FIFTH SECTION

DECISION

Application no . 19673/16 Bisi ADIGUN against Ireland

The European Court of Human Rights (Fifth Section), sitting on 31 January 2016 as a Committee composed of:

André Potocki , President, Síofra O ’ Leary, Mārtiņš Mits , judges, and A nne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 7 April 2016,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bisi Adigun, holds both Nigerian and Irish nationality. He was born in 1967 and lives in Dublin.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a performer, playwright and theatre director/producer. He founded a theatre company in 2003, Arambe Productions Limited (“ Arambe ”), in order to give to African immigrants living in Ireland the opportunity to express themselves through the art of performance. In Arambe he holds the position of artistic director and is a member of the company board.

The applicant conceived the idea of updating a classic work of Irish theatre, J.M. Synge ’ s “The Playboy of the Western World”, to mark the centenary of the play ’ s premiere at the Abbey Theatre in Dublin in 1907. Today the Abbey Theatre (“the Abbey”) is Ireland ’ s national theatre. The concept was to move the setting of the play to present-day Dublin, and to make the lead character an African refugee. Arambe received public funding of 10,000 euros to develop the script. This work was done jointly by the applicant and, as co-author, by RD, an internationally renowned Irish writer. In February 2006 Arambe signed an agreement with the two authors commissioning the play. The agreement detailed various matters such as deadlines, payment, rights and royalties. The script was written during the course of the following months. In 2007, the Abbey accepted the play for performance. In May of that year it entered into a five-year licensing agreement with Arambe to produce and present the play. In article 1 of the agreement, Arambe gave a warranty that, inter alia , it had exclusive rights to enter into the agreement. It undertook to indemnify the Abbey against all losses incurred as a result of any breach of the warranty. The agreement specified the royalties to be paid to Arambe .

The production commenced in October 2007, for a period of seven weeks. After four weeks, Arambe received a first payment of royalties of 31,366.36 euros. The second payment due at the end of the run was not made. The Abbey wrote to Arambe to inform it that it had received a complaint from RD, who considered that Arambe had permitted the production of the play without his consent. For this reason, RD said he had rescinded his agreement with Arambe . The Abbey said that it regarded the situation as a breach of the warranty given by Arambe , and indicated that it would withhold the second payment of royalties (20,860 euros) in order to meet any claim that might be made against it by RD.

In April 2008, solicitors for the Abbey wrote to Arambe to inform it that there would be a second production at the end of that year. In view of the situation, it intended to contract directly with RD, and to pay to him directly half of the royalties stated in the licensing agreement. It would continue to withhold Arambe ’ s share of the royalties from the first run in order to cover any claim by RD. Should the fund prove insufficient, it intended to draw the remainder from box office receipts prior to the payment of the royalties stated in the agreement. The legal costs of the Abbey and of RD would be taken out of the royalties due to Arambe from the second run. For any future performance during the five-year period, it would pay half of the royalties to RD and half to Arambe .

Acting on behalf of Arambe , the applicant disputed the position adopted by the Abbey, maintaining that Arambe had acted consistently with the terms of the commissioning agreement with the co-authors.

On 28 May 2008 the applicant filed a complaint with the Equality Tribunal (“the Tribunal”), alleging discrimination by the Abbey on grounds of race. On 5 June 2008, the Abbey gave its first response to the complaint, denying the allegation but also challenging the admissibility of the complaint. It pointed out that the applicant had never been its employee, nor a candidate for employment at the theatre. He therefore could not make use of a procedure designed to resolve complaints of discrimination in employment only. On 25 September 2008 the secretariat of the Tribunal requested the applicant to file a more detailed statement of his complaint. He did so on 23 October 2008, setting out the facts of the case and providing examples of what he considered to be acts of racial discrimination against him. The Abbey gave its response to this on 11 December 2008, again challenging the admissibility of the complaint and denying all of the allegations.

In late 2009/early 2010 the applicant engaged in correspondence with the Tribunal regarding the progress of his complaint. In a letter of 10 February 2010 the Tribunal explained that complaints were being assigned to Equality Officers according to the dates on which the complainants ’ statements had been received. The turn of his complaint had not yet come. In April 2010 the applicant added an additional ground to his complaint, alleging that he had been victimized by the Abbey because of his complaint. The applicant was contacted on 14 July 2010 by the Equality Officer assigned to examine the case. The latter noted that the question of the applicant ’ s locus standi had arisen as a preliminary issue in the case, which would be the subject of a hearing that September. The applicant presented further lengthy submissions on the substance of his complaint on 6 August 2010. The hearing took place on 10 September 2010. The applicant was represented at it by counsel. Some days after the hearing, the Equality Officer informed the parties of a second hearing in December 2010, on the merits of the applicant ’ s case. He set 8 October 2010 as the deadline for the applicant ’ s further submissions. On that date the applicant ’ s counsel presented submissions on the complaint of victimization. The Abbey gave its submissions on 9 November 2010, again arguing that the complaint was inadmissible and unmeritorious.

On 17 November 2010 the Equality Officer issued his decision. Referring to the terms of the licensing agreement between Arambe and the Abbey, he concluded that it had not been the intention of the parties to enter into an arrangement that created a contract of employment between the applicant and the theatre. He found that the applicant had been acting as the agent of Arambe when the company entered into a commercial contractual relationship with the Abbey regarding the play. None of the characteristics of an employment relationship were present. Therefore, the applicant had never been an employee of the Abbey. Nor did the question of access to employment arise in relation to the second production of the play in 2008. In view of these findings, the applicant could not maintain his complaint of racial discrimination before the Tribunal, nor could he complain of victimization. The complaint was dismissed in its entirety.

The applicant sought judicial review to quash this decision. He represented himself at a hearing in the High Court on 27 July 2011. The High Court refused his application on 29 July 2011. The judge held that the Equality Officer was entitled to deal with the issue of locus standi at a preliminary hearing. The applicant had been represented by counsel at the hearing and had enjoyed the full opportunity to make all necessary submissions on this issue. The Equality Officer had not made any error of law, or any unsustainable findings of fact. Fair procedures had been followed. The complaint had been correctly dismissed for lack of jurisdiction. Other arguments made to the High Court by the applicant were not relevant to this decisive issue.

Still acting as a lay litigant, the applicant appealed to the Supreme Court, which rejected the appeal on 8 December 2015. On the question of whether the applicant has been an employee of the Abbey, the Supreme Court considered that this was refuted by the fact that it was not the applicant who was party to the agreement, but a limited liability company. Moreover, the purpose of the agreement was to grant to the Abbey permission to produce the play commissioned by Arambe . There was no possible basis to impugn the finding of the Equality Officer that the applicant was not an employee of the theatre. The applicant argued that it was a breach of fair procedures to limit the hearing of his complaint to the preliminary hearing of locus standi . The Supreme Court disagreed. It noted that the relevant legislation provided that a fundamental pre-condition for bringing a complaint to the Tribunal was that the complainant must be an employee. It was not unfair to determine that point before examining the substance of a complaint. The Equality Officer had not misconstrued the law or acted unreasonably. The applicant argued that it was unfair that a second hearing had been arranged but then cancelled. The Supreme Court stated that there was a range of appreciation in respect of the conduct of quasi-judicial bodies that should be respected. It would have been a breach of its statutory remit for the Tribunal to examine the substance of the applicant ’ s complaint. Had the applicant been an employee, then his complaint could have been considered, with a reasonable prospect of redress if the Tribunal had found in his favour on the facts. As to the argument that the Abbey had displayed favoritism towards RD, the Supreme Court stated that the applicant had provided no support for his allegations of victimization but merely repeated them throughout the proceedings. Furthermore, while the applicant had considered that the appropriate course of action was to apply to the Equality Tribunal, it was clear that there were other forms of redress in contract law, had he been able to prove a breach of the licensing agreement. He had not shown that no other form of remedy was available to him. The applicant also criticised the High Court for declining to give consideration to his arguments about equal treatment. The Supreme Court underlined that judicial review is not an appeal against the merits of the Tribunal ’ s decision but is essentially concerned with jurisdiction and procedure. The applicant had had the possibility of a full appeal to the Labour Court, but had chosen instead to seek judicial review of the Tribunal ’ s decision before the High Court. This did not allow him to reargue the substance of his complaint.

The Supreme Court rejected the applicant ’ s criticism of the fact that his case had not been assigned to an Equality Officer straightaway, but only after he had made his submission in October 2008. It did not consider it unreasonable to request the applicant to elucidate his complaint instead of just ticking a box on the complaint form. The applicant alleged that his case had been unlawfully and deliberately delayed by the Tribunal. The Supreme Court found nothing to show that he had been treated differently to any other complainant and observed that he was not entitled to any special treatment. Finally, the applicant argued that the delay between the preliminary hearing and the issue of the decision was unlawful. The Supreme Court rejected this, finding that a period of two months was not unreasonable in light of the arguments that had been put forward on the question of locus standi .

Separate to the proceedings brought before the Tribunal, the applicant instituted three sets of proceedings in 2009 before the High Court in relation to the dispute over the play, acting both in his own right and on behalf of Arambe . These proceedings were settled out of court in January 2013 with a payment of 200,000 euros to the applicant and Arambe .

B. Relevant domestic law

The Employment Equality Act 1998, as amended, provides as relevant:

“ 2. —(1) In this Act, unless the context otherwise requires—

...

‘ contract of employment ’ means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby—

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written;

...

‘ dismissal ’ includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

‘ employee ’ , subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person ’ s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;

‘ employer ’ , subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for who m the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

...

(3) For the purposes of this Act—

...

(d) in the case of a contract mentioned in paragraph (b)(i) of the definition of ‘ contract of employment ’ —

(i) references in this Act to an employee shall be construed as references to the party to the contract who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom it is to be executed,

(ii) any comparisons to be made for any of those purposes shall be between persons personally executing work or service for the same person or an associated person under such a contract or contracts, and

(iii) in particular, and without prejudice to the generality of the foregoing, references in sections 19(4)(a) and 22(1)(a) to employees shall be construed as references to those persons.

...

79. —(3A) If, in a case which is referred to the Director under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

...

(c) whether the complainant is an employee, or

(d) any other related question of law or fact,

the Director may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

...

83 .—(1) Not later than 42 days from the date of a decision of the Director under section 79 , the complainant or the respondent may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.

...

(4) In its determination of an appeal under this section, the Labour Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Labour Court for the discretion of the Director).

(5) If the Labour Court ’ s determination of an appeal against a decision of the Director on a preliminary issue under section 79 (3) is in favour of the complainant, the case shall be referred back to the Director for an investigation of the substantive issue...”

The Equal Status Act 2000 prohibits discrimination on grounds, inter alia , of “race, colour, nationality or ethnic or national origins” (s ection 3(3)(h)). The scope of this prohibition is set by s ection 5(1) of the Act which provides:

“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.”

COMPLAINTS

The applicant complained under Article 6 of the Convention that there had been excessive delay in the consideration of his case by the Tribunal, and that this situation disclosed discrimination against him on grounds of race, in violation of Article 14. He further complained that he had not received a fair hearing before the Tribunal, which had disregarded the merits of his case and only considered the issue of his employment status. He criticised the cancellation of the second hearing, and, relying on Articles 13 and 14, complained that the Irish courts had subsequently failed to remedy the shortcomings of procedure before the Tribunal. He considered that the Tribunal had not conducted the procedure or examined his case impartially, showing favouritism to the Abbey both procedurally and with respect to the arguments made before it. He invoked Article 14 in this respect too. Lastly, he complained of a violation of Article 13 and Article 14 in that both the Tribunal and the courts had failed to determine the merits of his claim, despite the strength of the arguments that he placed before them that he was the victim of racial discrimination.

THE LAW

A. The complaints under Article 6 § 1 of the Convention

Article 6 § 1 of the Convention, insofar as relevant, provides:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Court refers to its well-established case-law on the applicability of Article 6 § 1 in its civil limb, recently restated in Fazia Ali v. the United Kingdom , no. 40378/10 , 20 October 2015 (references omitted):

“ 53. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate to the actual existence of a right in the first place as well as to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (...). Lastly, the right must be a “civil right” (...).

54. Article 6 § 1 does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (...). The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see ...). This Court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law (ibid.).”

In the present case, the applicant was seeking to assert the right not to be subject to racial discrimination. There is a prohibition on such discrimination in Irish law (see the relevant provisions of the Employment Equality and Equal Status Act referred to above) and certain forms of racial discrimination can be prosecuted under the provisions of criminal law. The applicant, however, based his case solely on the Employment Equality Act, as he considered himself to be an employee of the Abbey. What is determinative of the applicant ’ s Article 6 complaint is that the proceedings he brought before the Tribunal were not decisive for the right he asserted. It was found at each stage of the domestic proceedings that the applicant had no standing to bring his complaint before the Tribunal . As he was not a person who worked or had worked for the Abbey under a contract of employment, the Tribunal did not have jurisdiction to hear his complaint. Having regard to the facts of the case and the plain wording of the relevant domestic legislation, the Court can see no reason to question the conclusion of the domestic courts to that effect, or the careful consideration by the Tribunal of its jurisdiction as a preliminary issue. Accordingly, since the proceedings the applicant sought to bring before the Tribunal could not, as a matter of domestic law, have any bearing on the right he was seeking to have determined, Article 6 is inapplicable (see Hotter v. Austria ( dec. ), no. 18206/06, 7 October 2010).

The same applies to the judicial review proceedings, by which the applicant sought to quash the ruling of the Tribunal. As the Supreme Court observed, an application for judicial review could not consider the merits of the applicant ’ s case but was limited to questions of the jurisdiction of the Tribunal and the procedures it followed.

The fact that the applicant did not have locus standi before the Tribunal did not mean that he was left without legal protection. In his capacity as a director of Arambe , he was not left without redress for the dispute that wa s at the origin of the present case. As he has indicated, and as the Supreme Court noted, he brought separate proceedings before the High Court against the other parties to the dispute and reached a settlement with them in 2013.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

B. The other complaints

The applicant made complaints under Articles 13 and 14 of the Convention, both in conjunction with his complaints under Article 6. Having already found Article 6 inapplicable in the present case, the Court must reach the same conclusion as regards the other two Articles (see De Bruin v. t he Netherlands ( dec. ), no. 9765/09, 27 July 2013). It follows that these complaints too are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 23 February 2017 .

Anne-Marie Dougin André Potocki Acting Deputy Registrar President