UD909/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF: CASE NO.

Employee UD909/2012

against

Employer

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr T. Ryan

Members: Mr A. O'Mara

Mr J. Moore

heard this claim at Cavan on 1st August 2013

Representation:

Claimant: Mr Brian Morgan, Morgan McManus, Solicitors, The Diamond, Clones,

Co Monaghan

Respondent: Mr Michael O'Sullivan, HR Advisor, Arra Hrd, Castlelost West,

Rochfortbridge, Co Westmeath

The determination of the Tribunal was as follows:-

Preliminary Determination:

A preliminary issue was raised at the outset of this hearing whereby it was submitted on behalf of the respondent that, as the claimant had lodged claims relating to her dismissal under both the Unfair Dismissals Acts, 1977 to 2001 and the Employment Equality Acts, 1998 to 2004, that the Employment Appeals Tribunal (EAT) did not have jurisdiction to hear the appeal unless or until the Director [of the Equality Tribunal] directed otherwise.

Section 101 (2) of the Employment Equality Acts, 1998 to 2004 provides that “where an individual has referred a case to the Director under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual – if he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal, unless the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and the respondent”.

The EAT considered oral submissions made and requested written submissions from the appellant and the respondent.

Historical Background:

The appellant submitted a claim to the Employment Appeal Tribunal on the 29th May 2012 for a determination under Section 8 of the Unfair Dismissal's Acts 1977-2007. On the same day the appellant submitted a claim to the Director of the Equality Tribunal under Section 77 of the Employment Equality Act 1988.

The EAT had to consider whether it had jurisdiction to hear the appeal or whether it was prevented from doing so by virtue of Section 101 of the Employment Equality Act 1998 which provides:

101.- (1) If an individual has instituted proceedings for damages at common law in respect of a failure, by an employer or any other person, to comply with an equal remuneration term or an equality clause, then, if the hearing of the case has begun, the individual may not seek redress (or exercise any other power) under this Part in respect of the failure to comply with the equal remuneration term or the equality clause, as the case may be.

(2) If an individual has referred a case to the Director under section 77 (1) in respect of such a failure as is mentioned in subsection (1), and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual shall not be entitled to recover damages at common law in respect of that failure.

(3) If an individual has referred a case to the Circuit Court under section 77 (3) in respect of such a failure as is mentioned in subsection (1), the individual shall not be entitled to recover damages at common law in respect of that failure.

(4) An employee who has been dismissed shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under this Part if, as a result of the dismissal—

(a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun,

(b) in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or

(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.

The issue as to when the "Director [of the Equality Tribunal] has begun an investigation" has been considered on a number of occasions. In Cullen V Connaught Gold Limited UD 787/2006 (the "Cullen Case") the EAT determined that:

"Having considered the extensive submissions from both parties in this case, it is clear that the point in contention in this preliminary application on behalf of the respondent is, effectively, what is meant by the term “investigation” in subsection 2 (b) of section 101 of the Employment Equality Acts, 1998 to 2004 and further when such an investigation might be considered to have begun. The claimant’s submission is that an investigation is analogous to a hearing and cannot be considered to have begun until the parties have been called to appear before the Director. The respondent’s submission is that an investigation can be considered to be more all-encompassing than a hearing and that the provision of submissions to the Director indicated that such an investigation had begun.

The Tribunal is satisfied that an investigation and a hearing are not analogous, rather that a hearing forms part of an investigation. The Tribunal is further satisfied that the provision of submissions to the Director can be accepted as showing that an investigation has begun. That being the case the Tribunal must find that, in accordance with subsection 2 (b) of section 101 of the Employment Equality Acts, 1998 to 2004, the claimant cannot seek redress under the Unfair Dismissals Acts, 1977 to 2001 unless or until the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and the respondent".

The Determination in the "Cullen Case" was judicially reviewed and is considered below.

Section 101 (2) of the 1998 Equality Act which was substituted by virtue of s42 of the Equality Act 2004, provides that where an employee has referred a case of discriminatory dismissal to the Director of the Equality Tribunal and the Director "has begun an investigation under Section 79" the claimant shall not be entitled to redress under the Unfair Dismissals legislation unless the director, having completed the investigation, directs otherwise.

In this Tribunal's view this section does not prevent a claimant from pursuing an unfair dismissals action pursuant to the Unfair Dismissal's Acts 1977-2007 and a claim for discriminatory mistreatment under the Employment Equality Acts and recovering under both, provided that the discriminatory treatment element is entirely distinguishable and unconnected with the unfair dismissals claim. This is clear from O'Carroll V Sovereign Security Limited DEC-E2011-247 and A Complainant V A Retail Chain DEC-E2011-218

The Tribunal considered the facts set out in the appeal to the EAT and the complaint to the Equality Tribunal.

Ms MC set out her complaint to the EAT as follows:

Ms MC set out her complaint to the Equality Tribunal as follows:

“ I was given notice on Monday 5^th December 2011, without having put through a proper selection process, that I was to be made redundant later that month. I was made redundant on the 21st December 2011 but with a termination date recorded as of the 30th December 2011. I was unfairly selected for redundancy.When I met my employer on the 23rd December 2011 and protested that my duties were still there and I was available to undertake my work, my employer responded by stating that he was not interested in what I was claiming.When I met my employer on the 23rd December 2011 and protested that my duties were still there and I was available to undertake my work, my employer responded by stating that he was not interested in what I was claiming. Furthermore, my employer endeavoured to get me to sign an agreement stating that I would accept my redundancy payment in full and final settlement and not take any legal action for unfair dismissal or discrimination. I declined to sign the form as I was alone in the presence of my employer HL and CL, consultant to the practice”. I believe that I was made redundant because I had returned from maternity leave and this was the second occasion in a space of three years in which I had taken maternity leave”.

The EAT considers that the appeal to it and the complaint to the Equality Tribunal are similar and that the unfair dismissal claim is not distinguishable from the discriminatory treatment alleged and that the two claims are connected.

The issue of when the "Director can be said to have begun an investigation" was considered by the High Court in Judicial Review proceedings brought by the Employee arising out of the Determination by the EAT in the "Cullen Case". The EAT Determination that the provision of submissions to the Equality Tribunal meant that an investigation had begun was quashed by MacMenamin J. In the light of this High Court decision it is now accepted that the requirements of section 101 (2) will be met when a claim is delegated by the Director of the Equality Tribunal to an Equality Officer. Not until then can the Director (of the Equality Tribunal) be said to have "begun the an investigation under Section 79".

In the Appeal before it the EAT determines that the complaint to the Equality Tribunal and the appeal to the EAT are indistinguishable and that since the Director of the Equality Tribunal has not begun the investigation the EAT has jurisdiction to hear the appeal.

Sealed with the Seal of the

Employment Appeals Tribunal

This ________________________

(Sgd.) ________________________

(CHAIRMAN)