This month we explore two recent decisions in the education sector regarding the timing of judicial review applications. The first of these cases represents good news for employers, as the employee’s application for judicial review failed on a number of grounds, including that it was moot. This case is also important in the context of disciplinary procedures. The second case has implications for employers who are defending equality claims with a “historic” aspect.
Dillon v Board of Management of Catholic University School  IEHC 674
In this case, the High Court ruled that a teacher was not entitled to a judicial review over the procedure by which a school dealt with a complaint, in which he was alleged to have made a derogatory comment about a student.
The teacher sought orders quashing the Board of Management’s (the “BoM”) finding and a final written warning, which had issued on 21 April 2015 and which expired 12 months later. The substantive proceedings opened before the Court on the 28 June 2016 and were adjourned to 2 November 2016.
Therefore, the written warning had expired two months before the case was opened to the Court and almost seven months before it was actually heard.
In concluding that judicial review should not be granted, the Court noted that it is a discretionary remedy and that the Court must take into account considerations other than the applicant’s subjective views of his treatment including (1) the doctrine of mootness (2) the de minimis principle and (3) scarce court resources.
(1) Mootness – no practical effect A judicial review may be refused if it would have no practical effect. The Court noted that the teacher’s final written warning had expired and had been removed from his file. Therefore, a judicial review of the BoM’s decision and the final written warning would have no practical effect and should not be available to the teacher.
(2) De Minimis – not sufficiently serious In considering this issue, the Court looked at another case from the education sector: Murtagh v The Board of Management of St. Emer’s National School. In this case, an eleven year old pupil was suspended for three days after writing the words “Noleen Bitch Rooney” about a teacher in the school. The Supreme Court held that the suspension was not amenable to judicial review because it did not involve an adjudication on or determination of any rights, or the imposing of any liability, but rather, ‘It is simply the application of ordinary disciplinary procedures inherent in the school authorities and granted to them by the parents who have entrusted the pupil to the school.’
In Dillon, the Court therefore concluded that, similar to the three day suspension of a pupil in the Murtagh case for a pupil name-calling a teacher, the final written warning of a teacher who allegedly name-called a pupil is not a matter that is amenable to judicial review. The Court also found that it followed from this conclusion that the decision, which led to the written warning, namely the BoM upholding the complaint, is also not a matter amenable to judicial review applying the same de minimis rule.
(3) Scarce Public Resources Being Unnecessarily Wasted The Court went on to note that court time is a scarce public resource, which is not solely the concern of litigants or their legal representatives, but rather, ‘there is a strong public interest aspect to these issues’.
In conclusion, the Court stated that the teacher’s complaints were not amenable to judicial review and the application was refused.
County Louth VEC v Equality Tribunal  IESC 40
In County Louth VEC v Equality Tribunal, the Supreme Court ruled that the Equality Tribunal, which is now the Workplace Relations Commission (the “WRC”), may hear historical evidence. In addition, the Supreme Court held that a court should not intervene by way of judicial review before a decision is made. These proceedings arose out of a case that was brought by a retired teacher who alleged that he was discriminated against on grounds of gender and sexual orientation. The appeal brought by the employer was dismissed by the Supreme Court.
The initial claim by the retired teacher was with regard to two specific incidents of discrimination. The employer argued that the Equality Officer only has jurisdiction to investigate these two specific incidents and that she could not hear historical evidence. The Equality Officer said that she would hear the entirety of the evidence (including the historical evidence) and then decide whether she should consider it. The employer then triggered a judicial review.
The employer argued before the Supreme Court that the Equality Officer would be going beyond her remit in listening to complaints that were not contained in the complaint form of the retired teacher.
The Supreme Court, however, acknowledged that the Equality Officer is the person who has lawful authority to make a decision in the first instance regarding either the admissibility of the historical evidence or the use to which it may be put and that ’no judicial intervention should take place before a decision is made on the VEC’s application….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.’
It is worth noting, however, that McKechnie J. had ‘considerable difficulty in understanding why she feels it is necessary to hear the entirety of the evidence before determining the contested issue.’
These cases are instructive regarding the timing of a judicial review application.
The Dillon case affirms that a judicial review will not be granted where the success or otherwise of the proceedings will have no effect, the issue is not of a serious nature and it will amount to a waste of public resources. Although the points raised in this judgment will not necessarily stop an individual taking a judicial review, they may provide a defence.
The County Louth case concluded that the WRC has discretion to hear historical evidence when examining a matter and that a Court will not intervene via judicial review before a decision is made. The Court did note its “considerable difficulty” with the Equality Officer’s approach.
However, the important point was that the judicial review was taken too soon as no decision had been made and the Court could not assume what the Equality Officer’s decision would be. Therefore, an interesting question which might arise is what may occur when the decision of the WRC is delivered.