On 13 July 2016, the Supreme Court ruled that the Equality Tribunal (now the Workplace Relations Commission (“WRC”)) may hear evidence, stretching back over a decade and notified to the WRC after the statutory time limit has passed, before making a decision as to whether or not such evidence is admissible.
On 4 August 2006, a retired teacher initiated discrimination proceedings on the grounds of sexual orientation under the Employment Equality Acts against his employer, County Louth Vocational Educational Committee (the “VEC”). In the employee’s notice of claim, he referred to two instances of discrimination occurring on 16 December 2005 and 10 March 2006. The employee also noted that the first occurrence of discrimination occurred on 16 December 2005.
However, in the employee’s subsequent written submission to the Equality Tribunal, the employee outlined further complaints of discrimination some going back to 1997 which had not been referred to in his initial complaint form. At the hearing, the employee sought to rely on this evidence.
During the hearing, the VEC objected to the use of evidence going back to 1997. The VEC submitted that the Equality Officer only had jurisdiction to address the two instances of discrimination as outlined in the employee’s initial complaint form. The VEC argued that the trawling through old incidents could not be the subject matter of a lawful investigation by the Equality Officer as it did not fall within the statutory time limit. The VEC sought a decision on this issue.
The Equality Officer decided that she would hear the entirety of the evidence before ruling on the VEC’s jurisdictional objection. The VEC objected to this and instigated a judicial review. The employee’s equality case was adjourned pending the outcome of the judicial review proceedings.
The Supreme Court’s decision
The VEC argued that the Equality Tribunal acted ultra vires and outside the scope of the terms of the retired teacher’s complaint. In essence, the VEC sought a declaration that the Equality Officer must confine her investigation to the specific incidents of discrimination set out in the employee’s initial complaint form.
Judge McKechnie accepted that he had “considerable difficulty in understanding why [the Equality Officer] feels it is necessary to hear the entirety of the evidence before determining the contested issue.”
However, the Supreme Court acknowledged that the Equality Officer is vested with lawful authority to make a decision in the first instance regarding either the admissibility of all evidence or the use to which it may be put.
The Supreme Court noted that in circumstances where the Equality Officer had not yet made her decision as to whether the evidence going back to 1997 could be relied upon, the Supreme Court could not infer that an unlawful decision had been made.
Therefore, the judicial review proceedings were premature and the VEC’s appeal was dismissed.
Usually complaints that are outside the statutory time frame will be dismissed. However, under the Employment Equality Acts there are circumstances where such evidence will be heard. For instance, where the evidence forms part of a continuum of discriminatory conduct which includes a more recent complaint e.g. a pattern of bullying and harassment which takes place over a period of a year.
Furthermore, in light of this judgment, it is clear that Equality Officers (now Adjudication Officers) are afforded a great deal of discretion in investigating matters of discrimination. While a complaint may ultimately be dismissed for being out of time, an employer may find that it must still address historic complaints outlined by the employee as part of the hearing process.