Cathy Maguire BL writes:

Christian Brothers High School Clonmel v Stokes [2015] IESC 13

Stokes, a judgment of the Supreme Court under the Equal Status Acts, is required reading for every employment practitioner. It lays down clear criteria for the determination of claims of indirect discrimination equally applicable to claims under the Employment Equality Act 1998 as amended and the Pensions Act 1990 as amended.[1]

The case concerned the claim by a minor, John Stokes, through his mother, that he had suffered indirect discrimination on the grounds of his membership of the travelling community when he failed to obtain a place in the Christian Brothers High School Clonmel. The school operated a rule which gave preference to children whose siblings attended the school or whose father had previously attended the school or who had a close connection to the school. Children who did not qualify under one of these provisions went into a lottery for the remainder of places available. The claimant asserted that the rule giving preference to children whose father had previously attended the school discriminated against members of the Travelling Community because of the limited number of members of that community who are of an age to have children wishing to go to secondary school who themselves attended secondary school.

The claimant succeeded before the Equality Tribunal, failed before the Circuit Court (on a full appeal) and failed before the High Court (on an appeal on a point of law). He sought to appeal to the Supreme Court. The Supreme Court, held, by a majority,[2] that an appeal lay to that Court. It went on to reject the appeal, holding (although for different reasons than those adopted by the High Court) that the final result determined on by the Circuit Judge, being to dismiss the claim, was correct.

The key findings for employment practitioners are as follows:

1. If there is a time point which may be cured by an application to extend, the respondent must raise the point at first instance: Where the time period laid down by a statute for taking a particular step may be extended by the decision maker at first instance, and the claimant has taken the relevant step outside the time period specified by the statute but within the period permitted for an extension of time, the time bar is not an absolute one going to jurisdiction; rather it is a measure which may, in the absence of a successful application to extend time, lead to a claim not being able to proceed on the merits. In such circumstances, the respondent must raise the time issue at first instance and cannot raise it for the first time on appeal.
2. Indirect discrimination operates at the level of the category rather than the level of the individual: Clarke J took the example of a qualification requirement for a particular employment of a certain minimum height. As we all know men, on average, are taller than women. The requirement makes no mention of men or women. It affects some, but not all men, and some, but not all women. Any individual (be they man or woman) either qualifies or they do not. However, it places women at a disadvantage because women are, as a potentially protected category, placed at a disadvantage vis-à-vis men, as an alternative category. The section operates at the level of category rather than at the level of the individual. Obviously, in order for a particular individual to have standing to mount a claim, that individual must be affected by the rule in question. However, in order to succeed, that individual must demonstrate that the rule not places her at a disadvantage, but places women as a category at a disadvantage when compared to men as an alternative category.
3. Dual purpose in assessing the scale of disadvantage: The scale of the disadvantage is assessed by comparing the differential effect of the relevant measure on the competing categories of persons. The scale of the disadvantage must be assessed for two reasons. It is necessary in order to determine whether the disadvantage amounts to “particular disadvantage”. It may also be relevant in determining whether any objective justification meets the “appropriateness” test.
4. What does ‘particular disadvantage’ mean? The term ‘particular disadvantage’ brings with it a requirement, as a matter of law, that it must be established that the extent of the disadvantage is significant or appreciable. The measure of the extent of disadvantage which will constitute ‘particular disadvantage’ is left to the judgment of the Director or, on appeal, the courts.
5. What time period should be selected? A proper analysis of disadvantage will normally require sufficient numbers to make that analysis meaningful. It is necessary to identify the group to whom it can reasonably be said that the challenged provision or measure applies, and to conduct an analysis of a sufficiently large number of persons to form a realistic view as to whether the protected group is truly at a measurable disadvantage by reference to its counterpart. Where the challenged provision continuously affects large numbers of persons, it might be enough to analyse the measure on the protected and alternative group over a relatively short period of time. However, where limited numbers of persons are affected by the challenged provision on a periodic basis only it may be necessary to analyse the measure on the protected and alternative group over a number of years.
6. What geographic area should be selected? It will be necessary to determine the relevant group of persons, from a geographical perspective, for the purposes of assessing the differential effect on the protected group and the alternative group. This will require a realistic assessment of those who might potentially be affected by the provision in question. It is a matter for the Director or the Circuit Judge on appeal to form a view on the appropriate group to be assessed. Where measures are local in effect (as with a schools admission policy) the cachment area may the appropriate area for analysis. Where measures are national in effect (as with recruitment to An Garda Siochana or the Defence forces) an analysis on a country-wide basis may be necessary. However, a regional sample, where there was no particular reason to believe it was unrepresentative, might suffice.
7. What is the relevant provision? In analyzing disadvantage, it is necessary to identify the relevant provision. Where a number of alternative means are provided for complying with a qualifying measure, and where it is only necessary qualify under one heading, then “the provision” must mean the totality of alternative measures available. Therefore, while the Director, the Circuit Court and the High Court all considered the operation of the ‘parental rule’ alone, Clarke J held that the entirety of the qualifying measure should have been considered. However, where cumulative requirements, rather than alternative requirements, are imposed, then it is appropriate to look at each one individually.
8. What if it is difficult to obtain information? The onus of establishing particular disadvantage rests on the claimant. Any difficulty in compiling relevant information would need to be properly taken into account, and would need to be assessed by the Director or, on appeal, the Circuit Court, in order to determine whether the onus of proof had been met. There is no requirement that any figures relied on are unimpeachable. The fact that the figures may not be perfect does not prevent the Director (or the Circuit Court on appeal) from being satisfied that the onus of proof has been met. The information may, in some cases, be so imperfect that the onus of proof has not been met. Subject to a test of irrationality on O’Keeffe[3]principles (i.e. that the decision was fundamentally at variance with reason and common sense), those are matters for the fact finder whether it be the Director or the Circuit Court on appeal.
9. What is the standard of review on appeal on a point of law? A decision maker must ask the proper overall question. If the decision maker does not ask the proper overall question, the decision cannot stand. However, a decision maker has some reasonable discretion as to the intermediate or subsidiary questions which need to be asked in order to reach a proper overall conclusion. In reviewing that aspect of the decision making process, it will be necessary, before overturning a decision, to be satisfied that the subsidiary or intermediate questions asked were outside of the bounds of those which might reasonably lead to a proper answer to the overall question.

The judgment of Clarke J contains an extremely readable explanation of indirect discrimination throwing light onto an often impenetrable area of the law.