Justice John MacMenamin
The appellant now named in the title herein is the successor-in-title to the County of Louth Vocational Education Committee, the applicant, originally named in the proceedings. On occasion, therefore, this judgment contains references to the appellant as “the V.E.C.”, where context or understanding so requires.
On the 24th July, 2009 the High Court, (McGovern J.), delivered judgment, dismissing the appellant’s application for judicial review against the respondent (“the Tribunal”). The appellant appealed that judgment to this Court. It seeks to challenge what it claims was an unlawful decision on jurisdiction in an investigation conducted by Valerie Murtagh, an Equality Officer delegated by the Director of the Tribunal, under the Employment Acts, 1998 to 2004 (“the Acts”).
The origins of the application lie in complaints to the respondent by the notice party, Pearse Brannigan (Mr. Brannigan). Mr. Brannigan was formerly employed as a teacher by the appellant. He complained of discrimination based on his sexual orientation. Ms. Murtagh, (“the Officer”) was delegated to carry out an investigation concerning the complaints. She embarked on an investigation into issues raised by Mr. Brannigan concerning his former employment. Mr. Brannigan set out these complaints, first, in an initial ‘EE1’ form submitted to the Tribunal, and, later, in correspondence to that statutory body. The issue before the Court is as to parameters of that inquiry.
In the judicial review application, the appellant, among other claims, sought declarations to the effect that the Officer be limited to investigating complaints of discrimination made by Mr. Brannigan which had been lawfully referred to it, that is, matters said to have occurred within a period of 6 months, prior to 4th August, 2006, the date the Officer received Mr. Brannigan’s first complaint. The appellant claimed it had not been accorded fair procedures in the process of the investigation into the complaints. In dismissing the application, McGovern J. held that the Officer had not made a final determination on the issue of the temporal limit of the complaint; and that the procedures which she had adopted were not unfair, or contrary to natural or constitutional justice.
The appeal before this Court is confined to the first, temporal limit, or “jurisdictional” issue. No point is now raised on the fair procedures question. The appellant seeks, rather, declarations, either to the effect that the Officer acted ultra vires, in purporting to conduct an investigation falling outside the lawful terms of the original complaint made by Mr. Brannigan, or, alternatively, an order requiring the Officer to confine her investigation to the issues set out in Mr. Brannigan’s original complaint of the 4th August, 2006. The case is made that the time limits set out in the Acts debar her from investigating any other matters said to have occurred much earlier, and which were not described in the EE1 form. The appellant also seeks an injunction by way of judicial review, staying the investigation being conducted into the alleged discriminatory acts, save insofar as the investigation is confined to the two allegations contained in the complaint which Mr. Brannigan made to the Tribunal on the 4th August, 2006.
It is a matter of concern and regret that the matters raised in this appeal took place some considerable time ago. Nonetheless, the fact remains that there is still an investigation in being, and the progress of that investigation has remained in suspense pending the outcome of these proceedings. It is necessary now to look at the legal background to this application.
This judgment, insofar as it addresses matters before the Officer, addresses matters which are not in controversy. For reasons explained in more detail later, the judgment is not to be interpreted as expressing any view on the factual material to be considered in the investigation, or on the legal issues in controversy.
It will also be noted that, now, the Workplace Relations Commission has, among other functions, now superseded the Equality Tribunal (See Workplace Relations Act, 2015, s.83(1)(c)). But, the Acts of 1998 – 2004, relevant to this appeal, must still be seen in their broader purpose and context. The issue of equality in employment has been the subject matter of a number of Directives, inter alia, Council Directive 2000/78/EC of 27th November, 2000, which established a general framework for equal treatment in employment and occupations. Article 9 of that Directive provides as follows:
Defence of rights
By its long title, the 1998 Act sought to promote equality between employed persons, and to make provision with respect to discrimination in, and in connection with, employment, vocational training, and membership of certain bodies. The legislation was also intended to make provision in respect of harassment in employment and in the workplace.
The 1998 Act pre-dated the E.U. Directive. Nevertheless, the Act, and amendments subsequent to the year 2000, sought to implement these same principles, and are part of a standalone code.
Section 79(1) of the 1998 Act, as amended, created a duty on the Director to investigate the case, and, where mediation failed, went on to provide that the Director should “investigate the case and hear all persons appearing .... to be interested and desiring to be heard.” Section 79(1) was subsequently substituted by the Civil Law (Miscellaneous Provisions) Act, 2011, s.24; the substituted provision does not now contain the words “and desiring to be heard”.
Section 77 of the Act of 1998, as substituted by s.46 of the Act of 2004, and the Schedule thereto, provided:
A complaint, referred under this section, was to be delegated by the Director of the Tribunal (“the Director”) to an Equality Officer. Such complaint might, thereafter, become either the subject of mediation, investigation, or, ultimately, after investigation, a decision by such officer.
It is clear that the process was intended to provide for a single, expeditious, hearing process, into all relevant matters, conducted without undue formality. Section 79(1A) of the 1998 Act, as amended, provided that a complaint of discrimination, made on more than one ground, should be investigated as a single case, and that discrimination claims, amounting to victimisation, might also be investigated in one case. Section 79(2) of the Act provided that such an investigation was to be held in private.
Pursuant to s.79(3A), the Acts then provided the Director, or an Equality Officer assigned to the case, might hold a preliminary hearing into specified matters, including:
At the time relevant to this judgment, an appeal on a point of law to the High Court from a determination of the Tribunal on preliminary points, including those identified above (see s.79(7) of the Act of 1998, as inserted by s.35(d) of the Equality Act, 2004). Section 79(7) has now been deleted by s.83(1)(f) of the Workplace Relations Act, 2015.
The potential effect and impact of the range of orders made by an Equality Officer, under s.82 of the Act of 1998, was by no means insignificant. Consequently, the requirement for effectiveness and informality must be balanced with the principle that any investigations be carried out in a fair manner. Informality and constitutional fairness are not mutually exclusive requirements.
The statutory provisions as to time limits applicable to claim lie at the heart of this appeal. These were set out in s.77 of the 1998 Act, as amended by s.32 of the 2004 Act.
The relevant provisions were as follows:
It is beyond controversy, therefore, that these provisions had the intent that, in general, a complaint was to be made within a time limited, at least by reference, to the most recent occurrence in question.
Section 77(6) of the 1998 Act, as amended by s.32 of the Equality Act, 2004, provided for a situation where the time may be extended where there has been a misrepresentation by a respondent. On the facts now presented, that situation does not arise here. However, s.77(6A) is of particular relevance. It provided as follows:
The interpretation of these provisions, taken together, is, undoubtedly, an issue in the investigation. But, the role of the Superior Courts in considering fact and law issues emerging from a tribunal, such as the respondent, has recently been considered by this Court (see Barry v The Minister for Agriculture  IESC 63). That role is significantly circumscribed. At this stage it is sufficient to emphasise that it is not, generally, the function of the courts to substitute their own views for those of an Equality Officer on questions of fact. Nor should a court, in a judicial review, or an appeal therefrom, seek pre-emptively to exercise a statutory jurisdiction on legal issues which is vested, in the first instance, in an Equality Officer.
In the pending investigation, the substantial issues of fact, and law, are yet to be determined. In fact, the true question which arises in this appeal is whether the appellant, in seeking the jurisdictional declarations identified earlier, has established a basis in law for a court to grant such relief. A court does not grant “advisory” opinions, or declarations on a hypothesis. Nor will a court grant a declaration where there is insufficient evidence that a wrong has occurred, or might occur. Simple inference by one party of a potential apprehended denial of rights will seldom be sufficient to ground a declaration, unless it is supported by real evidence upon which a court might safely act.
In order to make his original complaint, Mr. Brannigan used the “EE1 Form”. Unlike the T10 application form, until recently used in claims to the Employment Appeals Tribunal prior to its dissolution in 2015, the EE1 form, as used in this complaint, was not mandatory. The content or status of the form was not laid down by statute (see by way of distinction the consideration of the Employment Appeals Tribunal T10 form in Bank of Scotland (Ireland Ltd.) v EAT and Grady  IEHC 119; and IBM v Feeney  ILRM 50). Judging from its layout, the EE1 form, applicable here, appears to have been intended by the Tribunal, to allow a claimant to give a general account of the basic details of the complaint. But, even its very format did not allow for a full description of a complaint; rather, it simply allowed a claimant to present the claim, often in “box” form, in some instances even carried out by a simple “box ticking” exercise. In the present case, it is said Mr. Brannigan completed the form by himself, and did not then have legal advice or assistance, although it appears that at the time he did have a solicitor acting for him in his dispute with his former employer. His solicitor is, in fact, named in the EE1 form.
The following matters appear not to be in dispute. It is accepted the notice party was employed by the appellant. He brought a complaint to the Tribunal on the 4th August, 2006. He claimed that the appellant had engaged in discrimination, harassment and victimisation against him, contrary to s.77 of the 1998 Act, as amended. He contended that this alleged unlawful conduct derived from the fact of his sexual orientation as a gay man.
Under the heading “Grounds on which discrimination is claimed”, in the EE1 Form, Mr. Brannigan ticked a box headed “gender”, underlining the word “male” beside that box. He did not tick the box for “marital status”. He underlined the word “single” beside the box, and ticked a box for “sexual orientation”, underlining the word “homosexual” beside it. Under the heading “Description of claim”, Mr. Brannigan ticked the boxes for “promotion/regrading”, “conditions of employment”, “harassment”, and “victimisation”. Under the heading “Details of complaint”, he set out a “date of the first occurrence” of the discriminatory act as being the 16th December, 2005. He set out the “date of the most recent occurrence” of discrimination as being the 10th March, 2006 (see s.77(5)(a) of the 1998 Act, as amended by s.32 of the Equality Act, 2004, quoted earlier). Mr. Brannigan gave a brief account of two events which occurred when he had been employed as a teacher, in a school run by the appellant. It will be noted that a period of 6 months from the latter of the two events, 10th March, 2006, expired on the 10th September, 2006. Thus, this 6 month period elapsed a little more than one month after Mr. Brannigan submitted the EE1 form, on the 4th August, 2006.
More than one year elapsed before the next significant event. On the 17th September, 2007, Mr. Brannigan made another submission at the Officer’s request. This also set out allegations of harassment and discrimination. On this occasion, however, rather than simply dealing with the two occurrences referred to earlier, Mr. Brannigan also described further events said to have occurred dating from 1997 up to the date of the end of his working with the V.E.C., apparently, at the end of August, 2006. He complained of alleged mistreatment and discrimination, by more senior teachers, and by other colleagues at the same level of seniority as himself. The complaints related to interactions between various staff members, some said to have been insulting, others more serious, as well as concerns as to how complaints regarding teaching quality, teaching assignments and supervisory duties were dealt with by more senior teachers.
The Officer requested the appellant to provide a response to these submissions by the 31st January, 2008. That deadline passed. No response was received. Ms. Murtagh, of her own accord, granted the appellant an extension of time until the 7th November, 2008. In fact, the appellant did not put in its written submissions until the 21st January, 2009. That timing was significant. The submission came in on the day prior to the first scheduled oral hearing of the investigation. This was to commence on the 22nd January, 2009. The appellant’s written responses, which were detailed, addressed all Mr. Brannigan’s submissions. However, it can be safely said that those responses dealt in greater detail with the more recent complaints. For the first time, these responses raised an issue in relation to what might be characterised as the “time issue”.
I should mention now that Mr. Brannigan also sought other forms of legal redress concerning his employment. He instituted High Court personal injury proceedings against the appellant. These were dated 4th July, 2007. Those proceedings were brought after his first submission on the 4th August, 2006, but before his second letter to the Tribunal dated 12th September, 2207. The High Court proceedings contained allegations of bullying and harassment causing personal injury, which were said to have undermined Mr. Brannigan’s role as a teacher. The pleadings also described matters allegedly going back to the year 1997. Mr. Brannigan claimed that the effect of this conduct was that he reached a point where he was constrained to cease work at the end of August, 2006.
In this judicial review, Mr. Brannigan deposes in his grounding affidavit that his solicitors informed the appellant of his intention to apply for early retirement on grounds of ill-health on the 11th September, 2007. This was confirmed by a formal letter on the following day. A letter from the appellant dated the 11th January, 2008, indicated this application had been granted. Mr. Brannigan deposed that, from the 6th November, 2006, to the 18th February, 2006, he was without any means of income.
While counsel for Mr. Brannigan accepted in argument before this Court that there might be some degree of overlap between the two claims, he contended that the High Court case was in the nature of a personal injuries matter, whereas the complaint arising before the Tribunal related to victimisation and discrimination, based on sexual orientation. This is not a matter which requires determination here. The issue of the settlement sum of the High Court proceedings does not arise in this judgment either.
The Investigation Hearing
On the initial day of the investigation hearing, 22nd January, 2009, all parties were in attendance before the Equality Officer. Arising from concerns relating to the pending High Court action, the investigation was adjourned, apparently, by consent.
Subsequently, on the 9th February, 2009, Mr. Brannigan submitted a further written rejoinder to the V.E.C.’s responses. A resumed hearing of the investigation took place on the 12th February, 2009.
At that resumption, junior counsel for the appellant then raised two preliminary concerns. First, she again sought a stay on the investigation pending the outcome of the pending High Court action. The Officer rejected the application on that ground, holding that she was under a statutory duty to carry out the investigation. No challenge has been brought to that decision.
The second issue concerned the temporal scope of the issues. Counsel for the V.E.C. submitted to the Officer that Mr. Brannigan was not entitled to give evidence concerning the “historic issues”, (going back to 1997), as set out in his second set of submissions of the 17th September, 2007. She submitted that the Officer had no jurisdiction to deal with any matters prior to the 16th December, 2005, which was the date identified in the EE1 Form as being the first occurrence of the discrimination. She referred to the provisions of the Acts, outlined above, laying emphasis on the alleged date of the “most recent occurrence” of discrimination.
As mentioned earlier, s.79(3A) of the 1998 Act, as amended, provided that a party may apply to an Equality Officer to determine certain matters (including time limitations), as preliminary issues. While one might infer that implied subtext to the appellant’s case is the suggestion that the Officer might have directed a preliminary hearing, no such complaint was made in the judicial review proceedings. On the basis of the authority of Aer Lingus Teo v The Labour Court  ILRM 485, considered later, such an application would have been very unlikely to succeed. The principle is that the Officer should conduct the investigation without interruption. Also, prior to the hearing, the Officer directed that a number of the V.E.C.’s witnesses who were in attendance at the hearing should wait outside. Those witnesses were other teachers, said to have witnessed, or been involved in, the various alleged events over the years. This was within the officer’s powers. The hearing proceeded and Mr. Brannigan set out his case.
It must be taken as a given that the investigation can be conducted informally and flexibly. That said, what actually occurred is not entirely easy to follow. By the end of the first hearing-day, Mr. Brannigan had apparently given evidence, and been questioned by the officer, but had not been fully cross-examined. This Court was informed the appellant had, in fact, called one witness, Mr. Ger Rooney, a teacher. Why Mr. Brannigan’s cross-examination had not been completed is unclear. The procedure is, frankly, puzzling.
At the end, the Equality Officer endeavoured to identify further potential dates, but then difficulties arose. No resumed hearing ever took place. These judicial review proceedings were brought to the High Court within two weeks after the second hearing day, on the 27th February, 2009. O’Neill J., in the High Court, granted leave to the appellant to seek judicial review. The appellant originally sought a broader range of judicial review remedies, including certiorari.
Prior to a consideration of the High Court judgment now under appeal, it is helpful to touch on some of the key matters contained in the affidavits sworn herein. Put at its simplest, the appellant’s case is that the Officer exceeded her jurisdiction by considering Mr. Brannigan’s evidence on the “historical incidents”.
Mr. Winters, the appellant’s Acting Chief Executive Officer, set out his concerns in this way:
It is noteworthy that Mr. Brannigan, as notice party, says squarely in his replying affidavit that there is nothing in the applicable Employment Equality legislation which would preclude the Tribunal from investigating alleged discrimination which occurred more than 6 months prior to the referral of a claim either, for example, as an instance of continuing discrimination, or as contextual evidence relevant to a complaint. Mr. Brannigan deposed that his complaint, in fact, related to what he characterised as continuing discrimination over a long period, culminating in the two identified incidents, said to have occurred in December, 2005, and March, 2006.
What is said in the Officer’s affidavit is, however, critical. Ms. Murtagh absolutely refuted Mr. Winters’ inference that the reason she had permitted the historic evidence to be given was that she had already made a decision on the contested issue of her jurisdiction to hear, consider, and determine on these matters. She also refuted any suggestion that she had rejected the V.E.C.’s submissions as to the proper scope of the investigation. She deposed “I say that I have not made any such decision”. She continued:
Ms. Murtagh was not cross-examined in the judicial review proceedings before the High Court. This Court is, therefore, faced with a situation where there is a clear denial that any decision on the jurisdictional issue has been made. Instead, the appellant’s concerns are based on inference, or apprehended potential detriment.
The High Court Judgment
In the High Court, McGovern J. appears to have held that the EE1 Form was intended only to set out the nature of the complaint in broad outline, and that it was possible to amend a claim, so long as the general nature of the complaint remained the same. The judge considered that Mr. Brannigan, in his second submission, had simply submitted further and better particulars of his claim, albeit in the context of an expanded period of time. He concluded that, under the legislation, complaints made within an expanded period were not time barred, but that any respondent to a claim must be given a reasonable opportunity to deal with the complaints, and observed the procedures adopted in that regard must be fair and reasonable.
Applying the principles outlined in the case law cited earlier, insofar as any findings as to time issues, and the effect of the EE1 form, are part of the High Court judgment, I would set aside these parts of the judgment. They are pre-emptive. As yet, questions of fact or law fall to be determined first by the Officer. The relevant facts of the investigation simply have not been elicited or determined. The Equality Officer has not made any legal ruling on the time issue. Without these, it would be inappropriate, and premature, to express views on legal issues which hinge on evidence as yet not ascertained.
The Appellant’s Case
In this appeal, in essence, senior counsel for the appellant, Mr. Feichín McDonagh, S.C., submits that, even at this stage, a court should declare it is simply not open to the Equality Officer to investigate, or deal with, any material which is not dealt with in the EE1 Form. Counsel submitted that the officer has no jurisdiction to explore the “historic matters” at all. However, counsel did accept in argument that it might be open to an Officer to allow evidence of matters which occurred outside the statutory time limitation period, as context, but only insofar as those matters might (or might not) be relevant to the specific issues which are complained of in the EE1 Form.
Counsel relies on the provisions of s.77(6)(a) of the 1998 Act, as amended. He contends that the Officer may investigate matters which allegedly occurred more than 6 months prior to the date upon which a particular claim was submitted to the Tribunal, but only as background in relation to a complaint lawfully made in respect of those matters. Counsel submits that there may be no investigation of complaints that are not made in accordance with the time-limit provisions of the Act. As a separate point, counsel submits also that the Tribunal cannot, by a process of fact finding, confer upon itself a jurisdiction which it would not otherwise enjoy under its governing statutes. He contends that, following the lodgement of the EE1 claim with the Tribunal, Mr. Brannigan was invited to provide a further written submission to the Tribunal, which he did on the 17th September, 2007. Counsel says this further document was submitted more than 12 months after Mr. Brannigan had ceased to be employed by the appellant, and more than 12 months after the notice party had made his original claim. More fundamentally, senior counsel submits that the additional materials strayed far outside the terms of the complaint being investigated, and are, effectively, time barred, pursuant to s.77 of the 1998 Act, as amended by s.32 of the Equality Act, 2004. In making these submissions, Mr. McDonagh, S.C. refers to the fact that the later submission concerned different allegations of alleged discriminatory acts on the part of the appellant’s employees and staff.
It is well established that the purpose of a deciding body or tribunal, such as the respondent Tribunal, is to provide speedy and effective redress in cases of alleged discrimination. It is not in dispute the procedures employed may be both informal and flexible. It is true, as Mr. Gerard Durcan, S.C., counsel for the Tribunal, submits, that the range of claimants before such a Tribunal do not fit into any one category. They may or may not be legally represented and, therefore, flexibility is both warranted and necessary.
The question is, are there grounds for any declaration? It has been observed, more than once, and not only in this jurisdiction, that it is not in the public interest, nor the intent of the legislation, that investigations, or inquiries, of this nature should be intermittent, or be interspersed with unnecessary representations or counter-representations, or by premature applications made to the courts (see, by way of illustration, the remarks in Pearlberg v Varty  2 All.ER, cited in the High Court judgment delivered by Carroll J. in Aer Lingus Teoranta v The Labour Court  ILRM 485). However, this precept does not mean that a court might not, ultimately, grant relief were it shown that a deciding officer had, in fact, exceeded jurisdiction.
The Form of Relief Claimed
As part of the consideration of this appeal, it is necessary to point to the rules-rubric under which this application was initiated. Essentially, what is sought now is a simple declaration, although an injunction is part of the claim. There is a subtle, but important, distinction between the various forms of relief which may be claimed in judicial review. Order 84, Rule 18(1) provides:
Elsewhere, Order 19, Rule 29, provides that no action or pleading is to be open to objection on the ground that a merely declaratory judgement or order is sought thereby. A court may, if it thinks fit, make binding declarations of right whether any consequential relief is or could be claimed or not.
While, historically, remedies such as declarations or injunctions were merely ancillary to the public law remedies just identified, this is no longer the case. The existence of declaratory proceedings provides a useful remedy in a wide range of circumstances, where, perhaps, the traditional judicial review remedies may not be appropriate. But, the question which arises, on the facts of this case, is whether a declaration should be granted? It is said the Officer has already strayed beyond her remit in allowing historical evidence at all.
There are a number of factors which militate against granting a declaration. First, the question arises in circumstances where it is very doubtful whether, in principle, the remedy of certiorari would be available at this stage. The officer has denied she has made any decision or order which might be impugned by judicial review. This has not been disproved to the requisite level of probability. On the face of things, she is acting within jurisdiction, or rather it has not been shown that she has exceeded her jurisdiction.
Second, it is necessary to, again, point out that this is an inquiry which is still in the course of hearing. It has commenced. Much is still to be adduced. Should a court, even by declaratory order, seek to direct the manner in which the Equality Officer should carry out her task, not only in circumstances where she has sworn that she has not reached any conclusion in relation to jurisdiction, but where the hearing is still in being? I think not. A declaration is not to be seen either as a surrogate for certiorari or for an injunction. I would hold that neither certiorari, nor an injunction, could be granted restraining the hearing at this stage. Such an application would be premature.
Further, in order to obtain relief, even by way of declaration, it would be necessary for the appellant to demonstrate that it is in imminent danger of suffering a diminution of rights, or a detriment. But, as yet, there has been no determination of rights or interests.
This is a situation where, by analogy, similar principles apply as arose in Blanchfield v Harnett (3)  3 I.R. 207, Director of Public Prosecutions v Special Criminal Court  1 I.R. 60, and the recent decision of this Court in Stirling v Collins  JIC 2603. In each of these authorities, the courts have emphasised that judicial review was an available remedy which might, in principle, permit challenges to decisions, made in the course of a trial, but only in truly exceptional circumstances. The courts have consistently held that, although decisions of a court of trial might, ultimately, be subject to certiorari, such relief was scarcely ever granted during the course of a trial. The fundamental principle, more recently reiterated in Stirling, is that, save only in the most exceptional circumstances, a trial should have “the unity and continuity of a play” (see O’Dalaigh C.J.’s remarks in the People (Attorney General) v McGlynn  I.R. 232). The circumstances in which certiorari was granted in Stirling were truly exceptional, and clearly went to jurisdiction. It would be an incongruity were this Court now to rule on a jurisdictional issue, in an investigation of this type, where the Equality Officer has not herself delivered a decision on that question.
The position here has some resonances too in the decisions of the High Court, and this Court on appeal, in Aer Lingus Teoranta v The Labour Court  ILRM 485. As Carroll J. pointed out in the High Court judgment in Aer Lingus, it is not obligatory for an Equality Officer to rule on a time issue “any more than a court is obliged to hear a preliminary issue on whether a claim is statute barred or not”. That judge laid emphasis on the fact that tribunals, engaging in this important form of work, must be allowed a discretion in the running of their affairs, as to whether to have a preliminary hearing, or whether to deal with all questions, including that of receivability, at one hearing. Subject to comments in the conclusion section of this judgment, I agree with this observation.
On appeal in this Court, in Aer Lingus, Walsh J. approved this observation, expressing the view that it would be “far preferable” that matters should not be brought to the High Court on a point of law, until after the determination of the Labour Court, as to any matter of law arising, had been made. Walsh J. laid emphasis on the fact that Carroll J. had “correctly” mentioned the fact that the Labour Court had not made any findings on the merits of the case, and that, if that had been the position, he would have been content to let the matter go back to the Labour Court.
I mention here, however, that in Aer Lingus, this Court did find it necessary to make adjudications in relation to the jurisdiction of the Labour Court, and reversed the High Court judgment in that regard. This was because the High Court judge had, in Walsh J.’s words, “elected” to go into questions of whether the acts complained of were capable of constituting unlawful discrimination, and expressed views on whether the relevant legislation had retrospective effect. This was in circumstances where the respondent had not fully concluded its deliberations in these issues. The situation which arose in Aer Lingus reinforces the inference that a court should guard against premature expressions of views on facts or law, and for that reason, I would set aside any part of McGovern J.’s judgment which might be interpreted as having expressed such views.
The position here is not analogous, either, to that which pertained in Cox v Ireland  2 I.R. 503, where the plaintiff challenged a “decision” of civil servants to apply the provisions of s.34 of the Offences Against the State Act, 1939 to his circumstances, while also challenging the validity of the section. In Cox, this Court ruled that the civil servants in question had not made a “decision”, in that, the two defendants named had no alternative but to apply the provisions of s.34 OASA, 1939, to the case of the plaintiff, until the provisions in question were declared unconstitutional. But, this Court, nonetheless, granted a declaration by way of judicial review, that the section in question was unconstitutional. No such claim is brought here.
As Order 84, Rule 18(1) makes clear, the issue in this appeal concerns the question of whether or not it is “just and convenient” to grant a declaration. I do not consider that it would be either “just” or “convenient”. The hearing is still proceeding. It is to be presumed it will be fair. It is to be presumed that the Equality Officer will act within jurisdiction. The policy of this Act, and the courts generally, lean against interference in a pending hearing, save in the most exceptional circumstances. There has been no detriment, or denial of rights or interests, nor has it been sufficiently shown that there is an imminent danger of the appellant suffering such detriment.
I would, however, venture some further observations. It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v Durkan  I.R. 279, approved in Killeen v DPP  ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures. It is no part of the case made that in conducting the hearing, as she has, the Officer is pursuing some fixed policy.
To my mind, it would not be appropriate to grant a declaration. Subject to my findings on the observations made by the High Court judge on facts and law, I would, therefore, dismiss this appeal. I would remit the matter to the Equality Officer for further investigation and final determination, in accordance with law. I would uphold the High Court judgment and order, to the extent that it held that the application is premature.
Justice William M. McKechnie
This case arises out of proceedings before the Equality Tribunal concerning an allegation of discrimination on grounds of gender and sexual orientation made by the notice party against his former employer, the appellant. The original claim, which it is accepted was validly made, identified two specific incidents only. Although still somewhat difficult to decipher, the substantive point at issue is whether the equality officer is 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.
This Court is not called upon to directly assess that question in these proceedings as in the first instance this is a matter for the Tribunal, which has not as yet made a ruling on it. To succeed, however, on what is in issue on this appeal, the appellant would have to show that the equality officer assigned to the case can 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. That, in my view, is a step too far and a barrier too high for the VEC to overcome. Moreover, even if it could do so, the appeal would still have to be dismissed in circumstances where the undisputed facts are that the officer in question has yet to make any decision on the point and where it cannot be shown that she lacks jurisdiction to do so. The reasons for this conclusion follow.
Between 1981 and 2007, Mr. Brannigan (also referred to as “the complainant” or “the notice party”) was employed as a teacher in a number of institutions under the control of the County Louth Vocational Education Committee, now known as the “Louth and Meath Education and Training Board”, and in this judgment also referred to as “the appellant”, “the applicant” or “the VEC”. Apparently, 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. He returned to work for three days in August of that year, but left, not to return, after this period. As and from September, 2007, he ceased employment entirely, having been approved for early retirement on grounds of ill health.
Arising out of this relationship, howsoever one might describe it, the notice party instituted two sets of proceedings against the VEC, the first of which was a claim under the Employment Equality Acts 1998-2004 (“the 1998 Act”), and the second of which, commenced by a Personal Injury Summons, made allegations of bullying and harassment; fortunately, this matter has been compromised by way of an out of court settlement. This second action, therefore, although not entirely irrelevant, plays 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 such complaint was that as a known homosexual, he had been discriminated against on the grounds of his sexual orientation. In August, 2008, Ms. Valerie Murtagh, an equality officer, was assigned to the case. Prior to that the notice party had also furnished a “Submission” to the Tribunal on the 19th September, 2007, which the VEC responded to on the 21st January, 2009, the day immediately prior to the commencement of the hearing. As it happened, the investigation was deferred, at the request of both parties, until the 12th February, 2009, by which date a short replying submission had also been served on behalf of Mr. Brannigan.
At the outset of the hearing, the appellant made the following three submissions to Ms. Murtagh:-
That the hearing should be adjourned until the plenary proceedings had been finalised as there was a considerable overlap between both. The officer refused to so do and no issue arises out of that decision.
That the manner in which the officer proposed to conduct the inquiry, in particular by her refusal to allow a number of VEC witnesses, being fellow teachers and former colleagues of the complainant, to be present when the complainant’s evidence was being given, was unlawful. In short, this was a fair procedures point. Whilst this objection formed part of the instant proceedings and was therefore dealt with in the High Court judgment, it has not been pursued as an appellate point to this Court. It thus has no continuing relevance.
It is solely the third issue which agitates this appeal. That issue is the subject matter of this judgment.
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 (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 (para. 95 infra). The appellant therefore wanted a ruling on this issue when the submission to that effect was made. Ms. Murtagh declined to do so; rather, her decision essentially was that she would firstly hear the entirety of the evidence, and would then rule on the jurisdictional objection as made. Her decision to adopt that approach led directly to the institution of this judicial review, which in turn has resulted in the hearing before her being adjourned midstream the evidence, and thereafter indefinitely stayed pending the final outcome of these proceedings. That situation, whether inevitable or not, is most regrettable.
High Court Judgment:
Having obtained leave to challenge ‘the situation as it then stood’, and following a fairly far reaching debate in the High Court, McGovern J. delivered his judgment on the 24th July, 2009. He held, inter alia:-
That the case of Bank of Scotland (Ireland) v Employment Appeals Tribunal & O’Grady, (Unreported, High Court, Ó Caoimh J., 15th July 2002), did not assist the VEC “as it is clear, on the facts, that the claim by the notice party was made within time and in that way it differs from this case”;
That Aer Lingus Teoranta v Labour Court (Unreported, Supreme Court, 20th March 1990) was in favour of the respondent in that both the High Court and the Supreme Court held that there was no obligation on the Tribunal in question, being the Labour Court in that case, to conduct a preliminary hearing so as to “deem the claim admissible”: rather, this and any related point could properly be dealt with as part of the substantive hearing;
That the EE1 Form, which had no statutory footing and which was merely an administrative document, had as its purpose the setting out, in brief outline, of the nature of the complaint; as such, a complainant was not limited to its contents.
That as a result, by analogy with court proceedings, there was no reason why the claim as formulated could not be amended so long as the general nature of the complaint remained the same;
That the submissions of the notice party delivered post the 4th August, 2006, should be regarded, in effect, as the furnishing of further and better particulars of the claim, albeit in an expanded period of time: such complaints so made, even within this period, were not time barred under the legislation; and, finally,
That fairness would, of course, have to ensure that the VEC had an opportunity of properly dealing with all such matters.
Accordingly, the application for relief was dismissed, with the appellant moving to this Court only on the single issue above stated.
With regards to the Bank of Scotland (Ireland) case, and the point mentioned at the first indent above, I assume that what the trial judge meant was that Ms. Grady, the notice party in that case, was out of time in submitting her claim for unfair dismissal; clearly he could not have been suggesting that Mr. Brannigan was out of time in the instant case. To the extent that this was what the learned trial judge intended, I would agree that the Bank of Scotland (Ireland) case does not assist the applicant.
However, it is perhaps worth noting another aspect of that case, namely that a claim for redress under the Unfair Dismissals Act 1977 “shall be initiated by giving a notice .... to the Tribunal .... within the period of 6 months beginning on the date of the relevant dismissal” (s. 8(2)(a) of the Act). O’Caoimh J., the trial judge, following the decision of the High Court in The State (IBM Ireland Ltd) v The Employment Appeals Tribunal  I.L.R.M. 31, held that compliance with such provision was mandatory if the Tribunal was to have jurisdiction to embark upon and determine the submitted claim. Whilst the issue turned on whether “any” claim had been made within the time period, unlike the instant case, nonetheless the language used in the section is not altogether that dissimilar from the relevant provisions of the 1998 Act.
The Relief Prayed For/Grounds Asserted:
Although, as is altogether too common, leave was granted to seek multiple declarations, in essence those set out in the Motion paper at subparagraphs (a) and (d) were the focus of the argument in both the High Court and in this Court. These read as follows:-
Declarations (b) and (c) as set out in the said Motion are omitted from this judgment on the basis that they seek essentially the same relief as that intended by para. (a), above, namely, 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. Thus their inclusion would add nothing to this appeal.
However, before leaving the reliefs as sought, in particular that outlined at para. (d), above, one should note the potential distinction for investigation purposes between a complaint “which has been lawfully referred” to the Tribunal and one “which has occurred” within six months from the date of the EE1 form. If a complaint is out of time and thus fails to satisfy a condition precedent, and remains so found after inquiry, then it cannot be said to have been “lawfully referred” to the Tribunal, such that it may properly be investigated for redress purposes (see para. 81 infra). The effect of such a ruling would be that the rejected complaint, from that point on, could not be considered as a potential discriminatory act. It would therefore have to be disregarded to that end. On the other hand, as paras. 20-26 of this judgment show, the Tribunal, in certain circumstances, may be fully justified in looking into acts or incidents of discrimination which long pre-dated the six-month period. This is a point which I will further refer to later in the judgment.
The bare recital of the above declarations is not of itself sufficiently explanatory of the precise point which, at the substantive level, is directly behind this appeal. In order to help elucidate that issue, it is therefore necessary, firstly, to outline some of the grounds upon which leave was granted and, secondly, to set out sections of the legislation and my interpretation of the relevant provisions thereof. Having done so, I will then identify what I believe is the core point of the VEC’s argument.
The formal grounds relied upon in support of the application for the reliefs above set out included the following:
In summary form the grounds of appeal allege that McGovern J. erred in law and/or in fact in holding 1) that the issue before him related to the furnishing of further and better particulars of the complaint made on the 4th August, 2006; 2) that Mr. Brannigan’s September, 2007 submission came within the terms of the complaint received in August, 2006; 3) that, in the alternative, the September, 2007 submission represented a lawful and timely amendment of Mr. Brannigan’s original complaint; 4) that Ms. Murtagh had not made a final determination on the issue of the temporal limit of the complaint; and, finally, 5) that the learned judge failed to address the issue of the jurisdiction of the Equality Tribunal to investigate matters which had not been the subject of a complaint to the Director of the Equality Tribunal in accordance with the terms of the 1998 Act.
The 1998 Act and its subsequent amendments were introduced against the backdrop of what may in short be regarded as the Equal Pay Directive (C.D. 75/117/E.E.C. of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women) and the Equal Treatment Directive (C.D.76/207/E.E.C. of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions). As such, domestic interpretive provisions must reflect this context. Apart from being conscious of that background, however, I do not see that the principle of conforming interpretation is otherwise directly in play on the live issue before us. Therefore, the EU dimension against which the legislation was enacted is not on point as such.
The 1998 Act provides for the appointment of a Director of the Equality Tribunal, who is to perform the functions conferred on him or her under the Act, and also provides that the office of such person shall be known as the Equality Tribunal (s. 75(1) and (2) of the 1998 Act). That Director can appoint from amongst his staff any person to be an “equality officer”, and can in respect of that individual delegate to him or her any function conferred on the Director under the 1998 Act or any other relevant enactment (s. 75(4B). No issue arises in this case as to the status of Ms. Murtagh, or as to the validity of the delegation so made by the Director.
It is quite clear that neither the 1998 Act as a whole nor any of its relevant sections are self-executing, in the sense that the individual standing of an applicant and the subject matter of the complaint must fall within its provisions before the Tribunal can exercise the jurisdiction vested in it. In a case such as the instant one, the effect of this is that, firstly, the complainant must commence the process of seeking redress by referring the case to the Director (s. 77(1)(a)); secondly, he must show that he has been discriminated against on any one or more of the grounds set out in s. 6(2) of the Act, or that he has been victimised within the provisions of s. 74(2) thereof; and, thirdly, he must establish, if in issue, that each of the other qualifying requirements are satisfied. In this case the only contested condition is that referable to the time period.
Under s. 77(5)(a) of the 1998 Act, a claim for redress in respect of discrimination “may not be referred under the section after the end of the period of 6 months from the date of occurrence of the discrimination or .... as the case may be, the date of its most recent occurrence”. Subsection (6A), inserted by s. 32 of the Equality Act 2004, provides that:-
It is clear, therefore, that the “six month period” applies whichever provision may be invoked.
The 1998 Act also has some relieving measures regarding the time limit for submitting a claim. For example, where the delay has resulted from a misrepresentation by the respondent, the date of occurrence shall be regarded as the date when the misrepresentation came to the notice of the complainant (s. 77(6) of the Act). In addition, the 6 month period can be extended by the Director or by the Circuit Court for a further period of equal duration, in total not exceeding twelve months, for reasonable cause (s. 77(5)(b) of the Act). If granted, such an extension would not otherwise affect the date of occurrence for limitation purposes. No such application has ever been made in this case.
It has not been suggested, nor could it be, that the outer limit of the six month period within which “the case” seeking redress must be lawfully referred to the Tribunal (s. 77(1) of the 1998 Act) can, as a matter of discretion, be extended other than as above noted, even where the complainant is a lay individual and is one entirely unassisted by legal representation. In addition, the statutory measure does not operate as a defence point or its equivalent only (see para. 75 supra). It must therefore be treated as a condition precedent to the exercise of the Tribunal’s jurisdiction and cannot be stood down, save in accordance with the provisions of the Act. Accordingly, there will be cases where, because of this time period, evidence is excluded as of itself being the basis of discrimination for redress purposes. This simply implements legislative policy, presumably enacted having regard to the varying and at times competing interests involved.
At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances (County Cork VEC v Hurley EDA1124 (Labour Court, 26th July, 2011)). Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.
On the other hand, s. 77(5)(a) of the 1998 Act deals with a situation in which there are a series of separate acts or omissions on the part of, say, an employer, which, whilst not forming part of a regime, rule, practice or principle (“regime or practice”), are sufficiently connected so as to constitute a continuum of discrimination. In effect, this deals with a situation whereby there are separate manifestations of the same disposition to discriminate (Bolger, Bruton and Kimber, Employment Equality Law (Dublin, 2012) at para. 16–47). In such a case, once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time.
At the level of principle, therefore, where such a regime or practice exists or where a sufficient linkage can be established between separate acts, it is possible to plead matters which have occurred on a date or dates far beyond the six month period. In theory, such could extend for several years prior to the date of complaint. Even if that should occur, however, provided that the circumstances intended to be covered by the subsections are established, all such incidents will be regarded as being within time and thus will be within the competence of the Equality Tribunal to investigate for redress purposes. However, one should note the specific provisions of s. 82(1) of the 1998 Act in respect of the periods for which compensation may be given.
Finally, it is clear from the aforegoing that when bringing a complaint, it is necessary to bear in mind the question of when the six month period begins to run: subject to the alleviating measures mentioned above, it will be either from the most recent date of the offending conduct (subs (5)(a)) or from the ending of the discriminatory regime or practice (subs (6A)). In cases of isolated complaints this should be easily discernible for the purposes of the provision first mentioned, and, likewise, there should be no real difficulty in establishing when a particular regime or practice has ceased. Much the same situation should apply even where the acts or omissions said to constitute discrimination have been ongoing over an extended period, even over a number of years.
Although the 1998 Act has subsequently been amended by the Workplace Relations Act 2015 (“the 2015 Act”), it is clear that the later enactment has no application to a claim referred to the Director under s. 77 of the 1998 Act prior to the 1st October, 2015 (s. 83(2) of the 2015 Act).
The Precise Point:
In the context, inter alia, of my interpretation of the provisions of s. 77 of the 1998 Act, it cannot be the VEC’s true intention to argue that a literal meaning should be given to the latter aspect of the second declaration prayed for (para. 74 supra), as it is palpably not the case that only incidents of discrimination which have actually “occurred” within the six month period can be investigated into. This seems to be accepted by the VEC itself as despite the wording of that particular relief it acknowledges that the December, 2005 incident can be inquired into. I am therefore assuming that the appellant is not making this argument but if it is, it is in my view plainly wrong. Rather, I believe that both declarations when read together are intended to convey the proposition that the scope or remit of a complaint must be determined by what has lawfully been referred to the Tribunal within that six month period.
What therefore is to be made of the situation, as here, where a claim, specific to two particular instances, is validly made within time but where notification of other instances, said to form part of an overall continuum, is given for the first time significantly after the six month period has expired. I refer to a ‘continuum’ in the context of s. 77(5)(a) for, whilst this remains in the first instance a matter for the Tribunal to decide, it is very difficult to see how Mr. Brannigan’s complaint could at all fall within subs (6A) of s. 77 of the 1998 Act. Put succinctly, does the Equality Tribunal have jurisdiction over events which were not the subject matter of a timely notification, but rather were bolted on at a much later date?
Again, approaching the issue in a slightly different way, one can ask whether the Tribunal, where a claim for redress, specifying two particular incidents, is made within time, has jurisdiction to investigate, for the purposes of finding continuous discrimination under either subs (5)(a) or subs (6A) of s. 77 of the 1998 Act, other incidents within the same discriminatory ground which were said to have occurred on occasions during the previous ten years but which have only been notified to the Tribunal well outside the six month period? This I believe to be the real point. As so understood this notification point is therefore the contested jurisdictional issue between the parties.
As is evident from the aforegoing (para. 81 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant “.... seeks redress by referring the case to the Director” (s. 77(1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard. It is, of course, the “EE1 Form” which, as above stated, Mr. Brannigan used to lodge his complaint in this case. On the page which requires details of the complaint (para. 69 supra), there is a printed footnote indicating that time limits apply and referring the applicant to the published explanatory notes which are said to be applicable. At Note 4, the Tribunal refers to the six month period and gives an example of when it ends in a single incident situation and also when it ends where the discrimination extends over a period of time. Although the commentary is in no way binding, nevertheless it is both informative and instructive in alerting the reader to be conscious of such period.
I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact the Tribunal itself has so held in A Female Employee v A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end. The point at issue, however, is not about the form of initiation and certainly not whether its content is rigidly prescriptive or not. I can readily understand how, if utilised by a lay individual, the entirety of a complaint in terms of scope and detail may be somewhat lacking. Evidently it would defeat the spirit of the legislation if “court formalities” were required: as Hedigan J. said in Clare County Council v Director of Equality Investigations  I.E.H.C. 303, one cannot expect lay persons to articulate complaints in the same way as professionally qualified advocates. None of these general matters are in issue as such. Nor is it on point to ask whether the Tribunal can assist in this respect or, as put somewhat disparagingly by the VEC, can reformulate the complaint. This is not really the issue. Rather, the substantive dispute is that as set out at paras. 90-92 supra.
There is no doubt but that the EE1 Form, or the terms of complaint, refers only to two specific incidents, the first of which is stated to have occurred in December, 2005, and the second in March, 2006. Thus, on its face and without more, the outer time limit for seeking redress is six months from the incident in March, 2006, i.e. September of that year. That a complaint as such was made within this time cannot be disputed; indeed, Mr. Brannigan could have varied or altered that complaint or made an entirely new one at any time up to the end of that period. That did not occur; instead he made a further submission one year later, in September, 2007, which unarguably considerably extends the incidents of alleged discrimination as outlined in the EE1 Form. In that submission Mr. Brannigan referred, inter alia, to:-
the then principal calling him honky tonks in 1997;
disparaging remarks made when his long time partner called at the school in October, 1998;
discriminatory treatment in 1999;
how the VEC dealt with complaints by students in April, 1999;
being called a queer and bastard, although dates are not given, nor details mentioned.
These are but examples, as is evident from the 2009 submission where, in addition to outlining further incidents, the term “continuing discrimination” is used for the first time.
The substantive question remains: in light of the statutory provisions which I have mentioned and in the context of the relevant dates, i.e. six months from the latest incident, which period expired on the 10th September, 2006, can the matters identified in either or both of the submissions above referred to, in and of themselves be investigated by the equality officer for the purposes of redress. It is these matters which constitute what is termed the “historical evidence” in this judgment (see also para. 70 supra).
Role of Tribunal:
It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Killeen v Director of Public Prosecutions  3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.
Therefore, when considering the substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry.
Once a complaint is made to the Director within the six month period, then “that” complaint has been made within time: it can thus be said that it has been lawfully referred. However, an issue might still arise, as it does in this instance, as to what is lawfully within the scope or remit of such complaint. Such an issue must be resolved, but by whom? Almost invariably it will be the entity, body or tribunal so created. In this case that competence is expressly recognised, or at least can be strongly inferred from the provisions of s. 79(3A) of the 1998 Act. That provision, in its material parts, reads as follows:-
Whilst the focus of that provision is on the manner in which any disputed question might be resolved, i.e. as a preliminary issue, nonetheless it would seem quite futile to have such a measure unless the officer in question could adjudicate on such matters.
Even in the absence of this statutory provision, however, I would be quite prepared to imply such a jurisdiction from the conferring provisions of the Act. Where, as in this case, a body is entrusted with the power to investigate and thereafter to adjudicate, it must in my view likewise have the authority to determine whether a claim is or is not within its jurisdiction. This must be taken as the situation unless the legislation stipulates otherwise: no such indication appears in this case.
The judgment of Davitt P. in The State (Attorney General) v Judge Durcan  I.R. 279 supports the proposition that a statutory body, such as a tribunal, is the appropriate entity to determine in the first instance whether the claim before it is within its jurisdiction. The learned President stated at p. 289 of the report that:-
[W]here the Legislature clearly provides that a Court is to have a limited jurisdiction dependent upon the existence of a certain state of affairs, the Court, before purporting to exercise its jurisdiction, will inquire and decide whether the requisite state of affairs does exist; but its decision is not the factor upon which its jurisdiction depends. If its decision is wrong and the requisite state of affairs does not exist in fact, then what the Court does in purported exercise of its jurisdiction is done without, and in excess of, jurisdiction.
Similarly, it was acknowledged in Ryanair v The Labour Court  4 I.R. 199 that the Labour Court was the appropriate body to inquire into its own jurisdiction, albeit that it is not entitled to make legal errors when doing so.
The VEC has also submitted that if the equality officer should find that the historical evidence comes within the six month period, then by such finding she would in effect be conferring a jurisdiction not vested in her by the 1998 Act. I reject that submission. In my view, it is a misunderstanding of her role in this context. It is the legislature which has given the officer power to make such a finding, and which has also provided for the consequences of that finding (paras. 85-87 supra). If such should come to pass, the resulting jurisdiction would be statutory based and not self created by the officer in question.
The Preliminary Hearing Issue:
In a slightly different context, I have earlier referred to s. 79 of the 1998 Act (para. 99 supra), but that provision is also relevant for different reasons. Under subs. (3A) of that section, as one can see, the Director is given power to determine by way of a preliminary issue any of the matters therein mentioned.
No formal application has ever been made for the holding of such a hearing but, at least on one reading, the submission made by the VEC at the commencement of the inquiry, though advanced very late in the day, may be considered to be such a request. That was refused by Ms. Murtagh. It is clear that the provision in question is discretionary and that she is not bound in any way to accede to such a request.
Even without such a statutory provision, however, I would be quite satisfied that, subject to overall fair procedures, an equality officer has a sizeable degree of latitude in deciding how the hearing before her should be conducted. This conclusion is supported also by the decision in the case of Aer Lingus Teoranta v Labour Court  I.L.R.M. 485 where it was held, albeit in the context of the Labour Court, that such a body could decide whether the complaints were made within time or not, either by way of a preliminary inquiry or as part of a unitary hearing involving also the merits of the case. Walsh J., speaking for the Court, put the matter as follows: “The Labour Court is quite free to have [a preliminary] hearing if it wishes but I do not think it is correct to claim that it must have such a hearing.” I respectfully agree and would apply the same dicta to s. 79 of the 1998 Act.
The type of decision made by Ms. Murtagh in this case can also be regarded as somewhat akin to a case management type decision, rather than one raising any issue of law. Even so, however, and whilst I would be very slow to interfere with an officer’s procedural autonomy, nonetheless that is not to say that she is totally at large in what decision she might make. There could, for example, be cases which would greatly benefit both the parties and the Tribunal in terms of efficiency, expedition and cost savings if the issues, or at least a decisive issue, were determined on a preliminary basis, rather than by way of a full hearing. Whilst I am not in any way suggesting that if faced with such circumstances her decision would be other than appropriate, I simply make the point to emphasise that, in certain admittedly rather exceptional circumstances, such a procedural decision may be amenable to judicial review. In the overall context, however, a significant degree of self determination will be respected, subject to the overriding principles of natural and constitutional justice (see Calor Teoranta v McCarthy  I.E.H.C. 139).
It must be noted that whilst at the outset of these proceedings the VEC made certain submissions on this point, nonetheless that body ultimately acknowledged that the actual decision so made by the officer could not be regarded as being a misapplication of her powers under s. 79 of the 1998 Act. Therefore, the resolution of this appeal does not turn on that particular decision so made by Ms. Murtagh.
The critical issue of substance which remains alive between the parties is whether the legislative process demands, howsoever achieved, that the incident or series of incidents in respect of which redress can lawfully be sought must be notified within the statutory time limit, obviously with due regard to the date of occurrence, if that should be appropriate. If it does, is it correct to say that any matter notified outside of this period, whether or not of the same general nature as those asserted within the period, cannot of itself constitute an act of discrimination? It follows, if such be the case, that an equality officer would have no jurisdiction to investigate such matters for that purpose. Certainly, if this analysis is correct, any claim which does not meet this condition precedent cannot be admitted as such.
However, even if that proposition is correct, the same does not mean that such evidence cannot be received in any circumstances. That is not the situation. If such evidence is tendered for a reason or purpose not contemplated by the limitation period, then it will not be declared inadmissible on that ground. The instant case is a good example of the distinction which I make. It is accepted by the VEC that the historical evidence may be offered for a purpose or reason which does not offend s. 77 of the 1998 Act. Such a purpose might, for example, be by way of background, or to enlighten or inform the content of the EE1 Form. In fact, any evidence which is relevant to and has probative value in respect of any facts in issue in relation to matters captured by the complaint, if timely made, could in principle be admitted. It is to prevent the use of such evidence to ground a discriminatory act for redress purposes which s. 77 is focused on.
It is not seriously in issue but that Ms. Murtagh has not made a “formal” decision regarding either the admissibility of the historical evidence or the use to which it may be put, which as pointed out are two quite distinct issues. In other words, she has not determined the substantive point as raised by the VEC in its submission to her. In fact, such a contention would be wholly unsustainable given the evidence of the equality officer which has not been contradicted. In several different paragraphs of her affidavit she states and frequently repeats the averment that she has made no decision on that crucial issue. She goes on to point out that when all of the evidence is heard, she will at that point make the decision on this contested issue. That being so it is quite clear, given the views which I have previously expressed, that she is the person vested with the lawful authority to make such decision in the first instance. Consequently, despite the force of the VEC’s submission that by the course of conduct pursued she should be regarded as having made an “informal” decision, rejecting its view point, I am satisfied that such an inference cannot override the stated position of the officer.
Having said that, however, and despite the discretion which the equality officer undoubtedly has, I must confess that I have considerable difficulty in understanding why she feels it necessary to hear the entirety of the evidence before determining the contested issue. I could readily see why such a course would be entirely appropriate if the issue was whether or not certain acts could be linked to other acts for the purposes of establishing a continuum under s. 77(5)(a) of the Act, or as part of her inquiry into a regime or practice of ongoing discrimination under s. 77(6A) of the Act, as both provisions are understood in the case law. If either were in issue, then of course embarking upon a full hearing in appropriate circumstances would be understandable.
But that is not the inquiry which she must address. It is, as previously stated, whether, irrespective of the nature of the historical evidence and irrespective of whether or not it might form a continuum under either provision, such matters in their own right can, in the absence of notification within time, be the subject matter of a lawful investigation by her for discriminatory purposes. Perhaps there is some reason not immediately obvious which I am missing as to why she decided to proceed as she has: in any event, though not without some hesitation, I believe that no judicial intervention should take place before a decision is made on the VEC’s application.
In addition, in accordance with long established principle, there is a presumption that both the process of making the decision and the decision itself will have due regard to natural and constitutional justice and, furthermore, will be made in accordance with law and therefore within the jurisdiction conferred on her under the 1998 Act. Accordingly, there could be no basis for this Court to intervene and in some way anticipate or infer that she will act unlawfully. In these circumstances, the appeal will have to be dismissed.
Given this conclusion, it would not be appropriate to make any comment on the facts as disclosed, much less on whether the relevant statutory provisions permit the reception of the historical evidence as of itself forming the basis for a discriminatory finding. This appeal is not an appeal on the discrimination claim and neither is it any form of a consultative case stated or the like. Moreover, the Court is not asked for a view as to how Ms. Murtagh should decide the application standing before her upon which she emphatically claims that no decision has yet been made. In fact, it was strongly submitted on behalf of the Tribunal and supported by the notice party that in the first instance such a decision should be made by her, and her alone, and that she intends to do so in accordance with law. That is how the appeal was presented and essentially argued. Whilst I appreciate that the approach which I have adopted may give rise to further litigation, I have no reason to believe that it necessarily will. In fact, I sincerely hope that it does not.
Accordingly, I do not believe that any views on the substantive law should be offered. I therefore regard many of the observations made by the learned trial judge as being purely obiter: in particular in this regard, I would expressly decline to endorse his views which I have summarised at paras. 71(iv) and (v) above. I do so because at the forefront of the respondent’s case is that such matters are, in the first instance, solely for the Tribunal to decide. Therefore, noting the nature of these proceedings, it would be to infringe that right to offer any advisory views on the course which she should take and the decision which she should make. I therefore reserve for another case any views which I may have on these issues.
In the same context, it should also be noted that no application to amend the terms of complaint has been made. This is not what is facing the equality officer. If it was, quite different considerations might come into play and some reference to court procedure may or may not be appropriate, depending on the circumstances. What she has to decide is whether the correct interpretation and application of, inter alia, ss. 77, 79 and 82 of the 1998 Act permits the classification of the historical evidence to come within the EE1 Form for redress purposes. This evidently is quite distinct from entertaining an application to amend that form. Again, therefore, I will make no comment on what the law might be if such an application had been made. In these circumstances, I would again regard the observations made by the learned trial judge relative to this point as being purely obiter.
The effect of this decision, therefore, is that the inquiry must be resumed, it being hoped that with the cooperation of all the parties, it can be brought to a swift conclusion in the near future. How best to process the continuation of the investigation is, of course, a matter for Ms. Murtagh. Furthermore, if the VEC wishes to submit that there is an overlap for the purposes of s. 101 of the 1998 Act between the plenary proceedings and the instant inquiry, then evidently that matter can be raised and addressed by both parties if such should arise.
For the above reasons the appeal will be dismissed.
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