In July the High Court refused to grant reliefs to County Louth Vocational Education Committee (VEC) when it sought judicial review of the Equality Tribunal’s handling of a hearing in which the VEC were respondents in a discriminatory case taken by a former employee, Mr. Pearse Brannigan.

Background

Mr Brannigan was a retired teacher who had been employed at two schools run by the VEC from 1981 until September 2007 when he was granted early retirement on the grounds of ill health. On 4 August 2006, the VEC received a completed “Form EE1” from Mr. Brannigan. This is the standard Equality Tribunal administrative form which is sent by the Claimant to the Respondent party outlining complaints of discrimination. The form does not have any statutory basis per se. The Claimant alleged in the Form EE1 that he had been discriminated against by the VEC on the grounds of his gender and his sexual orientation. Separate personal injury proceedings were also instituted by Mr Brannigan in July 2007 in which he was seeking damages. He claimed that from 1997 onwards he was bullied, harassed, assaulted and undermined to the point were he had no option but to leave his employment.

In August 2008, the Director of the Equality Tribunal appointed an Equality Officer, Ms. Murtagh to investigate Mr. Brannigan’s claims in accordance with the provisions of the Employment Equality Acts 2000 – 2008. A hearing into the complaint commenced in January 2009 which the parties, their legal representatives and seven witnesses, who were employees for the VEC, were present. The Equality Officer outlined to the parties at the outset that it was practice in certain cases not to have all witnesses present at the hearing and she ruled that the VEC’s witnesses be excluded from the hearing with the exception of the Principal and Vice Principal of the school. Ms. Murtagh had outlined in her Affidavit that “to permit a host of witnesses may lead to overcrowding in the hearing room and create discomfort for all parties. In this case, as in others, the parties and their advisors were present in the hearing room while the other witnesses remained outside until it was their turn to present their evidence.”

Equality Hearing

A joint application for an adjournment of the equality hearing was then made to allow each side an opportunity to consider their positions in respect of the two sets of proceedings in being (e.g. the equality case and the personal injuries case) and explore whether a settlement could be reached. An adjournment was granted until February 2009. At the resumed hearing in February 2009, the VEC raised two preliminary matters. Firstly, it applied for a stay on the equality hearing pending the determination of the personal injuries proceeding. Secondly, the VEC requested a ruling to be made in respect of the nature of the evidence which Mr. Brannigan would be permitted to rely on at the hearing. They contended that Mr. Brannigan should not be allowed to give evidence in respect of events prior to 16 December 2005, the date of the first alleged discriminatory act, as per the Form EE1. However, the Claimant outlined that the discriminatory acts were continuing acts capable of being investigated and were not outside the remit of the hearing.

The Equality Officer firstly decided that she had a statutory function to exercise and that the hearing would proceed on the basis that the two claims, the equality claim and the personal injuries claim, were separate. On the second matter, the Officer concluded that she should hear all of the evidence before making any decision. In fact she stated that she had not yet made a decision as to the lawful ambit of her investigation and would do so at the end of the hearing of the evidence.

Following the ruling of these two preliminary matters, the hearing commenced. However at a point in the hearing when it became clear that the Equality Officer was prepared to let Mr Brannigan rely on matters which had allegedly occurred over the previous ten or twelve years and of which the VEC had absolutely no notice (e.g. it had not been stated in the Form EE1), their counsel objected to the evidence being given and to the fact that not all of its witnesses were present in the room, and applied for an adjournment. The VEC made the case that the exclusion of its witnesses from the hearing room was a breach of fair procedures. And, whilst it was agreed by both sides that the matter would be adjourned to a further two hearing days, these were not commenced as the VEC instituted judicial review proceedings at the end of February 2009. The VEC claimed that under Section 77(5)(a) of the Employment Equality Act 1998 as amended “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Judicial Review Proceedings

There were two principal issues arising for determination in the judicial review proceedings. The first issue was whether the Equality Tribunal had jurisdiction to hear evidence at the hearing of Mr. Brannigan’s allegations going back over ten years which were not contained in the Form EE1, and whether the jurisdiction to investigate the complaint was limited to the incidents occurring on the two dates specified in the form only. The second issue was whether the exclusion of the VEC’s witnesses from the hearing room constituted a breach of fair procedures.

In his judgment, Mr Justice McGovern outlined that he accepted the Equality Tribunal’s submission that the Form EE1 was only intended to set out in broad outline the nature of the complaint. And while other specific details, which were not outlined, were raised at the hearing, they were essentially part of the same complaint, namely, discrimination on the grounds of sexual orientation. The Judge was also satisfied that the VEC had ample notice of the claim being made against its employees and should have been in a position to deal with them at the hearing before the Equality Officer.

With regard to the issue of witnesses remaining outside of the room while the Claimant gave his evidence, it was deemed that 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. “It was quite easy to understand why an Equality Officer might regard this as a reasonable procedure because complainants, in that particular forum, might feel intimidated if the employees, against whom they are complaining, were all present in the same room. What is essential, however, is that the employees complained against, know the case is being made against them and that they either present themselves or are represented at the hearing so that they can confront the accuser and cross-examine him.”

The Judge outlined that it appeared that there was a VEC representative present who was in a position to cross-examine Mr. Brannigan on his evidence, the relevant witnesses were available to give their own account of events, and where necessary to instruct the VEC’s counsel regarding the accuracy as they were close at hand. Justice McGovern further emphasised the importance to note that a hearing before the Equality Tribunal is not a hearing in a court of law with all the attendant formality. In conclusion, the VEC was not entitled to reliefs sought for two reasons. One, the Equality Tribunal had not made a final determination, and two, the procedures were not unfair or contrary to natural or constitutional justice.