County Louth Vocational Educational Committee v Equality Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie,Mr. Justice John MacMenamin
• Judgment Date: 13 July 2016
• Neutral Citation: [2016] IESC 40
• Date: 13 July 2016
• Court: Supreme Court
• Docket Number: [Record No. 336/2009] [Appeal No. 336/2009]

McKechnie J.

MacMenamin J.

O'Malley J.

BETWEEN:

COUNTY LOUTH VOCATIONAL EDUCATION COMMITTEE:

(NOW KNOWN AS LOUTH AND MEATH EDUCATION AND TRAINING BOARD)

APPLICANT/APPELLANT

AND

THE EQUALITY TRIBUNAL

RESPONDENT

AND

PEARSE BRANNIGAN

NOTICE PARTY

[2016] IESC 40

MacMenamin J.

McKechnie J.

[Record No. 336/2009]

[Appeal No. 336/2009]

THE SUPREME COURT

JUDICIAL REVIEW

Discrimination – Employment – Judicial review – Appellant seeking a declaration that the respondent acted ultra vires in purporting to conduct an investigation of alleged discriminatory acts which fell outside the scope of the terms of the complaint made by the notice party – Whether the respondent was confined, in its inquiry, to those particular incidents

Facts: The notice party, Mr Brannigan, between 1981 and 2007, was employed as a teacher in a number of institutions under the control of the appellant, County Louth Vocational Education Committee (the VEC). On the 4th August, 2006, Mr Brannigan made a complaint, addressed to the respondent, the Equality Tribunal, alleging discrimination during the course of his employment, for which he claimed the VEC was responsible. The basis of such complaint was that as a known homosexual, he had been discriminated against on the grounds of his sexual orientation. In the filed document of complaint Mr Brannigan referred to two instances of discrimination only, both specific as to date. Based on this information the VEC submitted to the assigned equality officer, Ms Murtagh, that she had jurisdiction to investigate these nominated incidents only, and that she could not consider the additional matters upon which the complainant also intended to rely (the “historical evidence”). The appellant wanted a ruling on this issue when the submission to that effect was made. Ms Murtagh declined to do so, her decision being essentially that she would firstly hear the entirety of the evidence, and would then rule on the jurisdictional objection as made. Her decision to adopt that approach led directly to the institution of judicial review proceedings. The High Court (McGovern J) dismissed the application for relief. The appellant appealed to the Supreme Court against that judgment seeking: (a) a declaration that the respondent acted ultra vires in purporting to conduct an investigation of alleged discriminatory acts (within the meaning of the Employment Equality Acts 1998 to 2004) against the notice party which fell outside the scope of the terms of the complaint made by the notice party received by the respondent; and (b) a declaration that the respondent was limited to investigating complaints of discrimination made by the notice party which were lawfully referred to it and which occurred within a period of six months from 4th August, 2006. The grounds of appeal alleged that McGovern J erred in law and/or in fact in holding: 1) that the issue before him related to the furnishing of further and better particulars of the complaint made on the 4th August, 2006; 2) that Mr Brannigan’s September, 2007 submission came within the terms of the complaint received in August, 2006; 3) that, in the alternative, the September, 2007 submission represented a lawful and timely amendment of Mr Brannigan’s original complaint; and 4) that Ms Murtagh had not made a final determination on the issue of the temporal limit of the complaint. The appellant also submitted that the judge failed to address the issue of the jurisdiction of the Equality Tribunal to investigate matters which had not been the subject of a complaint to the Director of the Equality Tribunal in accordance with the terms of the 1998 Act.

Held by McKechnie J that to succeed on what was in issue on the appeal, the appellant would have to show that the equality officer could only decide the contested issue at the point when it was raised by the Committee and that any other decision would be demonstrably wrong in law. That, in McKechnie J’s view, was a step too far and a barrier too high for the VEC to overcome. Moreover, McKechnie J held that even if it could do so, the appeal would still have to be dismissed in circumstances where the undisputed facts were that the officer in question had yet to make any decision on the point and where it could not be shown that she lacked jurisdiction to do so.

McKechnie J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 13th day of July, 2016

1 The appellant now named in the title herein is the successor-in-title to the County of Louth Vocational Education Committee, the applicant, originally named in the proceedings. On occasion, therefore, this judgment contains references to the appellant as ‘the V.E.C.’, where context or understanding so requires.

2 On the 24th July, 2009 the High Court, (McGovern J.), delivered judgment, dismissing the appellant's application for judicial review against the respondent (‘the Tribunal’). The appellant appealed that judgment to this Court. It seeks to challenge what it claims was an unlawful decision on jurisdiction in an investigation conducted by Valerie Murtagh, an Equality Officer delegated by the Director of the Tribunal, under the Employment Acts, 1998 to 2004 (‘the Acts’).

3 The origins of the application lie in complaints to the respondent by the notice party, Pearse Brannigan (Mr. Brannigan). Mr. Brannigan was formerly employed as a teacher by the appellant. He complained of discrimination based on his sexual orientation. Ms. Murtagh, (‘the Officer’) was delegated to carry out an investigation concerning the complaints. She embarked on an investigation into issues raised by Mr. Brannigan concerning his former employment. Mr. Brannigan set out these complaints, first, in an initial “EE1” form submitted to the Tribunal, and, later, in correspondence to that statutory body. The issue before the Court is as to parameters of that inquiry.

4 In the judicial review application, the appellant, among other claims, sought declarations to the effect that the Officer be limited to investigating complaints of discrimination made by Mr. Brannigan which had been lawfully referred to it, that is, matters said to have occurred within a period of 6 months, prior to 4th August, 2006, the date the Officer received Mr. Brannigan's first complaint. The appellant claimed it had not been accorded fair procedures in the process of the investigation into the complaints. In dismissing the application, McGovern J. held that the Officer had not made a final determination on the issue of the temporal limit of the complaint; and that the procedures which she had adopted were not unfair, or contrary to natural or constitutional justice.

5 The appeal before this Court is confined to the first, temporal limit, or ‘ jurisdictional’ issue. No point is now raised on the fair procedures question. The appellant seeks, rather, declarations, either to the effect that the Officer acted ultra vires, in purporting to conduct an investigation falling outside the lawful terms of the original complaint made by Mr. Brannigan, or, alternatively, an order requiring the Officer to confine her investigation to the issues set out in Mr. Brannigan's original complaint of the 4th August, 2006. The case is made that the time limits set out in the Acts debar her from investigating any other matters said to have occurred much earlier, and which were not described in the EE1 form. The appellant also seeks an injunction by way of judicial review, staying the investigation being conducted into the alleged discriminatory acts, save insofar as the investigation is confined to the two allegations contained in the complaint which Mr. Brannigan made to the Tribunal on the 4th August, 2006.

6 It is a matter of concern and regret that the matters raised in this appeal took place some considerable time ago. Nonetheless, the fact remains that there is still an investigation in being, and the progress of that investigation has remained in suspense pending the outcome of these proceedings. It is necessary now to look at the legal background to this application.

7 This judgment, insofar as it addresses matters before the Officer, addresses matters which are not in controversy. For reasons explained in more detail later, the judgment is not to be interpreted as expressing any view on the factual material to be considered in the investigation, or on the legal issues in controversy.

8 It will also be noted that, now, the Workplace Relations Commission has, among other functions, now superseded the Equality Tribunal (See Workplace Relations Act, 2015, s.83(1)(c)). But, the Acts of 1998 – 2004, relevant to this appeal, must still be seen in their broader purpose and context. The issue of equality in employment has been the subject matter of a number of Directives, inter alia, Council Directive 2000/78/EC of 27th November, 2000, which established a general framework for equal treatment in employment and occupations. Article 9 of that Directive provides as follows:

‘Defence of rights

1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.’

9 By its long title, the 1998 Act sought to promote equality between employed persons, and to make provision with respect to discrimination in, and in connection with, employment, vocational training, and membership of certain bodies. The legislation was also intended to make provision in respect of harassment in employment and in the workplace.

10 The 1998 Act pre-dated the E.U. Directive....