O'Higgins v University College Dublin

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 25 June 2013
• Neutral Citation: [2013] IEHC 431
• Docket Number: [2013 No. 21 MCA]
• Court: High Court
• Date: 25 June 2013

[2013] IEHC 431

THE HIGH COURT

[2013 No. 21 MCA]

BETWEEN

ELEANOR O”HIGGINS

APPELLANT

AND

UNIVERSITY COLLEGE DUBLIN AND THE LABOUR COURT

RESPONDENTS

Employment – Discrimination – Gender – Appellant alleging she had been ignored for promotion compared to male colleagues – Naming of parties to appeal – Rules of Superior Court 1986, ord 106

Facts: The appellant was employed by the respondent as a senior lecturer. She alleged male colleagues had been promoted whereas she had been passed over. The Labour Court had dismissed the initial appeal from the equality officer and the appellant sought to appeal that decision. The respondent contended the appeal had not been properly laid before the court in so far as how the parties were named.

Held by Hogan J, that the matter was regulated by ord 106 of the Rules of the Superior Courts 1986. In the instant matter, it appeared the representatives for the appellant had incorrectly named a party on the motion papers. On advice of the Courts Service, an amendment was made within the required time limit. Whilst the respondent contended this meant service was made, they claimed the amendment resulted in the respondent not being joined in time.

Hogan J stated that the proceedings were served within time, and any error that had taken place was of a harmless nature. To dismiss the appeal on such a minor point would be grossly disproportionate, and would interfere with the appellant”s right of access to the courts.

The appeal was therefore able to continue.

Mr. Justice Hogan

JUDGMENT of Mr. Justice Hogan delivered on the 25 ^th June, 2013

1 The appellant in these proceedings, Dr. Eleanor O”Higgins, was formerly a Senior Lecturer in the School of Business and Law in University College, Dublin. She had retired, but she has now resumed employment with UCD under a fixed term contract. In June, 2008 the appellant lodged a complaint with the Equality Tribunal contending that she had suffered discrimination on grounds of gender contrary to s. 76 of the Employment Equality Act 1998 (‘the 1998 Act’). She contended, in essence, that she had been passed over for promotion within the School of Business and Law in two recent rounds of promotion when three male colleagues were promoted to full professorial rank ahead of her.

2 This claim was referred to an Equality Officer in accordance with s. 77 of the 1998 Act. The Equality Officer found that no prima facie claim of discrimination had been made out and the complaint was dismissed. Dr. O”Higgins then appealed to the Labour Court against that determination.

3 By decision dated 11 ^th January, 2013, the Labour Court rejected that appeal. Dr. O”Higgins then sought to appeal that decision in turn to this Court pursuant to s. 90(1) of the 1998 Act (as substituted by s. 46 of the Employment Equality Act 2004). The application which is presently before me is not, however, at all concerned with the individual merits of this appeal or, indeed, of the underlying claim of gender discrimination. Rather, the sole issue which is addressed in this judgment is whether this appeal is properly and validly before this Court by reason of the failure – it is said – of the appellant to name UCD as a respondent in the originating notice of motion.

4 It is important to stress this fact because UCD also contends that the appeal is irregular in that amounts in essence to a judicial review of the Labour Court decision. This question was not before me on this motion and I express no view at all on this issue which will have to be determined at a later stage.

Order 106 of the Rules of Supreme Court and appeals from the Labour Court

5 The procedure for appeals to this Court under the Employment Equality Acts 1998 and 2004 is regulated by O. 106 of the Rules of the Superior Courts, the present version of which was inserted by the Rules of the Superior Courts (Proceedings under the Employment Equality Acts 1998 and 2004) 2005 (S.I. No. 293 of the 2005). Order 106, r. 2 provides that an appeal from the Labour Court under s. 90(1) of the 1998 Act is to be brought by originating notice of motion. Rules 3 and 4 provide as follows:-

‘3. The originating notice of motion referred to in r. 2 shall be entitled in the matter of the Act, on the application of the appellant and shall state the decision of the director or, as the case may be, the determination of the Labour Court appealed against on the grounds of appeal.

4. In all cases the originating notice of motion referred to in r. 2 shall be served in all parties to the decision and to the director or, as the case may be, on all parties to the determination of the Labour Court and on the Minister for Justice, Equality and Law Reform.’

6 Order 106, r. 5 provides:-

‘5. Any such originating notice of motion shall be issued within twenty one days of the date in which the determination of the Labour Court was given although it is provided that the time within which the notice of motion may be issued may be extended ‘on application ex parte at any time within six weeks from the date on which…the determination of the Labour Court was given.’

7 In the present case a trainee solicitor employed by the appellant”s firm of solicitors, Eoin O”Carroll, attended at the Central Office of the High Court on 1 ^st February, 2013. It is accepted the 21 day limit provided for by O. 106, r. 5 expired on that date. Mr. O”Carroll asked the representative at the Central Office dealing with the matter to issue the originating notice of motion and grounding affidavit and to provide a return date for the motion and record number for the proceedings. The proceedings as drafted by counsel had simply named University Collect Dublin as a respondent, but Mr. O”Carroll was informed by the Central Office representative that UCD was identified as the wrong respondent on the motion papers and that this would need to be changed to the Labour Court. The representative of the Central Office was adamant that no such proceedings could be accepted unless this appropriate change was made.

8 Given that time was expiring on that date and as the clerk attached to the Central Office dealing with the matter stated that she would allow amendments to be made manually, Mr. O”Carroll then telephoned his superior, Ms. Elaine Fox, the principal solicitor dealing with the...