Lannegrand v National University of Ireland Galway

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 26 July 2016
• Neutral Citation: [2016] IEHC 518
• Date: 26 July 2016
• Court: High Court
• Docket Number: RECORD NUMBER: 2015/3001P 2015/3002P 2015/3003P 2015/3004P

[2016] IEHC 518

THE HIGH COURT

Binchy J.

RECORD NUMBER: 2015/3001P

2015/3002P

2015/3003P

2015/3004P

BETWEEN:

DR. SYLVIE LANNEGRAND, DR. MARGARET HODGINS,

DR. ADRIENNE GORMAN

AND

DR. ROISIN HEALY

Plaintiffs

-and-

THE NATIONAL UNIVERSITY OF IRELAND GALWAY

Defendant

Employment – Promotion denied O.25, r. 1 of the Rules of the Superior Courts – Recast Gender Directive 2006/54/EC and the Charter of Fundamental Rights of the European Union – Employment Equality Act 1998 to 2012 – Trial of preliminary issues of law – Facts of the case – Saving of cost and time

Facts: The defendant in the present proceedings sought orders for the trial of the preliminary issues of law or in the alternative, an order for modular hearing of preliminary issues raised by the plaintiffs under o. 25, r. 4 of the Rules of the Superior Courts. The plaintiffs in the plenary summons sought various reliefs and declarations on the ground that the promotion competition was in breach of the plaintiffs' contractual entitlements and relevant statutory laws pertaining to gender equality. The defendant contended that the questions raised by the plaintiffs were the questions of law and that the facts were not in dispute and thus, to save time and costs, an order of trial of preliminary issues should be made. The plaintiffs denied that the defendant had accepted all the facts material for the claims raised by the plaintiffs. The plaintiffs argued that there were issues requiring the establishment of facts and evidence at a full trial of the proceedings and that by granting an order of trial of preliminary issues, their rights would be unnecessarily curtailed.

Mr. Justice Binchy made an order directing the trial of the preliminary issues. The Court found that the defendant had agreed to the facts, as pleaded by the plaintiffs in their statements of claim, for the purpose of the trial of the preliminary issues. The Court observed that the preliminary issues identified to be raised were the issues of pure law only. The Court found that the issues that had to be determined were not contingent upon evidence. The Court found that even the question of plaintiffs' claim being statute-barred would be suitable for determination at trial of preliminary issues as the issue required discovery of documents of relevant dates that would be readily ascertainable and would not take excessive time. The Court held that it would be convenient to make an order of trial of the preliminary issues as that would save cost and time and would be consistent with the overall justice of the case and the parties.

JUDGMENT of Mr. Justice Binchy delivered on the 26th day of July, 2016.

Background

1 These are four separate sets of proceedings in which the defendant has made an application in each case, seeking orders for the trial of preliminary issues of law, or in the alternative an order for a modular hearing of preliminary issues. The applications are brought pursuant to Order 25, rule 1 and or Order 34, rule 2 of the Rules of the Superior Courts. The proceedings in each of these cases arise out of applications for promotion made by the plaintiffs, all of whom are lecturers employed by the defendant University, in which applications the plaintiffs were unsuccessful. The plaintiffs issued their proceedings following upon the determination by the Equality Tribunal (now the Workplace Relations Commission) of a claim brought before that tribunal by their colleague, a Ms. Micheline Sheehy Skeffington. The tribunal determined in 2014, that Ms. Sheehy Skeffington had been subjected to discrimination by the defendant, by reason of her gender, when she was denied a promotion by the defendant to the post of Senior Lecturer. The plaintiffs' claims arise in respect of the same round of promotional applications as that in which Ms. Sheehy Skeffington had participated, and about which she complained to the Equality Tribunal.

2 At the outset, it should be observed that, for the purposes of this application only, the facts as pleaded by the plaintiffs are accepted by the defendant as being true. The pleadings of each of the plaintiffs are, in all material respects for the purpose of this application, in identical terms. By agreement between the parties these motions proceeded by reference to the pleadings in the case of the first named plaintiff. Proceedings issued in each case on 20th April 2015. The plenary summons in each case seeks a number of reliefs including inter alia, declarations that the promotion competition was in breach of the plaintiffs' contractual entitlements to gender equality, as well as a declaration that the manner in which the competition was conducted was in breach of sections 12(k) and 26 of the Universities Act 1997. The plaintiffs also seek a declaration that the competition breached the provisions of the Employment Equality Acts 1998-2012 (hereafter the 'Employment Equality Acts'), the Recast Gender Directive 2006/54/EC and the Charter of Fundamental Rights of the European Union, and that the plaintiffs are entitled to be promoted to the positions for which they applied (senior lecturers) effective from 1st July, 2009 and that their salary, pension entitlements and other benefits and emoluments should be adjusted accordingly. The plaintiffs also seek orders appointing them to the positions of senior lecturers and requiring the defendant to provide equal treatment to the plaintiffs, as well as damages for breach of contract, loss of professional reputation, future career prospects and legitimate expectation.

3 The plaintiffs are all lecturers in the defendant University, employed across a number of Departments. In 2008/2009 each of the plaintiffs applied for promotion to the position of senior lecturer in their respective departments. The plaintiffs claim that there was an express or implied term of gender equality and non-discrimination in each of their contracts of employment. The positions for which they applied were to be filled by way of competition. Each of the plaintiffs were shortlisted for interview, but were ultimately unsuccessful in their applications. The plaintiffs claim that this was in spite of having met the minimum requirements for the position and having excellent references. The plaintiffs claim that their non-appointment, including the criteria for application, selection process, interview process short listing process, marking and assessment, and feedback meetings were all tainted by discrimination, both direct and indirect, on grounds of gender and family status, when compared with their male counterparts.

4 A full defence was filed by the defendant in each case on 5th February, 2016, in which it is pleaded at paragraph 3 of each defence that the Employment Equality Act 1998 to 2012, the Recast Gender Directive and the Charter of Fundamental Rights of the European Union do not confer independent rights at common law or modify the terms of a contract of employment to be enforced by the common law courts and that the Court has no jurisdiction to adjudicate on the plaintiffs' claims under the Employment Equality Acts, the Recast Gender Directive or Charter of Fundamental Rights. The defendant further pleads that if such a cause of action exists, it is statute barred, having been brought outside the 6 month time limit for such claims as provided for by the Employment Equality Acts. A notice for particulars was served by the plaintiffs on the defendant on 19th April, 2016, along with a reply and objection to the defence. This has not yet been replied to by the defendant, and nor has discovery yet been requested by either party in the proceedings.

Application for the trial of a preliminary issue

5 This application is brought by way of notice of motion dated 21st June 2016 which seeks an order pursuant to Order 25, rule 1 and/or Order 34, rule 2 of the Rules of the Superior Courts directing the trial of a preliminary issue of law, or for a modular trial of the four following issues:

(i) Whether, as a matter of law, the Employment Equality Acts 1998-2011 modify the terms of the Plaintiffs' contracts of employment to include an implied contractual right to gender equality and/or confer on the plaintiffs an independent cause of action at common law for alleged breach of contract;

(ii) Whether, as a matter of law, European Union law gives rise to an independent cause of action against the Defendant for damages for breach of an alleged implied contractual right to gender equality, which is justiciable by this Court in light of the implementation by the State, through the Employment Equality Acts 1998-2011, of the principles of law contained in European Law and the establishment therein of statutory procedures for the pursuit of complaints of gender equality.

(iii) Whether, if a cause of action does lie, the Plaintiff's claim is statute barred having been brought outside the time limits prescribed in the Employment Equality Acts;

(iv) Whether, as a matter of law, the Universities Act 1997 gives rise to a cause of action against the Defendant in common law for breach of contract or for breach of its provisions.

6 The application is grounded on the Affidavit of Mr. Peter Feeney, sworn on 1st June 2016. At the outset, it is averred by Mr. Feeney that the trial of preliminary issues is likely to result in a saving of both time and costs. He avers that 47 applications for promotions were received from eligible lecturers across the defendant university. In the case of the first named plaintiff, her application, which was submitted on 31st October 2008, consisted of 50-60 pages setting out her duties and career achievements, including her publications, research funding, committee involvement and other roles within the defendant university. In his affidavit, Mr Feeney describes the application process, which included the applications being assessed by a promotions board of...