County Louth Vocational Educational Committee v Equality Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 24 July 2009
• Neutral Citation: [2009] IEHC 370
• Docket Number: [No. 223 J.R./2009]
• Court: High Court
• Date: 24 July 2009

[2009] IEHC 370

THE HIGH COURT

[No. 223 J.R./2009]

County Louth VEC v Equality Tribunal & Brannigan

COUNTY LOUTH VOCATIONAL EDUCATIONAL COMMITTEE

APPLICANT

AND

THE EQUALITY TRIBUNAL

RESPONDENT

AND

PEARSE BRANNIGAN

NOTICE PARTY

EMPLOYMENT EQUALITY ACT 1998 S75

EMPLOYMENT EQUALITY ACT 1998 S75(4)

EMPLOYMENT EQUALITY ACT 1998 S75(4B)

EMPLOYMENT EQUALITY ACT 1998 S77(1)

EMPLOYMENT EQUALITY ACT 1998 S77(5)(A)

EMPLOYMENT EQUALITY ACT 1998 S77 6(A)

EMPLOYMENT EQUALITY ACT 1998 S78

EMPLOYMENT EQUALITY ACT 1998 S79

EMPLOYMENT EQUALITY ACT 1998 S82

EMPLOYMENT EQUALITY ACT 1998 S83(1)

EMPLOYMENT EQUALITY ACT 1998 S90(1)

BANK OF SCOTLAND (IRELAND) v EMPLOYMENT APPEALS TRIBUNAL UNREP O'CAOIMH 15.7.2002 2003/5/929

AER LINGUS v LABOUR COURT UNREP SUPREME 26.2.1988 1988/4/850

EMPLOYMENT EQUALITY ACT 1998 S79(1A)

EMPLOYMENT

Equality

Equality tribunal - Investigation of alleged discriminatory acts - Terms of complaint - Jurisdiction of equality tribunal - Whether equality officer acted ultra vires - Continuing discrimination - Parameters of investigation - Whether allegations of alleged discriminatory acts made during hearing fell outside original terms of complaint as per form EE1 - Whether applicant had full notice of allegations - Whether form EE1 only intended to set out broad outline of nature of complaints - Whether general nature of complaint remained the same - Fair procedures - Whether exclusion of witnesses from hearing room constituted breach of fair procedures - Whether procedures adopted by Equality officer fair, reasonable and in compliance with principles of natural and constitutional justice - Bank of Scotland (Ireland) v Employment Appeals Tribunal (Unreported, HC, Ó Caoimh J, 15/7/2002) and Aer Lingus v Labour Court (Unrep, HC, Carroll J, 26/2/1988), (Unrep, SC, 20/3/1990) considered - Employment Equality Act 1998 (No 21), ss 75(4), 77, 75(5)(a), 77(6)(a) , 79, 82 and 90(1) - Application for judicial review refused (2009/223JR - McGovern J - 24/7/2009) [2009] IEHC 370

County Louth VEC v Equality Tribunal

Facts: The notice party was a former teacher who alleged discrimination in his employment on the basis of gender and his sexual orientation. He issued personal injury proceedings against the applicant alleging bullying. Subsequently, the respondent appointed an Equality Officer to investigate the claims. The applicant sought a declaration inter alia that the respondent had acted ultra vires in purporting to conduct an investigation into alleged acts of discrimination which fell outside of the terms of complaint made by the notice party and that the respondent had lacked jurisdiction and had acted in breach of natural and constitutional justice.

Held by McGovern J. That the applicant had ample notice of the claim being made and was in a position to deal with the claims even if they went beyond the ambit of what was contained in the Form. The Equality Officer was entitled to run the hearing as she saw fit as long as she complied with the principles of natural and constitutional justice. The hearing at the Equality Tribunal was not a hearing in a court of law with all the formality of such a forum. The applicant was not entitled to the reliefs sought as the respondent had not made a final determination on the issue of the temporal limit of the complaint and the procedures adopted were not unfair.

Reporter: E.F.

Mr. Justice Brian McGovern

2 1.1 Leave was granted by this Court (O'Neill J.) on 27^th February, 2009, to the applicant to seek the following reliefs by way of judicial review proceedings:-

1 A declaration that the respondent has actedultra 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 fall outside the terms of complaint made by the notice party received by the respondent on 4^th August, 2006.

2 A declaration that in her investigation of alleged discriminatory acts (within the meaning of the Employment Equality Acts1998 to 2004) against the notice party the subject of his complaint received by the respondent on 4^th August, 2006, the officer of the respondent is required to confine her investigation to the two matters the subject of the said complaint.

3 A declaration that the respondent lacks jurisdiction to investigate any alleged complaint of the notice party to the provisions of the Employment Equality Acts1998 to 2004 save the complaint received by the respondent on 4^th August, 2006.

4 A declaration that the respondent is limited to investigating complaints of discrimination made by the notice party which have been lawfully referred to it and which occurred within a period of six months from 4^th August, 2006.

5 An injunction by way of judicial review staying the investigation currently being conducted by the respondent into alleged discriminatory acts (within the meaning of the Employment Equality Acts1998 to 2004) against the notice party save insofar as the said investigation is confined to the two allegations contained in the complaint received from the notice party by the respondent on 4^th August, 2006.

6 A declaration that in the absence of the applicant being on notice of all the details of the allegations being pursued by the notice party before the hearing being conducted by the respondent, the respondent has acted in breach of natural justice and fair procedures in failing to permit the attendance of employees of the applicant who themselves are the subject of the allegations.

7 In the alternative a declaration that the respondent's refusal to permit the applicant's employees access to the hearing amounts to a denial of natural justice in circumstances where the notice party has been at liberty to make allegations and give evidence of matters of which the applicant has had no or sufficient prior notice.

8 In the alternative an injunction restraining the respondent from continuing its investigation until such time as the notice party is required by the respondent to provide full details of the nature of the allegations against the applicant, its servants or agents.

2 2.1 The notice party to these proceedings is a retired teacher. He was employed at two schools run by the applicant from 1981 until September 2007, when he was granted early retirement on the grounds of ill health pursuant to a scheme of the Department of Education and Science. Between 1981 and 2003, he worked at St. Laurence's Community College, Drogheda and from 2003 until 2007, he worked at Drogheda Institute of Further Education.

3 2.2 On the 4^th August, 2006, the respondent received a completed "Form EE1" from the notice party. Such a form is a standard administrative form, without any statutory basis, which is used by the respondent for dealing with complaints of discrimination relating to employment. In his form the notice party alleged that he had been discriminated against by the applicant on the grounds of his gender and on the grounds of his sexual orientation, which he indicated to be homosexual in part 3 of the form. As to the "description of the claim", in part 4 of the form, the notice party indicated that he had experienced discriminatory treatment in "promotion/re-grading", "conditions of employment", "harassment" and "victimisation". In part 5 of the form the notice party named Patrick Branigan & Co. Solicitors, as his "representative" and provided their contact details. In the section headed "Part 8: Details of complaint", the notice party stated that the date of the first occurrence of the discriminatory act alleged was 16^th December, 2005, and that the date of the occurrence of the most recent discriminatory act alleged was 10^th March, 2006. The place at which the discriminatory acts took place was stated to be at Drogheda Institute of Further Education. In the same section a "brief outline of complaint" was requested. The notice party wrote as follows:-

"On Dec 16^th a colleague tried to assault me with his fist to my face. Another colleague prevented actual contact by jumping between us. This was reported to the principal, who did nothing about it. On March 10 2006 another colleague placed a banana, half-peeled encased in a condom in my mail box in the staff room. I reported this to the principal whose reply was 'what do you want me to do about it'? He eventally [sic.] said he would make an announcement to the staff about this that morning. He didn't bother to do this. I had to ask him on the following Monday why he didn't make the announcement. His reply was 'I got waylaid'. This was said in a dismissive tone. On that day (March 10) I went to my doctor and went on sick leave."

4 2.3 Personal injury proceedings were instituted by the notice party in this Court against the applicant on 4^th July, 2007, in which he seeks damages. The notice party claims that from 1997 onwards he was bullied, harassed, assaulted and undermined to the point where he had no option but to leave his employment. The applicant is defending these proceedings.

5 2.4 On 29^th August, 2008, the Director of the respondent appointed Ms. Valerie Murtagh, Equality Officer, to investigate the notice party's claim in accordance with the provisions of the Employment Equality Acts 2000-2008. The respondent requested further details of the complaint from the notice party by way of written submissions, which were duly lodged with the respondent and are dated 19^th September, 2007. Reference was made by the notice party in those submissions to alleged incidents of discrimination dating back to 1997. A copy of his submissions was furnished to the applicant. The respondent requested a response to the content of those submissions by 31^st January, 2008. No such response was received. The deadline for receipt of a response was extended by Ms. Murtagh...