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The High Court was recently asked to consider an appeal and cross appeal brought pursuant to Section 79(5) of the Employment Equality Act 1998 (as amended) (“the Equality Acts”) in the case of Ravinder Singh Oberoi v The Commissioner of An Garda Siochana [2013] IEHC 267. Background

Section 79(5) of the Equality Acts provide that

“….the complainant or respondent may appeal to the High Court on a point of law from a decision made by the Director under this section”.

The complainant originally made a complaint that he had been discriminated against on the grounds of religion and/or ethicity contrary to Section 8 of the Equality Acts. The complainant is a member of the Irish Sikh community and in accordance with the requirements of his Sikh faith he does not shave his beard and wears a turban. Unshaved hair and the use of a turban are part of the articles of faith of Sikhism. The complainant’s complaint arose in circumstances where he had applies to join the Garda Reserve and at the fourth stage of interview was informed that he was required to wear a full Garda uniform including a Garda hat, during training and would not be permitted to wear a turban. As a result the complainant contended that he was unable, due to his religious beliefs and ethnicity, to continue his training and thereby become a member of the Garda Reserve. At the Equality hearing on 24th November 2010 the Garda Commissioner raised a preliminary issue in relation to the jurisdiction of the Equality Tribunal to hear and determine the complainant’s complaint as the Equality Acts do not apply to members of the Garda Reserve as they are not “employees” within the meaning of the Equality Acts. The Equality Officer concluded that the complainant was not an employee for the purpose of the Equality Acts. The Equality Officer further determined that the complainant was correct in his submission where he had placed reliance on Section 12 of the Equality Acts and that the induction process into the ranks of An Garda Siochana consituted vocational training within the meaning of Section 12(2) of the Equality Acts. The premininary decision resulted in one decision in favour of the complainant and one in favour of the respondent.

Appeal and Cross Appeal

The complainant appealed the determination of the Equality Tribunal that he is not an employee within the meaning of the Equality Acts. The respondent appealed the interpretation made by the Equality Tribunal of Section 12(2) of the Equality Acts

Mr Singh Appeal – Is a member of the Garda Reserve an employee for the purposes of the Equality Acts?

The complainant stated that a member of the Garda Reserve is an employee within the meaning of sections 2(3), 6 and 8 of the Equality Acts. The respondent queried whether the Equality Tribunal had jurisdiction by virtue of section 8(1)(c) and/or section 12 of the Equality Acts to rule on a claim for discrimination by the claimant with regard to being permitted to become a member of An Garda Reserve and whether by being a member of An Garda Reserve is “training or experience for or in relation to employment” within the meaning of section 8(1)(c) or a “course of vocational training” within the meaning of section 12. The Equality Officer has ruled that he had jurisdiction to hear the complainant’s complaint on the basis that a Garda Reserve was in vocational training and that the complainant was not an employee as Garda Reserve members are volunteers and do not perform their functions under a contract of employment.

Justice Feeney referred to the Equality Officer’s decision and the definition of a contract of employment under Section 2 of the Equality Acts and the exclusion under Section 2(3) which provides that a person holding office or in the service of the State (including a member of An Garda Siochana or the Defence Forces) are “for the purposes of this Act deemed to be an employee employed by the State or Government….under a contract of service”. He also referred to Section 3 of the Garda Siochana Act 2005 which defines a member of An Garda Siochana. A reserve member is defined under Section 15 as being a reserve member of An Garda Siochana. Justice Feeney looked at how the “deeming provision” under Section 2(3) of the Equality Acts falls to be interpreted in light of section 15(6) of the Garda Siochana Act 2005 which provides “A reserve member is a volunteer and does not perform his or her functions under a contract of employment”.

Legal Issues

The High Court determined that the first issue to be decided is whether or not a member of an Garda Siochana is an employee for the purposes of the Equality Acts.

Justice Feeney noted “Even without the provisions contained in section 15(6) of the Garda Siochana Act 2005, I am satisfied that a reserve member could not be held to work under a contract of employment within the Equality Acts and therefore could not be considered an employee for the purposes of those Acts”. The court noted that for a contract of employment there had to be the requirement of mutuality and in the absence of mutuality he could not conclude that there was a contract of service in existence. There is no obligation to provide work to a Garda Resere. The court referred to the cases of Cable & Wireless plc v Muscat [2006] 1 ICR 975 which analaysed whether a person was an employee within the meaning of the UK Employment Rights Act 1996 and referred to the additional cases noted therein. Justice Feeney concluded “It follows from the above analysis that I am satisfied both from my interpretation of the statutory provisions and from my analysis of the provisions applying to a reserve member and the terms and conditions under which a reserve member operates that a reserve member is not an employee, either for the purposes of the Employment Equality Acts or otherwise”.

In respect of the second issue to be decided, Justice Feeney concluded that “I am satisfied that being a member of the Garda Reserve or training to be a member of that Reserve is not training or experience for or in relation to employment within the meaning of Section 8(1)(c) of the Equality Acts or a course of vocational training within the meaning of section 12 of the Equality Act 1998. I am therefore satisfied that the Equality Officer did not have jurisdiction to proceed on the basis that a Garda Reserve was in vocational training”.

Conclusion

The High Court allowed the appeal brought by An Garda Siochana and refused the appeal brought by the claimant.

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