Corporate Standing and Discrimination by Association under the Equal Status Acts: Commentary on XTX Markets Technologies Ltd v Aviva Investors Liquidity Funds plc [2025] IEHC 651

Corporate Standing and Discrimination by Association under the Equal Status Acts: Commentary on XTX Markets Technologies Ltd v Aviva Investors Liquidity Funds plc [2025] IEHC 651

1. Introduction

The decision of Phelan J in XTX Markets Technologies Ltd v Aviva Investors Liquidity Funds plc [2025] IEHC 651 is a major development in Irish equality law. It squarely answers, for the first time at High Court level, whether a legal person (a company) can be a complainant under the Equal Status Act 2000 (“the 2000 Act”, “Equal Status Acts”).

The case arose from the refusal by Aviva, an Irish investment fund, to provide financial services to XTX, a UK-incorporated trading firm, due to concerns about EU sanctions affecting its Russian-born founder and ultimate beneficial owner (UBO) (paras. 5–9). XTX alleged race (nationality) discrimination in access to services, contrary to s. 3(2)(h) and s. 5 of the 2000 Act, based both on:

  • its own (imputed) nationality, and
  • the nationality of its founder/UBO, said to be a person “associated” with XTX for the purposes of s. 3(1)(b).

Both the Workplace Relations Commission (WRC) and the Circuit Court dismissed XTX’s complaint on a preliminary issue: they held that a company had no standing (“locus standi”) to bring a claim under the 2000 Act. No evidence on the merits was heard (paras. 2, 20–23, 26–28).

On a statutory appeal on a point of law under s. 28(3) of the 2000 Act (para. 1), the High Court:

  • set aside the Circuit Court’s decision, and
  • held that a legal person can be a complainant under s. 21 where it suffers detriment “on any of the grounds” listed in s. 3(2), including by discrimination by association under s. 3(1)(b).

In reaching this result, the Court engaged in a detailed exercise of statutory interpretation, heavily informed by:

  • the Interpretation Act 2005;
  • the structure and purpose of the Equal Status Acts;
  • EU anti-discrimination law (especially the Race Directive 2000/43/EC and CJEU case law such as Coleman and Chez); and
  • the European Convention on Human Rights (ECHR) and the 2003 Act, albeit ultimately finding the Convention arguments added little.

The judgment has two core outcomes:

  1. Corporate standing: a “person” who may complain under s. 21 includes both natural and legal persons (para. 191).
  2. Focus on the discriminatory ground: a complainant does not have to personally possess the protected characteristic; it is enough that the reason for the detriment is one of the protected grounds, including association with a protected person (paras. 121–123, 135, 138, 192).

2. Background of the Case

2.1 Factual Context

XTX is a UK-incorporated private limited company and part of a global financial technology group. Its founder and UBO is a Russian national (later a dual British–Russian national) resident in London (para. 6). Aviva is an Irish public limited company operating investment funds (para. 6).

In 2021–2022, XTX sought to invest in Aviva-operated funds. Aviva became concerned that EU sanctions (Council Regulations (EU) 2022/328, 2022/398, read with Reg. 833/2014 and Reg. 765/2006) prohibited providing certain euro-denominated securities or fund units to:

  • Russian nationals or residents, and
  • legal persons “established in Russia”, or where the transaction might amount to “circumvention” (paras. 7–8).

Aviva refused to provide the investment services, citing those sanctions (para. 8). XTX asserted that:

  • it was not a sanctioned entity;
  • no other financial institution or regulator (including the Central Bank of Ireland) took the same view; and
  • the refusal was unlawful and discriminatory on the race/nationality ground (para. 9, 12–13).

XTX considered bringing proceedings under the UK Equality Act 2010 but jurisdictional issues (Irish-resident respondent) led it to complain instead under the Irish Equal Status Acts (para. 10–11).

2.2 WRC and Circuit Court Decisions

XTX lodged a WRC complaint under s. 21 ESA 2000 on 27 February 2023 (para. 12). The preliminary issue listed was whether a corporate entity could be a complainant on the race ground based on the nationality (or imputed nationality) of its founder/UBO (paras. 13, 26).

XTX argued that:

  • the Acts did not define “person” in relation to complainants;
  • by virtue of s. 18(c) Interpretation Act 2005, “person” includes a body corporate unless a contrary intention appears (paras. 16–18); and
  • s. 3(1)(b) ESA 2000 expressly contemplates discrimination by association and had been overlooked in prior Tribunal decisions (paras. 17–18, 26–27).

Aviva argued that:

  • the definition of “person” in s. 2 ESA 2000 applies only to respondents, not complainants;
  • the scheme and language of the Act (e.g. focus on human characteristics) implied that only natural persons could be victims; and
  • WRC and Equality Tribunal case law consistently denied corporate standing (citing Gloria, Cork Deaf Club, etc.; para. 19–22).

The WRC Adjudication Officer followed Gloria v Cork International Choral Festival Ltd DEC-S2008-078 and similar decisions, holding that a company cannot have a “protected characteristic” and therefore has no standing under the Acts (paras. 20–22). The Officer found that the definition of “person” in s. 2 applied only to respondents, not complainants, and did not address XTX’s reliance on s. 3(1)(b) (para. 23).

The Circuit Court (XTX v Aviva [2024] IECC 18) upheld that approach. Judge O’Connor held that only the Oireachtas could create a new cause of action for companies in clear terms, invoking Meagher v Luke J Healy Pharmacy Ltd [2010] 3 IR 743 (para. 27). He considered the 2000 Act unambiguous and declined to rely on the Interpretation Act to “enhance” its scope. Again, no real engagement occurred with s. 3(1)(b) (para. 28).

2.3 The High Court Appeal

XTX appealed to the High Court on a point of law under s. 28(3) ESA 2000 (paras. 29–31). It sought:

  • reversal of the Circuit Court judgment;
  • declarations that companies are not barred from bringing ESA claims; and, alternatively,
  • declarations of incompatibility of the ESA with EU law (Race Directive, Charter) and the ECHR, and a potential Article 267 TFEU reference (paras. 29, 31, 76–78).

The Attorney General was joined only to contest any declaration of incompatibility under the ECHR Act 2003 (paras. 78–79).

3. Summary of the Judgment

3.1 Scope of the Appeal

Phelan J first determined the scope of a statutory appeal under s. 28(3). Following Stokes v Christian Brothers High School and Deely v Information Commissioner, the High Court can:

  • review and correct errors of law in decisions of the WRC and Circuit Court (para. 81);
  • interpret the underlying statute (including by reference to EU and ECHR obligations) (paras. 83–85);
  • but cannot, within such an appeal, grant:
    • a declaration of unconstitutionality; or
    • a declaration of incompatibility under s. 5 ECHR Act 2003,
    as those reliefs are beyond the jurisdiction of the WRC and therefore beyond the High Court on a purely statutory appeal (paras. 86–88).

Accordingly, the Court confined itself to determining the correct interpretation of the 2000 Act and whether XTX had standing. Any broader incompatibility relief would require separate proceedings (para. 87–88).

3.2 Core Holdings

The Court’s main conclusions can be summarised as follows:

  1. “Person” includes companies for complainant purposes Under s. 18(c) Interpretation Act 2005, “person” includes a body corporate unless a contrary intention appears (paras. 91–93).
    • s. 2 ESA 2000 provides a special definition of “person” for respondents, which includes organisations and public bodies, but that definition is expressly limited to respondents (paras. 101–107).
    • Nothing in the 2000 Act manifests a contrary intention that would exclude legal persons as complainants; therefore, the general Interpretation Act definition applies (paras. 185–186, 191).
  2. Discrimination is about the ground, not the claimant’s own characteristic Section 3(1) ESA 2000 prohibits less favourable treatment “on any of the grounds” in s. 3(2) (paras. 119–121, 135).
    • There is no requirement that the complainant personally has the protected characteristic; it is enough that the reason for the detriment is one of those grounds (paras. 121–122).
    • This is reinforced by s. 3(1)(b), which expressly recognises discrimination by association, including where the victim does not have the characteristic but is associated with someone who does (paras. 35, 138–141).
  3. Legal persons can suffer discrimination by association There is no textual barrier to a legal person being the victim of discrimination by association. A company can be treated less favourably because of the race, religion, sexual orientation or other characteristic of its owners, directors, employees or customers (paras. 139–141, 187).
  4. EU law supports (and in substance requires) this broader reading The Court aligned s. 3 with the Race Directive and CJEU case law:
    • The Directive’s prohibition of discrimination “on grounds of” race or ethnic origin, and Recital 16, contemplate protection of legal persons in appropriate cases (paras. 66–71, 128–137, 170–172).
    • Coleman (C-303/06) and Chez (C-83/14) confirm that EU anti-discrimination law protects persons who do not themselves have the protected characteristic but are treated adversely because of that ground (paras. 130–137).
  5. The expressio unius argument fails The Respondent’s reliance on the maxim expressio unius exclusio alterius (that express mention of “person” as including organisations for respondents implied exclusion for complainants) was rejected as over-reaching, inconsistent with the Act’s remedial purpose and unsupported by the text read as a whole (paras. 150–160, 185–186).
  6. ECHR arguments add little While legal persons can in principle enjoy some Convention rights (e.g. Article 6 and Article 1 Protocol 1), the Court found no clear Convention right requiring a different interpretation and no breach of Articles 6, 13 or 14 in the mere fact that earlier tribunals had refused standing (paras. 174–184).

On that basis, the Court held that XTX, as a company, did have standing to bring a claim under the 2000 Act (para. 190–192), set aside the Circuit Court judgment, and indicated that the matter should be remitted to the WRC for a full hearing on the merits (para. 193).

4. Detailed Analysis

4.1 Statutory and EU Framework

4.1.1 The Equal Status Act 2000

Key provisions considered included:

  • s. 2: interpretation section; defines “person” only as used in relation to prohibitions on discrimination or compliance duties, and expressly expands it to include an “organisation, public body or other entity” (respondent-focused) (para. 33, 101).
  • s. 3: defines discrimination as less favourable treatment “on any of the grounds” listed in s. 3(2); includes discrimination by association in s. 3(1)(b) (paras. 35, 119–123, 138).
  • s. 5: prohibits discrimination in providing goods and services to “the public generally or a section of the public” (paras. 37, 144).
  • s. 14: carve-outs for actions required by other law, including a nationality-related exception introduced to implement EU law on treatment of non-nationals (paras. 38, 47, 172).
  • s. 20–21: “complainant” means a “person” under s. 21(1); s. 21(1) allows a “person who claims that prohibited conduct has been directed against him or her” to seek redress (paras. 39–40, 146–147).
  • s. 23: allows the Equality Authority / IHREC, a legal person, to bring proceedings as a complainant in certain systemic cases (paras. 44, 149).
  • s. 28: provides for appeal to the Circuit Court and a further appeal to the High Court on a point of law only (paras. 45, 81–83).

The Court’s task was to determine, reading these provisions together and in context, whether “person” in s. 21(1) was confined to natural individuals or also included companies.

4.1.2 The Interpretation Acts

Two Interpretation Acts were relevant:

  • Interpretation Act 1937 – in force at the time of the original 2000 Act; s. 11(c) defined “person” as including a body corporate and unincorporated body of persons, unless the contrary intention appears (paras. 50–51).
  • Interpretation Act 2005 – current interpretative code; s. 18(c) defines “person” identically but adds that pronouns (“him”, “her”, etc.) should be read consistently with that broad definition (paras. 52–53, 146–147).

Section 4 Interpretation Act 2005 provides that those default definitions apply to enactments “except in so far as the contrary intention appears” in the specific Act (paras. 52, 92–96). This “contrary intention” test, and its elaboration in Friends of the Irish Environment CLG v Legal Aid Board [2023] IECA 19, was central to the Court’s reasoning (paras. 92–97).

4.1.3 EU Equality Directives and the Charter

The Equal Status Acts form part of Ireland’s implementation of several EU equality directives, particularly:

  • Race Directive 2000/43/EC: implementing equal treatment irrespective of racial or ethnic origin in a wide range of fields including goods and services; see recital 13 and Article 3 (paras. 64–71, 172).
  • Other equality directives (Directive 2000/78, Directive 2004/113, Directive 2006/54, Directive 2010/41), which all use a similar “on grounds of” formulation and require Member States to ensure access to effective remedies (paras. 69–71, 190–191).

Particularly significant is Recital 16 of the Race Directive, which states (paras. 66, 170–172):

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

The Charter of Fundamental Rights was also engaged:

  • Article 20: equality before the law.
  • Article 21: prohibition of discrimination on grounds including race, ethnic origin, nationality, etc. (paras. 56–62, 169–171).

The Court accepted that domestic courts and tribunals must interpret national law consistently with EU law where possible (paras. 4, 98–99, 166–173).

4.1.4 The ECHR and the 2003 Act

Sections 2 and 4 of the ECHR Act 2003 require Irish courts to interpret statutes, where possible, in a manner compatible with Convention rights (paras. 72–73, 84–85). XTX relied primarily on:

  • Article 6 (fair trial / access to court);
  • Article 13 (effective remedy);
  • Article 14 (non-discrimination);
  • Article 1 Protocol 1 (property) (paras. 74–75, 177–178).

However, the Court concluded that Convention law did not add materially to the analysis or compel a broader reading beyond what was already required by the text and EU law (paras. 174–184).

4.2 Interpretation of “Person” and Standing

4.2.1 The Two-Level Interpretative Test

Phelan J applied two complementary interpretative frameworks:

  1. Heather Hill test: as per Heather Hill Management Company CLG v An Bord Pleanála [2024] IESC 43, statutory words must be read:
    • starting with the ordinary meaning of the text, but
    • also in light of the whole Act, its context, and its purpose (paras. 89–90).
  2. Friends of the Irish Environment test: applying s. 18(c) and s. 4 Interpretation Act 2005, the default meaning of “person” (including bodies corporate) applies unless a contrary intention appears from the legislation’s “substance and tenor” (paras. 92–97).

In combination, the Court asked:

  • Does the Equal Status Act, read as a whole and in context (including EU law), show that “person” in s. 21(1) must be confined to natural persons?
  • Or does the default Interpretation Act meaning (including corporations) continue to apply?

4.2.2 Section 2: A Special Definition Limited to Respondents

Section 2 ESA 2000 defines “person” in a deliberately narrow way:

“‘person’, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity.” (para. 33, emphasis added)

Key points from the Court’s analysis:

  • The definition is expressly limited to contexts where:
    • a person is being prohibited from discriminating, or
    • a person is required to comply with the Act,
    i.e. to respondents, not complainants (paras. 101–107).
  • It was necessary because the generic “person” in the Interpretation Acts did not explicitly mention “public bodies”; but the Race Directive clearly applies to “public bodies”, so the Oireachtas had to ensure they were within the respondent class (paras. 108–113).
  • Nothing in s. 2 says, or implies, that the broader Interpretation Act definition is disapplied for complainants; it simply adds an additional clarification for respondents (paras. 115–118, 153–156).

The Court rejected the argument that by only defining “person” for respondents, the Oireachtas silently excluded companies as complainants. Had this been the intention, the Act could easily have said so expressly (paras. 115–117, 153–156).

4.2.3 Sections 3, 5, 20 and 21: Who Can Complain?

The Court then examined the operative provisions governing discrimination and complaints.

Section 3:

  • Defines discrimination as occurring “where a person is treated less favourably than another person in a comparable situation on any of the grounds…” (para. 35, 119).
  • The list of grounds in s. 3(2) (gender, civil status, family status, sexual orientation, religion, age, disability, race, Traveller community, housing assistance) are inherently human characteristics (paras. 36, 104, 139).
  • However, s. 3(1)(b) explicitly recognises discrimination by association: where a person associated with another is treated less favourably “by virtue of that association” (paras. 35, 138–141).

Section 5:

  • Prohibits a “person” from discriminating in providing goods and services to “the public generally or a section of the public” (paras. 37, 144).
  • Notably, it does not limit who within “the public” can be a victim; the term clearly includes corporate service-users (paras. 144–145).

Sections 20–21:

  • “Complainant” means a “person” referred to in s. 21(1) (para. 39, 146).
  • Section 21(1) states that a “person who claims that prohibited conduct has been directed against him or her” may seek redress (para. 40, 146–147).

On the pronoun “him or her”, the Court held:

  • By virtue of s. 18(c) Interpretation Act 2005, pronouns are to be read consistently with the broader “person” definition, and cannot be used to smuggle in a restriction to natural individuals (paras. 53, 146–147).
  • There is no explicit exclusion of legal persons from complaining; the Act could easily have provided such if that had been the intention (paras. 146–147).

4.2.4 Rejecting Expressio Unius as a Basis to Exclude Companies

Aviva argued that because the Act:

  • expressly included bodies corporate and public bodies in the respondent definition in s. 2, but
  • was silent on complainants,

the maxim expressio unius exclusio alterius (to express one thing is to exclude another) meant that legal persons were excluded as complainants.

The Court firmly rejected this (paras. 150–160), noting:

  • The maxim is only a guide, not a rigid rule; it must be applied cautiously and in light of the Act as a whole (paras. 150–152, 157–160).
  • In O’Connell v An tArd Chláraitheoir [1997] 1 IR 377, its use was justified because the definition of “occupier” was clearly exhaustive. Here, s. 2 is explicitly confined to one functional context (respondents) and does not purport to define “person” for all ESA purposes (paras. 154–156).
  • To use the maxim to:
    • displace the Interpretation Act definition, and simultaneously
    • invent a new, narrower definition of “person” that appears nowhere in the text,
    would overstep the judicial interpretative role and undermine the remedial purpose of the Act (paras. 159–160).

Thus, there was no “contrary intention” sufficient to disapply s. 18(c) Interpretation Act 2005 in relation to complainants (paras. 185–186).

4.3 Discrimination “On Grounds Of” and By Association

4.3.1 The Centrality of the Ground, Not the Status of the Claimant

A core analytical move in the judgment is the shift from the status of the complainant to the reason for the treatment. The Court held:

  • Section 3 is concerned with whether a person has been treated less favourably “on any of the grounds”; it does not require that the complainant personally possess those grounds (paras. 119–123, 121–122, 135).
  • This is distinct from s. 4 ESA 2000 (reasonable accommodation), which explicitly refers to “a person with a disability” and thus requires the claimant to be disabled (paras. 120, 133).

This reasoning tracks closely the language and logic of the EU equality directives (“on grounds of”) and CJEU jurisprudence (paras. 128–135).

4.3.2 CJEU Case Law: Coleman and Chez

The Court drew heavily on two leading CJEU decisions:

  • Coleman v Attridge Law (C-303/06)
    • Concerned Directive 2000/78/EC (employment equality), which, like the Race Directive and s. 3 ESA, prohibits discrimination “on grounds of” disability.
    • The CJEU held that the Directive protects not only disabled persons, but also those who suffer less favourable treatment because of the disability of another person with whom they are associated (paras. 130–133).
    • The principle: the Directive aims to combat all discrimination “on the grounds” listed, not to confine protection to persons who personally display those characteristics.
  • Chez Razpredelenie Bulgaria (C-83/14)
    • Involved alleged ethnic discrimination in electricity supply practices affecting Roma neighbourhoods.
    • The claimant was not herself Roma, but lived in a predominantly Roma district.
    • The CJEU held that the Race Directive applies “not to a particular category of person but by reference to the grounds mentioned in Article 1” and protects “all persons” who suffer less favourable treatment on those grounds (paras. 136–137).
    • The Court explicitly relied on Recital 16 (protection of “all persons”) and held that association-based discrimination falls within the Directive’s ambit.

Phelan J reasoned that, as the Equal Status Acts are intended in part to implement the Race Directive, s. 3 must be interpreted in line with these rulings. Thus:

  • a claimant under s. 3 need not personally have the protected characteristic;
  • the law prohibits any detriment suffered because of a protected ground, including via association (paras. 135–138).

4.3.3 Section 3(1)(b): A Domestic Expression of Association-Based Discrimination

Even without CJEU guidance, s. 3(1)(b) already codified discrimination by association:

  • it expressly covers situations where a person is treated less favourably “by virtue of” association with someone who has a protected characteristic (paras. 35, 138–141);
  • it is not textually limited to natural-person complainants or associates; the provision is neutral as to the legal form of either (para. 138–141).

The Court observed that s. 3(1)(b) was not addressed at all by the WRC or Circuit Court, despite having been squarely argued by XTX (paras. 23, 26–28). This omission was central to the High Court’s finding that the lower decisions rested on an erroneous understanding of the statutory scheme.

4.3.4 UK Analogies: EAD Solicitors and Traveller Movement

Although not binding, the Court drew support from two English cases interpreting the Equality Act 2010:

  • EAD Solicitors LLP v Abrams (EAT, 2015): held that a legal person could be the victim of discrimination because detriments can be inflicted on bodies corporate, and the statute was concerned with treatment “because of” a protected characteristic, not with the claimant’s own status (paras. 123–125, 187).
  • The Traveller Movement & Ors v J D Wetherspoon plc (Central London County Court, 2015): held that a company (Traveller Movement) could be a “person” for discrimination purposes and could be discriminated against on the grounds of its association with Irish Travellers/Romani Gypsies (paras. 126–127).

These decisions reinforced the policy logic that there is no reason in principle to exclude companies from protection where they are targeted because of protected characteristics of individuals with whom they are associated (paras. 187–188).

4.4 Role of EU Law and the ECHR in Interpretation

4.4.1 EU-Consistent Interpretation and Disapplication

The Court reiterated the now well-established duty on Irish courts and tribunals:

  • to interpret national law, so far as possible, consistently with relevant EU directives (Marleasing, Von Colson, etc.);
  • and, where consistent interpretation is impossible, for adjudicative bodies (including the WRC and Circuit Court) to disapply incompatible national provisions (Minister for Justice v WRC C-378/17; Mallon v Minister for Justice [2024] IESC 20) (paras. 98–99, 86).

Here, it was possible to interpret the Equal Status Acts consistently with EU law by:

  • treating “person” in s. 3 and s. 21 as including legal persons; and
  • focusing on discrimination “on grounds of” race or other protected characteristics, including association-based cases (paras. 128–137, 170–173, 190–192).

4.4.2 Recital 16 and Protection of Legal Persons

Recital 16 of the Race Directive expressly contemplates that Member States “should… provide… protection for legal persons” where they suffer discrimination on racial/ethnic grounds of their members (paras. 66, 170–172). While phrased as “should” rather than “shall”, the CJEU in Chez has treated Recital 16 as supporting a broad interpration of the Directive’s scope (paras. 136–137).

Phelan J concluded that:

  • EU law does not absolutely compel Ireland to provide corporate standing in national law, but
  • where domestic legislation is ambiguous or silent, an interpretation including legal persons is strongly supported by Recital 16 and the Directive’s purpose (paras. 170–173, 189–190).

4.4.3 The Charter and Horizontal Effect

The Court acknowledged:

  • Article 21 Charter prohibits discrimination on numerous grounds; and
  • the CJEU has recognised horizontal direct effect of Article 21 in cases such as Egenberger (C-414/16) and IR v JQ (C-68/17) (paras. 56–63, 167–169).

However:

  • there is no CJEU case expressly holding that Article 21 extends discrimination protection to legal persons, nor any excluding them; and
  • the Court did not need to rely on horizontal direct effect as the 2000 Act could be adequately interpreted in line with EU directives without invoking free-standing Charter rights (paras. 168–171).

4.4.4 The Convention: Limited Relevance

The Convention arguments focused on the idea that denying corporate standing:

  • violated XTX’s right of access to court (Article 6);
  • denied an effective remedy (Article 13);
  • constituted discrimination (Article 14) in relation to those rights; and/or
  • interfered with “possessions” (Article 1 Protocol 1) by denying access to investment (paras. 174–181).

Phelan J held that:

  • these rights are “parasitic” – they require an underlying recognised Convention right; here there was no clear Convention-recognised “property” interest in access to a particular commercial service (paras. 178–183);
  • the fact that a preliminary legal issue (standing) was decided against a party, with full appeal rights, does not itself violate Article 6 or Article 13; it is part of defining the scope of the substantive right (paras. 181–183);
  • in any event, the Court’s ultimate conclusion on standing made it unnecessary to rely on the Convention to expand the scope of the 2000 Act (paras. 178–184).

4.5 The Nature and Limits of the Statutory Appeal

A further important aspect of the judgment is its clarification of what a High Court can (and cannot) do on a s. 28(3) appeal.

  • The High Court can:
    • review whether the WRC and Circuit Court took “an erroneous view of the law” (following Stokes, Deely) (paras. 81–83);
    • engage in full statutory interpretation, including consideration of EU and Convention obligations (paras. 83–85);
    • set aside the lower decision and remit for re-hearing.
  • But it cannot, on this type of appeal:
    • grant a declaration of incompatibility with the ECHR under s. 5 ECHR Act; or
    • rule on constitutionality,
    because those are remedies beyond the jurisdiction of the WRC and the Circuit Court in an ESA appeal, and the High Court is acting only within that appellate jurisdiction (paras. 86–88).

This is a useful clarification for future ESA appeals and underscores that structural challenges to the compatibility of the Acts with EU law or the Convention must, if necessary, be brought in separate proceedings.

5. Precedents Cited and their Influence

5.1 Domestic Authorities

  • Stokes v Christian Brothers High School [2015] IESC 13; Cahill v Minister for Education [2018] 2 IR 417 Confirmed the nature of appeals on a point of law from equality decisions – useful in framing the Court’s jurisdiction (para. 81).
  • Deely v Information Commissioner [2001] 3 IR 439 Cited for grounds to set aside administrative decisions, including taking an erroneous view of the law (para. 81).
  • Heather Hill Management Company CLG v An Bord Pleanála [2024] IESC 43 Major recent authority on statutory interpretation, emphasising context and purpose alongside text (paras. 89–90).
  • Friends of the Irish Environment CLG v Legal Aid Board [2023] IECA 19 Key authority on how s. 18(c) Interpretation Act 2005 operates and when its presumptive meaning (including bodies corporate) can be displaced; heavily relied upon for the “substance and tenor” test (paras. 92–97).
  • Meagher v Luke J Healy Pharmacy Ltd [2010] 3 IR 743 Relied on by the Circuit Court to argue that Oireachtas must speak clearly when creating new causes of action. Phelan J distinguished this, holding that she was not creating a new cause of action but applying the existing statutory and interpretative framework (para. 27, 160–161).
  • An Blascaod Mór Teo v Commissioners of Public Works [1994] 2 IR 372 Example of looking at an Act “as a whole” to infer parliamentary intention; cited in the context of expressing or not expressing limits on categories of persons (para. 152–153).
  • O’Connell v An tArd Chláraitheoir [1997] 1 IR 377 Used to illustrate proper and improper application of expressio unius. Distinguished because the definition there was clearly exhaustive, unlike ESA s. 2 (paras. 154–156).
  • M.M. v D.D. [1998] (HC) Cited as an example of not allowing canons of construction (like expressio unius) to frustrate legislative intent (para. 159).
  • WRC/Equality Tribunal cases (Gloria, Cork Deaf Club, etc.) These decisions had consistently rejected corporate standing. Phelan J effectively disapproved that line of WRC/Tribunal authority, pointing out their failure to analyse s. 3(1)(b) and the Interpretation Act (paras. 19–23, 20–23, 26–28).

5.2 EU and International Authorities

  • Coleman v Attridge Law (C-303/06) Central for the concept of discrimination by association under EU directives using “on grounds of” language (paras. 130–135).
  • Chez Razpredelenie Bulgaria AD (C-83/14) Extended Coleman’s reasoning to the Race Directive; emphasised that protection is afforded “by reference to the grounds”, benefits “all persons” and covers those not themselves of the relevant race/ethnic group (paras. 136–137).
  • Akzo Nobel v Commission (C-550/07) Cited for the principle that equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 Charter (para. 56).
  • Åkerberg Fransson (C-617/10) Confirmed that the Charter applies in all situations governed by EU law, including national measures implementing EU obligations (paras. 57–58).
  • Egenberger (C-414/16) and IR v JQ (C-68/17) Confirmed horizontal direct effect of Article 21 Charter in some contexts; cited as part of the Charter background (paras. 167–169).
  • Minister for Justice & Equality v WRC (C-378/17) and Mallon v Minister for Justice [2024] IESC 20 Established that national bodies like the WRC must disapply incompatible national provisions; used to frame the reach of EU-consistent interpretation and disapplication (paras. 86, 98–99).
  • Basarba OOD v Bulgaria (ECtHR) and Zubac v Croatia (GC, ECtHR) Invoked by XTX to argue Article 6 and Article 1 Protocol 1 rights; the Court distinguished them, noting their very different factual and procedural contexts (paras. 179–183).

6. Complex Concepts Simplified

6.1 “Locus Standi” / Standing

“Standing” or locus standi refers to a party’s legal entitlement to bring a claim before a court or tribunal. In this case, the issue was:

  • not whether XTX had in fact suffered discrimination (the merits were not heard); but
  • whether a company is even eligible to invoke the Equal Status Acts at all.

The High Court held that it is: “a legal entity may have standing to bring a claim under the 2000 Acts” (para. 190).

6.2 Legal Person vs Natural Person

A natural person is a human being. A legal person (or “juridical person”) is an entity such as a company, partnership or association that the law recognises as capable of holding rights and obligations in its own name.

The Interpretation Act 2005 treats “person” as including both, unless the relevant statute clearly indicates otherwise (s. 18(c), para. 53). Phelan J found no such exclusion in the Equal Status Act.

6.3 Discrimination by Association

“Discrimination by association” arises where:

  • the complainant does not personally possess the protected characteristic, but
  • they are treated adversely because of that characteristic in someone they are associated with: a family member, employee, customer, or (as here) a company founder/UBO.

Under Irish law this is explicitly recognised in s. 3(1)(b) ESA 2000. Under EU law, it has been recognised judicially in Coleman and Chez without specific legislative wording.

6.4 Expressio Unius Exclusio Alterius

This Latin maxim means: “the express mention of one thing implies the exclusion of others.” It can be a helpful tool when:

  • a statute includes a clear, exhaustive list within a category, and
  • the legislature’s intention to limit that category by that list is evident.

In XTX, Phelan J held that it does not apply to turn s. 2’s respondent-focused definition of “person” into a hidden exclusion of companies as complainants, because:

  • s. 2 is explicitly limited to certain contexts;
  • the Act nowhere suggests the complainant class is closed to legal persons; and
  • to infer such an exclusion would contradict the Act’s remedial purpose and the default Interpretation Act definition (paras. 150–160).

6.5 “On Any of the Grounds” vs Having the Characteristic

The Equal Status Act prohibits discrimination “on any of the grounds specified in subsection (2)” (s. 3(1)(a)). This is crucially different from saying:

“only persons who have those characteristics can complain.”

It instead means:

  • If the reason for less favourable treatment is a protected ground (race, gender, etc.), the law is engaged,
  • even if the complainant does not personally share that characteristic (paras. 121–123, 135–141, 192).

6.6 EU-Consistent Interpretation

Where an Irish statute is passed to help implement EU directives, Irish courts must:

  • interpret it, so far as possible, in a way that gives effect to EU law obligations;
  • avoid narrow or technical readings that defeat the Directive’s purpose.

In anti-discrimination law, this generally favours:

  • reading protection broadly (covering all forms of discrimination on specified grounds);
  • not limiting victims to a narrower category than EU law contemplates (such as excluding legal persons where EU texts expressly envisage them, as in Recital 16).

7. Impact and Future Implications

7.1 Immediate Legal Consequences

  • Corporate complainants are now clearly within scope The High Court has authoritatively held that companies and other legal persons can be complainants under s. 21 ESA 2000 (paras. 190–192). This directly disapproves previous WRC/Equality Tribunal decisions that denied such standing.
  • WRC and Circuit Court practice must change Going forward, WRC adjudicators and Circuit Court judges must:
    • accept complaints from corporate entities where they allege detriment on ESA grounds; and
    • engage fully with s. 3(1)(b) discrimination by association, rather than treating the absence of a personal protected characteristic as dispositive.
  • Scope of potential complainants widens substantially Potential new categories include:
    • companies refused services because of the race, religion, or sexual orientation profile of their workforce or customer base;
    • businesses targeted because of the ethnic origin or nationality of their owners or directors (as in XTX);
    • NGOs or associations denied facilities or contracts because they represent or support a particular protected group.

7.2 Effects on Financial and Other Service Providers

Service providers – particularly in regulated sectors such as finance, insurance, utilities and telecoms – will need to reassess policies and risk-controls, especially where:

  • compliance with sanctions, anti-money laundering or other regulations leads to blanket restrictions affecting entities associated with individuals of certain nationalities or ethnic backgrounds;
  • business decisions indirectly penalise organisations with diverse or minority-heavy workforces or clienteles.

Key implications:

  • While lawful compliance with binding sanctions and other laws may fall within s. 14 ESA carve-outs, providers must ensure their interpretation and application of such regimes is proportionate and non-discriminatory.
  • They must be able to demonstrate that refusals of service are not, in substance, based on prohibited grounds such as race or nationality, unless clearly justified by statutory exceptions.

7.3 Systemic Enforcement and IHREC’s Role

Section 23 ESA and EU directives already contemplate legal entities (like IHREC) pursuing cases on behalf of individuals or groups. With corporate standing now confirmed:

  • there may be more “test case” litigation by NGOs and representative bodies that themselves experience detriment when advocating for protected groups;
  • IHREC may use its powers more strategically in contexts where service providers adopt policies that de facto penalise organisations associated with racial or ethnic minorities, migrant communities, or Travellers.

7.4 Likely Limits: No Floodgates

Although the judgment broadens standing, it does not create an open-ended cause of action:

  • Corporate complainants, like individuals, must still:
    • identify a relevant field of application (goods and services, accommodation, education, etc.);
    • prove less favourable treatment compared with an appropriate comparator or a hypothetical comparator; and
    • show that the reason for that treatment was a prohibited ground.
  • Many protected grounds (e.g. civil status, family status, sexual orientation) will rarely, if ever, be directly relevant to a company’s treatment unless clearly linked to associated persons.

The Court itself noted that the practical impact may be modest in volume, but important in principle (paras. 139–141).

7.5 Broader Normative and Doctrinal Significance

The judgment reinforces several broader principles:

  • Remedial legislation should be read generously Equality statutes, designed “to promote equality and prohibit… discrimination”, must be given a liberal, purpose-driven interpretation, not restricted by implication or technicality (paras. 161–164).
  • Priority of EU-law-consistent interpretation Domestic courts must align national equality law with the objectives, language and case law interpreting EU anti-discrimination directives, particularly the focus on the ground of discrimination rather than the claimant’s personal status (paras. 128–137, 166–173).
  • Judicial clarification of statutory-appeal boundaries The Court clearly demarcates what can and cannot be done on a s. 28(3) appeal. This has process-structuring consequences for future litigants considering EU or Convention-based challenges to the Equal Status Acts (paras. 81–88).

8. Conclusion: Key Takeaways

  • Corporate standing confirmed – A “person” who can complain under s. 21 ESA 2000 includes legal as well as natural persons, by virtue of s. 18(c) Interpretation Act 2005. There is no contrary intention in the ESA sufficient to displace this (paras. 185–191).
  • Discrimination is about grounds, not identity – The Equal Status Acts focus on whether a detriment was inflicted “on any of the grounds” listed in s. 3(2). The complainant does not have to personally possess the protected characteristic (paras. 121–123, 135, 192).
  • Discrimination by association is central and applies to legal persons – Section 3(1)(b), reinforced by EU case law (Coleman, Chez), means that organisations can sue where they are disadvantaged because of the characteristics of people with whom they are associated (paras. 130–141, 187–188).
  • Section 2’s special definition does not impliedly exclude companies as complainants – It simply ensures respondents (including public bodies) are clearly within scope; it does not close the category of complainants to individuals only (paras. 101–118, 153–160).
  • EU law supports a broad reading – Recital 16 of the Race Directive and the CJEU’s non-restrictive approach to “all persons” confirm that Member States can and should protect legal persons in appropriate circumstances, particularly where discrimination is based on the race or ethnicity of their members (paras. 170–173, 189).
  • ECHR adds little in this context – Although legal persons can enjoy certain Convention rights, the main driver of the outcome here is domestic and EU statutory interpretation, not Convention requirements (paras. 174–184).

In practical terms, XTX v Aviva significantly strengthens the Irish equality framework by:

  • giving corporate entities direct access to the Equal Status Acts where they suffer discrimination in goods and services, including as a result of their association with individuals who have protected characteristics; and
  • cementing a purposive, EU-aligned interpretative approach to Irish anti-discrimination legislation.

The merits of XTX’s underlying discrimination complaint remain to be determined by the WRC. But the High Court has laid down a clear and important precedent: legal persons are entitled to the protection of the Equal Status Acts against discrimination on protected grounds, including via association.

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