Inappropriate for courts to intervene in pending hearing before Equality Tribunal

MacMenamin J (nem diss): Decision on jurisdiction by Equality Tribunal - complaint by teacher of discrimination based on sexual orientation - investigation of two specific complaints - Section 77 of the Act of 1998 - time limits - date of occurrence - date of most recent occurrence - role of Supreme Court in considering issues - form of relief claimed - whether grounds for declaration.

"[T]he issue in this appeal concerns the question of whether or not it is “just and convenient” to grant a declaration. I do not consider that it would be either “just” or “convenient”. The hearing is still proceeding. It is to be presumed it will be fair. It is to be presumed that the Equality Officer will act within jurisdiction. The policy of this Act, and the courts generally, lean against interference in a pending hearing, save in the most exceptional circumstances. There has been no detriment, or denial of rights or interests, nor has it been sufficiently shown that there is an imminent danger of the appellant suffering such detriment."

McKechnie J (concurring): Judicial review - Equality Tribunal - allegation of discrimination on grounds of gender and sexual orientation - whether equality officer confined to investigating two specified incidents, or able to investigate history of other alleged incidents outside of relevant time period - teacher employed by Vocational Education Committee (VEC) - decision by equality officer to hear evidence prior to ruling on jurisdiction - whether investigation of earlier history ultra vires the Equality Tribunal - refusal to limit investigation to subject matter of complaints - Employment Equality Acts 1998-2004 - Equal Pay Directive (C.D. 75/117/E.E.C. of 10 February 1975) - Equal Treatment Directive (C.D.76/207/E.E.C. of 9 February 1976) - s 77 of 1998 Act - whether tribunal entitled to investigate "continuous discrimination" including that outside of time period - role of tribunal - power of tribunal to determine own jurisdiction - averment by equality officer that she had not ruled on issue of jurisdiction.

"What therefore is to be made of the situation, as here, where a claim, specific to two particular instances, is validly made within time but where notification of other instances, said to form part of an overall continuum, is given for the first time significantly after the six month period has expired?"

"But that is not the inquiry which she must address. It is, as previously stated, whether, irrespective of the nature of the historical evidence and irrespective of whether or not it might form a continuum under either provision, such matters in their own right can, in the absence of notification within time, be the subject matter of a lawful investigation by her for discriminatory purposes. Perhaps there is some reason not immediately obvious which I am missing as to why she decided to proceed as she has: in any event, though not without some hesitation, I believe that no judicial intervention should take place before a decision is made on the VEC’s application."