Court of Appeal issues clarification on duplication of proceedings before the Equality Tribunal (WRC) and the High Court

In a recent Court of Appeal judgment in the case of Culkin v Sligo County Council & Anor, [2017] IECA 104, the Court stated that an individual who has brought an unsuccessful claim of discrimination or harassment under the Employment Equality Acts 1998 to 2015 is not automatically precluded from proceeding with a personal injuries claim to the High Court, even where both claims arise out of the same alleged set of facts.

Background

The plaintiff in this case, Mr Culkin, was a retired engineer who was employed by Sligo County Council in various capacities over a period of 39 years. Mr Culkin contended that he began experiencing difficulties at work in or around 1996, when a new supervisor was appointed. He claimed that he was subjected to bullying, victimisation and isolation at work. Mr Culkin alleged that this behaviour left him suffering from a number of psychological and physiological symptoms.

Following his retirement, Mr Culkin made a complaint to the Equality Tribunal pursuant to the provisions of the Employment Equality Acts. Mr Culkin also pursued a personal injuries claim before the High Court, having obtained an authorisation from the Personal Injuries Assessment Board to do so.

Mr Culkin’s personal injuries claim, however, was struck out by the High Court as an abuse of process. In coming to this decision the High Court placed heavy reliance on its judgment in the case of Cunningham v Intel Ireland Ltd, [2013] IEHC 207. In Cunningham, the plaintiff instituted a claim for discrimination against the defendant in relation to access to employment, promotion and re-grading, conditions of employment, and harassment. The Equality Tribunal rejected the complaint and, as in the present case, an appeal to the Labour Court was pending at the time the personal injuries case reached hearing before the High Court.  The defendant asserted that the personal injuries proceedings were grounded in the same set of facts as the employment equality proceedings and objected to having to defend the same claim in two separate sets of proceedings. The High Court, in Cunningham, 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.

In coming to its decision in the Cunningham case, the High Court stated that, in having issued the personal injury proceedings, the plaintiff had breached the rule in Henderson v. Henderson. The rule in Henderson v. Henderson is frequently argued before the courts by a party seeking to avoid having to defend multiple, separately brought, claims arising from the same set of facts. The Court of Appeal in the present case noted that the rule in Henderson v Henderson is not absolute, but is to be applied using a “merits-based approach”.

The Court further noted that the rule in Henderson v Henderson is not automatically applicable in cases where there is a designated statutory route of redress for certain aspects of an individual’s case, as here. The Court of Appeal emphasised that the rule in Henderson v Henderson requires that the plaintiff must have been able to have brought forward the claim in the second proceedings in the first proceedings.  In respect of Mr Culkin’s case, the Court observed that:

“Even if he had wanted to, the plaintiff could not have combined a common law claim for personal injuries along with the statutory claim for discrimination in the one set of proceedings. 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.”

Overturning the decision of the High Court, the Court of Appeal stated that it was simply not possible for Mr Culkin to have brought forward his “whole case” before the Tribunal because that statutory body had no jurisdiction to entertain a personal injuries claim.

The Court further noted that section 101(2) of the Employment Equality Acts states that where an individual has referred a case to the Equality Tribunal (WRC) under section 77(1) (discrimination or harassment) and an investigation has begun, the individual will not be entitled to recover damages at common law, i.e. in the courts, in respect of “the case”.

The High Court, in Mr Culkin’s case, interpreted “the case” widely so as to include the facts underlying the claim. However, the Court of Appeal said that a much narrower interpretation of this section is required. Referring back to an earlier section in the Employment Equality Acts (section 101(1)), the Court of Appeal stated that the limitation under section 101(2) only applies in respect of common law claims concerning an employer’s failure to comply with an equal remuneration claim or an equality clause. The Court stated:

“s. 101 serves to bar complementary claims for discrimination before the Tribunal and at common law in respect of claims based on failure to comply with an equal remuneration term or an equality clause. But it has no wider meaning and, specifically, it does not bar subsequent personal injuries claims per se where an earlier discrimination claim before the Tribunal has failed.”

Key Implications for Employers

Following this decision, employers should be aware that defeating a discrimination or harassment claim in the WRC will not automatically operate to prevent an employee, or former employee, from bringing a separate personal injuries claim, notwithstanding that both claims arise from the same set of facts. Having regard to this issue, the Court of Appeal concluded that it will be up to the trial court “to determine whether or not the personal injuries claim – or, at least, parts of the claim – should fail on the ground that it amounts in substance to a collateral attack on the earlier decision of the Equality Tribunal” (now the WRC).

For further information on this case, or advice on discrimination, harassment or personal injury claims, contact Lorraine Smyth, Deirdre Lynch, from the ByrneWallace Employment Law Team.