Complainant

Respondent

Anonymised Parties

A Complainant

A Judge

Representatives

Act

Complaint Reference No.

Date of Receipt

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

CA-00047069-001

08/02/2021

It is the Complainant’s claim that he was discriminated against, harassed and victimised on the ground of race and victimisation by the Respondent from 26 April 2018 to 13 November 2020. The ES.1 Form is dated 8 January 2021. The Complainant stated he notified the Respondent on 8 January 2021. The Complainant submitted an ES.3 Form to the Workplace Relations Commission which was received on 8 February 2021.

The Complainant complains that he was discriminated against, harassed and victimised on the grounds of race and victimisation by the Respondent in the course of court proceedings.

Preliminary Issue

The Complainant has filed this complaint against a Judge and arises from court proceedings in which he was a party to.

Having carefully read the extensive submission filed by the Complainant, I am satisfied that there are sufficient judicial remedies available to parties where they determine that the conduct of a Judge.

Section 22 of Equal Status Act 2000

In light of the above conclusion it is worth considering whether Section 22 of the Equal Status Act 2000 is appropriate which provides for dismissal of claims:-

“22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.”

Judicial Immunity

In light of the nature of the Complainant’s claim, it is necessary to consider the principle of judicial immunity. The leading commentary in this area is addressed in Walsh J (2012). The Equal Status Acts 2000-2011, (p43) Dublin, Blackhall Publishing:

“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.”

The Equality Tribunal in Fogarty v Employment Appeals Tribunal, Dec-S2009 -087 found; “[T]hat the adjudication and decision-making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi-judicial decision-making function which is not subject to the terms of the Equal Status Acts. Therefore, I find that any aspect of this complaint which refers to the decision-making function of the respondent is misconceived.”

In Kemmy v Ireland [2009] IEHC 178 the principle of judicial immunity and its purpose was addressed by the High Court:

“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.”

I note the Supreme Court decision in Beatty v The Rent Tribunal & Another [2006] 2 IR 191 where the Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that provided to Judges. Mr. Justice Geoghegan’s majority judgment affirmed that the Rent Tribunal was immune from actions and negligence, where he said,

“Even though the respondent is a Tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In the circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence.... In this respect it is in no different position from Court whether such Court be traditionally categorised as superior or inferior”.

The Supreme Court also determined that the absolute immunity on the basis of judicial immunity, for statutory adjudicative bodies was a matter for the legislature who created the body. Therefore, this indicates that prima facie statutory adjudicative bodies enjoy immunity from suit on the basis of the principle of judicial immunity unless there is an express provision countervailing against this in any statutory provision.

I do note in Beatty, Mr. Justice Geoghegan suggested that the principle of judicial immunity was not absolute but equally “he had considerable doubt” that an action for misfeasance in public office would lie “in circumstances where the Court or Tribunal was acting within jurisdiction.”

Applying the case law to this claim, I find that judicial immunity does apply to this claim. Consequently, I find that this claim falls within the meaning of “frivolous or vexatious” pursuant to Section 22 of the Equal Status Act 2000-2015 and dismiss it accordingly.

In such circumstances, I find it appropriate to anonymise the names of the parties.

I am dismissing this claim pursuant to Section 22 of the Equal Status Act 2000-2015.

Equal status – Discrimination- Judicial Immunity