FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DEPARTMENT OF EDUCATION AND SCIENCE (REPRESENTED BY CHIEF STATE SOLICITOR'S OFFICE) - AND - DEBORAH SKELLY (REPRESENTED BY DEBORAH SKELLY) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Act, 1998
BACKGROUND:
2. A Labour Court hearing took place on the 12th May, 2008 in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's Determination.
DETERMINATION:
Introduction
This is a limited appeal by the Department of Education and Science (the Department) against so much of the Decision of the Equality Tribunal as found that it was the appropriate respondent in a claim of discriminatory treatment on the gender ground brought by Ms Deborah Skelly pursuant to S.77 of the Employment Equality Acts 1998 and 2004. On the substantive matter before it the Equality Tribunal found that Ms Skelly had not been discriminated against as alleged.
Facts
The salient facts of the case are as follows: -
At all times material to her claim Ms Skelly was a secondary teacher at St Pauls School, Greenhills Dublin. In February 2004 Ms Skelly applied to the Board of Management of the School for a period of paid study leave in order to study for the degree of Barrister- at-Law at the Honourable Society of Kings Inns. The Board of Management were prepared to accede to Ms Skelly’s request. However the consent of the Department was required. The Board of Management passed Ms Skelly’s application to the Department on 31st March 2004.
The Department rejected Ms Skelly’s application. Instead it offered her a career break. Ms Skelly believed that a male teacher in another school had been given paid study leave to study for the Bar. On foot of this belief she instituted proceedings alleging that the Department’s refusal to sanction her application was discriminatory on the gender ground.
Ms Skelly’s complaint was investigated by an Equality Officer of the Equality Tribunal. At the hearing before the Equality Officer the Department contended that it was not Ms Skelly’s employer and was not the appropriate Respondent in those proceedings. The Department submitted that as a matter of law Ms Skelly’s contract of employment was with the Board of Management of St Pauls School and that the Board of Management and not the Department was her employer.
Having considered the matter the Equality Officer concluded that in the circumstances of the case before him the Departments was the appropriate respondent. However he found that Ms Skelly had failed to make out a prima facie case of discrimination on the gender ground. Accordingly the Equality Officer dismissed Ms Skelly’s claim.
Issue before the Court
Ms Skelly has not appealed the Decision of the Equality Tribunal. The time for bringing an appeal has long since passed. Ms Skelly has accepted the Decision of the Equality Tribunal and her claim is now dead. The Department are appealing only against the ruling of the Equality Officer to the effect that it was an appropriate respondent in the case.
In the Court’s view the issue giving rise to the claim before the Equality Officer is now finally disposed of and in these circumstances the issues raised in the appeal are of no practical consequence to Ms Skelly in the sense that she is no longer seeking redress under the Act. Nor are they of practical consequence to the Department in that it is no longer on hazard of being held liable for unlawful discrimination. In these circumstances the Court must consider if the appeal is moot.
Mootness.
The law in relation to mootness was considered by the Supreme Court inGoold v Judge Collins and Others[2004] IESC 38. This was a case involving judicial review proceedings taken by the Applicant arising from the granting of protection orders under the Domestic Violence Act 1996. When the matter came to trial agreement had been reached between the parties to the original proceedings under the Act of 1996. On foot of this agreement the protection orders had been discharged by consent. When the application for judicial review came to trial the Respondent contended that the issue was moot.
In considering the circumstances in which an appeal can be moot Hardiman J. said this (at page 14-15: -
- “A proceeding may be said to be moot where there is no longer any legal dispute between the parties. The notion of mootness has some similarities to that of absence of locus standi but differs from it in that standing is judged at the start of the proceedings whereas mootness is judged after the commencement of proceedings. Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs, the eventual decision would be of no practical significance to the parties”
The Judge went on (at page 16) to quote the following dictum of Finlay C.J. inMurphy v Roach[1987] IR 106: -
- There can be no doubt that this Court has decided on a number of occasions that it must decline, either in constitutional issues or in other issues of law, to decide any question which is in the form of a moot and the decision of which is not necessary for the determination of the rights of the parties before it
In considering the rationale for the Courts’ refusal to consider points which are moot Hardiman J. referred to the leading Canadian case ofBorowski v Canada[1989] 1 SCR 342, in which the Supreme Court of Canada said the following : -
- "The first rationale for the policy with respect to mootness is that a court's competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for the Courts to be sensitive to the effectiveness or efficiency of judicial intervention and demonstrate a measure of awareness of the judiciary's role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa."
The dictum of Hardiman J. on mootness was more recently followed by Murray C.J inO’Brien v Personal Injuries Assessment Board[2007] ILRM 304.
In this case Ms Skelly appeared before the Court as a matter of courtesy. She told the Court that she has now successfully completed her studies and is not pursuing any claim against the Department. Counsel for the Department, Ms Maguire B.L., told the Court that it is pursuing the appeal in order to avoid the Decision of the Equality Officer being relied upon as a precedent in other cases.
In the Court's view there are significant issues of law which would have to be considered if the Court were to determine the issue raised in this appeal. This could only be properly done in a case in which the matter is fully argued with submissions on both sides. Ms Skelly could not reasonably be expected to fully defend this case in circumstances in which she has no interest in the outcome.
The Court is fully satisfied that the Department has raised serious issues in relation to the appropriate respondent in a case such as this. In the Court’s view there is no impediment to the Department again raising those issues either before the Equality Tribunal or this Court in a suitable case in which the outcome is of practical consequence in determining the rights and duties of the parties.
Determination.
The Court regards this appeal as moot and directs that it be stayed.
Signed on behalf of the Labour Court
19th May, 2008______________________
JFKevin Duffy
Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.