High Court allows legal entity standing to bring discrimination complaints under the Equal Status Act 2000.

THE HIGH COURT [2025] IEHC 651 Record No. HMCA 2024/567

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 28(3) OF THE EQUAL STATUS ACT 2000 (AS AMENDED)

BETWEEN

XTX MARKETS TECHNOLOGIES LIMITED APPELLANT

-AND-

AVIVA INVESTORS LIQUIDITY FUNDS PLC RESPONDENT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 26th day of November, 2025.

INTRODUCTION

1. This appeal on a point of law pursuant to s. 28(3) of the Equal Status Act, 2000 (as amended) (hereinafter “the 2000 Act”) concerns the standing of a legal as opposed to a natural person to pursue a complaint of discrimination under the 2000 Act.

2. The Appellant’s underlying complaint of discrimination contrary to the 2000 Act was determined by both the Workplace Relations Commission (hereinafter “the WRC”) and the Circuit Court on appeal based on a preliminary issue as to standing. No evidence was heard before the WRC or the Circuit Court and there has been no consideration of or adjudication on the merits of the Appellant’s claim of discriminatory treatment. As with the WRC and the Circuit Court, it is now agreed that the only question properly for consideration before me relates to the preliminary issue of standing to bring a

complaint.

3. The answer to the question of law at the heart of this appeal is key to identifying the scope of protection available under the 2000 Act and the jurisdiction of the WRC under that Act to receive and determine complaints based on a claim that a legal person has been treated less favourably, on prescribed discriminatory grounds, in accessing goods and services.

4. The 2000 Act is domestic legislation which, in part, serves to implement EU law in the State. The proper interpretation of the 2000 Act therefore requires consideration of the requirements of EU law because the question for determination arises in an area involving points of intersection between domestic and EU law. There is an obligation on the State (including this Court) to interpret and apply domestic legislation in a manner which gives effect to the obligations on the State deriving from EU law where possible.

BACKGROUND

5. The events which led to the making of a complaint to the WRC under the 2000 Act are of limited relevance to the legal issue I must decide and do not require to be recited in detail.

6. In short and by way of context only, the Appellant is a private limited company incorporated in the United Kingdom and the Respondent is a public limited company incorporated in Ireland. The Appellant is part of a global financial technology firm headquartered in London with over 190 employees based in London, New York, Singapore, Paris and Mumbai. The group was founded by a Russian national living in London since 2006. At the time of the alleged discriminatory treatment the said Russian national was a dual citizen, holding both British and Russian citizenship. In addition to founding the Group, the same Russian national is described in the papers before me as the Appellant’s co-CEO and ultimate beneficial owner.

7. There was some engagement between the parties during 2021 and 2022 in relation to the provision by the Respondent of investment services to the Appellant. In this

context, a query was raised regarding the nationality of the ultimate beneficial owner of the Appellant giving rise to a concern that the Respondent was prohibited from selling euro denominated transferable securities issued after the 12th of April, 2022, or units in collective investment undertakings with exposure to such securities to any Russian national or natural person residing in Russia or any legal person, entity or body established in Russia, by reason of the provisions of Council Regulation (EU) 2022/328 of t h e 25th of February, 2022 and Council Regulation (EU) 2022/398 of the 9th of March, 2022 (referred to as “the Sanction Regulations”).

8. Ultimately, it appears that the Respondent refused to provide services to the Appellant in reliance on the Sanction Regulations construed together with Regulation 833/2014 and Article 1m of Regulation 765/2006 which prohibit “participating, knowingly and intentionally, in activities the object or effect of which is to circumvent prohibitions in the Regulation.”

9. The Appellant has consistently maintained that the Respondent's decision to refuse to provide services was unlawful, contending that no other bank, broker or regulator (including the Central Bank of Ireland) has adopted the position that the Sanctions Regulations apply to or restrict the Appellant's trading activities.

10. It appears from the correspondence that the Appellant contemplated a claim to the London County Court alleging discrimination contrary to s. 29(1) of the UK Equality Act, 2010 and relying of ss. 13 and 29 of that Act. Having regard to the fact that the Respondent is an Irish resident company, it was argued that the UK courts did not have jurisdiction.

11. Against this background, a complaint was made to the WRC.

PROCEEDINGS

Complaint to Workplace Relations Commission

12. By complaint form submitted to the WRC on the 27th of February, 2023, the Appellant initiated a claim under s. 21 of the 2000 Act. In that complaint it was asserted that, contrary to the provisions ss. 2 (probably s.3 intended) and 5 of the Act, the Respondent discriminated against the Appellant by refusing to provide the Appellant with a service by reason of the following:

A. the nationality (or imputed nationality) of the Appellant; and/

B. the nationality (or imputed nationality) of the Appellant's founder, co- Chief Executive Officer and ultimate beneficial owner, being a person associated with the Appellant within the meaning of s. 3 (b)

(presumably s. 3(1)(b) intended) of the Acts.

13. The allegation of discrimination was based on the decision of the Respondent not to permit the Complainant (as it was at that stage) to subscribe to or invest in several funds operated by the Respondent, including a fund denominated in euro. The Appellant’s claim was listed for hearing before the WRC on the 6th of September, 2023, on the preliminary jurisdictional and/or locus standi issue, namely, whether a corporate entity could bring a complaint of discrimination on grounds of race contrary to s. 3(2)(h) of the 2000 Act in respect of a refusal of access to financial services by reason of the nationality or imputed nationality of the complainant’s founder, co-CEO and ultimate beneficial owner being a person associated with the legal entity within the meaning of s. 3(b) (properly s.3(1)(b))

of the 2000 Act.

14. Before the WRC, both parties presented detailed written submissions in advance of the oral hearing.

15. In brief, the Appellant submitted, consistent with the position maintained before me, that the fact the Complainant is a company does not prevent it having protection under the Acts. 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.

16. Reliance was placed on s. 18 of the Interpretation Act, 2005 (hereinafter “the 2005 Act”) which 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 place of a further use of “person” shall be read accordingly.

17. The Appellant submitted 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 2005 Act. Importantly, the Appellant also relied on s.3(1)(b) of the 2000 Act and pointed out that the meaning and effect of this provision had not been considered in previous case-law of the Equality Tribunal relied upon by the Respondent.

18. The Appellant further contended that the restrictive interpretation being advanced by the Respondent was inconsistent with the provisions of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (hereinafter “the Race Directive”) which specifically envisaged that the protections provided at national level would include protections for corporate entities against such discrimination. It was submitted on behalf of the Appellant that it is well settled that the WRC is required to interpret and apply national legislation in a manner consistent with relevant EU law.

19. In its submissions on the preliminary issue before the WRC, the Respondent contended 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 submitted 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 stated that there is clear authority from the WRC and the Equality Tribunal to support this interpretation. In this regard the Respondent cited previous decisions including 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.

20. The Adjudication Officer issued a decision on the 8th of November, 2023 and dismissed the Appellant's claim on a preliminary basis, finding that the Appellant, as a private limited company, does not have locus standi to a claim under the Acts. Specifically, the Adjudication Officer found that “a company cannot be regarded as having a protected characteristic within the meaning of the Acts.”

21. In her decision, the Adjudication Officer (Valerie Murtagh) said she was guided by the earlier decision of the Equality Tribunal in the Gloria case noting that the Equality Officer in that case considered in detail whether the complainant had the locus standi to bring a complaint under the Equal Status Acts.

22. The Adjudication Officer concluded, in reliance on the previous decision in Gloria, that a non-natural person, whether incorporated or not, could not be regarded as having a protected characteristic and therefore could not be discriminated against within the meaning of the Equal Status Acts. The Adjudication Officer also found that under the Equal Status Acts “person” is defined as including an incorporated or unincorporated body of persons, only by reference to who may be a respondent to a complaint, not who may bring a complaint and that the Act is drafted in such a way as to exclude potential complainant's from the wider definition of “person”

under the Act which only applies to potential respondents.

23. The decision of the Adjudication Officer did not address either in the summary of the Complainant’s submissions contained in the decision nor in the decision itself, the case that had been made in reliance on s.3(1)(b) of the 2000 Act and the fact that this provision had not been considered in Gloria or in any of the previous Tribunal case-law cited before the WRC and relied upon by the WRC.

Circuit Court Appeal

24. By Notice of Appeal dated the 15th of December 2023, the Appellant appealed the

decision of the WRC to the Circuit Court.

25. A hearing took place in the Circuit Court on the 11th of July, 2024 (before His Honour Judge O’Connor) on the preliminary issue of whether the Appellant, as a body corporate, had standing to bring a claim under the Acts. A full transcript of this hearing was available in evidence before me.

26. It is clear from the transcript that the arguments rehearsed before the WRC were repeated with the support of further detailed written submissions (in similar terms to those already made before the WRC) in the Circuit Court. In particular, emphasis was placed on the fact that in her decision in this case, the Adjudication Officer had not addressed the arguments advanced in reliance on s.3(1)(b) or the implications of the fact that s.

3(1)(b) of the 2000 Act did not appear to have been considered in the Gloria case or any of the subsequent case-law cited in argument to support dismissal of claims on the basis of a want of jurisdiction in respect of legal persons. It was urged on behalf of the Appellant that s. 3(1)(b) of the 2000 Act needed to be engaged with where there is discrimination by association (Transcript of Hearing before Circuit Court on the 11th of July, 2024, p. 22, lines 15-18).

27. In a written judgment dated the 24th of October, 2024 ([2024] IECC 18), it was determined that the Appellant does not have locus standi to bring a claim under the 2000 Act. In his judgment, the Learned Circuit Court Judge, stated as follows (at para 6):

“A company, in addition to a human person, may suffer discrimination but that is not a 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 entertain such a claim that is not a matter for the Circuit Court. 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.

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.”

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. 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.”

28. Like the WRC before it, the Circuit Court judgment neither acknowledges nor addresses the argument that had been advanced in reliance on s. 3(1)(b) of the 2000 Act, even though express issue had been taken in submissions with the fact that s. 3(1)(b) of the 2000 Act had not been considered in Gloria or any other cited authority nor by the WRC in this case.

Appeal to the High Court on a Point of Law

29. By originating Notice of Motion dated the 12th of November, 2024, the Appellant appealed to the High Court on a point of law pursuant to s. 28(3) of the 2000 Act. While coming before the High Court as a statutory appeal, the relief sought in the Notice of Motion was wide-ranging and included, in relevant part:

I. An Order pursuant to the provisions of Order 84(C) of the Rules of the Superior Courts and pursuant to Section 28(3) of the Equal Status Act, 2000, as amended, (the “Act”) that the judgment of the Circuit Court in which it was determined that the Appellant, as a limited liability company, lacked standing to bring a claim under s. 21 of the Act, be set aside;

II. A Declaration that the Appellant is not prohibited by reason of its status as a private limited company from initiating or maintaining a claim under s. 21 of the Act and/or from securing the reliefs provided for at s. 28 of the Act;

III. If necessary, a Declaration that the provisions of the Act and, specifically, any provisions interpreted as precluding the pursuit of a claim of discrimination under the Act by a body corporate, are incompatible with European Law, including Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

IV. If necessary, a Declaration that the provisions of the Act and, specifically, any provisions interpreted as precluding the pursuit of a claim of discrimination under the Act by a body corporate, are incompatible with the Charter of Fundamental Rights of the European Union (hereinafter “the Charter”.)

V. If necessary, a Declaration that the provisions of the Act and, specifically, any provisions interpreted as precluding the pursuit of a claim of discrimination under the Act by a body corporate, are incompatible with the European Convention on Human Rights (hereinafter “the Convention”).

VI. If, necessary, a reference to the Court of Justice of the European Union pursuant to Article 267 TFEU.

30. Other pleaded reliefs included various declaratory reliefs in respect of the merits of the substantive claim which it was conceded in the opening of the case before me were not proper matters for me on an appeal on a point of law on a preliminary issue in respect of which the substantive merits had never been considered by a first instance decisionmaker.

31. The grounds of appeal identified on the originating Notice of Motion are wide-ranging and include that the learned Trial Judge erred in law in: his interpretation and application of the provisions of the Equal Status Act, 2000; his determination that the Appellant, lacked standing to bring a claim under the Act; his determination to the effect that the Appellant is not a “person” within the meaning of the Act and the Interpretation Act 2005; failing to properly have regard to or apply the provisions of the Interpretation Act 2005, as amended; when interpreting the provisions of the Act; his application of the principles of statutory interpretation when interpreting the provisions of the Act; failing to properly consider the application, meaning and/or effect of the provisions of s. 3(1)(b) of the 2000 Act which provides for discrimination by association; failing to interpret the provisions of the Act in a manner that is consistent with the provisions of Directive 2000/43/EC (the Race Directive);

failing to interpret the provisions of the Act in a manner that is consistent with the provisions of the Charter ; failing to interpret the provisions of the Act in a manner that is consistent with the rights conferred on the Appellant pursuant to the Convention ;

placing reliance upon the judgment of the High Court in Meagher v. Luke J Healy Pharmacy Ltd. [2010] IESC 40, [2010] 3 I.R. 743 and in upholding the decision of the Adjudication Officer; failing to have regard or to have adequate regard to the Appellant's right to an effective remedy under the Charter and the Convention and/or in the alternative, if the Learned Circuit Court Judge was correct in his interpretation of the Act in finding that the Appellant as a body corporate lacks standing under the Act, then the provisions of the Act were claimed to be incompatible with the provisions of the Directive and the Charter

LEGAL FRAMEWORK

Domestic Provisions

Equality Acts

32. The headnote to the 2000 Act states that it is an Act:

“to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public or a section of the public have access and to provide for investigating and remedying certain discrimination…”.

33. Section 2 of the 2000 Act is the interpretation section of the 2000 Act. Several provisions of this section are of potential relevance to the issue I must decide. Section

2 of 2000 Act defines “person” as follows:

““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;”

34. While s. 2 defines “person” insofar as it pertains to a respondent to a complaint under the 2000 Act, it does in its terms extend to excluding a legal person from bringing a claim under the 2000 Act. Indeed, s. 2 does not seek to define a complainant at all.

There is no express exclusion or inclusion of legal person when identifying who, whether legal or natural persons or both, may be a complainant for the purpose of the 2000 Act.

35. Section 3 defines discrimination as occurring when a person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the specified grounds. “Person” in this context is not defined under the provisions of the 2000 Act. Notably, however, s. 3(1)(b) of the 2000 Act provides that discrimination occurs where a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated in a comparable situation with the result that discrimination may occur even when the victim of discrimination does not have the protected characteristic themselves but are associated by another person with that characteristic.

36. The protected characteristics under the Act are specified at s. 3(2) of the Act and include the gender ground, the civil status ground, the family status ground, the sexual orientation ground, the religion ground, the age ground, the disability ground, the ground of race and the traveller community ground. The housing assistance ground has been added by s. 3A of the 2000 Act.

37. Although, the use of the word “person” in s. 5 did not feature extensively in submissions before me, it bears note that s. 5(1) provides that a “person” shall not discriminate in disposing of goods “to the public generally or a section of the public” or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by “a section of the public”.

38. Section 14 of the Act provides specific exceptions to the Act’s prohibitions on discrimination. It allows certain actions that would otherwise fall under the Act, more specifically actions required under court order or statute. Through amendment of s. 14, exceptions for actions, inter alia, by public authorities or the Minister concerning nonnationals, particularly in matters of immigration, asylum or residency have been introduced.

39. The first attempt to define a complainant appears in s. 20 of the 2000 Act. There it is stated that: in this Part of the Act (namely, Part III “Enforcement”), unless the context otherwise requires, “complainant” means a person referred to in s. 21(1) or, where such person is unable, by reason of 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.

40. Section 21(1) in turn provides that a person who claims that prohibited conduct “has been directed against him or her” may seek redress. It is not expressly provided that a legal person may not bring a complaint under the 2000 Act.

41. For completeness, it is noteworthy that the word “individual” is also used on a number of occasions in the 2000 Act. It appears once in s. 15(1) and twice in s. 21(9).

42. Section 15(1) provides that nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person, also identified in s. 15(1) as “the customer” in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located.

43. Section 21(9) uses the word “individual” to explain the reference to “confidential information” in s. 21(8) as meaning any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.

44. Section 23 of the Act empowers the Equality Authority (now the Irish Human Rights and Equality Commission) to escalate systemic or serious incidents of prohibited conduct and obtain injunctive relief. The Authority may refer a case to the WRC when it appears that prohibited conduct is being generally directed at groups or has occurred against someone unlikely to file a claim, with the Authority pursuing the complaint as complainant.

45. Section 28 of the Act provides for an appeal against the decision of the WRC as follows:

“(1) Not later than 42 days from the date of a decision of the Director of the Workplace Relations Commission under section 25, the complainant or respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of the appeal.

(2) In its determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director of the Workplace Relations Commission).

(3) No further appeal lies, other than an appeal to the High Court on a point of law.”

46. The 2000 Act has been amended on a number of occasions since it was first enacted. The Equality Act, 2004 in its Long Title states that it is an Act to give effect to Council Directive 2000/43/EC implementing the principle of Equal Treatment between persons irrespective of Racial or Ethnic Origin, Council Directive 2000/78/EC establishing a General Framework for Equal Treatment in Employment and Occupation and Directive 2002/73 EC amending Council Directive 76/207/EEC on the Principle of Equal Treatment for Men and Women as regards Access to Employment, Vocational

Training and Promotion and Working Conditions and to revoke in part and enact in respect of proceedings under this Act the EC (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 which gave effect to Council Directive 97/80/EC on the Burden of Proof in cases of Discrimination based on Sex.

47. One noteworthy amendment introduced by the Equality Act, 2004 under s. 52 (as subsequently substituted by s. 3 of the Equal Status (Amendment) Act 2000)

(presumably in view of the requirements of the Race Directive and Article 21(2) of the Charter) was to expand s. 14 of the 2000 Act by the insertion of a new s.14(aa)

providing that the nationality ground did not preclude, on the basis of nationality (i) any action taken by a public authority in relation to a non-national— (I) who, when the action was taken, was either outside the State or, for the purposes of the Immigration Act 2004, unlawfully present in it, or (II) in accordance with any provision or condition made by or under any enactment and arising from his or her entry to or residence in the State, or (ii) any action taken by the Minister in relation to a non-national which action arises in respect of these matters.

48. It also bears note in this context that s. 2 was amended by s. 76(a) of Civil Law (Miscellaneous Provisions) Act 2008 to include a definition for ‘Gender Goods and Services Directive where it appears in the 2000 Act’ as meaning Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

49. As for more recent amendments, the Long Title to the Equality (Miscellaneous Provisions) Act, 2015 introduces the Act as an Act to, inter alia, give further effect to Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial and ethnic origin; to give further effect to Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation; to give further effect to Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services and to give further effect to Directive 2006/54/EC of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).

Interpretation Acts

50. At each stage of this case, reliance has been placed on behalf of the Appellant on the Interpretations Acts. Under s. 4 of the 1937 Act (in force when the 2000 Act was enacted) it was provided as follows:

“4.—Save as is otherwise expressly provided by this Act, every provision of this Act which relates to Acts of the Oireachtas shall apply and have effect in relation to this Act and every other Act of the Oireachtas of Saorstát Eireann (whether passed before or after this Act)…..”

51. Section 11(c) of the 1937 Act which provided as regards the interpretation of the word “person”:

“11.—The following provisions shall apply and have effect in relation to the construction of every Act of the Oireachtas and of every instrument made wholly or partly under any such Act, that is to say:—

(c) Person. The word “person” shall, unless the contrary intention appears, be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual;”

52. Section 4 of the 2005 Act (in somewhat different terms to the earlier 1937 Act) provides as follows:

“A provision of this Act applies to an enactment except in so far as the contrary intention appears in this Act, in the enactment itself or, where relevant, in the Act under which the enactment is made.”

53. Section 18(c) of the 2005 Act provides a statutory definition of the term “person,” as follows:

“"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.”

54. The provision for the use of pronouns now contained in s. 18(c) of the 2005 Act was not in s. 11(c) of the 1937 Act.

EU Measures

Treaties

55. Anti-discrimination principles are acknowledged as foundational within the EU legal order and may be seen in the Treaty on the Functioning of the EU (TFEU) and the Treaty on European Union (TEU). Article 19(1) (ex. Article 13 TEC) of the TFEU provides the legal basis for the EU to take action to combat discrimination. The EU’s commitment to equality and non-discrimination across its activities is apparent in Article 2 of the TEU.

Charter of Fundamental Rights and Freedoms

56. Reliance is placed on behalf of the Appellant on the Charter, most especially but not exclusively, Article 21 thereof. Whereas the Charter, at its inception, derived from general principles of EU law recognized by the CJEU, it was given legal force through Article 6(1) TEU. The Charter builds on the general principles of EU law already given foundational constitutional significance under the Treaties. In (C-550/07) Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission, the CJEU observed that (at para. 54):

“It must be recalled that the principle of equal treatment is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union.”

57. It is now well settled that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law (C- 617/10) Akerberg Fransson. On this basis, even national law not adopted to transpose EU law, but which nonetheless serves to deliver an EU law obligation, falls within

the scope of the Charter.

58. The Charter uses the word “person” in relation to the right to integrity in Article 3 and persons “with” disabilities in Article 26 but also refers variously to “human” or “human beings” (e.g. in relation to the right to human dignity in Article 1, harvesting body parts in Article 3(2)(c) reproductive cloning in Article 3(2)(d) and trafficking in Article (5)(3)), “everyone” (in respect of the right to life in Article 2(1), right to liberty and security in Article 6, right to respect for private and family life in Article 7, protection of personal data in Article 8, freedom of thought, conscience and religion in Article 10, freedom of expression and information in Article 11 with specific reference to “the media” in Article 11(2), freedom of assembly in Article 12, right to education in Article

14 and right to property in Article 17(1)), “No one” (in respect of the prohibition of the death penalty at Article 2(2), torture in Article 4, slavery and compulsory labour in Article 5(1) & (2) and deprivation of property in Article 17(1) and expulsion in Article 19(2)), “citizen” (in Article 15.2 in relation to freedom to seek employment), “nationals” (in relation to third country nationals authorized to work in the territories of the Member States) and “men” and “women” (in equality provision in Article 23).

59. The Charter also protects rights without reference to the body to whom the rights attach, for example, in Article 13 in protecting arts and science research and academic freedom, in Article 14 with reference to the freedom to found educational establishments, in Article 16 in relation to the freedom to conduct a business, in Article 17(2) in relation to intellectual property, the right to asylum as provided in Article 18 and respect for cultural, religious and linguistic diversity in Article 22.

60. Article 42 governing the right of access to documents is expressed as applying to every “citizen” and “any natural or legal person.” Similar language embracing the legal person specifically is used in Article 43 in relation to the right to refer a complaint to the European Ombudsman and Article 44 in relation to the right to petition the European Parliament.

61. Central to the protection against discrimination of concern in these proceedings, Article

20 of the Charter provides that “everyone” is equal before the law and Article 21 provides for non-discrimination in the following terms:

“Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”

62. Article 21(2) provides that within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.

63. Relevant to the scope and interpretation of rights and principles contained in the Charter, Article 52 provides:

1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.

3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.

5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

6. Full account shall be taken of national laws and practices as specified in this Charter.

7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.”

Equality Directives

64. In exercise of its competencies under the Treaties, a series of directives referred to collectively as the Equality Directives have been adopted at EU level deriving from competencies under ex. Article 13 TEC (now Article 19(1) of the TFEU) to combat discrimination within the EU. The Race Directive assumes particular importance in this case in the light of the issues arising.

65. Recital 13 of the Race Directive provides that any direct or indirect discrimination based on racial or ethnic origin as regards the areas covered by the Directive should be prohibited throughout the Community but this prohibition on discrimination does not cover differences of treatment based on nationality and is said to be without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and to occupation.

66. The Race Directive specifically envisages that the protections provided at national level would include protections for corporate entities against such discrimination.

In that regard, paragraph 16 of the Recitals in the Race Directive states as follows:

“It is important to protect all natural persons against discrimination on grounds of racial or ethnic origin. Member States should also provide, where appropriate and in accordance with their national traditions and practice, protection for legal persons where they suffer discrimination on grounds of the racial or ethnic origin of their members.”

67. The stated purpose of the Race Directive (Article 1) is:

“to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment.”

68. Using similar language of “on the grounds of”, Article 2 of the Directive provides in relation to the concept of discrimination:

“For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.”

69. Direct discrimination is defined in Article 2(1) as occurring where:

“one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin;”

(see also Article 2(2)(a) of Council Directive 2000/78/EC, Article 2(a) of Council Directive 2004/113/EC, Article 2(1)(a) of Council Directive 2006/54/EC which each use the words “on any of the grounds” or “on grounds of”).

70. Article 7 of the Race Directive requires Member States to provide judicial and/or administrative procedures which should be available:

“to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them.”

71. Finally, each of the Equality Directives are clear that Member States must provide judicial and/or administrative procedures, for the enforcement of the obligations under the Directives and must ensure that they are available to “all persons who consider themselves wronged by failure to apply the principle of equal treatment to them”. This obligation extends to requiring Member States to ensure “that associations, organisations or other legal entities, which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligation” (see Article 8 of Directive 2004/113/EC, Article 7 of Directive 2000/43/EC, Article 9 of Directive 2000/78/EC, Article 17 of Directive 2006/54/EC and Article 9 of Directive 2010/41/EU).

The European Convention on Human Rights Act, 2003

72. Sections 2 and 4 of the European Convention on Human Rights Act, 2003 (hereinafter “the 2003 Act”) impose obligations on a court to interpret the provisions of the 2000 Act, in so far as is possible, subject to the rules of law relating to such interpretation and application, in a manner compatible with the State's obligations under the Convention provisions and to take judicial notice of the Convention provisions and of any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which a court has jurisdiction, any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction, any

decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction.

73. For its part the WRC, as an organ of state (as defined in s. 1 of the 2003 Act) is obliged to perform its adjudicative functions in a manner compatible with the State’s obligations under the provisions of the Convention in accordance with s. 3 of the 2003 Act. The jurisdiction to award damages for breach of the Convention under s. 3 does not vest in the WRC and is only extended to the Circuit and High Courts.

74. In terms of the substantive provisions of the Convention, the Appellant relied in the Notice of Appeal filed on Articles 13 and 14 of the Convention. Article 13 of the Convention provides for a right to an effective remedy in respect of rights and freedoms as set forth in the Convention. Article 14 of the Convention, in turn, expressly prohibits discrimination as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

75. Both Articles 13 and 14 depend on the existence of a right or freedom set forth in the Convention (referred to as “parasitic” during argument before me). Expanding on the basis for reliance on Convention in supplemental submissions delivered in response to the submissions delivered on behalf of the Attorney General, the Applicants also refer to Article 6 of the Convention (right of access to a court in respect of determination of civil rights and obligations) and Article 1 of Protocol 1 (protection of property).

ISSUES

76. In the substance of this appeal, it is contended that the decision of the Circuit Court on appeal from the WRC that the Appellant lacks locus standi to bring a complaint under the 2000 Act is incorrect in law and is not based on a correct interpretation and application of the provisions of the Acts, which proper interpretation falls to be informed by the definition of “person” within the meaning of the 2000 Act and the Interpretation Act 2005 (as amended), the statutory scheme including s. 3(b) of the 2000 Act which provides for discrimination by association, the requirements of EU law (specifically the provisions the Race Directive and Articles 21, 47 and 52 of the Charter and the requirements of the European Convention on Human Rights (specifically, Articles 1 of Protocol 1, 6, 13 and 14) as transposed through the provisions of the 2003 Act.

77. An alternative argument is sought to be advanced that if the learned Circuit Court Judge was correct in his determination that the Appellant as a body corporate lacks standing under the 2000 Act, then the provisions of the Act are incompatible with the provisions of the Race Directive and Charter as well as the provisions of the Convention. If necessary, the Appellant seeks, in this appeal, declarations to that effect and, in the alternative, a reference pursuant to Article 267 TFEU.

78. On foot of this alternative plea, the Attorney General was put on notice of this appeal pursuant to the requirements of s. 6 of the 2003 Act which apply where a declaration of incompatibility with the Convention is sought pursuant to s. 5 of the 2003 Act. Counsel instructed by the Attorney General appeared before me to oppose relief, both having regard to the scope of a statutory appeal under s. 28(3)

of the 2000 Act which it is contended does not extend to the granting of relief which could not have been granted by the statutory decision maker (i.e. the WRC or the Circuit Court on appeal) and on the basis that no breach of a Convention right arises from the finding that the Appellant lacks standing under the 2000 Act.

79. Although, counsel on behalf of the Attorney General confirmed agreement with the

decision of the WRC, the Circuit Court Judge and the position of the Respondent in these proceedings, he did not seek to enlarge his role in the proceedings beyond opposing the grant of a declaration of incompatibility under s. 6 of the 2003 Act.

Specifically, no further position was adopted on behalf of the Attorney General in relation to the question of a referral under Article 267 TFEU.

80. In view of the wide-ranging relief sought which includes relief pursuant to s. 5 of the 2003 Act, the first issue on this appeal is to determine the scope of this statutory appeal.

DISCUSSION AND DECISION

The Nature of a Statutory Appeal and the Scope of this Appeal

81. The basis for the Court's jurisdiction to hear this appeal derives from s. 28(3) of the 2000 Act which was considered by the Supreme Court in Stokes v. Christian Brothers High School Clonmel [2015] IESC 13, [2015] 2 I.R. In that case, the Court affirmed the principles as summarised in Deely v. Information Commissioner [2001] 3 I.R. 439 where McKechnie J. confirmed the various bases upon which a decision may be taken to set aside a decision of a deciding body under appeal. This included the power to set aside a decision if the conclusion reached by the deciding body “shows that they have taken an erroneous view of the law.” The principles set out in Stokes were affirmed by the Supreme Court is Cahill v The Minister for Educations and Science [2017] IESC 29, [2018] 2 I.R. 417.

82. It is common case (notwithstanding some over-reach apparent in the terms of the Notice of Appeal) that I am concerned uniquely with the correctness in law of the decision on the preliminary issue as to standing. It is conceded that the Appellant is not entitled to a substantive judgment on the merits of the case in the context of an appeal on a point of law where no evidence has been heard in the case.

83. There remains an issue between the parties as to the extent to which I am entitled to grant declaratory relief. I am satisfied that it is well established that that when the Court is dealing with a question of statutory interpretation in relation to the issue of law determined by the WRC or the Circuit Court this is a question of law which falls to be judicially determined including by reference to underlying requirements of EU law, where such requirements apply (In this regard see An Taoiseach v. Commissioner for Environmental Information [2010] IEHC 241, [2013] 2 I.R. 510; NAMA v.

Commissioner for Environmental Information and Minch v. Commissioner for Environmental Protection [2017] IECA 223).

84. Similarly, the obligation to interpret and apply domestic provisions in so far as is possible in accordance with the 2003 Act (pursuant to ss. 2 and 4 of that Act) applies to questions of statutory interpretation coming within the scope of the 2003 Act which present before the Circuit and High Courts (see para. 94 of X v. Minister for Foreign Affairs [2025] IEHC 214). In this regard I am cognisant that provision is not made in identical terms for an interpretative obligation on the WRC and a court by reason of an apparent distinction between a tribunal (included with the definition of “organ of State”

under s. 1 of the 2003 Act) and court under the 2003 Act.

85. Interpretative obligations under ss. 2 and 4 are expressed as applying to courts (without reference to tribunals) whereas obligations under s. 3(1) to perform functions in a manner compatible with the State’s obligations under the Convention applying to organs of State, defined as including tribunals but not courts. It seems to me that this is probably a distinction without a real difference when it comes to questions of statutory interpretation informed by regard for the Convention. The discharge by the WRC of its adjudicative functions requires it to interpret the provisions of the 2000 Act in a manner compatible with the State’s obligations under the Convention provisions.

In my view, this operates to extend an interpretative obligation in like terms to ss. 2 and

4 of the 2003 Act to the WRC.

86. On the other hand, a finding of incompatibility with the Convention (under s. 5 of the 2003 Act) or unconstitutionality go beyond questions of statutory interpretation and do not come within the scope of the WRC. It is important to recall that the Circuit Court on appeal under s. 28(2) does not have an open-ended jurisdiction but is confined to providing for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director of the Workplace Relations Commission). Although the WRC and the Circuit Court may disapply measures which are incompatible with the requirements of EU law ((C-378/17) Minister for Justice and Equality, Commissioner of An Garda Síochána v. Workplace Relations Commission and Mallon v. The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20), neither the WRC nor the Circuit Court are vested with jurisdiction to determine the constitutionality or Convention compatibility of any measure.

87. If it is necessary to pursue relief on the facts and circumstances of any case extending beyond the jurisdictional limits of the WRC and the Circuit Court on appeal, there being no other remedy available, this may not be done within the confines of an appeal on a point of law and separate, properly constituted, proceedings are required. These proceedings could, in appropriate cases, be heard together with a statutory appeal on a point of law where this is conducive to the interests of timely administration of justice and a proper and fair adjudication of all issues.

88. For present purposes, I am satisfied that while the Attorney General was notified of these proceedings in accordance with s. 6 of the 2003 Act and Order 60A of the Rules of the Superior Courts, relief under ss. 3 or 5 of the 2003 Act is not properly within the scope of this appeal on a point of law. This is because neither relief could have been granted by the WRC or the Circuit Court on appeal from the WRC pursuant to s. 28 of the 2000 Act (although the Circuit Court has first instance jurisdiction in respect of proceedings under s. 3 of the 2003 Act). It follows that on a statutory appeal on a point of law arising from the decision of the WRC and the Circuit Court on appeal, this Court is not exercising its full original jurisdiction and is similarly bound by the jurisdictional parameters governing the WRC and the Circuit Court to determine only those questions of law which properly came within the jurisdiction of the WRC and the Circuit Court on appeal from the WRC.

Principled Approach to Interpretation

89. I am guided by the recent decision of the Supreme Court in Heather Hill Management Company CLG and McGoldrick v. An Bord Pleanála [2024] IESC 43, [2024] 2. I. R.

222 as to the proper approach to the question of statutory interpretation which arises in this case. It is clear from Heather Hill that while the starting point in the construction of a statute is the language used in the provision under consideration, the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The reasoning of the Supreme Court in Heather Hill underscores that context and purpose are potentially in play in every exercise of statutory interpretation.

90. My function is thus to ascertain who may bring a claim for the purpose of the 2000 Act by reference to the language of the 2000 Act based on the plain and ordinary meaning of the language used in relevant parts of the 2000 Act as a predominant factor in identifying the effect of a provision but also having regard to the place, function and context of that provision. In construing words in context, I should be guided by the various canons, maxims, principles and rules of interpretation (including rules prescribed under the 2005 Act) which assist in elucidating the meaning to be attributed to the language but the requirement to construe the words in context means I must also have regard to the context in which and purpose for which the legislation was enacted.

To exclude legal persons from eligibility to make a complaint under the 2000 Act, I must be persuaded that it is apparent from the 2000 Act through the language used in relevant parts and as a whole, together with its context and purpose, that it was intended by the Oireachtas that legal persons could not bring a claim for redress under that Act.

91. The single most important word for the purpose of this exercise is the word “person”

in the 2000 Act. This word appears repeatedly throughout the 2000 Act. As set out above, it is also a word which is defined in s. 18(c) of the 2005 Act and carries a presumptive statutory meaning unless a contrary intention appears in accordance with s. 4 of the 2005 Act, namely, by reference to the terms of the 2000 Act itself.

92. Under ss. 4 and 18 of the 2005 Act, in the absence of a clear intention to the contrary in the 2000 Act, the term “person” (as it relates to the alleged victim of discriminatory treatment) should be construed in accordance with the definition provided for in the Interpretation Acts and therefore embraces legal persons. It is recalled that in Friends of the Irish Environment ClG v. The Legal Aid Board [2023] IECA 19 the Court of Appeal identified that the essential purpose of interpretative provisions of the kind found in s. 18 of the 2005 Act is to:

“…assist the efficiency of the drafting process by avoiding the need for repeating extensive definition sections in each piece of legislation or, as it was put by Lord Pearce in Sin Poh Amalgamated (HK) Ltd. v. Attorney General of Hong Kong [1965] 1 WLR 62, 67, ‘to avoid multiplicity of verbiage’. The flexible language used in s. 4 seeks to achieve that objective while at the same time avoiding the situation in which an Interpretation Act operates so as to fundamentally change the effect of a statute by imposing a meaning which, on a proper view of the legislation as a whole, could never have been intended. In this regard, provisions of the 2005 Act governed by s. 4(1) function in the same way as most interpretation sections in an ordinary statute: they provide definitions which will govern most provisions of the Act in most circumstances.

There will, however, be cases in which the proper construction of legislation according to the established methods of interpretation will require that the presumptive meaning provided for in the definition will not apply.”

93. The Court of Appeal endorsed the position of the High Court (Hyland J.) which was that the effect of s. 4 of the 2005 Act was that the court should approach the issue of the proper interpretation of “persons” on the basis that “persons” would ordinarily import legal persons as well as natural persons, and this starting point should only be displaced where a contrary intention appears in the Act.

94. In Friends of the Irish Environment ClG v. The Legal Aid Board, the Court of Appeal identified ways in which a contrary intention may appear including express disapplication (which is not relevant here), a state of affairs that necessarily displaces the meaning otherwise presumed such as, for example, a provision addressed to a status, action or function that can only be occupied or undertaken by a natural person or cases in which to interpret the term ‘person’ as including a body corporate will produce an absurdity, or where to construe the words used in the legislation in any other way would do violence to them. Murray J. on behalf of the Court of Appeal observed that (at para.

27):

“it is when one moves outside these situations that the scope for real dispute arises, in particular (a) as to whether the court is entitled to infer that the contrary intention appears in … the enactment’ not by reason of express displacement, legal impossibility or absurdity but because the overall scheme of the legislation is not consistent with that inference, and (b) if so, what test should govern when that can be done.”

95. Murray J. found that the test for the displacement of the presumptions introduced by the 2005 Act based upon the “substance and tenor” of the legislation under consideration suggested by the decision of the Privy Council in Blue Metal Industries Ltd. and Anor v. RW Dilley and Anor. [1970] AC 827 comports generally with the approach adopted in this jurisdiction.

96. Thus, in the interpretative exercise in hand there are two tests. The Heather Hill test in identifying the legislative intention in relation to the scope of the 2000 Act and the Friends of the Environment test when deciding whether a contrary intention is shown in the 2000 Act resulting in the disapplication of s. 18(c) of the 2005 Act as to the presumptive meaning of “person” when used in the context of who may bring a complaint under the 2000 Act.

97. The substance and tenor of the 2000 Act regarding the meaning of “person” when prescribing who may bring a complaint under the 2000 Act seems to me to be a test more linked to language than the more general interpretative obligations identified in Heather Hill which import a requirement to interpret the legislation in context and having regard to its purpose. While the difference may be nuanced, it seems to me that the disapplication of s. 18(c) of the 2005 Act is dictated by the content of the 2000 Act itself, whereas the proper interpretation of the scope of the 2000 Act should be informed by its context and purpose.

98. Context and purpose when interpreting the scope of the 2000 Act bring the obligations on the State under EU law into sharp focus in those areas of national law that are in a field covered by EU law and in respect of activity which is significantly regulated by EU law. A long line of Irish and CJEU authorities including (C-106/89) Marleasing SA v. La Comercial Internacional de Alimentacions SA; Joined Cases (C-397/01 to C-403/01) Pfeffer v. Deutsches Rotes Kreuz; Von Colson and Kamann v. Land Nordrhein [1984] ECR 1891; NAMA v. Commissioners for Environmental Information [2015] IESC 51; Minch v. Commissioner for Environmental Information [2017] IECA 223) establish that the provisions of the 2000 Act fall to be interpreted, insofar as possible, in a manner which gives effect to the requirements of EU law. There is also precedent from the CJEU for reliance being placed on recitals in determining the objectives and scope of a directive (C-149/10)

Chatzi v. Ypourgos Oikonomikon [2010] ECR 1-08487). It is now also well established that in addition to a requirement on the Courts and statutory adjudicative bodies (including the WRC) to interpret and apply national legislation in a manner consistent with relevant EU law, there is also a requirement, if necessary to disapply domestic legislation which is incompatible with EU law (see (C-378/17) Minister for Justice and Equality, Commissioner of An Garda Síochana v. Workplace Relations Commission).

99. To the extent that protection of rights under the Convention may differ, it is also necessary for the court to interpret and apply national legislation in a manner which, in so far as is possible, is compatible with the Convention in accordance with the requirements of ss. 2 and 4 of the 2003 Act.

Application of Interpretative Principles

100. Those provisions of the 2000 Act which are most central for current purposes are ss.

2, 3, 5, 14, 21 and 23 of the 2000 Act, being the provisions which are key to defining the scope of protection available under the 2000 Act and prescribing who may pursue a complaint of discrimination.

Overview

101. It is striking that while s.2 of 2000 Act defines “person” it does so in an expressly limited and selective fashion namely, insofar as that term is used in or in relation to any provision of the 2000 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. Specifically, there is no express exclusion or inclusion of legal person when identifying who, whether legal or natural persons or both, may be a complainant for the purpose of the 2000 Act in the 2000 Act itself. As set out above, the definition of “person” in s. 2 is limited to a person in that person’s capacity as respondent rather than as the person who is discriminated against or complainant. Section 2 is clear that it does not define “person” for any other purpose.

102. This begs the key question as to how “person” is to be understood elsewhere in the 2000 Act. The Appellant contends that the definition provided in s. 18(c) of the 2005 Act applies with the effect that “person” may include legal person insofar as a complainant is concerned. Reliance is also placed on s. 3(1)(b) of the 2000 Act to respond to the contention that a legal person cannot possess most of the protected characteristics which are personal, human characteristics and therefore could not maintain a claim to have been discriminated against because of holding the characteristic because s.3(1)(b) plainly envisages a claim “by association”.

103. The Respondent maintains that a contrary legislative intention within the meaning of s. 4 of the 2005 Act, sufficient to displace the application s. 18(c), is apparent in the 2000 Act. In this regard, the case made on behalf of the Respondent is that the Oireachtas legislated by omission by limiting the definition of person including legal persons to respondents to complaints. The Respondent therefore relies on the definition of “person” in s. 2 of the Act to assert an intention on the part of the Oireachtas to otherwise exclude non-natural persons from the ambit of the word “person” where it appears in any other context in the legislation with the effect that a legal entity is excluded from protection under the 2000 Act.

104. The Respondent makes this case even though this is not expressly stated anywhere in the 2000 Act. In advancing this argument the Respondent relies on the maxim of statutory interpretation expressio unius exclusio alterus (to express one thing is to

exclude another) together with the fact that the protected characteristics identified in s.

3(2) of the 2000 Act are inherently, personal and human characteristics (e.g. gender, marital status, age, religion, sexual orientation, race and ethnicity etc.) not held by legal persons.

105. Given the requirement to have regard both to the words of the statute as to their literal meaning, in the statute as a whole, in their context and having regard to their purpose when interpreting the intended scope of the 2000 Act and the related but distinct requirement of deciding whether the presumptive meaning of “person” under s. 18(c)

is displaced by the substance and tenor of the 2000 Act, I propose to consider the key provisions of the 2000 Act in turn and as a whole together with the purpose and context of the legislation.

Section – Literal Purpose, Meaning and Context

106. There is a clear, express and unambiguous disapplication of s. 18(c) of the 2005 Act by the terms of s. 2 of the 2000 Act. It is unarguable that “a contrary intention” to an application of the s. 18(c) definition is demonstrated in the terms of s. 2 of the 2000 Act. Manifestly, the intention of the Oireachtas in enacting s. 2 of the 2000 Act was to ensure that respondents to a complaint of discrimination be defined in a particular manner, disapplying s. 18(c) of the 2005 Act insofar as the respondent class is concerned.

107. While the only conclusion compatible with providing for a special definition in s. 2 of the 2000 Act is that it was intended to provide a definition other than that provided in s. 18(c) of the 2005 Act (or preceding legislation), it cannot be surmised that this contrary intention extends beyond the respondent class. The language of the s. 2 definition is unambiguous in being selectively targeted to the respondent class. On its plain terms and having regard to the literal meaning of the words used, it does not address the use of the word “person” in other contexts. This leaves open the question of whether there has been a wider disapplication of s. 18(c), as the Respondent contends and the WRC and Circuit Court have found, and if so, whether it follows that when the word “person” otherwise appears in the 2000 Act, it must be construed as meaning a

natural person.

108. Given that the definition in s. 2 of the 2000 Act is relied upon to contend that the Oireachtas intended to disapply s. 18(c) of the 2005 Act altogether even though the s.

2 definition is expressed only to apply to respondents, it is appropriate to consider how the s. 2 definition in the 2000 Act differs from the s. 18(c) definition in the 2005 Act as this may provide insight as to why it was necessary to make special provision in the terms prescribed under s. 2 of the 2000 Act.

109. Afterall, the definition in s. 2 of the 2000 Act as regards respondents would have been unnecessary unless the draftsperson understood it to mean something different to “person” as prescribed in s. 18(c) of the 2005 Act. Similar reasoning led the UK Employment Appeals Tribunal in EAD Solicitors LLP v. Abrams (Appeal No.

KET/0054/15/DM) to conclude that the exclusion contained in s. 27(4) of the Equality Act, 2010 which requires that to invoke protection against victimization “the person subjected to detriment is an individual” would not have been necessary if it were thought that throughout the rest of the Act the word “person” was capable of including a corporation (at para. 20).

110. It seems to me that by the inclusion of a definition to define who may be pursued in terms of s. 2 of the 2000 Act, it is immediately clear in comparing the two definitions that both appear to include legal persons. This suggests that the requirement for a special definition in s. 2 of the 2000 Act does not spring from a need to ensure that the respondent class includes legal persons. This could have been achieved through reliance on s. 18(c) of the 2005 Act. Logically therefore s. 2 was enacted in its special terms because it was considered that the intended result as regards the respondent class could not have been achieved by reliance on s. 18(c) of the 2005 Act.

111. While legal persons come within both definitions, the s.18(c) meaning of person is expressed in different terms to the s. 2 definition. Although s. 18(c) provides that “person” shall, unless the contrary intention appears, be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual, the s. 2 definition goes further in making it expressly clear that this may include a public body. There is no reference to a public body in s. 18(c) of the 2005 Act.

112. The application of the 2000 Act to public bodies is, of course, critical given the prominence of the State and State bodies as service provider in the State for certain minority groups. The application of the 2000 Act to public bodies is also necessitated by the requirements of EU law. It is made expressly clear, for example, in the terms of Article 3(1) of the Race Directive that it applies to both the public and private sectors “including public bodies”.

113. In relying on the 2000 Act as an instrument of implementation of the requirements of EU law domestically, the Oireachtas would doubtless have been mindful of the need to ensure that public bodies were amenable to sanction under the 2000 Act. The departure from the meaning of “person” under s. 18(c) of the 2005 Act which would have otherwise applied becomes entirely comprehensible when it is appreciated that it was imperative that the domestic regime make public bodies amenable if EU requirements were to be properly transposed. The fact that s. 18(c) of the 2005 Act did not refer to public bodies in its definition of “person” made it necessary for the Oireachtas to provide for a different definition in the 2000 Act insofar as the identification of respondents was concerned. The intention of the definition in s. 2 was plainly an attempt to embrace all types of persons including public bodies.

114. The failure to expressly include or exclude a legal person from the right to pursue a complaint under the 2000 Act is distinguishable from the approach otherwise apparent in the Act in carefully crafting exclusions from definitions e.g. the definition of “proceedings” under s. 2 which is expressly stated not to “include proceedings for an offence under this Act” and “service” which is defined as to what it “includes” and is express in stating that “but does not include pension rights” and classes of insurance which are subject to s. 5(2)(da) which uses “but only if” language to qualify the scope of the provision. While manifestly concerned to define the Respondent class, plainly the Legislature were not similarly motivated to provide a special definition of who could bring a claim even though they could easily have done in like manner to its ability to carve out exceptions and limitations throughout the 2000 Act.

115. A significant difficulty with the Respondent’s reliance on the s. 2 in an exercise of statutory interpretation is that if it were really intended that only natural persons could seek protection under the 2000 Act, the Oireachtas could have proceeded to make its intention clear expressly stating that a less expansive definition applies in respect of the complainant who must be a natural person. It is telling that it did not do so.

116. In view of the ability of the Oireachtas to make clear the extent of what is captured through the qualifying language used, I do not find the Respondent’s argument in reliance on s. 2 persuasive. Were it the intention of the Oireachtas to limit the definition of “person” in s. 2 as encompassing legal persons only to respondents it would have sufficed to add words which made it clear that in all other contexts, the word “person” as used in the 2000 Act was confined to natural persons.

117. I conclude that the intention in prescribing a broad definition of “person” in s. 2 of the 2000 Act in a manner which included both legal persons and public bodies was to ensure that there was no doubt but that the protections available under the 2000 Act had broad application across sectors. By concluding that the Oireachtas included a special definition of “person” in respect of the respondent class because the desired result would not have been achieved by simple reliance on the definition provided under s. 18(c), I am satisfied that it does not follow that s. 18(c) of the 2005 Act is otherwise disapplied. It is not possible to locate such an intention in s.2 of the 2000 Act alone, still less a construction of the word “person” as limited to natural persons when used in respect of “complainants” as contended for on behalf of the Respondent.

118. It therefore remains necessary to consider whether a contrary intention and the meaning contended for by the Respondent is apparent elsewhere in the 2000 Act having regard to the substance and tenor of the 2000 Act.

Section 3 – Literal Purpose, Meaning and Context

119. Section 3 is key to any question relating to the scope of protection provided under the 2000 Act because it defines what constitutes discrimination under the Act. From the wording of s. 3(1) it appears that the Legislative intention was that the 2000 Act should provide protection in circumstances where “a person is treated less favourably than another person on any of the grounds”. The grounds are set out in s.3(2) and as seen above relate principally to inherent human and personal characteristics. I accept that superficially this could be relied upon to suggest a state of affairs incompatible with a legal person bringing a claim under the 2000 Act but the proposition weakens under scrutiny of the wording of s.3(1). From s. 3(1) it is apparent that the protected characteristic may be that of an individual who is not the claimant but still be prohibited if it is the reason the claimant is being treated less favourably.

120. What is required in s. 3(1) of the 2000 Act is that the treatment must be detrimental to the person who claims but it is the reason for the treatment that is relevant, not possession of the characteristic. This is in distinction to s. 4 which provides for a duty to provide reasonable accommodations to a person with a disability, thus making it clear that to invoke s. 4 of the 2000 Act, a claimant must be a person with a disability.

121. From the terms in which s. 3 is drafted, I am satisfied that a complaint of discrimination may be made where less favourable treatment is visited against a person “on any of the grounds” (s. 3(1)(a)). I do not read this as a requirement that the person who brings a claim under the 2000 Act themselves possess the personal characteristics protected under the 2000 Act. It suffices to show that the less favourable treatment was because of discriminatory grounds.

122. It seems to me to follow that if it is not necessary to have the characteristic in order to claim discrimination contrary to the 2000 Act, it is not a necessary implication deriving from the personal nature of the protected characteristics that the claimant must be a natural person. There is no violence to the language of s. 3(2) in which discriminatory grounds are identified that the claimant does not possess these characteristics.

123. An interpretation of s. 3 as embracing natural and legal persons is supported by taking an approach to interpretation like that evidenced in the decision in England and Wales in EAD Solicitors LLP v Garry Abrams in relation to provisions of the UK Equality Act, 2010. There, the argument that only an individual can have a protected characteristic was made and rejected by the UK EAT as follows (at para. 11):

“In my view, this argument misses the point that the Equality Act does not deal with individuals on the basis of their protected characteristics but identifies discrimination as being detrimental treatment caused by the protected

characteristic or related to it. Detrimental treatment can be given to any person, whether that person is natural or legal. There is no reason to restrict the class of those who can suffer a detriment if what is being complained of, and that which the statute seeks to avoid, is a detriment being suffered because of an individual's protected characteristic.”

124. It must be acknowledged immediately that the 2010 UK Act is drafted in different terms to the 2000 Act. Quite apart from the fact, therefore, that a decision of the UK EAT has no precedent value here, the extent to which it carries any persuasive value is undermined by the fact that the legislation under consideration is drafted in very different terms. Nonetheless, having carefully considered the UK legislation it remains the case that certain parallels exist which make it useful to consider the approach taken by the Appeal Tribunal, notably different to the approach of the Equality Tribunal and the WRC in this jurisdiction. Although the protected characteristics prescribed under s. 4 of the UK legislation mirror those characteristics prescribed under s. 3(2), discrimination is defined in different language in s. 13 of the UK Act as occurring “because of a protected characteristic”. Like this jurisdiction, however, in the UK, the Interpretation Act, 1978 provides at s. 5 under the heading “definitions” as follows “in any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule”. Schedule 1 provides that the word “person” is used to include “a body of persons corporate or unincorporate”.

125. Although the language of s. 13 of the UK Equality Act, 2010 under consideration by the UK EAT in EAD Solicitors LLP v Garry Abrams differs from the language of s. 3 of the 2000 Act in that the prohibition on discrimination extends to unfavourable treatment “because of a protected characteristic”, it seems to me that a similar

conclusion flows from the language utilized in s. 3. Just as s. 13 of the UK Equality Act, 2010 does not require a person to have the protected characteristic to claim discrimination because of it, s. 3(1) similarly does not prescribe in its direct terms that the person must have the protected characteristic. Instead, s. 3(1) operates to prohibit less favourable treatment “on” a discriminatory ground simpliciter.

126. Similar reasoning was deployed by the Central London County Court in the Traveller

Movement and Others v. J D Wetherspoon Pie (18th of May 2015, HHJ Hand QC) where that court considered a claim taken by the Traveller Movement, along with 18 other claimants, arising from the alleged discriminatory acts of the Respondent in refusing admission to the Respondent's venue. On the issue of whether the Traveller Movement, a company limited by guarantee, constituted “another person” for the purposes of ss.

13(1) and 26(1) of the Equality Act 2010, the Central London County Court found that the Traveller Movement could be discriminated against since they were “a person”

under the UK Equality Act 2010. It also found that some of the Claimants who were not Irish Travellers and Romani Gypsies could be discriminated against since the discrimination related to their "association" with Irish Travellers and Romani Gypsies.

127. Even having regard to differences in statutory language and notwithstanding the differences between the Irish and UK legislation, I find the logic of these decisions of the UK EAT and the Central London County Court of persuasive value. While the decisions are not precedent in an Irish court and the differences between the statutory regimes are real, the reasoning which underpins these decisions extends to support the interpretation urged by the Appellant in these proceedings to the effect that, properly interpreted, a legal person is entitled to pursue a complaint of discrimination within the scope of the 2000 Act where that person can demonstrate detriment on a discriminatory ground.

128. An interpretation of s. 3 as prohibiting less favourable treatment on discriminatory grounds irrespective of whether the claimant personally possesses a ground is the interpretation that best aligns with the requirements of EU law in this area. It is noted in this regard that the stated purpose of the Race Directive (Article 1) was to lay down a framework for combating discrimination “on the grounds of racial or ethnic origin,” with a view to “putting into effect in the Member States the principle of equal treatment.”

129. The definition in Article 1 of the Race Directive is especially interesting for two reasons. Firstly, the language “on the grounds of” is reminiscent of the language in s.

13 of the UK Equality Act, 2010 which uses “because of” and is directly aligned with the language used in s. 3 of the 2000 Act. In prohibiting discrimination “on the grounds of,” there is no clear requirement in the terms of the Directive that the person who claims to have been discriminated against personally have the protected characteristic.

Rather, the prohibition under the Directive is that the person should not be discriminated against because of race or ethnicity.

130. In (C-303/06) Coleman v. Attridge Law, the CJEU considered the application and purpose of Directive 2000/78/EC (a directive to combat discrimination in employment and occupation) which uses identical language in prohibiting discrimination “on grounds of” (without requiring the claimant to have the characteristic) to both the Race Directive and s. 3(1) of the 2000 Act. The CJEU ruled that although the person subjected to direct discrimination on the grounds of disability was not disabled, her association with a person with a disability (her son)

was the ground for the less favourable treatment suffered.

131. In Coleman, the CJEU found that Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, and, in particular, Articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. The CJEU pointed out that Directive 2000/78/EC seeks to combat all forms of discrimination and applied:

“not to a particular category of persons but by reference to the grounds mentioned in Article 1”

132. The CJEU ruled that Ms. Coleman was entitled to the benefit of the protections enshrined under the Directive even though she herself was not disabled. The Court noted that this interpretation is supported by the wording of Article 13 of the EC Treaty, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.

133. In its reasoning, the CJEU acknowledged that the Directive included a number of provisions which, as is apparent from the wording, apply only to disabled peopled (like s. 4 of the 2000 Act) but noted as follows:

“...the fact that Directive 2000/78 includes provisions designed to

accommodate specifically the needs of disabled people does not lead to the

conclusion that the principle of equal treatment enshrined in that directive must be interpreted strictly, that is, as prohibiting only direct discrimination on grounds of disability and relating exclusively to disabled people.”

134. The decision in Coleman makes crystal clear that EU law requires Member States to afford protection against less favourable treatment on protected grounds whether the ground is personal to the claimant themselves or not.

135. This leads to the conclusion that ss. 3(1)(a) and 3(2) of the 2000 Act should be interpreted as protecting against discrimination because of a protected ground or based on that ground, even where the claimant does not themselves possess that ground as this is the interpretation adopted by the CJEU in interpreting EU provisions which use identical language and which the Legislature intended to transpose through the provisions of the 2000 Act.

136. In the case of (C-83/14) Chez Razpredelenie Bulgaria AD, the CJEU confirmed that the interpretative principles identified in Coleman apply also to the Race Directive. Chez Razpredelenie Bulgaria AD concerned discriminatory treatment towards persons of Roma origin, but the Appellant asserted that the claimant was not Roma. The Court held that the alleged victim does not have to possess the protected characteristic and stated:

“In that regard, the Court's case-law, already recalled in paragraph 42 of the present judgment, under which the scope of Directive 2000/43 cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that directive refers applies not to a particular category of person but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds (see, by analogy, judgment in Coleman, C-303/06,

EU:C:2008:415, paragraphs 38 and 50).

Such an interpretation is, moreover, supported by recital 16 in the preamble to, and Article 3(1) of, Directive 2000/43, according to which the protection against discrimination on grounds of racial or ethnic origin which the directive is designed to guarantee is to benefit 'all' persons”

137. It is established by the reasoning of the CJEU in Coleman and Chez Razpredelenie Bulgaria AD, that the stated purpose of the Race Directive is to combat discrimination on the grounds of racial or ethnic origin, rather than providing protection only to persons or categories of persons on the grounds of their own race or ethnic origin.

Accordingly, the stated purpose of the Race Directive is not confined to the protection against discrimination of natural persons on the grounds of their individual race or ethnic origin but is to prohibit racial discrimination in all its forms. The reference to Recital 16 in Chez Razpredelenie Bulgaria AD to support a broader interpretation of the scope of the Directive similarly supports a conclusion that the 2000 Act, construed in line with EU law, should be read as applying to “all” persons, legal and natural.

138. If there were any doubt that there is no requirement for a claimant under the 2000 Act to personally possess the characteristic protected from discrimination under s. 3(2), s.3(1)(b) of the 2000 Act places this beyond question by expressly providing that a person may suffer discrimination by “association” with another person. It is crystal clear under s. 3(1)(b) of the 2000 Act that discrimination may occur even when the victim of discrimination does not have the protected characteristic themselves but is associated by another person with that characteristic. There is no direct equivalence to s. 3(1)(b) in any measure of EU law and the CJEU have arrived at a discrimination “by association” interpretation of the requirements of EU law without an express provision in terms of s. 3(1)(b). This suggests that ever before the CJEU offered the expansive interpretations seen in Coleman and Chez Razpredelenie Bulgaria AD, the Irish legislature had resolved to ensure that there was no doubt that a claim of discrimination could be pursued based on association with a person with a protected characteristic.

Accordingly, if there were any doubt as to whether s. 3 of the 2000 Act, when using the

words “on any of the specified grounds” proscribed only discrimination occurring where the claimant personally possesses that characteristic, this doubt was surely dispelled in this jurisdiction by s. 3(1)(b) of the 2000 Act. Although the Respondent contends that s. 3(1)(b) should be understood as applying only where the associated person is a natural person, this ignores the fact that s. 3(1)(b) is not expressly qualified in the manner contended.

139. While it is indeed difficult to conceive of a legal person maintaining a claim on civil or family status grounds or on grounds of sexual orientation or disability, it seems to me that this does not exclude a legal person from maintaining a claim when it can demonstrate that it was less favourably treated on a discriminatory ground when the prohibited conduct is identified in terms which do not require that the claimant possesses the ground. It is true that the listed protected characteristics are such that it is unlikely that a legal entity would ever be discriminated against qua legal person on the listed discriminatory grounds because a legal person does not have its own gender, disability, sexual orientation, marital status etc. It may even be that the ground of race (encompassing nationality or national origins) is unique as pertaining to a characteristic that could potentially or arguably be shared by a legal person. In consequence, it may well be that interpreting “person” as including legal as well as natural persons may not have a very broad impact on claims which qualify for a remedy under the 2000 Act because legal persons claiming will be required to demonstrate, on a sufficient evidential basis, less favourable treatment on a discriminatory ground despite not possessing the characteristic itself. The fact that there may not be many qualifying claims does not require that the 2000 Act be construed as excluding such claims.

140. All listed characteristics, although inherently human, are clearly capable of inhering in a person associated with others whether the others are natural or legal persons. In argument, reference was made to the possibility of a legal person being discriminated against in access to goods or services because it employs Muslims or gay or transgendered persons. A person denied access to employment because this could result in discriminatory practices against the employer might conceivably have a remedy against the employer if it could be shown, on the requisite evidence, that the reason they did not get a position was an apprehension of discriminatory treatment. The company who withstands pressure by proceeding to employ a person possessing a protected

characteristic but who loses out, on discriminatory grounds, in securing a contract on discriminatory grounds would have no recourse under the 2000 Act on the Respondent’s approach to its interpretation. I see nothing in the terms of s. 3 which suggests that the Oireachtas intended that discrimination by association of this kind would be excluded from the ambit of the 2000 Act.

141. I am not persuaded by the Respondent’s argument that the nature of the protected characteristics are such that it was intended that only a natural person could pursue a remedy under the 2000 Act as this argument cannot be readily reconciled with the fact that it is clear from the terms of the Act that discrimination may also arise where a person suffers less favourable treatment as a result of their association with another person or category of persons possessing a protected characteristic. Where the protections provided under the Act are not confined to persons who themselves possess a protected characteristic, the inference contended for that the Oireachtas intended that only natural persons possessing the protected characteristics would be entitled to pursue a remedy does not arise.

142. The language of s. 3 of the 2000 Act does not lead to the conclusion that only a natural person may benefit from the protections provided under the 2000 Act. If a natural person may claim by association, the rationale for excluding a legal person is difficult to identify in wording which is clearly directed to prohibiting discriminatory conduct, regardless of whether the personal characteristic is personally held or not. I am satisfied that the mischief sought to be targeted by the Oireachtas through s.3 is the identified offending behaviour, discrimination on identified grounds, regardless of who suffers the treatment. Accordingly, there is no violence caused to s. 3(2) in its identification of personal or human characteristics as the grounds of discrimination by permitting claims under the 2000 Act from both natural and legal persons.

143. Insofar as the Respondent’s argument rests on the fact that most of the protected grounds are based on inherently human characteristics which cannot be possessed by a legal person, I am quite satisfied that it is clear from s. 3(1)(b) (read together with s.3 as a whole and the requirements of EU law) that it was never the intention of the Oireachtas that a person bringing a complaint of discrimination under the 2000 Act necessarily possess the protected characteristic themselves.

Section 5 - Literal Purpose, Meaning and Context

144. Section 5(1) uses the word “person” with reference to the respondent class but insofar as the disposal of goods and provision of a service is concerned, it identifies the recipients of those services as “the public generally or a section of the public”. Section 5(2) identifies the circumstances in which s.5(1) does not apply in relation to specific differences of treatment, all related to personal characteristics, but without in terms limiting a claim based on a breach of the general provision of s. 5(1) to a natural person.

Section 5(2) is useful in identifying the capacity of the Legislature to provide for carve out for the legislation in clear terms when this is its intention. Section 5(2) provides a whole series of carve outs in a manner which underscores the significance of the fact that no general carve out is provided to limit the claimant class to natural persons.

Where exceptions are provided from the protections afforded under the Equality Directives, those exceptions must be strictly interpreted (See in this regard (C-414/16)

Egenberger) and it follows that the same approach is warranted in interpreting transposition measures.

Section 14 – Literal Purpose, Meaning and Context

145. The requirement to make it crystal clear that public bodies were captured by the obligations imposed under the 2000 Act was heightened by the terms of s. 14 of the 2000 Act which envisages that certain acts by public authorities, specifically any action that is required by or under any enactment (s. 14(1)(a)(i)) is not prohibited under the 2000 Act. It follows that a specific definition for “person” in the case of a respondent as opposed to a complainant may have been driven by the need to make clear that, notwithstanding the terms of s. 14 of the 2000 Act, public authorities could be made amenable to sanction under the 2000 Act. Certainly, it is apparent that by providing for a special definition under s. 2 of the 2000 Act, the intention of the Oireachtas was focussed on who might be made amenable to the complaint process established under the 2000 Act and not who might invoke that process.

Sections 20 and 21 - Literal Purpose, Meaning and Context

146. The first attempt to define a complainant appears in s. 20 of the 2000 Act. There it is stated that in that Part of the Act (namely, Part III “Enforcement”), unless the context otherwise requires, “complainant” means a person referred to in s. 21(1) or, where such person is unable, by reason of 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. Section 21(1) in turn provides that a person who claims that prohibited conduct “has been directed against him or her” may seek redress.

147. In view of the terms of s. 18(c) regarding the use of pronouns, I consider that I cannot attach significance to the use of the words “him” or “her” in interpreting s. 21(1) absent something more in the 2000 Act sufficient to persuade me that the substance and the tenor of the Act is such that it is clear that the Oireachtas never intended that legal persons could claim. This seems to me to be the correct approach even though s. 18(c)

was enacted after the 2000 Act and under the previous provision (s. 11 of the 1937 Act)

no similar directive was given with regard to the use of pronouns, because the word “person” in s. 2 has not been affected by a series of subsequent amendments to the 2000 Act. Apart from the use of pronouns which are addressed by s. 18(c) of the 2005 Act, I find nothing in s. 21 to suggest that it was intended that a claimant could only be a natural person. Crucially, it is not expressly provided that a legal person may not bring a complaint under the 2000 Act, as you would expect if this were the legislative intention. The language of s. 21(1) confining a claim to a person against whom prohibited conduct has been directed does not require that the person be natural or that the discrimination be in relation to a personal characteristic of that person because of the manner in which conduct is prohibited under s. 3 of the 2000 Act which does not require that the person possess the characteristic.

148. The contrasting use of the word “individual” in s. 21(9) regarding “confidential information” is not of any real assistance in interpreting who may be a complainant and seek protection under the 2000 Act. It is capable of being applied to a legal as much as to a natural person.

Section 23 – Literal Purpose, Meaning and Context

149. Finally, under the provisions of the 2000 Act, it warrants note that s. 23 of the Act expressly provides for the referral of a complaint by a legal body who is not the complainant, namely by the Equality Authority (now the Irish Human Rights and Equality Commission under s. 44 of the Irish Human Rights and Equality Commission

Act, 2014). Indeed, under the Equality Directives, Member States are required to ensure that “associations, organisations or other legal entities”, may engage on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive. To this extent at least, it is a clear requirement of EU law that Member States do not preclude referral of an issue by legal persons with a legitimate interest but promote it.

Expressio Unius Exclusio Alterus

150. Before reaching final conclusions on the question of whether the language of the 2000 Act supports a conclusion that the Oireachtas intended to limit who could pursue a claim under the 2000 Act to natural persons, it is appropriate to return to the Respondent’s reliance on the maxim expressio unius exclusio alterus, informed by consideration of the 2000 Act as a whole.

151. It is established that the application of this maxim is a guide only to interpretation. In invoking the maxim the Respondent seeks to displace s. 18(c) of the 2005 Act on the basis that s. 2 of the 2000 Act not only limits the definition of “person” in terms which include a legal person to respondents to complaints but goes further and also supplants s. 18(c) of the 2005 Act by insertion of a definition which is found in neither the 2000 nor the 2005 Acts limiting a person who may pursue a complaint to a natural person.

By effectively invoking the maxim to provide for another but different special definition of “person”, this time in relation to who may claim, seems to me to overwork the maxim in a manner which distorts the Legislative intention as apparent from the 2000 Act as a whole.

152. In An Blascaod Mor Teo v Commissioners of Public Works [1993] WJSC-HC 91, [1994]

2 I.R. 372, Kelly J. looked at the An Blascaod Mor National Historic Park Act, 1989 as a whole before concluding that, notwithstanding the absence of an express power in the 1989 Act to make regulations of the type in question, and furthermore, notwithstanding the express power to make regulations of a different type, there was nonetheless a clearly implied power contained in the statute itself which authorised the making of the regulations. He reached this conclusion by looking at the Act as a whole to see whether he ought to imply into it an intention on the part of the Oireachtas to confine the scope of regulatory power, finding none.

153. Having considered the 2000 Act as a whole, I can find no trace of an intention on the part of the Oireachtas to limit a complainant to a natural person. Indeed, if anything, the definition of “person” in s. 2 of the 2000 Act demonstrates that the Oireachtas identified the need for a special definition in the case of a respondent to a claim but not in respect of a complainant. If it were intended to depart from s. 18(c) of the 2005 Act in respect of the class who could maintain a claim, the Oireachtas could have done so in precisely the same way it did for the respondent class.

154. The application of the maxim to interpreting the parameters of a category of persons was referred to by Laffoy J. in O'Connell v. An tArd Chlaraitheoir [1997] IEHC 57, [1997] 1 I.R. 377 in interpreting the meaning of the definition of “occupier” in the Births and Deaths Registration (Ireland) Act, 1880 in the context of the duty on the “occupier” to report a death (under s. 10 and having regard to the definition of “occupier” in s. 38). She relied on the grammatical or linguistic meaning which she said was quite clear and unambiguous finding the words “or his agent”

appearing in s. 38 after the person residing in the lodgings did not relate back to the first limb whereby “occupier” was defined. and the first limb stood on its own. She stated that the ejusdem generis principle had no application in the construction of the first limb because the first limb does not postulate a narrow genus followed by wider words. In her view, the canon of construction which came into play in constructing the first limb was the maxim expressio unius est exclusio alterius noting:

“It is obvious that the draftsman doubted that the word "occupier" in its ordinary meaning would include the various officials of public institutions mentioned in Section 38 and he expressly included them in the definition. The draftsman, having expressly included the named officials, it must be implied that other officials and employees of such public institutions are excluded.”

155. She concluded that the clerical employee of the hospital was not the “occupier” of the hospital either on the basis of the ordinary and natural meaning of the word “occupier”

or having regard to the extended meaning assigned to it by s. 38 of the Act of 1880.

156. In my view the position here is entirely distinguishable because the definition in this case is very different. It does not purport to define “person” for all purposes under the 2000 Act but merely for the purpose of identifying who may be made amenable to the 2000 Act as respondent. The statutory language does not carry the ordinary and natural meaning that the class of “person” is closed when referrable to someone other than a respondent. In this way, this case is quite different to O'Connell v. An tArd Chlaraitheoir.

157. As the maxim expressio unius est exclusio alterius is addressed by Dodd at para. 5.89 of Statutory Interpretation in Ireland (Bloomsbury Professional, 2008):

“The maxim is at its strongest where the legislature enumerates certain matters connected by a common theme, class or category, as opposed to covering them by general words, but omits certain things from the list. The maxim operates by indicating the legislature's intention by implication or inference.”

158. In this situation, the Oireachtas is dealing with a particular category in defining “person” – it is dealing with the category of respondents to a complaint and enumerating who comes within that category or class. The implication is therefore strong that the Oireachtas intended the definition to be self-contained insofar as respondents to a complaint of prohibited conduct are concerned but it seems to me to imply or infer an intention to extend that definition throughout the 2000 Act is not justified on the basis that s. 2 provides an indication of the legislature’s intention. By defining a respondent class, the intention was only to clarify who could be pursued as respondent. This cannot automatically be construed as intending to exclude legal persons from the definition person in their capacity as complainants, particularly given the ordinary understanding of “person” provided for in the absence of contrary intention in s. 18(c) of the 2005 Act where no such contrary intention has been demonstrated. In giving a definition of ‘person’ as a class or category of persons engaging in prohibited conduct, the maxim of expression unius exclosio alterius est does not, in my view, operate to require the s. 2 definition to be applied to exclude the possibility that the class/category of alleged victims of discriminatory treatment could also be legal persons.

159. If I am correct in my conclusion that the 2000 Act is directed to providing remedy for detriment occasioned by reason of discrimination on specific grounds but does not require that the person suffering detriment themselves share the protected characteristic, it would follow that reliance on the statutory maxim of expression unius exclosio alterius est to support the interpretation preferred by the Respondent and adopted by the WRC and the Circuit Court would tend to frustrate the intention of the Oireachtas. In his judgment in M.M. v. D.D. [1998] WJSC-HC 9319, Moriarty J.

refused to rely on the maxim to frustrate the intention of the Oireachtas. An application to the maxim in the particular context under consideration in this case is my view would likely impermissibly undermine the intentions of the Oireachtas.

160. It bears emphasis that to accept the submission urged on behalf of the Respondent requires not only displacing s. 18(c) which applies presumptively but also prescribing for a separate and distinct definition which exists in neither the 2000 Act nor the 2005 Act in limiting those who could maintain a claim as complainant to natural persons. It seems to me that reliance on the maxim to achieve this result would be a considerable over-reach in terms of the interpretative function of the Court as it involves both the disapplication of a presumptive provision and the creation of a new definition. I am satisfied that express statutory provision would be required to achieve this end.

Statutory Purpose and Context

161. Turning to the question of statutory purpose as a guide to interpretation, the Long Title to the 2000 Act states that it is an Act:

“to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public or a section of the public have access and to provide for investigating and remedying certain discrimination…”.

162. It is clear from the Long Title that the 2000 Act does not purport to address all types of discrimination. Nonetheless, the language of “in connection with the provision of services” is notably broad and indicative of a legislative intention to actively promote equality and provide a legal remedy in respect of identified “types of discrimination”.

163. Where the intention of the 2000 Act is express as being to promote equality and to prohibit discrimination in the provision of services, it qualifies as remedial legislation intended “to put right a certain wrong and provide some means to achieve a particular social result” and therefore should be interpreted as widely and liberally as possible (see Dodd in Statutory Interpretation in lreland). The jurisprudence in relation to the 2000 Act confirms that the 2000 Act, as a piece of social and remedial legislation, requires it to be interpreted generously.

164. The argument the Respondent pressed depended on persuading me that by making special provision in the terms of s. 2 to ensure that claims could be taken against organisations, the Oireachtas intended to treat Respondents and Complainants differently and a more restrictive but undefined meaning applies to require that a complainant under the 2000 Act must be a natural person. This restrictive interpretation of the words of the legislation and the statutory scheme urged on me is difficult to reconcile with the broad or generous approach otherwise appropriate for this type of statutory provision.

165. Furthermore, as set out above, the 2000 Act has been amended on a number of occasions. Some further guidance as to legislative intention in relation to the 2000 Act may be derived from amendments which reflect a clear intention to implement EU law.

For completeness, it is therefore necessary to consider the broader legal context which includes an interpretative obligation to construe Irish law in so far as possible in a manner compatible with the obligations on the State under both EU law and the Convention.

Requirements of EU law – the Charter and Council Directive 2000/43/EC

166. As the measure adopted to give effect to obligations on the State under the various Equality Directives, the 2000 Act clearly falls to be read in the light of the protections afforded under the Charter, as well as the Directives in question.

167. As set out above, Article 21 of the Charter provides for non-discrimination. In (C- 414/16) Egenberger and (C-68/17) IR v JQ, cases primarily involving natural persons, the CJEU clarified the horizontal direct effect of Article 21. On the question of who may benefit from protection under the Charter, the CJEU generally

defines “person” in line with EU legal instruments, distinguishing between natural persons and legal persons, depending on the context of the case or legislation. Thus, it has been acknowledged by the CJEU in a series of cases that legal persons can benefit from certain rights under the Charter but has found in other cases that some protections are limited to natural persons.

168. Caselaw from CJEU demonstrates that it adopts a flexible approach depending on the context. The exact scope of protection and whether it extends to legal persons depends on the legal domain. I have not been referred to any case in which the CJEU has found Article 21 to apply specifically to protect companies or legal persons from discrimination, nor to exclude them from the scope of protection under Article 21 of the Charter. To date, the Charter has not been invoked to afford protection against discrimination to a legal person beyond that which is already a measure of EU law.

169. This is not to say that there is no further guidance available in the case-law of the CJEU. In Chez Razpredelenie, referred to above, the CJEU referred to the objective of the Race Directive, the nature of the rights which it sought to safeguard and the fact that the principle is one of the general principles of EU law as recognized in Article

21 of the Charter, to conclude that the scope of the Race Directive cannot be defined restrictively (para. 42). The CJEU also referred at (para. 57) to recital 16 in the preamble to the Race Directive and Article 3(1) of the same Directive according to which the protection against discrimination on grounds of racial or ethnic origin which the Directive was designed to guarantee was found to “benefit ‘all’ persons”.

170. As we have seen above, the Race Directive, specifically envisages that the protections provided at national level would include protections for corporate entities against such discrimination as reflected in the terms of Recital 16.

171. The language of Recital 16 reflects an aspiration that legal persons should be protected by being allowed to claim where racial or ethnic origin of those who are members of the corporation is the ground for mistreatment of the corporation rather than an obligation on Member State to provide such protection. While Recital 16 of the Race Directive does not operate to mandate that legal persons be afforded protection by Member States the language of the Recital, it reflects an intention that legal persons should be protected by being allowed to claim where racial or ethnic origin is the ground for mistreatment of the corporation. Furthermore, the CJEU have relied on Recital 16 to override a restrictive interpretation of the Race Directive.

172. The reach of the Race Directive is apparent from the terms of Article 3(1) as referred to above in my approach to the interpretation of ss. 2 and 3 of the 2000 Act. Under Article 3(1) it is expressly stated that the Race Directive applies to both the public and private sectors and “including public bodies”. The only limitation on the broad reach of Article 3 is found at Article 3(2) of the Race Directive. Article 3(2) provides that the Race Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third country nationals and treatment arising from their legal status or condition of statelessness. This exception is interesting because the exclusion is reflected in s. 14 of the 2000 Act, as amended, highlighting the very close alignment of Irish law with the requirements of EU law in this domain. Insofar as this exclusion on grounds of nationality in s. 14 is otherwise compatible with Article 21(2) of the Charter, it leads inexorably to the conclusion that the 2000 Act has been moulded in response to and in accordance with the requirements of EU law.

173. While I see nothing in EU law directly requiring the State to include legal persons within the scope of protections afforded under the 2000 Act, EU law is nonetheless supportive of my conclusions above as to the proper interpretation of ss. 2, 3 and

21 of the 2000 Act. Under the Race Directive in particular it is clear that prohibited conduct is related to the basis for discrimination rather than the identity and personhood of the complainant and this is reflected in our domestic provisions.

Where the Oireachtas has not excluded legal entities and where there is no impediment under Irish law to a claim being maintained by a legal person, the Directive supports an expansive interpretation which includes legal persons in accordance with an identifiable aim of the Race Directive and the interpretative approach modelled by the CJEU in Chez Razpredelenie Bulgaria AD. Neither the decisions of the CJEU nor the text of the Race Directive are supportive of the narrow interpretative approach to the scope of protections available under the 2000 Act which is urged on behalf of the Respondent and the Attorney General.

Requirements of the Convention

174. It is contended on behalf of the Appellant that the rights conferred under the Convention are not limited to natural persons and that this Court in interpreting domestic provision for protection against discrimination must ensure a Convention compatible interpretation where possible. I understand the argument to be that as the Convention extends protections to non-legal persons; it follows that a failure to interpret the provisions of the 2000 Act as extending to non-legal persons would result in incompatibility with the Convention.

175. It is true that the Convention recognises the fact that rights protected under the Convention are not restricted to natural persons. Reliance is placed on Article 1 of the Convention which states that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention.”

Article 34 of the Convention which defines who may apply to the ECtHR in terms which envisage applications from “any person, non-governmental organization or group of individuals.” Further, the Rules of the ECtHR , in particular rule 36(1) provides that a company is free, via the individuals or organs properly authorised to act on its behalf, to apply to the Court where it alleges that its rights or freedoms under the Convention have been violated.

176. In its case law, the ECtHR has accepted that private legal entities can claim some rights protected under the Convention but not others. Rights which it has been recognized may be claimed by legal entities include the right to the protection of property (Article 1 of Protocol No. 1 to the ECHR), the right to a fair trial (Article 6), the right to respect for the home (Article 8 of the ECHR), the right to freedom of expression (Article 10 of the ECHR) and the right to freedom of assembly and association (Article 11 of the ECHR). Many of the other rights protected under the Convention are only relevant to individuals e.g. rights such as prohibition of torture (Article 3), the freedom from arbitrary detention (Article 5) and the right to marry (Article 12) have not been extended to legal entities. In sum, the established position appears to be that legal persons cannot claim rights inherently tied to human dignity or private life (e.g., Articles 2, 3, 8), but they can claim economic and expressive rights.

177. In submitting that the provisions of the 2000 Act must be interpreted in a manner

consistent with the rights conferred in the Convention, it is contended that a restrictive interpretation of the kind being urged by the Respondent in this appeal would in effect and in practice deprive the Appellant of an opportunity to challenge and seek a remedy (contrary to Article 13) in relation to the acts of the Respondent which, on their face and in the Appellant's submission, were taken as a direct consequence of the Respondent’s association with Mr Gerko, a Russian national and were therefore discriminatory contrary to Article 14 of the Convention.

178. It is recognised, however, that the ECtHR does not grant Articles 13 or 14 a standalone status. They must be linked to another substantive Convention rights. In response to the position adopted on behalf of the Attorney General in reliance on the parasitic nature of Article 13 and 14 rights and the failure of the Appellant to identify any right subtending its invocation of the said rights, the Appellant belatedly invoked Articles 6 (right to a fair trial) and property rights under Article 1 of Protocol No. 1. It seems to me, however, that the argument advanced under the Convention adds little to force of the Appellant’s case.

179. In relation to the argument advanced in reliance on Article 1 of Protocol 1 and Article 14, the jurisprudence of the ECtHR does not disclose any case which might be considered an authority in favour of the claim the Appellant makes. The Court has recognised that property rights under Article 1 of Protocol 1 include certain welfare benefits and have allowed discrimination in conjunction with Article 1 of Protocol 1, particularly in relation to land issues. No case has been identified to me, however, in which a refusal of investment services was considered within the ambit of Article 1 of Protocol 1.

180. The Appellant referred me in submissions to Basarba OOD v. Bulgaria (Application No. 77660/01). The facts in that case were quite different to the underlying facts in this case. Although the decision establishes that legal persons can invoke Article 6 and Article 1 of Protocol No. 1, on the facts of the case the Applicant had been found to have legitimate expectation to acquire property protected under domestic law. This legitimate expectation was protected as a “possession” under Article 1 of Protocol No. 1.

181. The Appellant cited Zubac v. Croatia (Application no. 40160/12, 5 April 2018) to support its contention that Article 6 is engaged by the circumstances of this case. In that case the Grand Chamber considered whether restrictions on the right of access to the Croatian Supreme Court were compatible with Article 6 § 1 ECHR in a case in which it was claimed that there had been errors in the valuation of the claim. The Grand Chamber held that the applicant’s right of access to a court had been disproportionately restricted. The applicable procedural rules were complex and unclear, making it excessively difficult for the applicant to access the Supreme Court. The Court emphasized that while states can regulate access to higher courts, such restrictions must not impair the essence of the right.

182. There is little analogy between Zubac and the present proceedings. In this case, the complaint was not refused based on unduly restrictive procedural requirements governing access to a court or tribunal, as occurred in Zubac, but because it was concluded that the substantive protection sought to be invoked did not extend to legal persons. The issue is whether substantive protection exists under the 2000 Act for claims brought by legal persons. If it does, then a right of access to a process has been provided for.

183. It is difficult to see how the Appellant in this case could successfully contend that access to an investment fund or service constitutes a “possession” within the meaning of the caselaw under Article 1 of Protocol 1. In this context, it must be recalled that the right of access to a court protected under Article 6 extends only to a right of access in respect of rights protected under the Convention. In circumstances where the Appellant cannot point to a breach of a recognised Convention right to property or any other freestanding Convention right, then it follows that there is no breach of Article 6.

184. The decision that the Appellant lacked locus standi to maintain a claim in this case because it was a legal as opposed to a natural person was a decision made within that process, now being challenged in accordance with the framework provided. The Appellant has put no authority before in which the ECtHR says that domestic tribunals or courts dealing with standing as a preliminary issue and having a hearing on standing as a preliminary issue is in some way incompatible with the Convention. At its heart, the issue concerns the scope of protection available under the 2000 Act, a question which is being fully litigated and in respect of which full access to a court is available.

Accordingly, it seems to me that the requirements of the Convention have little bearing on the interpretation of the 2000 Act.

The 2000 Act as a Whole – Words, Context, Purpose

185. The substance and tenor of the 2000 Act do not suggest a “state of affairs” whereby the Legislature intended to displace the presumption under s. 18(c) of the 2005 Act by limiting the class of claimant under the 2000 Act to that of natural persons. There is insufficient support in the 2000 Act for the contention urged that s. 18(c) of the 2005 Act has been disapplied through an identifiable contrary intention from the provisions of the 2000 Act. In particular, the failure to make clear that a complainant could not be a legal person by expressly so providing when such contrary intention could have easily been expressed using language like that apparent elsewhere in the 2000 Act is difficult to ignore and carries a strong and compelling inference that there was no intention to depart from the meaning prescribed under s. 18(c) of the 2005 Act. There is a clear rationale for the

introduction of a special definition for a “person” as used in conjunction with the respondent class deriving from the requirement to ensure a broad application of protections under the 2000 Act including application to public bodies. I cannot conclude that the “substance and tenor” of the 2000 Act is inconsistent with the term “person” as it applies to complainants including bodies corporate.

186. Scrutiny of the provisions of the 2000 Act as a whole with particular reference to ss.

2, 3, 5 and 21 and in view of its context and purpose does not support a conclusion that the interpretation advanced on behalf of the Respondent in confining claimants under the 2000 Act to natural persons, which interpretation was accepted by the WRC and upheld by the Circuit Court, reflects the Legislative intention. While the discriminatory grounds identified in s. 3(2) of the 2000 Act are addressed to a status that, for the most part, can only be possessed by a natural person, interpreting the term ‘person’ as including a body corporate does not produce an absurdity because s. 3 makes clear that it is not necessary to possess the protected characteristic but only to suffer detriment because of it. The inferred requirement that only a natural person may pursue a claim advocated on behalf of the Respondent depends on a logic which cannot be implied as necessarily flowing from the personal or human nature of the characteristics protected by the discriminatory grounds.

187. The interpretation urged on behalf of the Respondent is one which restricts the scope of the 2000 Act by excluding corporate bodies from bringing a complaint in the event of alleged discrimination (including discrimination by association). It seems to me that such a restrictive interpretation would impermissibly frustrate the purpose and policy objectives of the 2000 Act in remediating discrimination. The reference by the UK EAT in EAD Solicitors LLP v. Garry Abrams to examples of treatment directed to another person – whether individual or corporate - that would be plainly contrary to public policy is compelling. The Tribunal said as follows (at para.

29):

“Examples might be a company being shunned commercially because it is seen to employ a Jewish or ethnic workforce; a company that loses a contract or suffers a detriment because of pursing an avowedly Roman Catholic ethic;

one that suffered treatment because of its financial support for the Conservative Party or, say, for Islamic education; or one that was deliberately not favoured because it offered employment opportunities to those who had specific disabilities that were unattractive to some wouldbe contractors or because, let us suppose, of the openly gay stance of a chief executive. These examples may not necessarily be within Chapter 5, but all are examples of the way in which one person, natural or legal, may suffer because of the protected characteristic of another when public policy tends to the view that that is no proper basis for any such treatment.”

188. The UK EAT concluded that from a policy perspective there is nothing to suggest that it would be contrary to Parliament’s intention to preclude a complaint of discrimination by a legal person. The same might be said of ss. 2, 3 and 21 of the 2000 Act.

189. Nor is the conclusion urged on behalf of the Respondent supported by the requirements of EU law. While not mandating that protection be extended to legal persons, EU law clearly supports such extension of protection against discrimination to legal persons as apparent from Recital 16 to the Race Directive.

CONCLUSION

190. For the reasons outlined above, I am satisfied that a legal entity may have standing to bring a claim under the 2000 Acts. The fact that a special definition applies in respect of the respondent class under the 2000 Act does not operate to show an intention on the part of the Oireachtas to exclude legal persons from the scope of protection provided under the 2000 Act. Against a background where the Oireachtas did not define potential complainants with reference to their status as natural persons only and could have easily done so, something clear would be required to support the conclusion that the protections provided under the 2000 Act may never be available to legal persons. Far from suggesting a restricted field of application, however, the language, purpose and context of the legislation all support expansive provision for protection for discrimination and promotion of equality rather than the contrary.

191. I am satisfied that the intention of the Oireachtas in providing a special definition for a person in the context of who might be named as respondent was to ensure no lack of clarity that claims could be taken broadly including as against legal and public bodies.

Section 18(c) of the 2005 Act continues to otherwise apply to encompass legal entities within the meaning of “person” as it appears in the Act except in the case of respondents where the special definition applies. I am therefore satisfied that a complainant under s. 21 of the 2000 Act may be a legal or natural person in accordance with the definition of a person prescribed under s. 18(c) of the 2005 Act, there being no contrary intention apparent from the language, context and purpose of the 2000 Act and interpreting the scheme in accordance with its substance and tenor.

192. In maintaining a claim under the 2000 Act the requirement is to demonstrate a detriment arising from less favourable treatment on discriminatory grounds. It is not necessary for the claimant to possess those grounds once the claimant can establish that the discriminatory treatment meted out to them was on discriminatory grounds. This interpretation is consistent with express provision for a claim of discrimination by association in s. 3(1)(b) and the language of s. 3 of the 2000 Act which replicates the language of the Equality Directives in providing that it is the reason for the less favourable treatment which triggers protection under the 2000 Act. It is not required that the claimant themselves possess the protected characteristic.

193. I will hear the parties in respect of the terms of a final order, if the same cannot be agreed. My provisional view is that the judgment of O’Connor J. dated the 24th of October, 2024, should be set aside and the matter should be remitted to the WRC for full hearing of the claim.