Supreme Court dismisses appeal, holding Equality Tribunal retains jurisdiction to investigate historical discrimination beyond the complaint period.

THE SUPREME COURT

JUDICIAL REVIEW

[Appeal No. 336/2009]

McKechnie J.

MacMenamin J.

O’Malley J.

BETWEEN

COUNTY LOUTH VOCATIONAL EDUCATION COMMITTEE:

(NOW KNOWN AS LOUTH AND MEATH EDUCATION AND TRAINING BOARD)

APPLICANT/APPELLANT

AND

THE EQUALITY TRIBUNAL

RESPONDENT

AND

PEARSE BRANNIGAN

NOTICE PARTY

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 13th day of July, 2016

Introduction:

1. 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.

2. 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.

Background:

3. 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.

4. 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.

5. 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.

6. At the outset of the hearing, the appellant made the following three submissions to Ms. Murtagh:-

(i) 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.

(ii) 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.

(iii)It is solely the third issue which agitates this appeal. That issue is the subject matter of this judgment.

7. 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.

8. 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. 33 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:

9. 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:-

(i) 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”;

(ii) 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;

(iii) 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.

(iv) 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;

(v) 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,

(vi) 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.

10. 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.

11. 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 [1984] 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:

12. 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:-

“(a) A Declaration that the Respondent has acted ultra vires in purporting to conduct an investigation of alleged

discriminatory acts (within the meaning of the Employment Equality Acts 1998 to 2004) against the Notice Party

herein which fall outside the scope of the terms of the complaint made by the Notice Party received by the

Respondent on 4th August, 2006;

…

(d) A Declaration that the Respondent is limited to investigating complaints of discrimination made by the Notice

Party which have been lawfully referred to it and which occurred within a period of six months from 4th August,

2006.”

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.

13. 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. 19 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.

14. 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.

15. The formal grounds relied upon in support of the application for the reliefs above set out included the following:

“(a) The Respondent acted unlawfully and in excess of its jurisdiction in refusing to limit its investigation into

complaints of discrimination brought by the Notice Party herein against the Applicant on grounds of his gender and

sexual orientation to the incidents the subject matter of a complaint received by the Respondent on the 4th

August, 2006;

(b) The Respondent acted unlawfully and in excess of its jurisdiction in refusing to limit its investigation into

complaints of discrimination brought by the Notice Party herein against the Applicant on grounds of his gender and

sexual orientation to incidents occurring after the 16th December, 2005, being the date nominated by the Notice

Party as being the first occurrence of discrimination;

(c) The Respondent erred in law and acted outside jurisdiction in purporting to investigate alleged discriminatory

acts (within the meaning of the Employment Equality Acts 1998 to 2004) against the Notice Party herein which

allegedly occurred prior to the 16th December, 2005”.

16. 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 Legislation:

17. 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.

18. 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.

19. 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.

20. 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:-

“(6A) For the purpose of this section—

(a) discrimination … occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period.”

It is clear, therefore, that the “six month period” applies whichever provision may be invoked.

21. 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.

22. 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. 13 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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:

28. 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. 12 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.

29. 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?

30. 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.

EE1 Form:

31. As is evident from the aforegoing (para. 19 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. 7 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.

32. 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 & Ors [2011] 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. 28-30 supra.

33. 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.

34. 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. 8 supra).

Role of Tribunal:

35. 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 [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.

36. 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.

37. 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:-

“(3A) If, in a case which is referred to the Director … a question arises relating to the entitlement of any party to

bring or contest proceedings under that section, including:-

(a) whether the complaint has complied with the statutory requirements relating to such referrals,

(b) …

(c) …

or

(d) any other related question of law or fact,

the Director may direct that the question be investigated as a preliminary issue and shall proceed

accordingly.”

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.

38. 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.

39. The judgment of Davitt P. in The State (Attorney General) v. Judge Durcan [1964] 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 [2007] 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.

40. 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. 23-25 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:

41. In a slightly different context, I have earlier referred to s. 79 of the 1998 Act (para. 37 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.

42. 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.

43. 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 [1990] 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.

44. 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 [2009] I.E.H.C. 139).

45. 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.

Conclusion:

46. 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.

47. 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.

48. 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.

49. 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.

50. 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.

51. 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.

52. 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.

53. 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. 9(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.

54. 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.

55. 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.

56. For the above reasons the appeal will be dismissed.