Bernadette Treanor writes:

Employment Equality Decisions issued in January 2015 (Published February 2015) Reviewed

These decisions of the Equality Tribunal and Labour Court were reviewed by Bernadette Treanor, Managing Consultant, Beo Solutions, and former Equality Officer at the Equality Tribunal.

None of the cases published last week by the Tribunal were upheld but two decisions have issued that address interesting jurisdictional issues.

1. EDA151 is really interesting on a number of technical fronts.  It is a short recommendation overturning a Tribunal Decision that the complaint was misconceived as the directors of the respondent company had been named rather than the employer.  The Labour Court has remitted the case to the Tribunal in, what appears to be, contradiction of the primary recommendation on such matters, @Resonance.  This suggests the Labour Court is now of the view it has jurisdiction to change a named respondent.

2. The second case, DEC-E2015-002, relates to a complaint of discrimination where the employer argued that it had concluded a full and final settlement with the complainant.  The Equality Officer (Mr. Eugene Hanley) found he did not have jurisdiction to hear the complaint.

EDA151 – Aziz v Ballarat Clothing Ltd.

Issues: Jurisdiction, incorrect respondent named, remitted to Equality Tribunal

The complainant in this case had entered the director’s names in the complaint form rather than the employer even though she was in possession of documents, including a contract of employment, clearly stating the name of her employer.  The Equality Officer, in DEC-E2014-026, addressed all of the arguments in detail and found that it was not an error that the director’s names had been filled in.  He stated “From Mrs Aziz’s description of her search for their names, however, I am satisfied that naming the respondents wrongly as her daughter’s employers was not a simple error….. but rather, it was deliberate….”

The Equality Officer found that the High Court decision of Hogan J relied upon, O’Higgins v University College Dublin & Anor [2013 21 MCA] was addressing an issue arising from the rules of the Superior Courts while he was operating within “tightly circumscribed statutory powers (or lack of same as the case may be) in a Tribunal of limited jurisdiction”.  He found he had no power in statute to make the change to the respondent.  He went on to find the case was misconceived and dismissed the claim.

The Labour Court in considering the issues accepted that the naming of the directors was an error.  The employer company accepted that it would be inconvenient but would suffer no prejudice if the Court were to allow the appeal.  The Court adopted the reasoning of Hogan J, allowed the appeal, set aside the Equality Officer’s Decision and remitted the matter back to the Tribunal.

The Labour Court did not include a consideration of its previous decision in Coleman v @Resonance, EED0311, where Finbarr Flood, Chairman, stated

The Court cannot accede to this application. It has no powers under the Act to substitute one respondent for another, or to join another party as co- respondent. If a transfer of undertaking has occurred or, in effect, Resonance Limited is the same company as @Resonance Limited, it is for the claimant to establish this fact prior to bringing her claim and ensure that proceedings are issued against the correct respondent.

The instant Labour Court recommendation is issued in the name of the employer company (Ballarat Clothing Ltd.) rather than the individual directors which was the title of the complaint referred on appeal and it begins “This is an appeal by Ms. Ann Aziz (hereinafter the Complainant) against the decision of the Equality Tribunal in her claim of discrimination against Ballarat Clothing Ltd. (hereinafter the Respondent) under the Employment Equality Acts 1998 to 2008.

Why is this case of interest?

Issues: Estoppel, settlement agreement

The complainant complained of discrimination during his employment 18 May 1985 to 4 May 2011.  The respondent raised a preliminary matter disputing that the Tribunal had jurisdiction to entertain the claim.

The complainant had issued High Court proceedings in 2000.  On 4 May 2011 the parties concluded a full and final settlement in respect of “all claims”.  The complainant had the benefit of legal advice at the time being represented by his solicitor, senior and junior counsel.  He received a sum in consideration of the settlement and a contribution to his costs.

The complainant asserted he was unhappy with the manner of the settlement, thinking what was taking place were exploratory talks.  He described a ham-fisted approach and being put under pressure.

The Equality Officer found “that “full and final” means just that, it is full and final” and that the complainant could not “now ignore the obligations placed upon him by signing this agreement”.  The Equality Officer found he had no jurisdiction to hear the case in accordance with section 79(6).

Why is this case of interest?

This Decision will reassure employers that where settlement agreements are appropriately made they will be upheld in respect of equality decisions.