Complainant

Respondent

Anonymised Parties

A Complainant

The Employer of a Judge

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00018903-001

30/04/2018

This complaint has been made against ‘the employer’ of a judge of the District Court.  A separate complaint has been made directly against the judge directly arising from the same set of facts.

The complaint relates to an incident on March 13th, 2018.

This complaint has been made against ‘the employer’ of a judge of the District Court.

The complaint arises from an incident on March 13th, 2018 which the complainant describes as follows;

‘[The] Judge constituted a public panel that he invited and / or permitted into the “in-camera” Hearing of my private Matter in the Courthouse in District No. 25. Even after I objected to the presence of the public gathering,’

And this is followed by further detail on the composition of the ‘panel’.

The complainant complains about the ethnic origin of various people present in the Court and described the Judges actions as disrespectful of, and as an abuse of his rights on the grounds of his racial origin.

He makes a second, similar complaint about the Judge’s actions on November 18th. 2014

The complainant states that this means he has been discriminated against by a person, organisation, company who provides goods, services or facilities contrary to the Equal Status Act, 2000.

In its reply to notification of the complaint the Courts Service of Ireland, which is not the respondent, made the following points in relation to the question as to whether a judge is ‘employed’, in the normal sense of that word.

Essentially it states that a judge does not have ‘an employer’.

The Courts Service (against whom a series of related complaints have also been made) is not a Judge’s employer.

The reason is that all judges are judicial office holders appointed by the President of Ireland in accordance with Bunreacht na hÉireann (The Constitution of Ireland).

judges are independent in the exercise of their function under the Constitution and in its submission may not be the subject of proceedings under the Equal Status Act 2000 in respect of the exercise of those functions.

The matters complained of relate to the conduct of court proceedings and they do not constitute a service as defined under the Equal Status Act 2000, as amended. This claim is misconceived as it is incorrectly based in law.

Furthermore, the exercise of judicial decision making is immune from suit.

Several issues arise in this case.

The complaint is made against an unnamed and unidentified ‘employer’ of the Judge.

This lacks the necessary specificity in identifying a respondent necessary to allow a complaint to proceed, especially in light of the following.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaints against the Judge who is the subject of the original complaint who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of race.

A preliminary issue arises as to whether the complaint is properly within jurisdiction.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his other complaints against various judges who the complainant states to be a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of race.

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

In Kemmy v Ireland [2009] IEHC 178 the principle of Judicial Immunity and its purpose was comprehensively addressed:

'This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.'"

30.

In Desmond & Anor v. Cornelius Riordan [2000] 1 I.R. 505, at p. 507, Morris P. stated:

"It is, in my view, well settled that the immunity from suit enjoyed by the judiciary exists not for the benefit of the judge but for the benefit of the community as a whole. This immunity is perceived to be necessary and desirable so that a judge may perform his functions the better, freed of concern that in the course of performing his duties he may defame a third party and be required to be answerable to that party in damages."

31.

(Endorsed by Geoghegan J., in the Supreme Court in Beatty and Beatty v. the Rent Tribunal and Anor [2006] 2 I.R. (S.C.), 191, at 212 where he said: "The immunity of judges is based on public policy considerations.")

32.

In an earlier case, Macaulay & Company Limited v. Wyse-Power [1943] 77 I.L.T.R. 61 at 63, McGuire J. held that:

"The people were entitled to have the opinion of a judge without fear of his words being challenged elsewhere. It was salutatory and beneficial privilege."

Section 22 of the Equal Status Act 2000 as amended provides

‘that the Director may dismiss a claim at any time if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.’

The alleged conduct which is the subject of the original complaint against a separate respondent relate to the conduct of a Court hearing.

Judicial decision making is not a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. The Judge in exercising judicial decision making is immune from suit.

The following appears in ‘The Equal Status Acts 2000-2011, 2012 edition, Judy Walsh, Blackhall Publishing, at page 43:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

This claim is misconceived as it is incapable of achieving the desired outcome and the matter complained of is not a service as defined under the Act. 

No ‘employer’ of the named judge can be identified as a matter of law and I find that I have no jurisdiction to investigate this complaint as the matters complained of are not properly before me.

 In view of the comprehensive nature of this finding that the complaint is misconceived I have decided that no purpose would be served by identifying the parties and have decided to anonymise the Decision.

This complaint relying upon the Equal Status Acts to bring an action against the employer of a Judge arising from alleged unfair treatment during a court hearing is not properly before me.

Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived.

As I have formed the opinion that the complaint is misconceived pursuant to section 22, I dismiss complaint CA-00018903-001, and determine that I have no jurisdiction to investigate and adjudicate on the matter.

Therefore, I find that the complaint is misconceived and dismiss the complaint.

Jurisdiction, judicial immunity