour Court.

1.1 The Court first addressed the argument that the conclusion he was not an employee was unreasonable and irrational and the fact that the documents relating to the contract between Mr. Adigun and the Abbey Theatre related to Mr. Adigun’s limited company and not himself. The Court concluded that none of the issues considered indicate any possible basis that the Equality Officer’s ruling was incorrect.

1.2 In looking at the holding of a preliminary hearing, the Court considered section 79(3A) which provides for such situations. It goes on to find “Even apart from the subsection quoted above, it is within the scope of fair procedures before any judicial or quasi-judicial body for an issue to be isolated and tried in advance of the main hearing provided that can be done fairly.”

The court found there was nothing to support an assertion that the Equality Officer misconstrued the relevant legislation or exercised his discretion in any unreasonable of capricious manner.

1.3 In looking at the cancelation of the substantive hearing the Court quoted Shakespeare’s Hamlet bemoaning lack of progress in litigation. The Court refers to a misunderstanding of JR proceedings and states “There is a range of appreciation in respect of the conduct of quasi-judicial bodies which should be respected. Clear statutory authority for the Equality Officer’s actions existed. In addition, reasonable decisions as to how a case should proceed are not to be substituted, even by a contrary reasonable view.”

Once the decision was made that the complainant was not an employee then no ruling could be made of benefit to the plaintiff. Indeed, “had the Equality Tribunal proceeded to a hearing the substance of the case having ruled that Bisi Adigun had never been employed by the Abbey Theatre it would have been in clear breach of its statutory remit. Plainly, there was no jurisdiction.”

1.4 On addressing the argument that no other remedy existed for Mr. Adigun, the Court considered the existence of contract remedies and Mr Adigun’s choice to pursue a complaint under the Employment Equality Acts. However, it found he had not demonstrated that he was left unable to find a remedy.

1.5 The Court considered that there may be a misunderstanding of the nature of JR which was chosen by Mr. Adigun in preference to a full appeal to the Labour Court. The Court stated “An applicant choosing this remedy [JR] over on appeal cannot reargue the facts but instead must show that the Tribunal has moved outside the boundaries of it’s jurisdiction. The Court found that the High Court ruling could not be faulted. The appeal was dismissed on all grounds.

2. EDA1517 Michal Wojcik and Sodexo Ireland Ltd. Issues:

Discrimination on the disability, failure to provide reasonable accommodation, 16(3) as a free standing cause of action.

The complainant suffered from a rare condition known as Cataplexy rendering him liable to lose control of his body in situations of heightened emotion, stress or tiredness. He worked as one of three security guards at the Cappagh Hospital site. His medical advisors suggested that he either be placed on all day shifts or all night shifts. The respondent made two separate proposals to the complainant that would have allowed him to work days only or nights only, both resulting in a 33% reduction in his total working hours.

This reduction of his working hours was less favourable treatment according to the complainant. The Court accepted that the respondent was unwilling to amend the existing working hours of the other two security workers on the site and found that the revised rosters did not amount to discriminatory treatment.

However, the Court was more concerned with the employer’s assertion that it had no obligation to the complainant under section 16 of the Acts and that it had gone over and above its legal obligations to facilitate the complainant’s return to work. The Court considered sections 16(3) and 16(4), the definition of employer, Directive 2000/78/EC, the Marleasing (C106/89) and Ring (C335/11, C337/11) CJEU cases, the latter considering the UN Charter on the Rights of Persons with Disabilities.

Ultimately the Court did not accept the submission that the respondent was not required to make reasonable accommodation pursuant to section 16 and found that its offers of different hours and relocation come squarely within the ambit of reasonable accommodation and appropriate measures as envisaged by section 16.

However, the Court found that the complainant was not discriminated against by the offer of different hours and that the respondent had discharged its duty in accordance with section 16.

Why is this case of interest?

Finally, this case appears to clarify the requirement to provide reasonable accommodation as a stand-alone cause of action. This was not the case prior to the 2004 amendments of the Acts and has never been explicitly addressed since despite obiter comments in previous Court Determinations.

The Court found it was acceptable, following consideration, not to amend the working hours of other workers when considering reasonable accommodation – not to be confused with the consideration of the redistribution of tasks mentioned in the recent Nano Nagle, [2015]IEHC 785, High Court Decision which will be considered in the next review.