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Cite as: [2015] IEHC 419
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Neutral Citation [2015] IEHC 419 THE HIGH COURT [Record No.2012/150 CA] IN THE MATTER OF THE EQUAL STATUS ACTS 2000 - 2011 BETWEEN G. PLAINTIFF/APPELLANT AND
THE DEPARTMENT OF SOCIAL PROTECTION DEFENDANT/RESPONDENT JUDGMENT of Ms. Justice Iseult O’Malley delivered the 7th day of July, 2015 Introduction 2. The appeal is against the order of the Circuit Court (Her Honour Judge Lindsay) made on the 5th July, 2012, upholding a decision of the Equality Tribunal that the complaint of the appellant fell outside the scope of the Equal Status Act, 2000 as amended (hereafter “the Act”). Background facts 4. The appellant and her husband subsequently entered into a surrogacy arrangement in a foreign jurisdiction. The arrangement complied with the law of that state, which provides for detailed regulation of surrogate pregnancies and births. The gametes of both the appellant and her husband were carried by the surrogate mother, who gave birth to a baby in January, 2011. The appellant and her husband are the registered parents of the child under the law of the state in question, while the surrogate mother is not identified on the child’s birth certificate. 5. Some months before the birth, the appellant made enquiries of the respondent as to the availability of maternity leave. She was informed that, under current legislation, she would have no statutory entitlement to maternity leave and as a result, no entitlement to maternity benefit. 6. An application to the appellant’s employer for special leave from her employment (equivalent to that available for adoptive leave) after the birth of the child was successful insofar as the employer was happy to grant the leave, but it could not offer paid maternity leave and told her that she would have to seek payment for such leave from the Department of Social Protection directly. 7. On the 6th January, 2011, the Equality Authority wrote, on the appellant’s behalf, to the Department of Social Protection, requesting it to use its discretion to give a payment for leave comparable to that of a working, adoptive mother. It was acknowledged that the type of leave being granted by the employer had no statutory basis such as that set out in either adoption or maternity protection legislation. The case made was that the appellant was entitled not to be discriminated against by virtue of the Employment Equality Act (in particular ss. 2, 6 and 8) and the Equal Status Acts. The payment was sought on the basis that it was available to every other working mother who had a child either naturally or by adoption. 8. On the 20th January, 2011, the Department of Social Protection replied, setting out the qualification conditions for adoptive benefit and maternity benefit. Adoptive benefit required, inter alia, proof of adoption by way of a certificate of placement or a declaration of suitability issued by An Bord Uchtála. Eligibility for maternity benefit required certification by a medical practitioner as to the confinement of the mother. In the circumstances, neither benefit was payable, and to make a payment outside the statutory framework would, according to the Department, be ultra vires. 9. On the 15th March, 2011, a notification was sent to the respondent, in the form prescribed by the Act, setting out the basis on which the appellant considered herself to be treated less favourably than others contrary to the Act. The appellant said that, as she had neither given birth to nor adopted her child, she could not comply with the statutory regulations for maternity or adoptive benefit. She was, however, a mother with a newborn child to care for and she submitted that she was comparable to both a working natural mother and a working adoptive mother. 10. The notification invoked the rights of the appellant under Article 41 of the Constitution (the obligation of the State to protect the family, the importance of the life of women within the home and the obligation of the State to ensure that mothers are not obliged by economic necessity to work outside the home). 11. On the 22nd March, 2011, the respondent replied, stating that its earlier correspondence did not constitute a formal disqualification for benefit, as no formal application had been received from the appellant for either maternity benefit or adoptive benefit. It was suggested that it was open to the appellant to lodge a late claim for these benefits. The letter also suggested that the appellant could contact her local Community Welfare Officer and apply for supplementary welfare allowance. 12. In response, it was pointed out that any application for either benefit would have to fail. The appellant had not been pregnant and did not give birth, and so could not obtain the requisite certificates from her employer and a medical practitioner. She and her husband had not adopted their child but were registered as its birth parents in accordance with the law of the state where the child was born. Nor was she eligible for supplementary welfare, since she was on leave from her employment. What she was seeking was a payment equivalent to the statutory benefits provided to natural and adoptive mothers. 13. The Department of Social Protection replied by letter dated 11th May, 2011, reiterating that it could not act outside the legislation, and that a decision could not be made in the absence of any claim for a benefit or other payment. 14. Separately, the appellant’s employer informed the Department of Social Protection on 8th June, 2011, that it considered the application for maternity benefit to be the appropriate application and filled in this form without completing the section in relation to certification. 15. On the 23rd June, 2011, the Equality Authority, on behalf of the appellant, filed a complaint before the Equality Tribunal. The statutory context
… “service” means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes - (a) access to and use of any place, (b) facilities for - i. banking, insurance, grants, loans, credit or financing, ii. entertainment, recreation or refreshment, iii. cultural activities, or iv. transport or travel. (c) a service or facility provided by a club… (d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies.”
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discrimination grounds”) which - (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned… (b) omitted (c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate or necessary.” 19. “Provision” is defined in s.2 (as amended) as meaning
(c) that one has family status and the other does not or has a different family status (the “family status” ground) and (g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability” ground). 22. Section 4(1) deals with the requirement to provide “reasonable accommodation” in the context of disability as follows:
24. Section 5(1) of the Act prohibits discrimination in the following terms:
The complaint to the Equality Tribunal 27. The case in relation to the appellant’s disability was based on the fact that, by reason of her medical condition, she could not have a family by natural means. In relation to family status, she argued (without prejudice to her contention that, as a matter of law, she was the mother of the child) that she was at least in the position of being in loco parentis, but was being treated differently from other women responsible for newborn children. On the gender issue, it was submitted that her situation was such as could only arise in respect of a woman. 28. It was submitted that because of the manner of the child’s birth, the appellant was unable to fulfil the strict conditions of the statutory regime. In respect of the maternity benefit, the appellant was unable to obtain a medical certificate of pregnancy because she was not, and could not become, pregnant. In respect of adoptive leave, the appellant could not obtain evidence of adoption because she did not adopt her child. It was stressed that:
b. Her employer granted her leave in connection with the birth of her child; and c. She fulfilled the relevant PRSI contribution conditions under the statutory scheme. 30. It was also contended that the respondent had failed to provide her with reasonable accommodation in accordance with section 4(1) of the Act insofar as there had been a failure or refusal to do all that was reasonable to accommodate the appellant’s needs, by providing special treatment or facilities, in circumstance where without such special treatment or facilities it was impossible for her to avail of the service provided by the respondent. 31. The appellant argued that the primary consideration underlying the statutory regime was the facilitation of full-time care of the child by his or her primary carer during the critical period of time following his or her introduction to the family. This was said to be a reflection of the importance attached by the State to the special bond created between the child and the primary carer at this time. 32. The respondent submitted that statutory schemes such as maternity and adoptive leave were not “services” within the meaning of the Act. It was therefore argued that the service sought by the appellant did not exist, and that she was expressly seeking a benefit to be extended to her on a discretionary basis, thereby asking the Tribunal to create a new statutory entitlement. It was submitted that it was not within the respondent’s power to offer a discretionary payment. 33. The respondent also contended that the complaint raised issues of constitutional law relating to the definition of motherhood, which lay outside the jurisdiction of the Tribunal. Decision of the Equality Officer 35. Referring to the burden of proof under the Act, the officer noted that it was for the complainant to set up, in the first instance, a prima facie case by establishing facts upon which she could rely in asserting that she had suffered discriminatory treatment. 36. The equality officer did not accept the respondent’s submission that the statutory schemes administered by it were not services, ruling that s.2(1) did not set out an exhaustive list of services and that financial services or facilities were clearly contemplated. However, she went on:
I accept that the facts of this case do present a compelling complaint. However, I find that the Irish legal system operates a default legal assumption that the person giving birth to a child is the child’s legal mother. There is no legal recognition of surrogacy in this jurisdiction and it is clear that this is a matter that will raise a number of complex issues for the legislature to consider in due course. These considerations are not, however, a matter for this Tribunal with its limited jurisdiction. I find that almost all legislation addressed to the regulation of society resorts to some form of classification and such can be used as a classification of inclusion or exclusion for various legislative purposes. There is nothing, in accordance with section 14(1) of these Acts that entitles this Tribunal to find such classification as invidious, unfair or discriminatory. In deciding, as a matter of policy, to establish a special scheme for Maternity and Adoptive Leave, the Oireachtas necessarily had to define the scope and limits of its application. I am satisfied that the definitions currently contained in the statutes do not recognise the situation that the complainant finds herself in and in such circumstances the respondent had no option but to turn down her application.” Decision of the Circuit Court 39. The learned judge approached the matter on the basis that she had firstly to decide whether the appellant had a disability. Finding that she had, the next issue was whether there had been discrimination. The test was formulated as follows:
The Minister in his defence has stated that he is administering a scheme, in other words a specific benefit for specific persons as is prescribed for him in the [Social Welfare Act, 2005].
Appeal to the High Court 44. The points of law raised on behalf of the appellant are pleaded as follows:
b. that the learned trial judge erred in law in concluding that, because surrogacy had not been envisaged when the Equal Status Act became law, the appellant’s complaint did not come within the scope of the Act; c. that the learned trial judge erred in law in the manner in which she concluded that the appellant had not been less favourably treated within the meaning of the Equal Status Acts 2000-2011; and d. that the learned trial judge erred in law in the manner in which she concluded that the taking of any action by the respondent by way of special provision would be beyond the defined scope of the Act and, consequently, ultra vires the powers of the respondents. 46. The suggestion is made that the Circuit Judge failed to engage with the central argument in the case,
48. As a matter of fairness, the court adjourned the hearing to give an opportunity to the appellant to consider and respond to this new line of argument. Further oral and written submissions were accordingly made. The appellant maintains an objection to permitting the respondent to put forward a wholly new argument not made at the previous hearings. She says that it was not seriously in dispute, before either the Equality Tribunal or the Circuit Court, that she had been treated less favourably and that the respondent should not be permitted to argue, in this the third stage of the process, that there was no discrimination. 49. However, the appellant’s supplemental submissions do engage with the merits of the respondent’s arguments. 50. The appellant also puts forward an alternative basis for her own case based on the concept of indirect discrimination. She says that at all times her case was that she had been discriminated against within the meaning of s.3 of the Act and that she is therefore entitled to make an argument based on s.3(1)(c). 51. The respondent, in turn, has objected to what is perceived as being a new argument, where the complaint at the earlier hearings had been based on a claim of direct discrimination. 52. After the conclusion of the adjourned hearing, the Supreme Court delivered judgment in the case of M.R. and D.R. & Ors. v An t-Ard Chláraitheoir & Ors [2014] IESC 60 and this court afforded the parties an opportunity to file written submissions in relation thereto. 53. This being an appeal on a point of law, the Court has no jurisdiction to determine an issue of law not argued in the court below - see Vavasour and The Employment Equality Agency v Northside Centre for the Unemployed Ltd. & ors [1995] 1 I.R. 450, recently approved by the Supreme Court in National Asset Management Agency v. Commissioner for Environmental Information [2015] IESC 51. However, as the latter judgment makes clear, the application of this principle may depend on the formulation of the issue by the parties. Submissions on behalf of the appellant 55. It is submitted that the burden on the appellant is to show that she has been discriminated against by reference to a person in a comparable - not identical - situation. 56. The appellant compares herself with a mother who has given birth naturally and submits that if she did not suffer a disability and was able to support a pregnancy in the ordinary way, then, having regard to the fact that she fulfils all of the other relevant statutory conditions, there is no question but that she would be entitled to payment for maternity leave in accordance with the Maternity Protection Acts. 57. It should be noted that in submissions it was maintained by the appellant (on the basis of the High Court decision in M.R., and before the delivery of the Supreme Court judgments in that case) that she was the child’s mother as a matter of law. However it is a core part of her case that she does not need to establish that status, since she is, in any event, in loco parentis. 58. A comparison is also made with an adopting mother prevented through disability from producing gametes for gestational surrogacy. Like such an adopting mother, the appellant has not undergone pregnancy but she has responsibility for care of the child following its birth and on a permanent basis into the future. If the appellant’s disability was that she was infertile, and her only possibility of becoming a mother was through the process of adoption, she would be entitled to payment for leave from employment under the Adoptive Leave Acts. 59. The appellant relies on Murphy v Slough Borough Council [2004] ICR 1163 (also a case involving surrogacy, where the applicant had been refused paid leave by her employer) and the reasoning therein of Silber J. in the Employment Appeals Tribunal:
61. The appellant alleges that, contrary to s.4 of the Act, the respondent has discriminated against her on the ground of disability insofar as it has refused or failed to do all that is reasonable to accommodate her needs by providing special treatment or facilities in circumstances where, without such special treatment or facilities, it is impossible for the appellant to avail of the service in question. The appellant’s case is that the service provided by the respondent is payment for leave from employment upon becoming a mother. 62. The appellant acknowledges the need for evidence of motherhood. In cases of natural birth or adoption this is provided, respectively, through medical certification of pregnancy or a certificate of placement. She submits that the refusal of the respondent to consider or accept alternative evidence of the condition of motherhood results in discrimination against her on account of her disability. In relation to the issue of reasonable accommodation, the appellant points to the fact of her insurance contributions and submits that to accommodate her within the payment regime would not impose any financial burden on the respondent additional to that which would apply if she were capable of pregnancy or had adopted a child. She says that by failing or refusing to find a suitable administrative arrangement which could accommodate her, the respondent has failed to give effect to the spirit of the statutory regime and to ensure full compliance with it. 63. The fact that the respondent administers a large number of payment schemes without any statutory foundation is highlighted for the purpose of demonstrating that discretionary payments are not necessarily ultra vires the respondent. The schemes referred to deal with a disparate range of areas but, by way of example, the appellant points in particular to the Back to Education allowance. Eligibility for this scheme requires the applicant to be in receipt of jobseekers’ benefit or allowance - but these are, under the statutory criteria, available only to persons seeking work. The terms of the scheme permit recipients to retain their benefit while in full-time education. It is, therefore, open to the respondent to put in place a non-statutory payment for a person who does not meet the criteria for the parallel statutory payment. 64. The appellant emphasises in argument that her challenge does not have the consequence, as contended for by the respondent, of setting aside or invalidating an existing legislative choice. She submits that she is not seeking any broader finding than one to the effect that she has been discriminated against within the meaning of the Equal Status Acts. 65. It is also contended that, contrary to the analysis and conclusion of the learned Circuit Court judge in this case, the consideration that surrogacy arrangements of this kind may not have been contemplated when the Equal Status Act became law is an irrelevant and incorrect basis for holding that it could not be applicable. It is said that the Act is intended to apply across a broad range of human activity, and that it does not matter whether a particular field has or has not already been made the subject of regulation. 66. It is submitted that the issues giving rise to the situation under consideration affect the appellant only because she is a woman and that therefore she is discriminated against on the ground of gender. 67. In relation to the “family status” aspect, the appellant submits that she is a person with responsibility for a person under 18 years of age and she is being treated less favourably than other persons with a different family status, in particular those who are or were pregnant and who are thus capable of carrying and giving birth to their children. Such persons are entitled to maternity benefit, but the appellant has no entitlement to that or any similar benefit such as adoptive benefit. 68. In submissions relating to the applicability of s.(3)(1)(c), the appellant says that a condition (the requirement of certification of pregnancy or adoption) has been applied to her, by virtue of “an apparently neutral provision”, with which, because of her disability, it is not possible to comply. She is therefore placed at “a particular disadvantage”. On this argument, the consideration that other women who suffer from no disability might choose to avail of surrogacy has no relevance. Such women would be able, if they wished, to comply with the condition but she has no choice. 69. Ms. Butler stresses that she does not seek to attack the validity of the social welfare provisions in question, or to interfere with the rights thereby accorded to other women, or to use the Act as if it had the status of the Constitution. Nor does she ask the court to engage in a quasi-legislative exercise. Even if the court finds that the respondent had no power to make a payment to the appellant, that does not mean that she is not entitled to redress for having been discriminated against. The Act envisages an award of compensation where that has occurred. Submissions on behalf of the respondent 71. It is submitted that, as a Government Department, the respondent is bound by the Social Welfare Acts as enacted. The Minister must act within the four corners of the Acts, and there is no payment under them to which the applicant is entitled. Section 14 is applicable in this context. 72. As already noted, the respondent, in this court, altered its previous position somewhat. It was accepted that a service is provided. However, where the appellant characterises the service in question as being the provision of payments for leave for mothers of newly-born and newly adopted children, the respondent submits that the proper analysis is this: the respondent provides statutory benefits and allowances, in accordance with a statutory code. The “service” it provides is the operation of that code. The respondent says that the definition of the service is crucial, to avoid the risk that a court might end up ordering the provision of a new service. It is contended that that is, in reality, what the appellant is seeking. 73. It is submitted that Irish law, as reflected in the legislation, supports mothers and adoptive mothers in particular circumstances. However there would be a policy choice involved in deciding to subvent persons who go through a surrogacy process. There are distinctions between the adoption and surrogacy processes - the former is subject to a clear statutory regime nationally and internationally, while the Oireachtas has made a choice not to make provision in relation to surrogacy. 74. In answer to the suggestion that the Minister could set up a non-statutory scheme, Mr. Durcan said that there would have to be “considerable doubt” as to whether that would be lawful having regard to the choices already embodied in the legislation. Secondly, he pointed to the fact that the payments in question are benefits (as opposed to allowances), with entitlement being based on contributions. He suggested that it would be unfair to other contributors if any payments were made other than in accordance with statutory conditions. 75. Mr. Durcan then went on to deal with the submissions made by the appellant as to the proper approach to analysing a claim of discrimination. It is now submitted that the court should not adopt the reasoning in Murphy v Slough Borough Council. This is on the basis that the EAT in that case was following the decision of the Court of Appeal in Clark v. Novacold Ltd [1999] ICR 951, which was subsequently criticised by the House of Lords in Lewisham London Borough Council v Malcolm [2008] 1 AC 1399, and is no longer good authority. 76. In any event, it is submitted that the English authorities deal with “disability-related” discrimination, while the statutory definitions are different in this jurisdiction. When considering whether a person has been discriminated against within the meaning of s.3 of the Act, the question is whether there was discrimination “on the ground of” disability, and that requires intent. The “reason” for the treatment must be the “fundamental reason” and must be discriminatory in itself. Here, the fundamental reason has nothing to do with disability, which is irrelevant to the decision that a woman with a child born through surrogacy is not eligible for a benefit. There is, therefore, no discrimination. The result can only be different if the Murphy v Slough Borough Council or Novacold Ltd line of analysis is followed, as opposed to Malcolm. 77. The respondent contends that the appellant is not in a situation comparable in law with that of a woman who gives birth by way of pregnancy and confinement. This is because the latter is given special protection by both Irish and EU law. Similarly, Irish law gives special protection to adoptive mothers, in circumstances where adoption is closely controlled by law. No such protection is afforded in surrogacy cases. 78. It is not accepted that any question of discrimination on grounds of gender arises. It is possible for men to have children by surrogacy also, but in no circumstances would a man qualify for the statutory benefit. 79. The argument in relation to family status is also rejected on the basis, again, that it was not the reason why the appellant could not obtain benefit. Any person exercising parental responsibility would be refused if the child came into his or her care on foot of a surrogacy process. The payment in all cases (for maternity benefit) is conditional on pregnancy and birth. There is no equivalent payment available to persons in loco parentis. 80. Again, it is not accepted that the reason for refusal was the disability of the appellant, since any parent who has a child by surrogacy will be refused whether disabled or not. Therefore, the fundamental reason for the treatment was not the prohibited ground. 81. On the question of “reasonable accommodation”, the respondent says that the obligation is to take measures that will allow a disabled person access to existing benefits and that it cannot apply so as to require the provision of new ones. It is also inapplicable to a situation where the respondent is obliged to pay benefit to persons who meet the statutory criteria, and does not pay it to those who do not. This course of action is prescribed by statute, and the Act cannot be relied upon to invalidate other legislation. 82. The respondent says that the word “provision” as used in s.(3)(1)(c) cannot be interpreted to include a statutory provision which the Minister is obliged to implement, with the effect that it would be ignored or rendered inoperative if found to be discriminatory. The concept of indirect discrimination therefore has no application. To hold otherwise would be to breach the separation of powers, in that the court would in effect be legislating for rights which the Oireachtas has chosen not to create. The Supreme Court decision in M.R and Others v An t-Ard Chláraitheoir [2014] IESC 60 Submissions on M.R. on behalf of the respondent 84. It is noted throughout the judgments that the Oireachtas has not to date legislated for surrogacy. The respondent submits that the same situation pertains in relation to any issue arising from a surrogate birth, including the payment of maternity benefit. It is submitted that the remedies sought before this court would result in the High Court “legislating” for such rights where the Oireachtas has not chosen to do so, and would involve a breach of the separation of powers. It is also submitted that the judgments make it clear that the courts must respect and implement the legislature’s policy choices in this area. 85. The respondent refers to the following extracts from the judgments. 86. At paragraphs 111-113 Denham C.J. said:
“(2) In deciding whether or not to make an order under section 21A of the Family Law (Maintenance of Spouses and Children) Act 1976 (inserted by the Status of Children Act, 1987) in so far as any order relates to the payment of expenses incidental to the birth of a child the Circuit Court or the District Court as the case may be shall not take into consideration the fact that the mother of the child is not entitled to maternity allowance.” While it might be said that this provision does not actually preclude another interpretation, it is not easy to ignore the statutory juxtapositions of the terms “mother of the child” and “birth of the child”. The link between motherhood and birth is also to be found in the Maternity Protection Acts 1994 to 2004 designed and intended to protect the rights of both pregnant employees and employees who have given birth. Section 16 of the 1994 Act (as amended by Section 10 of the Act of 2004) defines the “mother” as a person “who has been delivered of a living child”. The protection extended by the legislation again links or connects pregnancy, birth and motherhood (see also s.6 of the 2004 Act). These close associations are difficult to ignore.”
Submissions on M.R. on behalf of the appellant 91. The appellant submits that none of the passages relied upon by the respondent from the decision of the Supreme Court in M.R. have the effect contended for by the respondent. The consideration that it is a matter for the Oireachtas to legislate for the complex questions of family and other legal relations that arise from surrogacy arrangements, and that to date the Oireachtas, despite the importance of these matters to society and to the constitutional interests of those affected has not done so, does not have the consequence that the appellant is left outside the legislative scheme of the Equal Status Acts. 92. It is submitted that the judgments were given in a context where no provision has been made for surrogacy in this jurisdiction at all, including in respect of benefits equivalent to maternity protection benefits. The general provisions of the Equal Status Acts have not been qualified or contradicted or restricted in the manner contended for by the respondent. 93. The appellant submits that M.R. does not advance or in any way support the respondent’s argument that this court would be legislating if it were to find in favour of the appellant in this case. That argument, it is contended, remains affected by the same error of law as the Circuit Court judge fell into in these proceedings, which is the removal from scrutiny of a matter that is prima facie prohibited by the general provisions of equality legislation. The appellant would thereby be deprived of a remedy - which is a limited remedy under and within the Equal Status Acts and has no wider legislative effect - on the sole ground that the matter is novel and unregulated or, as found by the Supreme Court, on the grounds that it is no longer novel and ought to be regulated by legislation, but to date has not been. 94. By making provision for the payment of benefit in particular circumstances, the social welfare Acts do not require that persons in comparable situations, but not meeting the precise statutory criteria, be excluded from the possibility of payment either of the benefit in question or of an equivalent payment. The appellant submits that s.14 does not create a charter to allow the State to discriminate by legislation. Specifically, it does not prohibit the taking of action, not itself prohibited by an enactment, but not falling within the express scope of the governing legislative scheme. 95. The appellant submits that if a failure to regulate the substantive subject matter underlying an equality claim is adjudged to afford a full defence to such a claim, this would serve only to reward legislative and administrative inaction in a manner which is contrary to the purpose and intent of the Equal Status Acts. 96. It is argued that all of the judgments in M.R. recognise that the intimate ties between a genetic mother who is bringing up her child born to a surrogate, and that child, are constitutionally underpinned and require legal protection. From this perspective, far from undermining the present claim, the appellant’s case that the discrimination that has occurred here falls within the widely defined “family status” ground has become all the more compelling as a result of the Supreme Court judgments. The United Kingdom authorities 98. Section 5(1) of the Disability Discrimination Act 1995 defined discrimination by an employer against an employee as occurring where, for reasons which related to the employee’s disability, the employer treated him less favourably than he treated or would treat others to whom “that reason” did not or would not apply, and could not show that the treatment in question was justified (emphasis added). The distinction drawn in earlier anti-discrimination legislation between direct and indirect discrimination did not feature. 99. The Act also provided that an employer was under a duty to take such steps as were reasonable to prevent a disabled employee being placed at a substantial disadvantage by reason of any work-related “arrangements” made by the employer, or any physical features of the employer’s premises. Failure to comply with this duty, without justification, amounted to discrimination under s.5(2). 100. Sections 19 and 20 dealt with discrimination in the provision of services. Again, the definition provided that it was discrimination if, for a reason related to a disability, the disabled person was treated less favourably than the service provider treated or would treat others to whom that reason did not or would not apply, and it could not be shown that the treatment was justified. 101. “Justification” under the Act required showing that there was a reason which was both material to the circumstances of the particular case and substantial. 102. Clark v Novacold Ltd. was the first decision of the Court of Appeal dealing with this legislation. It concerned an employee whose job involved manual labour and who suffered a work-related injury. His employer came to the view that he would not be fit to return to work within a reasonable time and therefore terminated his employment on the basis that he was no longer capable of performing the main functions of his job. 103. An industrial tribunal held that the employee had a disability and was dismissed for a reason relating to it. However, he had not been subjected to discrimination, in that he was not treated less favourably than the employer would have treated others absent from work, without a foreseeable date of return, for reasons other than disability. This decision was reversed on appeal, and the matter ended up in the Court of Appeal. 104. The employer’s case was that a person to whom “that reason” would not apply would be someone else incapable of performing the main functions of his job for a reason which did not relate to disability. 105. Giving the judgment of the court, Mummery L.J. said that the phrase “that reason” referred only to the facts constituting the reason for the treatment, and did not include within that reason the added requirement of a causal link with disability - that was more properly to be regarded as “the cause of the reason for the treatment” rather than as in itself a reason for the treatment. 106. On the issue of the correct comparator, Mummery L.J. referred to the example, given during a Parliamentary debate on the issue, of a café refusing to allow dogs, including guide dogs accompanying blind people. (It appears that it was intended by Parliament that this would be seen as a prima facie case of discrimination.)
110. Murphy v Slough Borough Council was a decision of the UK Employment Appeals Tribunal. It concerned a teacher who suffered from a medical condition which meant that a pregnancy would endanger her life. She had a child by a surrogate mother and applied to take paid post-natal leave. Her employer took the view that her situation was comparable to that of an adoptive mother, rather than that of a mother who had given birth - the difference being that paid leave for the former was only a matter of discretion, as opposed to entitlement. Her application was refused because of the school’s difficult budgetary situation. 111. The EAT held that the applicant had been treated less favourably than women who gave birth to their own children; that the reason for that treatment was her inability to have children; and that this “related” to her disability within the meaning of the Act. 112. In its determination, Clark v Novacold Ltd was relied upon for a number of aspects. Referring to the example of the guide dog, it was said that
115. In 2008, the House of Lords considered the issue in Lewisham London Borough Council v Malcolm. There, a local authority tenant who suffered from schizophrenia sublet his flat in breach of the tenancy agreement. To do so was clearly not in his interest - he thereby lost his security of tenure. The landlord (which had been unaware of the tenant’s illness) commenced a process to gain possession on the basis that he had moved out, which was resisted by the tenant on the basis of his disability. The Court of Appeal had held that the landlord’s treatment of the tenant was for a reason which related to his disability, and that the fact that the landlord did not know of the disability did not preclude a finding of discrimination. 116. In allowing the appeal the House of Lords doubted the correctness of Novacold and took a different approach. 117. Lord Bingham held that the tenant would probably not have behaved so irresponsibly were it not for his illness, but the illness had nothing to do with the landlord’s reason for seeking possession. On the question who the “others” were for the purpose of appropriate comparison, he identified three possible categories: (a) tenants without a mental disability who had sublet a flat and moved out, (b) tenants who had not sublet or moved out, and (c) “some other comparator group”. The Novacold analysis would lead to the choice of group (b), but Lord Bingham considered that group (a) was the more natural choice and that Novacold was incorrect. It was clear that the landlord would have claimed possession against any non-disabled tenant who sublet and moved out, so the tenant had not been discriminated against. 118. Lord Scott of Foscote said that the Novacold analysis “emasculated” the point of the statutory comparison.
If he is refused entry it is not because he is blind but because he is accompanied by a dog and is not prepared to leave his dog outside. Anyone, whether sighted or blind, who was accompanied by a dog would have been treated in the same way. The reason for the treatment would not have related to the blindness; it would have related to the dog.” 121. In Stockton on Tees Borough Council v Aylott [2010] ICR 1278, the issue came before the Court of Appeal again. Mummery L.J. rejected a submission that his judgment in Novacold was still good law, holding that it was overruled by Malcolm and was “deceased as a case”. However, it is worth noting two observations made in his judgment. 122. The first was that Parliament had legislated to, in effect, nullify Malcolm, by providing in the Equality Act 2010 that
European Union Law 125. Ruling on a reference from the Equality Tribunal, the CJEU held that she had not been discriminated against under the relevant EU legislation. The refusal of leave would, it considered, have been discrimination
127. Indirect discrimination was not established since it had not been shown that a refusal to grant leave put female workers at a particular disadvantage compared with male workers. Interpretation of the Act
131. It seems to me that the first question to be addressed is whether or not the provisions of the Act are capable of being applied to surrogacy-related issues. In this respect I agree with the appellant (and do not understand the respondent to expressly disagree) that the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally. I consider that the learned Circuit Court judge fell into error in holding that it could not be relied upon in relation to novel factual situations not familiar to the legislature at the time of enactment. 132. Since it is now accepted that the respondent does provide a service within the meaning of the Act, the question arises as to the proper definition of that service. 133. The respondent says that it is the operation of the statutory code of benefits and allowances. I consider this definition to be too restrictive, since it takes no account of the fact that the respondent also administers a large number of non-statutory payment schemes. There is insufficient material before the court to determine the legal basis for each of these schemes, but such case-law as there is makes it clear that they must be administered according to generally applicable principles of public law. In my view they would have to be regarded as services to the public within the meaning of the Act. 134. However, the proposition that the service in issue in this case is the making of payments to the mothers of newly-born or newly-adopted children is also too restrictive, since it leaves the statutory context for those payments out of account. 135. I consider that the service provided by the respondent is the administration or operation of the statutory code and of other non-statutory payment schemes. 136. The statutory provisions at issue in this case relate solely to mothers, whether natural or adoptive. It is clear, in the light of the judgments of the Supreme Court in M.R. that the appellant cannot claim the status of mother under Irish law. This situation is no doubt a source of great distress to her but, pending the introduction by the Oireachtas of legislation dealing with this field, it is equally clear from the Supreme Court judgments that it is not for the courts to attempt to resolve the complex questions that need to be addressed. 137. It follows that the appellant cannot, for the purposes of a claim of discrimination, choose to compare herself directly with the two categories of mother recognised under Irish law - that is, mothers who have given birth and mothers who have adopted. Both of these categories are entitled to social welfare payments that, in the applicable qualification conditions, relate directly to the legal status of motherhood. The appellant does not have that status. If she did, it seems likely that she would have a strong case based on Constitutional grounds but that is not what the court is dealing with here. 138. The appellant has maintained throughout, however, that her case does not depend on the status of motherhood. She says, primarily, that she is a person who is in loco parentis of a child and that she is discriminated against because she has not been pregnant. She also says that she is discriminated against on grounds of disability and gender. 139. Dealing with the last matter first, I do not think that the claim of gender discrimination would in any event be tenable. It is true that the appellant’s medical condition is one that can only affect a woman. However, since no man can qualify for either maternity leave or adoptive leave payments in any circumstances, she has not been treated less favourably than any man is or would be, if he had a child through a surrogacy arrangement or otherwise. 140. The disability and family status arguments are more complex. Having regard to the purposes of the Act, and to the observations above, I would be prepared to agree with much of the appellant’s submissions. If a complainant can show, by reference to one or more of the statutory grounds upon which discrimination is prohibited, that he or she was treated less favourably than a person to whom those grounds do not apply, it is not in my view necessary to prove actual intent to discriminate on that ground. Thus, in the context of disability, it is not necessary to show that the café proprietor has a hostility to blind people if he or she refuses, without justification, to admit blind people accompanied by guide dogs. The point of the legislation is to ensure that blind people can, as far as practicable, avail of services in the same way as sighted people. The problem as I see it, is not the dog - it is whether a blind person with a guide dog may be refused service without justification. However, I would prefer not to give a definitive view on the issue of the correct interpretation of the section in this case, since I do not consider that it can determine the case. 141. On the face of it, the appellant has, certainly, been discriminated against because she did not bear her child. As noted above, less favourable treatment on the basis that the complainant had not been pregnant would satisfy one of the statutory grounds. She says that this is a discriminatory exclusion from the social welfare legislation, within the terms of the equal status legislation, and that the refusal of the respondent to grant her an equivalent non-statutory payment is a matter entitling her to compensation. 142. The difficulty that I have with the appellant’s case lies in the fact that the payment, from which she says she has been excluded for discriminatory reasons, is one created by statute. A claim to be legally entitled to compensation necessarily involves a claim that one has been subjected to a legal wrong, but in this particular instance such a wrong can only be established on the assumption that one statute can be held to be legally deficient by reference to another - that is, by reference to the Equal Status Act. Despite the submission that she is not to be taken either as attacking the validity of the social welfare legislation, or as attempting to measure those provisions against the Act as if it were the Constitution, I cannot see how the appellant can maintain a claim of unlawful discrimination without saying, in effect, that the Social Welfare Act discriminates unlawfully. In the proceedings as constituted before this court, the only legal standard by which she can make that claim is the standard set by the Equal Status Act. Since both are Acts of the Oireachtas, embodying policy choices made by the legislature, it is not open to a court to make a finding of unlawfulness in one on the basis of the policy of the other. There has been no assessment of the constitutionality of the choices made in the social welfare code, which would be the only legitimate basis for such a finding. 143. For the same reasons I find that the word “provision” in s.3(1)(c) cannot be interpreted as including a statutory provision. That too would have the effect of elevating the Equal Status Act to all-but Constitutional level, permitting the legitimacy of all other legislation to be assessed by reference to it. 144. I should perhaps say that I am not persuaded by the argument made by the respondent that a non-statutory scheme to make provision for women in the appellant’s position would be ultra vires. The existence of a broad range of non-statutory schemes demonstrates that the respondent frequently uses such schemes as a flexible alternative, or supplement, to primary legislation, presumably on the basis of appropriate public policy objectives and assessments. I do not think that s.14 of the Act is relevant here. The social welfare Acts do not “prohibit” the making of payments other than in accordance with statutory criteria - if they did, all of the non-statutory schemes would be at risk of being found to be ultra vires. I consider that the main difference in relation to a non-statutory scheme would be that it would probably be open to challenge if the Equal Status Act prohibitions on discrimination were contravened. 145. However, it is not open to a court to hold that the respondent is derelict, either in not legislating or in not creating a scheme in this instance, without holding that the policy choices embodied in the primary legislation are legally deficient. The appellant has argued that the Act envisages an order of compensation if discrimination is established, even if the respondent has no legal power to remove or ameliorate the discrimination complained of by way of making a non-statutory payment. Again, that raises the problem of whether the Equal Status Act can be relied upon in this fashion, to find that there is discrimination contrary to that Act embodied in another Act. In my view it cannot, whether by this court, or by the Equality Tribunal acting as the body primarily charged with dealing with complaints under the Act. 146. It is easy to understand why the appellant feels that she has been treated badly, why the Equality Officer referred to the case as raising “compelling” considerations and why the learned Circuit Court judge accepted that the respondent’s decision might seem unfair or unjust. However, there is as yet no legislation governing the complex issues that arise in the context of surrogate births. My view is that the Equal Status Act cannot be used to fill the gap. 147. I therefore propose to dismiss this appeal. |