A recent judgement of President of the High Court in Ciaran Culkin v. Sligo County Council  IEHC 46 deals with the issue of alleged bullying and harassment and the multi-faceted litigation that these cases bring.
The plaintiff, quite similarly to the previously reported case of Cunningham v. Intel  IEHC 207, not only brought a complaint to the Equality Tribunal, pursuant to the provisions of the Equality Acts 1998, but also issued a personal injuries summons, seeking compensation for personal injuries allegedly arising out of the same bullying and harassment. This tactic is commonly used in such disputes.
Employment Appeals Tribunal (EAT)
The plaintiff’s complaint to the Employment Appeals Tribunal was submitted on or around 10 September 2009. The plaintiff’s position was that the respondent failed to deal appropriately with systematic bullying and exclusion until he was ultimately constructively dismissed in May 2009. The EAT case was heard on 25 July 2012, post-Injuries Board authorisation which issued on 19 November 2010 and post the date of the issued personal injuries summons, 2 February 2011.
The EAT case ran for four days, eventually concluding on 26 June 2013. A preliminary submission was made on behalf of the defendant that the matters before the tribunal were the same as those being pursued in the High Court and the plaintiff was precluded from pursuing both claims. The plaintiff in any event requested the Equality Officer to continue to hear the case, notwithstanding the defendants’ objections.
The procedure for making a complaint to the Equality Tribunal is governed by the Equality Act 1998, as amended. (‘the Act’).
Section 77(1) of the Act states:–
“77.—(1) A person who claims—
(a) to have been discriminated against or subjected to victimisation,
(b) to have been dismissed in circumstances amounting to discrimination or victimisation,
(c) not to be receiving remuneration in accordance with an equal remuneration term, or
(d) not to be receiving a benefit under an equality clause, in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director.”
Section 101 of the Act relates to ‘alternative avenues of redress and provides as follows –
“101.—(1) If an individual has instituted proceedings for damages at common law in respect of a failure, by an employer or any other person, to comply with an equal remuneration term or an equality clause, then, if the hearing of the case has begun, the individual may not seek redress (or exercise any other power) under this Part in respect of the failure to comply with the equal remuneration term or the equality clause, as the case may be.
(2) Where an individual has referred a case to the Director under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual—
(a) shall not be entitled to recover damages at common law in respect of the case, and.
(b) where he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal, unless the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and the respondent.”
The defendants submitted the plaintiff’s claim to the Equality Tribunal, which was identical to the complaints raised in the plaintiff’s personal injuries proceedings. It was submitted that once an investigation was commenced in relation to the complaint of the Equality Tribunal, Section 101 of the Act became operative and the plaintiff was consequently precluded from pursuing a simultaneous claim in the High Court. The defendants relied on Cunningham v. Intel case above. The plaintiff therein, a lay litigant, had her proceedings for personal injury struck out by Hedigan J., whilst an appeal to the Labour Court was pending, on the basis that the defendant objected to having to defend the same claim in two sets of proceedings.
The defendants also relied on the well-established rule in Henderson v. Henderson which sets out the Court policy to avoid double litigation of the same issues.
The plaintiff’s contention was that the rule in Henderson did not apply and the matter is solely one of statutory interpretation, in particular the correct interpretation of Section 101(2)(a), and that rather than precluding a common law case based on broad unreliant facts of the section, this precludes cases which are already covered and have been pursued pursuant to Section 77(1). The plaintiff further sought to distinguish Cunningham on the basis that the plaintiff therein was a lay litigant and Cunningham did not deal with the statutory interpretation issue above.
Kearns J. was satisfied that in accordance with Henderson v. Henderson the public policy of avoiding double litigation must be upheld. The plaintiff was informed at the Equality Tribunal Hearing of the defendants’ objection but pursued the tribunal remedy regardless. The plaintiff is now estopped from resiling from this position having had his claim rejected by the Tribunal. He still has a right to appeal to the Labour Court.
This decision, preceded by Cunningham, is a positive decision for defendants who are frequently the subject of numerous jurisdictional cases and should be considered when confronted with such cross venue litigation.
Exclusive feature by:
Ben Mannering FCII
State Claims Agency
Ben Mannering is a solicitor/claims manager with the State Claims Agency, which manage, amongst other, bullying and harassment personal injury claims against the State.
The views in this article are personal and do not reflect the views of the National Treasury Management Agency.
The views expressed within this Thinkpiece are those of the authors and should not be interpreted as those of The Insurance Institute or its members. This document contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate. The information in this article is correct at the time of publication.
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