County Louth VEC v Equality Tribunal [2016]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 i.e. evidence relating to matters that arose prior to the specific incidents under investigation. 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.’

The Court held 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.