Company dismissed from Equal Status Acts claim due to lack of statutory standing for corporate entities.

AN CHÚIRT CHUARDA THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN RECORD NO. 2023/06122 Neutral Citation: [2024] IECC 18

XTX MARKETS TECHNOLOGIES LIMITED Complainant/ Appellant

-and-

AVIVA INVESTORS LIQUIDITY FUNDS PLC Respondent

Judgement of His Honour Judge John O’Connor dated the 24th October 2024

1. Introduction

1.1 This case was heard before me on the 11th July 2024 in respect of a preliminary issue as to whether the complainant has a standing to bring a claim under the Equal Status Acts 2000 to 2018. It is the complainant’s contention that it has the required standing to bring a claim and it is the respondent’s contention it does not have the requisite legal standing.

1.2 The complainant is a limited liability company incorporated in England and Wales. It belongs to a global group of companies (“The XTX Group”). The XTX Group is a financial technology trading firm which operates globally and has its headquarters in the United Kingdom. The XTX Group has over 80 employee and is based in London, New York, Singapore, Paris, and Mumbai. The XTX Group was founded by Dr Alexander Gerko, who is its CEO. Dr Gerko has permanently resided and worked in the United Kingdom since 2006. The complainant states that neither Dr Gerko or the XTX Group had assets or property in Russia. Dr Gerko became a British citizen in 2016 and was a Russian citizen until December 2022.

1.3 The respondent is an open-ended investment company, incorporated in Ireland in 2002.

1.4 By complaint form submitted to the Workplace Relations Commission (“WRC”) on the 27 February 2023, the complainant initiated a claim under s.21 of the Equal Status Acts 2000 to 2018 (the “Act”).

1.5 The complainant alleged that the respondent had discriminated against it on the grounds of race contrary to s.3(2) of the Act. The allegation was that the respondent had declined to provide the complainant with a service contrary to s.5(1) of the Act by reason of its nationality (or imputed nationality) and /or by reason of the nationality (or imputed nationality) of the complainant fund or co-CEO and ultimate beneficial owner.

1.6 The complainant suggested as follows:

It was submitted that the fact that the complainant is a company does not prevent it from having protection under the Acts. The complainant submits that the Acts provide protection to persons falling within any of the nine protected grounds. It was submitted that whilst the Acts provide a definition of “person” as it relates to those alleged to have engaged in prohibited conduct, no definition is provided of the meaning of the word “person” as it relates to those who are alleged to have suffered such discrimination.

It was submitted that s.18 of the Interpretation Act 2005 provides a statutory definition of the term “person” as: “Person” shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual and the subsequent use of any pronoun in pace of a further use of “person” shall be read accordingly.

The complainant submits that in the absence of a clear definition to the contrary in the Acts, which does not exist, the term “person” must be afforded the broad definition provided for in the Interpretation Act 2005.

The complainant further states that a restrictive interpretation being advanced by the respondent is inconsistent with the provisions of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the Race Directive) which specifically envisages that the protections provided at national level would include protections for the corporate entities against such discrimination.

The complainant submits that it is well settled that the WRC is required to interpret and apply national legislation in a matter consistent with relevant EU law.

1.7 It was submitted by the respondent as follows:

As a preliminary issue, the respondent submits that the complainant, a private limited company does not have sufficient standing to ground a claim of discrimination under the Acts and requests that the claim be dismissed.

The respondent states that “Person” as defined in s.2 appears to contemplate a corporate entity as a possible perpetrator of discrimination only, and not as a possible victim. The respondent submits that language elsewhere in the Act suggests that, in the context of referring to the victim of discrimination, the use of the term ‘person’ only applies to individuals. The respondent states that there is clear authority from the WRC and the Equality Tribunal to support this interpretation. In this regard the respondent cites the WRC and International Protection Appeals Tribunal caselaw in Gloria v Cork International Choral Festival Ltd DEC-S2008-078, Eileen Kelly McCarthy v Castlemartyr Community Council ADJ 36560, Yuriy Tykhovod t/a Prospera Ltd v FBD Insurance PLC ADJ 31425, A Worker v A Health Services Provider ADJ 5333 and Cork Deaf Club v Office of Public Works DEC-S2017-039.

The respondent requests that the within claim be dismissed on the basis that the complainant is a private limited company and that a company cannot be regarded as having a protected characteristic and therefore could not be discriminated against within the meaning of the Equal Status Acts.

2. History of Pleadings

a) Complaint to the Workplace Relations Commission (“WRC”) dated the 27th February 2023

b) Adjudication Decision of the WRC dated the 8th November 2023 wherein the Adjudication Officer “dismissed the plaintiff's claim on a preliminary basis, finding that the plaintiff, as a private limited company, does not have locus standi to a claim under the Equal Status Acts. Specifically, the Adjudication Officer found that "a company cannot be regarded as having a protected characteristic within the meaning of the Acts”. The Adjudication Officer determined that she did not have jurisdiction to investigate the complaint.”

c) Notice of motion dated the 30th January 2024 requesting:

An Order staying the within proceedings pending determination of related proceedings in the United Kingdom;

Further and/or in the alternative:-

(i) A finding that the decision of the Defendant dated 30 August 2022, refusing the Plaintiff access to its services, amounted to discriminatory treatment, contrary to the provisions in sections 2 and 5 of the Acts.

(ii) An Order for compensation for the effects of the said prohibited conduct by the Defendant;

(iii) An Order directing the Defendant to confirm the Plaintiff is entitled to subscribe to the Defendant’s liquidity funds, subject only to requirements which are not connected to the nationality of the Plaintiff and/or its founder, co-Chief Executive Officer and ultimate beneficial owner

d) For the purposes of this decision I am concerned with para. 11 of the said notice of motion which reads as follows:

“The Defendant has sought to assert that the Plaintiff lacks standing to bring a claim of this kind, by virtue of the fact that it is a corporate entity and not a natural person”

e) The complainant submitted that the Adjudication Officer fell into error in the conduct of the hearing and/or erred in law and/or in fact in the following respects:

i. Finding that the plaintiff lacked standing to bring a claim under the Acts;

ii. Finding that the plaintiff is not a “person” within the meaning of the Acts;

iii. Finding that a complainant must have a protected characteristic within the meaning of the Acts;

iv. Placing undue reliance on the ratio set out decision of the Equality Tribunal in Gloria (Irelands Lesbian and Gay Choir) v Cork International Choral Festival (Dec-52008-078);

v. Dismissing the plaintiff's claim.

3. Legislation

3.1 The following primary legislation was referred to:

Equal Status Acts

Section 2 interpretation Definition of person

“person”, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity;

Enforcement

20.— In this Part, unless the context otherwise requires—

‘complainant’ means—

(a) a person referred to in section 21(1), or

(b) where such a person is unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part, his or her parent, guardian or other person acting in place of a parent;

[‘Minister’ means the Minister for Jobs, Enterprise and Innovation;]

“respondent” means a person who is alleged by a complainant in a case under section 21.(1) to have engaged in prohibited conduct. 21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the [Director of the Workplace Relations Commission].

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation)

to which the Gender Goods and Services Directive is relevant, then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the [Director of the Workplace Relations Commission] under subsection

(1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

3.2 Interpretation Act 2005 (“Interpretation Act”)

Section 18 of the Interpretation Act 2005 definition of person

(c) Person. “Person” shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of “person” shall be read accordingly;

3.3 Other statutory provisions referred to in submissions

European

- Charter Fundamental Rights of the European Union (2012/C 362/02)

- Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin

- Council Regulation (EU) No 833/2014 OF 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine

- European Convention on Human Rights

UK

- Equality Act, 2010

3.4 Case law referred to in submissions

CJEU Authorities

- C-550/07 P Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission EU:C:2010:512

- C-617/10 Akerberg Fransson [2013] ECR

- CHEZ Razpredelenie Bulgaria AD, C-83/14, 16 July 2015

- Minister for Justice and Equality, Commissioner of An Garda Siochana v Workplace Relations Commission C-378/17

Irish Authorities

- An Blasaod Mor Teo v Commissioners of Public Works [1994] 2 IR 372

- MM v DD (Unreported, High Court, 10 December 1996)

- O’Connell v An tÁrd Chlaraitheoir [1997] 1 I.R. 377

- Gloria (Ireland’s Lesbian and Gay Choir) v Cork International Choral Festival Limited (DECS2008-078)

- Eileen Kelly McCarthy v Castemartyr Community Council Company Limited by Guarantee (ADJ-00036560)

- Yuri Tykhovod T/A Prospera Ltd v FBD Insurance PLC (ADJ-00031425)

- Cork Deaf Club v Office of Public Works (DEC-S2017-039)

- LendRB Limited v Enterprise Ireland (ADJ-00044294)

UK Authorities

- The Traveller Movement and Others -v- J D Wetherspoon Plc (Central London County Court, 18 May 2015, HHJ Hand QC)

- EAD Solicitors LLP and Ors v Garry Abrams (Unreported, United Kingdom Employment Appeal Tribunal, 5 June 2015)

4. The Court has the benefit of a transcript of the hearing and detailed legal submissions from counsel for both parties.

5. Summary of Submissions

5.1 The complainant would like the Court to take a purposive approach to the Act. In other words that the Court should look at the Equal Status Acts in its complete context to see what the Act is seeking to achieve. In doing so they state that the Act also needs to be read in the context of the European framework of the EU Directive.

5.2 The complainant also submits that the European Charter and the European Convention of Human Rights referred to in the above authorities implies a broad interpretation of discrimination that applies to all persons and does not provide for the limited restrictive lockout interpretation, which is being contended for, by the respondent.

5.3 There was no Irish Superior Court case or Circuit Court judgment submitted on this issue. However, the complainant contends that the Irish Superior case law referred to was furnished to demonstrate that just because an Act defines it in s.2, it doesn’t mean it excludes a body corporate from making a complaint and that the interpretation definition of “person” falls to be dealt with under the Interpretation Act of 2005 which clearly includes a body corporate.

5.4 In so far as the decision of Gloria [ Gloria (Ireland’s Lesbian and Gay Choir) v Cork International Choral Festival Limited (DECS2008-078) ] both sides accept that this case is not binding on this Court and that it is of persuasive authority only.

5.5 The respondent submits in reply that in regard to making a complaint, the Court is being asked to break new ground into the definition of person i.e. extending the definition of a legal person as opposed to a natural person. This they submit is in breach of the clear intention of the Oireachtas. It stated that the Oireachtas had a choice to extend protection under the implementing equality legislation to include legal as well natural person but choose not to do so. They submit that s.2 of the Act appears to contemplate a corporate entity as a possible perpetrator of discrimination only and not as a possible victim.

5.6 Specifically, the submission stated:

It is clear from the above that the Oireachtas extended persons to include a company for the purposes of including discrimination by [emphasis added] companies only, not

discrimination against. This has been the interpretation taken by every tribunal asked to consider this issue to date.

Language elsewhere in the Act referring to the victim of discrimination supports this interpretation. For example, s.21(1), of the Act states:

“A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the [Director of the WRC]” [emphasis added]

5.7 In relation to reliance on the Directive 2000/43/EC it was submitted as follows:

“Heavy reliance is placed on Directive 2000/43/EC (the Race Directive), [ … ] this is not an instrument of direct effect in Irish law. The Oireachtas, in drafting the implemented legislation in the form of the Equal Status Acts, was explicitly silent as to the prospects of a company claimant (the Race Directive only provides in a Recital that a Member State may provide for companies to claim discrimination but leaves the question up to Member States).”

6. Court’s Decision

6.1 A company, in addition to a human person, may suffer discrimination but that is not the question before this Court. The question before this Court is, can a company bring an action for discrimination allegedly suffered by it under the Equal Status Acts? For the reasons stated below I believe it cannot. If there is some inherent jurisdiction to entrain such a claim that is not a matter for the Circuit Court.

6.2 When looking at an Act of the Oireachtas, the first thing to do is to look at the Act itself to ascertain if it can be interpreted to give effect to the plain intention of the Oireachtas in respect of the legislation. If the Act can be read as a whole and the terms are not ambiguous there is no need to resort to the Interpretation Act. In my view the Interpretation Act should not be used to enhance existing legislation for the benefit of one party where there is no evidence that such an interpretation was required by the Oireachtas. The Interpretation Act could only be used in this case where the plain intention of the Oireachtas is not ascertainable but that in my view is not the position.

6.3 As has been enunciated by the Superior Courts before, it is a fundamental principle of judicial policy that laws should be altered deliberately rather than casually, and that the courts must be measured in respecting the Oireachtas’ right to change the law. The general policy of the courts was succinctly outlined by Finnegan J in Meagher v. Luke J Healy Pharmacy Ltd [2010] 3 IR 743 at p. 754, para. 29 as follows:

“I am satisfied that had the Oireachtas intended to confer upon a lessee a cause of action where none had previously existed it would have done so in clear and unambiguous terms.”

6.4 Therefore in this case I am satisfied that had the Oireachtas intended to confer upon a right for a private company to take an action for discrimination under the Equal Status Acts it would have done so in clear and unambiguous terms. It did not do so.

6.5 I therefore uphold the Decision of the Workplace Relations Commission Adjudicator Officer and hold the complainant does not have locus standi to bring a complaint under the Equal Status Acts.