High CourtCounty Louth VEC -v- the Equality Tribunal: Judgment was given on July 24th, 2009, by Mr Justice McGovern Judgment:The Equality Tribunal did not act outside its power and did not adopt unfair procedures, in hearing a claim of discrimination on the grounds of sexual orientation on the part of a retired teacher against Co Louth VEC.
Background
The case arose from a claim of discrimination on the grounds of sexual orientation by Pearse Brannigan, a retired teacher who was homosexual and a notice party in these proceedings. He had taken a claim to the Equality Tribunal of discrimination on the grounds of sexual orientation against Co Louth VEC arising out of a number of incidents, including in relation to promotion and/or regarding harassment and victimisation.
Among the incidents detailed in his notice of claim, on standard form EE1, was an attempted assault by a colleague, and the placing of a banana with a condom on it in his mailbox. His complaints about this treatment were not dealt with by the Principal of Drogheda Institute of Further Education, according to the complaint.
The Equality Tribunal appointed Ms Valerie Murtagh to investigate the complaint in August 2008. Further details of alleged discrimination were supplied, some going back to 1997. No response was received from the VEC until January 21st, 2009, the eve of the hearing date.
Seven employees of the VEC were among the witnesses called by the VEC and attending the hearing, as well as the parties and their legal representatives. Ms Murtagh ruled that not all those present could be present during the hearing.
The notice party made a claim for personal injury arising out of the incidents. The VEC sought an adjournment of the Equality Tribunal hearing pending the outcome of this claim.
Ms Murtagh ruled that she had a statutory function to exercise and that the two claims were separate. The VEC also sought to have excluded all evidence relating to allegations concerning events that occurred prior to Mr Brannigan making his initial claim to the tribunal in December 2005. Ms Murtagh concluded she should hear all the evidence before making a ruling on this matter.
When the hearing went ahead, Mr Brannigan gave evidence of alleged incidents, including a rock being thrown at him and no action being taken, which the applicant said it had no notice of.
The hearing was adjourned without a date for its resumption being agreed, and on February 27th, 2009, the VEC instituted the judicial review proceedings challenging the manner in which the claim was being heard and seeking to have it confined to the two incidents in the initial complaint. It also sought a declaration that the denial of access to the hearing of all the applicant’s witnesses was a denial of natural and constitutional justice.
Decision
Mr Justice McGovern examined the law establishing the Equality Tribunal and said that two principal issues arose. The first was whether the tribunal had jurisdiction to hear evidence of the notice party’s allegations going back more than 10 years that were not contained in the Form EE1. The second was whether the exclusion of the applicant’s witnesses was a breach of fair procedures.
Feichin McDonagh SC for the VEC submitted that Mr Brannigan had not indicated there was continuing discrimination against him over many years and as a result could not have such allegations investigated.
Gerry Durcan SC for the tribunal said that a wide variety of complainants came before the tribunal, some of which were represented and some not, and it was inadvisable that unnecessarily formal or complex procedures be introduced into its work. He said that the form in question was only intended to set out the generality of the complaint, and to limit a complainant to what was in it would fetter the manner in which the Oireachtas intended such investigations to proceed. The fact that the Equality Officer had decided to hear all the evidence was in accordance with the law.
Derek Kenneally SC, for the notice party, said that the form should be read with the detailed submission of September 19th, 2007, and pointed out that, although it had been delivered 15 months before the hearing, a response from the VEC was only made the day before the hearing.
Mr Justice McGovern said he accepted the submission that Form EE1 was only intended to set out, in broad outline, the nature of the complaint. It should be possible to amend a claim so long as the general nature of the complaint remained the same. The additional details were provided on September 19th, 2007, and the applicant had ample time to respond.
Referring to the witnesses having to remain outside the room while evidence was being heard, Mr Justice McGovern said the Equality Officer was entitled to run the hearing as she saw fit, so long as it complied with the principles of natural and constitutional justice. There was a representative of the applicant present who was in a position to cross-examine the notice party on his evidence, and the relevant witnesses were available to give their account of events and instruct the applicant where necessary.
Having considered the evidence, he said the applicant (the VEC) was not entitled to the reliefs sought because the tribunal had not made a final determination on the issue of the time limit of the complaint, and the procedures were not unfair or contrary to the principles of natural or constitutional justice.
Full judgment on www.courts.ie
Feichin McDonagh SC and Mairéad McKenna BL, instructed by Mason Hayes and Curran, for the applicant; Gerry Durcan SC and Conor Power BL, instructed by the Equality Tribunal, for the respondent; Derek Kenneally SC and Mary Honan BL, instructed by Pearse Brannigan, for the notice party.