EDA172

The Complainant alleges that she was discriminated against on grounds of age and disability. The parties unsuccessfully attempted to mediate the dispute with the assistance of an Equality Mediation Officer. The Complainant was informed in writing thereafter (on 7 October 2014) by the Equality Tribunal that – in accordance with section 78 of the Employment Equality Act 1998 (“the Act”) - she would have to re-enter her complaint to the Equality Tribunal in writing within 42 days if she wished to proceed to an investigation under the Act. The last day for a request for resumption by the Complainant was 17 November 2014. No such notification was in fact received by the Tribunal in that timeframe. On 19 August 2015, the Tribunal notified the Complainant that it had not received a notification from her pursuant to section 78(7) of the Act and that accordingly a decision had been made to close the case. The Complainant’s Solicitors wrote to the Director of the Equality Tribunal on 1 October 2015, 20 November 2015 and again on 2 December 2015 and 6 January 2016 requesting the Director to “use his discretion” to allow the complaint to proceed to investigation. The matter had prior to this been assigned to a named Equality Officer who ultimately decided not to extend the 42-day time limit in the Complainant’s case.

The Complainant has appealed to this Court from the determination of the Equality Officer. Her representative submitted a notice of appeal to the Court on 1 June 2016. The Court heard the appeal on 3 November 2016. The Complainant was represented at the appeal hearing by Paul Flannery SC, instructed by JV Geary Solicitors; the Respondent by Alistair Rutherdale BL, instructed by McKeever Rowan Solicitors. The principal issues that fell to be determined by the Court on that occasion were: (a) whether or not the Equality Officer had discretion to extend the 42-day period within which the Complainant was required to notify the Equality Tribunal; and (b) if (a) was answered in the affirmative, should the Equality Officer have exercised that discretion, notwithstanding the considerable period of time that had elapsed from the date of the Tribunal’s letter to the Complainant following the unsuccessful mediation to the date of the notification of her intention to proceed to an investigation of her complaint was received by the Tribunal?

The Law

Section 78(7) of the Act, as it stood at the material time, provided:

• “(7) Where—
  (a) a notice has been issued under subsection (6) with respect to a case,
  (b) within 42 days from the issue of that notice the complainant makes an application to the Director or, as the case may be, the Labour Court for the resumption of the hearing of the case, and
  (c) if the notice was issued by an equality mediation officer, a copy of that notice accompanies the application under paragraph (b),
  the Director or the Labour Court, as the case may require, shall proceed or, as the case may be, continue to deal with the case under section 79.”

Counsel for the Complainant opened a number of authorities from this and other jurisdictions during the course of the appeal hearing before this Court. In particular, he drew the Court’s attention to a short ex tempore judgment of the then President of the High Court, Kearns P, delivered on 1 June 2011 in the matter of a Judicial Review application (Barska v The Equality Tribunal & Patrick Quinn T/A The Brandon House Hotel). The learned Kearns P, stated as follows in his judgment in that case:

“The interpretation of s.78(7) consequent to the requirements of the Directive and EU law must mean that the Director of the Equality Tribunal is not deprived of jurisdiction toextendthe 28 days to resume hearing the case. That is not to say the Director must resume the case, but he has jurisdiction to extend the time in respect of an application brought outside of 28 days to resume hearing the case. It is open to the Director to consider the facts of the individual case in deciding whether to extend time to allow the case to be heard by the Director following mediation.” Kearns P went on to opine that “Where the time period was missed by a period of days, then it might be an appropriate case for the Director to utilise his discretion.”

Discussion

It is clear to this Court that the judgment given by Kearns P inBarskapredates the commencement of the amendment to section 78(7) of the Act effected by section 23 of the Civil Law (Miscellaneous Provisions) Act 2011 and likewise relates to events that predate that amendment. It would appear in fact that the impetus to commence the legislative process which resulted in that amendment derived in no small part from the substance of the proceedings inBarskaand from the President’s judgment in that case. Be that as it may, the relevant legislative provision has been amended and the statutory period within which a complainant, post 2 August 2011, had to indicate his/her intention to proceed to an investigation under the Act had been extended from 28 days to 42 days. In those circumstances, it appears to this Court that the learned President’s judgment has very limited application, if any at all, to the within appeal. This view is supported also by the very considerable difference in the delay that had occurred in Barska’s case compared to the delay which is the subject of the within appeal i.e “a matter of days” as against a delay in excess of 10 months.

Having regard to the foregoing, the Court determines that the within appeal fails and the decision of the Equality Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
1st February 2017______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.