Mc Keown v Minister for Defence and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 28 March 2025
• Neutral Citation: [2025] IEHC 177
• Docket Number: Record No.: 2019/5447 P

Between:

Amelia McKeown

Plaintiff

and

The Minister for Defence, Ireland and The Attorney General

Defendants

[2025] IEHC 177

Record No.: 2019/5447 P

THE HIGH COURT

Preliminary issue – Contract of employment – Employment Equality Act 1998 – Defendants seeking a trial of a preliminary issue of law – Whether the main issue of dispute between the parties was appropriate for determination in a preliminary hearing

Facts: The plaintiff, Ms McKeown, sought a declaration that the decision to suspend her from flying duties was arbitrary, ultra vires, void and of no effect. She claimed that the decision amounted to victimisation contrary to s. 74 of the Employment Equality Act 1998. On 15 October 2024, the defendants, the Minister for Defence, Ireland and the Attorney General, applied to the High Court for an order pursuant to Order 25, rule 1 and/or Order 34, rule 2 of the Rules of the Superior Court directing a trial of a preliminary issue of law on the following points: (a) Whether, as a matter of law, the 1998 Act modifies the terms of the plaintiff’s contract of employment deemed to include an implied right to gender equality and/or confers on the plaintiff an independent cause of action at common law for alleged breach of contract? (b) If the answer to question (a) above is in the affirmative, does the 1998 Act require that any proceedings for redress in respect of any alleged breaches of rights conferred by that Act shall only be brought before the Workplace Relations Commission or the Circuit Court in accordance with the provisions of that Act or does the Act also permit the plaintiff to seek, in the alternative, redress at common law in the High Court? (c) Whether as a matter of law, European law gives rise to an independent cause of action against the defendants for damages for breach of an alleged implied contractual right to gender equality, which is justiciable by the Court in light of the implementation by the State, through the 1998 Act of the principles of law contained in European law and the establishment therein of statutory procedures for the pursuit of complaints of discrimination on the ground of gender? (d) Whether, if such a cause is [sic] action does lie, the plaintiff’s claim is statute barred having been brought outside the time limits prescribed in the 1998 Act? At the hearing of the application, the defendants suggested a slight reformulation of the second question. On 17 October 2024, the plaintiff consented to the order sought.

Held by Mulcahy J that, applying the principles set out in Campion v South Tipperary County Council [2015] IESC 79, the questions as originally framed did not advance matters in light of the positions adopted by the parties. He noted that the main issue identified in the issues raised was not in dispute and the parties did not pursue any argument regarding the application of the limitation periods in the 1998 Act. He considered it inappropriate to consider a reformulated question advanced for the first time at the hearing of the application, a question which may not arise for consideration in the proceedings at all. The legal issue identified in the reformulated question seemed to him, in any event, to have been the subject of significant prior judicial consideration.

Mulcahy J held that the main issue of dispute between the parties was not captured even by the reformulated question and was a mixed question of fact and law, not appropriate for determination in a preliminary hearing.

Trial of preliminary issue.

JUDGMENT of Mr Justice Rory Mulcahy delivered on 28 March 2025

Introduction

1 . The plaintiff is a qualified pilot and retired officer of the Defence Forces, and was a member of the Air Corps, where she was based at Casement Aerodrome in Dublin.

2 . The plaintiff resigned from her position in June 2015. At the time of her resignation, the plaintiff had been suspended from flying duties. The circumstances surrounding that suspension are at the heart of these proceedings. In very brief terms, it appears that the plaintiff had raised an issue with her superior officer in respect of being treated less favourably than her male colleagues. At that time, it seems, she was the only female Air Corps pilot. Her suspension followed shortly after she raised this issue, and the plaintiff claims that the suspension amounted to gender discrimination and victimisation.

3 . The plaintiff seeks a declaration that the suspension is void and that the decision to suspend her from flying duties was arbitrary, ultra vires, void and of no effect. In this regard, it is the plaintiff's case that the existence of the suspension on her record has continuing impacts on her ability to earn a living as a pilot.

4 . For present purposes, the most relevant aspects of the plaintiff's claim are her claim that the decision to suspend her from flying duties amounts to victimisation contrary to section 74 of the Employment Equality Act 1998, as amended, and her claims for damages of her contractual right to equal treatment and for gender discrimination and/or victimisation.

5 . The defendants deny all the plaintiff's claims and, in particular, deny that any suspension – which in the defence is characterised as a ‘withdrawal’ – from flying duties was motivated by gender or in response to her previous complaint. Notably, the defendants deny that there is any private law contractual relationship between the parties.

6 . The defence contains the following plea:

Without prejudice to the foregoing [denials], the Defendants will assert either as a preliminary point, or during the trial of the action, that proceedings for redress in respect of any alleged breaches of rights conferred by the Employment Equality Acts 1998 – 2015 shall only be brought before the Workplace Relations Commission or the Circuit Court in accordance with the provisions of those Acts and not at common law in the High Court.

7 . There has been a full exchange of pleadings and discovery between the parties. On 4 October 2024, the plaintiff's solicitors wrote to the Chief State Solicitor's Office indicating that they would be applying for a hearing date. On 15 October 2024, the defendants issued the motion the subject of this judgment, an application for an order pursuant to Order 25, rule 1 and/or Order 34, rule 2 of the Rules of the Superior Court (“ the Rules”) directing a trial of a preliminary issue of law on the following points:

• a) Whether, as a matter of law, the Employment Equality Act 1998, as amended, modifies the terms of the Plaintiff's contract of employment deemed to include an implied right to gender equality and/or confers on the Plaintiff an independent cause of action at common law for alleged breach of contract?

• b) If the answer to question a) above is in the affirmative, does the 1998 Act require that any proceedings for redress in respect of any alleged breaches of rights conferred by that Act shall only be brought before the Workplace Relations Commission or the Circuit Court in accordance with the provisions of that Act or does the Act also permit the Plaintiff to seek, in the alternative, redress at common law in the High Court?

• c) Whether as a matter of law, European Law gives rise to an independent cause of action against the Defendants for damages for breach of an alleged implied contractual right to gender equality, which is justiciable by the Court in light of the implementation by the State, through the 1998 Act of the principles of law contained in European Law and the establishment therein of statutory procedures for the pursuit of complaints of discrimination on the ground of gender?

• d) Whether, if such a cause is [sic]action does lie, the Plaintiff's claim is statute barred having been brought outside the time limits prescribed in the 1998 Act?

8 . As discussed below, at the hearing of the application, the defendants suggested a slight reformulation of the second question.

9 . On 17 October 2024, the plaintiff consented to the order sought. However, in an affidavit filed in response to the motion, the plaintiff avers that the only purpose of the motion is to delay her claim and that she is “ at a loss as to the Defendants purpose in raising a preliminary issue” in light of the admissions made by the defendants regarding statutory and common law duties and the fact that the defendants must accept the facts as pleaded by her for the purpose of trying a preliminary issue. In her legal submissions, her agreement to the trial of a preliminary issue is explained in the following terms:

“ [The] Plaintiff consented to the Order as sought for the purpose of expediting the within proceedings and without prejudice to a court on the hearing of the preliminary issue using its discretion and directing the case should proceed to full trial with facts and evidence, in order to have the issues of law determined in the context.”

10 . The defendants have filed a replying affidavit vehemently denying that their purpose in bringing this application was to delay the proceedings.

11 . In light of the foregoing, it is necessary to consider not only the questions identified in the motion, but also whether these are appropriate for determination by way of preliminary issue at all.

12 . It is perfectly understandable that a party anxious to progress proceedings would consent to an application which they did not consider merited in a bid to expedite proceedings. However, in this instance, it has proved unfortunate that such an approach was taken. As will appear from the discussion below, there is no question that the application to try a preliminary issue would have been refused had it been contested. It has not, and never could have, resulted in a saving of time and costs. On the contrary, both have almost certainly been increased. Whatever the defendants' intentions, and I reach no conclusion on that, the effect of this...