Supreme Court: Equality Tribunal has jurisdiction to investigate historical evidence in discrimination case brought by retired teacher

About this case:

• Judgment:
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The original claim identified two specific incidents only, and the substantive point at issue was whether the equality officer was confined in her inquiry to those particular incidents, or whether for redress purposes she may also investigate other alleged incidents, stretching back over a decade, which were first notified after the statutory time period for the making of a complaint had passed.

Background

Between 1981 and 2007, Mr Brannigan had been employed as a teacher in a number of institutions under the control of the VEC. Justice McKechnie stated that for many years “the relationship between the parties was at least strained, if not difficult, and perhaps even downright fractious on occasions”.

In March 2006, Mr Brannigan was certified absent from work on grounds of ill health, and from September 2007 he ceased employment entirely, having been approved for early retirement on grounds of ill health.

Mr Brannigan instituted two sets of proceedings against the VEC, the first of which was a claim under the Employment Equality Acts 1998-2004, and the second of which, commenced by a Personal Injury Summons, made allegations of bullying and harassment. The second set of proceedings was compromised by way of an out of court settlement, thus although not entirely irrelevant, this played but an incidental role in the instant case.

On the 4th August 2006, Mr Brannigan made a complaint, addressed to the Equality Tribunal, alleging discrimination during the course of his employment for which he claimed the VEC was responsible. The basis of this complaint was that as a known homosexual, he had been discriminated against on the grounds of his sexual orientation.

In August 2008, equality officer Ms Valerie Murtagh was assigned to the case.

In the filed document of complaint known as the EE1 Form, Mr Brannigan referred to two instances of discrimination only, both specific as to date: the first was alleged to have occurred on the 16th December 2005, and the second on the 10th March, 2006. In the Part 8 of the form, where he was asked to give the “date of the first occurrence of the discriminatory act”, he specified “Dec 16 2005” as being that date.

Based on this information the VEC submitted to the equality officer that she had jurisdiction to investigate these nominated incidents only, and that she could not consider the additional matters upon which the complainant also intended to rely (ie the historical evidence); such matters being those as outlined for the first time in his submission of September 2007, and again addressed in his replying submission of February 2009.

The VEC therefore wanted a ruling on this issue when the submission to that effect was made, and Ms Murtagh declined to do so.

Her decision was that she would firstly hear the entirety of the evidence, and would then rule on the jurisdictional objection as made – this led the VEC to institute a judicial review, which in turn resulted in the hearing before Ms Murtagh being adjourned midstream the evidence, and thereafter indefinitely stayed pending the final outcome of these Supreme Court proceedings.

Relief sought by the VEC

The relief sought by the VEC in the Supreme Court was a declaration that the Equality Tribunal acted ultra vires in purporting to conduct an investigation of alleged discriminatory acts (within the meaning of the Employment Equality Acts 1998 to 2004) against Mr Brannigan, which fell outside the scope of the terms of the complaint made by Mr Brannigan and received by the VEC on 4th August 2006.

Essentially, the VEC sought a declaration that the equality officer be required to confine her investigation to the two specific incidents of discrimination contained in the complaint referred to the Equality Tribunal on the 4th August 2006

Conclusion

The Supreme Court was not called upon to directly assess that question in these proceedings as they were a matter for the Equality Tribunal, which had not yet made a ruling on it.

Justice McKechnie stated that to succeed, the VEC would have to show that Ms Murtagh could only decide the contested issue at the point when it was raised by the Committee and that any other decision would be demonstrably wrong in law. According to Justice McKechnie – this was a step too far and a barrier too high for the VEC to overcome, therefore the appeal brought by the VEC had to be dismissed.

In addition, even if it could do so, the appeal would still have to be dismissed in circumstances where the undisputed facts were that the officer in question was yet to make any decision on the point and where it could not be shown that she lacked jurisdiction to do so.

The effect of this decision was that the inquiry must be resumed, and the question of how best to process the continuation of the investigation was a matter for Ms Murtagh.