A recent Equality Tribunal decision marks the first time Irish employment equality legislation has successfully been utilised to protect the rights of transgendered persons. Readers will be familiar with the landmark Foy case, which vindicated Ms Lydia Foy's rights under the European Convention on Human Rights.
Ms Louise Hannon brought a case for constructive dismissal under employment equality legislation. Following her decision to reveal her new gender, her employer advised she could come to the office as a woman but should assume a male identity while meeting clients. She was not allowed to use the female toilets and was not provided with a new e-mail address despite a number of requests. Ms Hannon changed her name by deed poll on 5 March 2007. In April her employer asked her to work from home while a new office was prepared. Expecting to return the following month, Ms Hannon agreed. By the end of July, she was still being asked to work from home, at which point she felt she had no alternative but to leave her employment.
The Equality Officer noted that under EU law, the gender ground protects transgendered persons. Please click here to view P v. S and Cornwall County Council C-13/9. The Officer concluded that Irish employment equality legislation "impose[s] an obligation on an employer to enable a person with a Gender Identity Disorder to allow, within the confines of said workplace, allowing for health and safety, uniform etc. requirements, to accommodate...'real life experience' (in the new gender)". She found that the employer's instruction to work from home was a "way out for the Respondent who did not want to deal with the complainant who was now presenting herself as female". This constituted discrimination on gender and disability grounds. The Officer awarded Ms Hannon of 18 months' pay. Ms Hannon was represented by the Equality Authority and Counsel.
Readers of the Bulletin may remember that the Irish government has committed to provide for the legal recognition of transgender persons. Please click here to view a briefing note prepared by the Free Legal Advice Centres on this issue.
Meanwhile the Transgender Equality Network Ireland has called on the Irish government to extend equality legislation to include transgender people through explicit inclusion of "gender identity and gender expression" as separate protections under the gender ground. Please click here to view their press release.
The US Supreme Court is deciding whether to permit a class action to proceed, with potentially significant repercussions for female workers across the US. In Wal-Mart v. Dukes, Betty Dukes is among three women seeking to represent nearly 1.5 million current and former female employees of the supermarket chain Wal-Mart in the form of a class action.
Robin Conrad of the US Chamber of Commerce has described it as "the most important class-action case facing the court in over a decade". The US Supreme Court is being asked to decide whether or not the facts warrant a class certification, which would enable the class action to proceed. The Court would have to be satisfied that the Walmart female employees "share common legal or factual questions about their claims".
The women allege that they were discriminated against on account of their gender in a number of areas, such as being denied management training and being subject to retaliation for engaging the internal grievance procedures.
Please click here to read a Guardian article.
Please click here to view an Irish Times article.
Meanwhile the Irish Property Council (IPC) is seeking a suitable plaintiff to take a test case against the Irish government regarding alleged negligence and mismanagement of the Irish economy. Please click here to view the IPC press release.
Irish legislation does not provide for the class action model but does provide for a "representative action", which has been noted as being limited in scope. Readers of the Bulletin who wish to know more are referred to Professor Gerry Whyte's leading textbook on public interest law, "Social Inclusion and the legal system: public interest law in Ireland", Institute of Public Administration, 2005.
Please click here to view a Law Reform Commission report from 2005 proposing legislation providing for multi-party actions.
In the recent and highly publicised Wal-Mart v. Dukes decision, the United States Supreme Court placed a strong limitation upon class action suits. The Court ruled that the class members - all of Wal-Mart's 1.5 million female employees - could not establish a "common injury", which is a prerequisite to class actions in the US. However, it would be wrong to interpret this case as a general attack on class action as a legal procedure. Rather, it is a limitation on the types of evidence that can establish "commonality" for class action certification. The effects of this decision should not be seen as a wholesale barrier to class action procedure being incorporated into jurisdictions such as Ireland.
In Dukes, the Court rejected class certification because the plaintiffs couldn't point to a specific Wal-Mart policy that created a discriminatory impact common to all of the women in the class. The plaintiffs alleged that Wal-Mart engaged in gender discrimination that violated the Civil Rights Act, by giving lower level managers unguided discretion in promotion and pay. This unguided discretion allegedly allowed those low level managers to discriminate against women. The problem the Court had with this argument was that any discriminatory effect caused by a policy of giving managers unguided discretion to managers would vary significantly from manager to manager. Therefore the injury alleged by each of the class members would vary significantly depending on which manager a particular female plaintiff worked under. For this reason, the Court ruled their injuries to be too variable to be an issue of law or fact "common" to the entire class.
The plaintiffs also argued that Wal-Mart had a corporate culture of sex discrimination that lead to a "common" discrimination of all Wal-Mart's female employees. This was based on a sociological study, which stated that Wal-Mart's corporate culture was "vulnerable to gender bias", which in turn led to a discriminatory impact against females who worked for the company. The Court put great focus on challenging the sociological study's evidentiary worth in finding that the class did not share a common issue of law or fact. The Court also noted various Wal-Mart anti-discrimination policies.
Accordingly, the case does not show that the US Supreme Court is developing distaste for class actions per se. Dukes really only limits the ability of plaintiffs to certify a class suit with sociological studies, in the absence of a specific corporate policy that caused a common injury.
This is illustrated by the Supreme Court's flexible approach in other class action certification cases. In Fund v. Halliburton for example, the Supreme Court ruled unanimously in favour of class plaintiffs, holding that class certification did not require the plaintiffs to prove that Halliburton's actions caused the plaintiffs to lose money. Thus the Court will continue to allow large class actions and they will continue to provide a great benefit to America's disadvantaged groups by preventing organizations from creating and enforcing corporate policies that cause discriminatory impact.
This is not to say that Dukes is without effect. This decision will make it far more difficult for disadvantaged groups in America to sue as a class in situations where the discrimination suffered is too subtle to track to a specific corporate policy. Since discrimination can be very subtle in the modern age, this may make some potential discrimination class actions harder to pursue.
From an Irish perspective, this case should serve to alleviate concerns that introducing multiparty litigation to Ireland would lead to out of control litigation. This is because Dukes serves as an example of how even the rather broad and established class action procedures of America can be effectively reined in and controlled through the judicial interpretation of the procedural rules which govern class actions.
But Ireland should also not view Wal-Mart v. Dukes as an attack on the legitimacy of the class action suit procedure in America generally. Dukes simply restricts the type of evidence that can be used to establish a "common" injury among plaintiffs attempting to establish a class. It should therefore be no discouragement to Irish law-makers adopting a class action procedure into this jurisdiction's litigation structures.
The Annual Legal Aid Lawyer of the Year Awards was held in the UK recently. In its eighth year, the LALYs, as they have become known, is held by the Legal Aid Practitioners‟ Group to recognize the achievements of legal aid lawyers working to provide civil and criminal legal aid. The event was attended by the new attorney general, Dominic Grieve QC, a former legal aid lawyer and the DPP Keir Starmer QC.
Michael Mansfield QC was awarded the outstanding achievement prize. He was praised for "never shying away from controversial causes or apparently unwinnable cases." "Whatever the case and whoever the client, he has brought the same degree of fearlessness and energy to his advocacy", the judging panel said, which included Cherie Booth QC and Doreen Lawrence, mother of Stephen Lawrence who was murdered in a racist incident in 1993. Mansfield has been involved in cases such as the Orgreave miners, Guildford Four and Birmingham Six appeals, the Marchioness disaster, the Stephen Lawrence Inquiry, the Stockwell shooting.
For information on the other winners at this year‟s "law Oscars", please see: http://www.lapg.co.uk/legalaidlawyer.cfm.
The PILS project has launched its Newsletter with the first edition providing a brief update on the work that has been done since the Project began just over a year ago, as well as a look at what it hopes to achieve over the duration of the pilot. It is hoped that the PILS Project Newsletter, to be distributed three times a year, will become a useful resource for those interested in public interest litigation.
For more information on the PILS Project, please follow the link http://www.pilsni.org/.
The Free Legal Advice Centres (FLAC) has welcomed the report of the UN independent expert, Magdalena Sepúlveda Carmona, on the question of human rights and extreme poverty in Ireland. Following her visit to Ireland in January, Ms. Sepúlveda commented "Human rights are not dispensable and cannot be disregarded in times of economic uncertainty. On the contrary, these are times in which people become more susceptible to potential infringements on their basic rights and have higher risks of falling into poverty."
Commenting on the report, FLAC's Policy and Campaigns Officer, Saoirse Brady noted: "it is important that the Government takes note of the issues highlighted by Ms Sepúlveda and adopt the recommendations contained in this comprehensive report, in particular the need to ensure that all rights protected under international human rights treaties are given full effect in Irish domestic law - including immediately undertaking a human rights review of all budgetary and recovery policies."
The recommendations made by the independent expert echo key concerns raised by FLAC. These include concerns about the availability of legal representation under the remit of the Civil Legal Aid Act 1995 for those appearing before the Social Welfare Appeals Office and the Employment Appeals Tribunal. Ms. Sepúlveda's report also emphasised the importance of strengthening the social protection system and removing barriers that can prevent vulnerable groups from accessing their entitlements. As an example of a barrier, she expressed concern that the Habitual Residence Condition "represents a considerable obstacle" for marginalised groups and called for the Social Welfare Appeals Office to publish its decisions.
FLAC is also pleased to note that the report calls for the swift adoption of a single procedure for determining refugee and subsidiary protection claims. This is especially important given how long asylum seekers currently spend in direct provision accommodation. Ms. Sepúlveda highlighted that the State has an obligation to ensure that those seeking its protection are guaranteed the enjoyment of all human rights, including the right to private and family life and the right to an adequate standard of living including access to the labour market.
Saoirse Brady cautioned that "while FLAC welcomes this report and the recommendations contained therein it is now essential for the Government to make a commitment to treat this as a priority issue and put people at the heart of any policy decisions, including bringing about the 'modern, fair, socially inclusive and equal society' envisaged in the Programme for Government and National Recovery."
To view the report of the UN Independent Expert, Magdalena Sepúlveda Carmona, please click here.
To view FLAC's Briefing submitted to the UN Independent Expert, which includes some recommendations that have subsequently been incorporated into the final report, please click here.
The European Anti-Poverty Network Ireland has also welcomed the report, Director Anna Visser calling on the Irish government to ensure that they give "greater consideration to the impact on the most vulnerable and what type of society it wants to develop into the future". To read the EAPN press release, please click here.
To read a Human Rights in Ireland blog on this, please click here.