Culkin v Sligo County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 29 March 2017
• Neutral Citation: [2017] IECA 104
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 103 of 2015],Neutral Citation Number: [2017] IECA 104 Record No. 2015/103
• Date: 29 March 2017

[2017] IECA 104

THE COURT OF APPEAL

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 104

Record No. 2015/103

BETWEEN/

CIARÁN CULKIN

PLAINTIFF / APPELLANT

- AND -

SLIGO COUNTY COUNCIL

DEFENDANT/RESPONDENT

- AND -

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

AMICUS CURIAE

Multiplicity of litigation – Discrimination in the workplace – Personal injuries – Appellant seeking to sue the respondent for personal injuries – Whether appellant can present a complaint of discrimination in the workplace before the Equality Tribunal on the grounds of harassment, victimisation and exclusion from the body of workplace and then, in the event that this complaint should prove unsuccessful, ultimately sue the employer for personal injuries arising out of the same alleged set of facts

Facts: The plaintiff/appellant, Mr Culkin, was employed by the defendant/respondent, Sligo County Council, in various capacities over a period of 39 years. The plaintiff retired from the Council in May 2009. On 10th September, 2009 the plaintiff made a complaint to the Equality Tribunal pursuant to the provisions of the Employment Equality Acts 1998 to 2008. Mr Culkin's complaint form to the Tribunal stated that he was subject to discriminatory treatment in relation to "access to employment, promotion/re-grading, training, conditions of employment, discriminatory dismissal [and] victimisation", culminating in a constructive dismissal. After completing his engineering degree in 2005, the plaintiff applied for a number of engineering positions only to be deemed "not qualified" for promotion. He complained that he was continuously frustrated in his attempts to obtain relevant engineering experience within the Council because of his age and his disability, which he contended was induced by historic bullying and harassment. He instituted a grievance procedure in early 2000 but stated that this was unsatisfactorily concluded in 2005 following "gross procrastination." It was the plaintiff's position that the respondent failed to deal appropriately with systematic bullying and exclusion until he was ultimately constructively dismissed in May 2009. The plaintiff also pursued a personal injuries case in addition to his equality complaint. He accordingly obtained an authorisation from the Personal Injuries Assessment Board in relation to his High Court proceedings on the 19th November 2010 and a personal injuries summons against the Council issued on the 2nd February 2011. In the High Court Kearns P considered that this multiplicity of litigation was per se abusive and violated the rule in Henderson v Henderson. He accordingly struck out the personal injuries proceedings as an abuse of process ([2015] IEHC 45). The plaintiff appealed to the Court of Appeal against that decision.

Held by Hogan J that Kearns P was in error inasmuch as he applied what in effect was an ex ante and automatic application of the rule in Henderson v Henderson so as to bar the personal injuries claim in limine. Hogan J held that s. 101 of the Employment Equality Act 1998 serves to bar complementary claims for discrimination before the Tribunal and at common law in respect of claims based on failure to comply with an equal remuneration term or an equality clause. Hogan J held that it has no wider meaning and, specifically, it does not bar subsequent personal injuries claims per se where an earlier discrimination claim before the Tribunal has failed.

Hogan J held that he would allow the appeal insofar as Kearns P held that the personal injuries claim must automatically fail in limine as an abuse of process by reason of the plaintiff's failure to prevail before the Equality Tribunal. Hogan J also held that it would also be open to the court of trial to determine that the personal injuries claim – or, at least, parts of the claim – should fail on the ground that it amounted in substance to a collateral attack on the decision of the Equality Tribunal.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 29th day of March 2017

1 Few issues have dominated our law of civil procedure over the last two decades or so as have those arising from a multiplicity of litigation. The law reports from this recent period are teeming with examples of where the courts have been obliged to wrestle with issues of res judicata, issue estoppel per rem judicatam, the rule in Henderson v. Henderson and abuse of process.

2 This appeal presents a slightly different version of this problem of the multiplicity of litigation in different fora: can a plaintiff present a complaint of discrimination in the workplace before the Equality Tribunal on the grounds of harassment, victimisation and exclusion from the body of workplace and then, in the event that this complaint should prove unsuccessful, ultimately sue the employer for personal injuries arising out of the same alleged set of facts? In the High Court Kearns P. considered that this multiplicity of litigation was per se abusive and violated the rule in Henderson v. Henderson. He accordingly struck out the personal injuries proceedings as an abuse of process: see Culkin v. Sligo County Council [2015] IEHC 45. The plaintiff, Mr. Culkin, now appeals to this Court against that decision. Before exploring these issues it is, however, first necessary to set out the background to the litigation.

3 Mr. Culkin is a retired engineer who was employed by Sligo County Council ('the Council') in various capacities over a period of 39 years. He had first commenced work with the Council as an apprentice technician in 1970. He attained two diplomas in engineering during the course of his employment, together with an undergraduate engineering degree. Mr. Culkin was promoted a number of times until he reached the rank of Senior Executive Technician. The plaintiff contends that he began experiencing difficulties at work in or around 1996 when a new supervisor was appointed.

4 His case against the Council was that he was subjected to bullying, victimisation and isolation at work. It was thus claimed that information regarding training courses and opportunities was deliberately withheld from him; that malicious rumours were spread about him; that he was ordered to perform tasks below his level of competence; that he was excluded and isolated socially; that he was denied pay increments and promotion opportunities; that his opinions and views were neglected despite his experience, and that he was generally treated with hostility. The plaintiff alleged that this behaviour has left him suffering with a number of psychological and physiological symptoms.

5 The plaintiff retired from the Council in May 2009. On 10th September, 2009 the plaintiff made a complaint to the Equality Tribunal pursuant to the provisions of the Employment Equality Acts 1998 to 2008. Mr. Culkin's complaint form to the Tribunal states that he was subject to discriminatory treatment in relation to 'access to employment, promotion/re-grading, training, conditions of employment, discriminatory dismissal [and] victimisation', culminating in a constructive dismissal. After completing his engineering degree in 2005, the plaintiff applied for a number of engineering positions only to be deemed 'not qualified' for promotion. He complained that he was continuously frustrated in his attempts to obtain relevant engineering experience within the Council because of his age and his disability, which he contends was induced by historic bullying and harassment. He instituted a grievance procedure in early 2000 but states that this was unsatisfactorily concluded in 2005 following 'gross procrastination.' It is the plaintiff's position that the respondent failed to deal appropriately with systematic bullying and exclusion until he was ultimately constructively dismissed in May 2009.

6 The plaintiff also pursued a personal injuries case in addition to his equality complaint. He accordingly obtained an authorisation from the Personal Injuries Assessment Board in relation to his High Court proceedings on the 19th November 2010 and a personal injuries summons against the Council issued on the 2nd February 2011.

7 The plaintiff's case before the Equality Tribunal was heard on the 25th July 2012, 9th April 2013, 10th April 2013, 26th June 2013 and 21st July 2014. Mr. John Moran, Senior Executive Officer in the defendant Council, has stated on affidavit that a preliminary submission was made to the Equality Tribunal expressing the Council's view that the matters before the Tribunal were the same as those being pursued in the High Court proceedings and that the plaintiff was precluded from pursuing both claims.

8 Mr. Moran averred that rather than seeking to have the matter before the Tribunal adjourned however, the plaintiff requested that the Equality Officer nonetheless continue to hear the case. This may well be so, but it should also be noted that this issue does not appear to feature in the decision of the Tribunal dated 14th August 2014. In any event, this issue is fundamentally an issue of law and is governed by the interaction of the relevant statutory provisions (namely ss. 77 and 101 of the Employment Equality Act 1998) with standard legal principles such as res judicata and the rule in Henderson v. Henderson.

The relevant statutory provisions

9 It is next necessary to examine the relevant statutory provisions. The procedure for making a complaint to the Equality Tribunal is governed by the Employment Equality Act 1998, as amended ('the 1998 Act'). Section 77(1) of the 1998 Act provides:

'(1) A person who claims:-

(a) to have been discriminated against or subjected to victimisation,

(b) to have been dismissed in circumstances amounting to discrimination or victimisation,

(c) not to be receiving remuneration in accordance with an equal remuneration term, or

(d) not to be receiving a...