The recent case of Astrid McCarey v High Lennon and Associates UD909/2012 deals with the the jurisdictional issue under Section 101(2) of the Employment Equality Acts 1998 (as amended).
The claimant in this case lodged a claim for unfair dismissal under Section 8 of the Unfair Dismissal Act 1977 (as amended) on 29th May 2012. On the same date the claimant also lodged a claim before the Equality Tribunal under Section 77 of the Equality Act 1998 (as amended). The Tribunal had to consider whether it had jurisdiction to hear the unfair dismissal claim under Section 101(1) which provides:
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 ot the equality clause, as the case may be.
(2) If an individual has referred a case 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-if 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 Dismissal Acts 1977 to 1993 in respect of the dismissal, unless the Director, having completed the investigation and in an appropriate case, directors otherwise and so notifies the complainant and the respondent”.
(3) If an individual has referred a case to the Circuit Court under section 77(3) in respect of such a failure as in mentioned in subsection(1), the individual shall not be entitled to recover damages at common law in respect of that failure.
(4) An employee who has been dismissed shall not be entitled to seek redress (or to exercise or continue to exercise any other power) under this Part if, as a result of the dismissal-
(a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun,
(b) in the exercise of powers under the Unfair Dismissal Acts 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.
The EAT looked at the meaning of “Director…has begun an investigation” and referred to the case of Cullen v Connaught Gold Limited UD 787/2006 which provided:
“Having considered the extensive submissions from both parties in this case, it is clear that the point in contention in this preliminary application on behalf of the respondent is, effectively, what is meant by “investigation” in subsection 2(b) of section 101 of the Employment Equality Acts 1998 to 2004 and further when such an investigation might be considered to have begun. The claimant’s submission is that an investigation is analogous to a hearing and cannot be considered to have begun until the parties have been called to appear before the Director. The respondent’s submission is that an investigation can be considered to be more all encompassing than a hearing and that the provision of submissions to the Director indicated that such an investigation had begin.
The Tribunal is satisfied that an investigation and a hearing are not analagous, rather than a hearing forms part of the investigation. The Tribunal is further satisfied that the provision of submissions to the Director can be accepted as showing that an investigation has begun. That being the case the Tribunal must find that, in accordance with subsection 2(b) of section 101 of the Employment Equality Acts 1998 to 2004, the claimant cannot seek redress under the Unfair Dismissal Acts 1977 to 2001 unless or until the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and respondent”.
The Tribunal were of the view that Section 101 did not prevent a claimant from pursuing a claim for unfair dismissal under the Unfair Dismissal Acts and a claim for discriminatory dismissal under the Employment Equality Acts and recovering under both provided that the discriminatory treatment element was entirely distinguishable and unconnected with the unfair dismissal claim. This according to the Tribunal was made clear from O’Carroll v Soverign Security Limited DEC-E2011-247 and A Complainant v A Retail Chain DEC-E2011-218.
The Tribunal noted in this decision that the appeal to it and the complaint to the Equality Tribunal were similar and that the unfair dismissal claim was not distinguishable from the discriminatory treatment alleged and that the two claims were connected.
The issue of whether a “Director can be said to have begun an investigation” was considered by the High Court in Judicial Review Proceedings in the “Cullen Case” (noted above). The Tribunal noted
“In the light of this High Court decision it is now accepted that the requirements of section 101(2) will be met when a claim is delegated by the Director of the Equality Tribunal to an Equality Officer. Not until then can the Director (of the Equality Tribunal) be said to have begun an investigation under Section 79“.
The Tribunal concluded that the complaint here to the Equality Tribunal and the EAT were indistinguishable and since the Director of the Equality Tribunal had not begun the investigation, the EAT had jurisdiction to hear the claim.