This article concerns a recent Court of Appeal decision in Ciarán Culkin v Sligo County Council And Irish Human Rights And Equality Commission, [2017] IECA 104, a judgment of Mr. Justice Gerard Hogan delivered on the 29th day of March 2017.

The Court of Appeal overturned the decision of the High Court and clarified that a Claimant who has been unsuccessful in claiming discrimination or harassment under the Employment Equality Acts 1998 as amended is not automatically precluded from bringing a personal injuries claim in the civil courts, even where both alleged claims arise out of the same facts.

Background

This was an appeal by Mr. Culkin from a decision of Kearns P. in the High Court in Ciaran Culkin v. Sligo County Council  [2015] IEHC 46.  (see previous CKT article regarding same https://www.legal-island.ie/articles/ire/case-law/2015/feb/ciaran-culkin-v--sligo-county-council-2015/)

The background to the proceedings was that Mr. Culkin worked as an engineer employed by Sligo County Council (“the Council”) for 39 years until his employment ended upon his retirement in May 2009.  Mr. Culkin alleged that he experienced various mistreatment during his employment from in or about 1996 and he issued two separate claims arising out of these matters.

The first was a claim submitted to the Equality Tribunal on or about the 10th September 2009 pursuant to the provisions of the Employment Equality Acts 1998 to 2008 alleging that he was subject to discriminatory treatment.

The second claim was a personal injury claim, initiated by way of Personal Injuries Summons issued on the 2nd February, 2011.

The Council, made an application to the High Court for an Order striking out Mr. Culkin’s personal injuries claim as an abuse of process and/or duplication of his equality claim against the Council.

The President of the High Court dismissed Mr Culkin’s personal injury action on the basis that both claims resulted from “the very same alleged incidents of mistreatment”.

The High Court felt it was bound by the rule established in the Henderson v Henderson case preventing the duplication of proceedings.   In addition, the High Court stated that Section 77(1) and Section 101 of the Employment Equality Act 1998 as amended, prevent duplication of claims.

The High Court also placed particular emphasis on the earlier judgment of Hedigan J. in Cunningham v Intel Ireland Ltd. [2013] IEHC 107 which stated that all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances.

The Court of Appeal Decision

The Court of Appeal in Culkin re-considered the modern application of the rule in Henderson v Henderson.  Hogan J. in the Court of Appeal stated that rules to prevent duplicity of proceedings and/or abuse of process, are applied flexibly by the Courts and have stopped short of adopting a policy of automatic exclusion of any second set of proceedings.  Hogan J. quoted from the judgment of Kearns J. for the Supreme Court in the case of SM v Ireland (No.1) [2007] IESC 11, in which it was stated that:

“The purpose of the rule is to uphold an important principle of public policy which demands, in the interests of justice, that defendants are not exposed to successive suits where one would do. However, it is equally clear on the authorities that the rule in Henderson v. Henderson must not be applied in a rigid or mechanical manner so as to deprive the court of any discretion to hold otherwise in an appropriate case….It follows, therefore, that a limitation such as that provided for by the rule in Henderson v. Henderson should not be blindly or invariably applied, particularly where there are special circumstances in the case which would suggest that the imposition of the limitation would be either unfair, excessive or disproportionate.”

The Court of Appeal emphasised that there should be a focus on the relief available to a claimant in each set of proceedings.

Hogan J. stated that the rule in Henderson v Henderson is not automatically applicable in the “special case” of separate claims which are required to be made under a statutory scheme on the one hand and a regular personal injuries claim on the other, even if both claims arise from the same set of underlying facts.

In the instant case, Hogan J. stated that even if he had wanted to, Mr. Culkin could not have combined a common law claim for personal injuries along with the statutory claim for discrimination in the one set of proceedings.   He stated:

“Just as the Equality Tribunal had no jurisdiction to entertain the common law claim, the High Court had no first instance jurisdiction to adjudicate upon the statutory claim for discrimination or harassment under the 1998 Act.”

Hogan J. went on to state:

“The discrimination and harassment claim before the Tribunal must, in any event, be linked to one or more of the nine specific grounds identified in s. 6(2) of the 1998 Act, namely, gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. The corollary of this is that the Tribunal has no jurisdiction under the 1998 Act to deal with a claim for free-standing claim for discrimination or harassment which is independent of these specific statutory grounds. Putting this another way, while the Tribunal has jurisdiction to deal with a harassment claim which was linked with the gender of the claimant, it would, for example, have no such jurisdiction where the claim simply was that the victim had been harassed by a fellow employee who just happened to dislike him or her.”

The Court of Appeal decided that essentially Mr. Culkin was unable to bring his “whole case” in a singular claim before the Equality Tribunal because the Tribunal, as a statutory body, had no jurisdiction to determine a personal injuries claim.

The Court held that Section 101 of the Employment Equality Act 1998 as amended does not bar subsequent personal injuries claims per se where an earlier discrimination claim before the Tribunal has failed.

In conclusion, the Court of Appeal allowed Mr. Culkin’s appeal insofar as Kearns P. in the High Court had held that the personal injuries claim must automatically fail on the basis of an abuse of process.

The Court of Appeal did express the view however that it would also be open to the civil court of trial to determine that the personal injuries claim, or parts thereof, should fail on the ground that it amounted in substance to a collateral attack on the decision of the Equality Tribunal.

Conclusion

The case clarifies the legal position where an employee or former employee may have the potential to bring a claim against an employer under the Employment Equality Acts or at common law.

The decision makes clear that although they might arise from the same facts, a case for Personal Injuries and a case for discrimination are different claims in which different reliefs are sought.   Accordingly, an employee or former employee may have two separate and valid legal claims arising out of the same set of facts.

Employers should be aware that where they succeed in defending a discrimination or harassment claim before the Workplace Relations Commission, this does not automatically preclude an employee (or a former employee) from bringing a separate personal injuries claim, even where it is the case that both alleged claims arise from the same facts.