THE COURT OF APPEAL
High Court Record No.: 2018 210 MCA
Court of Appeal Record Number: 2022/67
Neutral Citation No.: [2025] IECA 6
Whelan J.
Binchy J.
Allen J.
IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT 1998
AND IN THE MATTER OF THE EQUALITY ACT 2004
AND IN THE MATTER OF THE WORKPLACE RELATIONS ACT 2015
BETWEEN/
OLUMIDE SMITH
APPELLANT/PLAINTIFF
- AND -
CISCO SYSTEMS INTERNETWORKING (IRELAND) LIMITED
RESPONDENT/DEFENDANT
JUDGMENT of Mr. Justice Binchy delivered on the 21st day of January 2025
1. The appellant herein was formerly employed by the respondent as a software engineer pursuant to a contract of employment entered into between the parties on 11th December 2007, with effect from January 2008. He was dismissed from that employment, following a disciplinary inquiry (the "Disciplinary Inquiry"), on 2nd July 2013. In November 2013 the appellant submitted complaints to the Equality Authority pursuant to the Employment Equality Act, 1998 (as amended) (hereinafter collectively referred to as the "1998 Act"), claiming that the respondent had victimised him in his employment, had discriminated against him on the grounds of race in the amount of his remuneration, in failing to promote him and ultimately in dismissing him from his employment. The appellant was initially successful in his claims before a Rights Commissioner following an uncontested hearing (the respondent claims it did not receive notice of the same), but on appeal to what was then the Equality Tribunal (now the Workplace Relations Commission ("WRC")) his complaints were dismissed by an Adjudication Officer in a decision delivered on 18th February 2016. The appellant appealed that decision to the Labour Court, which handed down its decision on that appeal in a determination dated 26th April 2018 (the "Determination"). The Labour Court upheld the decision of the Adjudication Officer. The appellant then appealed the Determination to the High Court pursuant to s. 90(1) of the 1998 Act. That section provides that such an appeal is on a point of law only. In a judgment handed down on 13th November 2020 ([2020] IEHC 714), the High Court (Meenan J.) dismissed the appeal, and it is from that decision of the High Court that the appellant now appeals.
Jurisdiction of the High Court on a Point of Law
2. At paras. 5 - 11 of his judgment, Meenan J. addressed the jurisdiction of the High Court in an appeal on a point of law. He cited passages from Mara (Inspector of Taxes) v. Hummingbird Limited [1982] I.L.R.M. 421 and Deely v. The Information Commissioner [2001] 3 IR 439. It is sufficient for present purposes to cite only the latter passage taken from the judgment of McKechnie J., then in the High Court:-
"... There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:-
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;
(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;
(c) it can, however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;
(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision... ."
3. As Meenan J. observed, it is thus clear that an appeal on a point of law is not a de novo appeal, and that the circumstances under which the High Court may interfere with findings of fact in such an appeal are limited. That observation applies equally to a further appeal from the High Court to this Court in such matters.
4. I do not understand the appellant in this appeal to argue that the trial judge erred in failing to identify the principles applicable to such appeals. Instead, as I understand it, the appellant argues that the trial judge erred in failing to apply those principles correctly, and in particular in failing to set aside certain findings of primary fact as found by the Labour Court in respect of which the appellant contends there was no evidence to support those findings. The appellant also contends that the trial judge erred in law. However, as will become apparent it is difficult to identify either the findings of primary fact as found by the Labour Court or the precise error or errors of law upon which the appellant relies.
The Determination
Preliminary Issue
5. In the Determination, the Labour Court addressed a preliminary issue regarding the scope of the appeal before it. This issue arises out of the provisions of s. 77(5) of the 1998 Act, which, as amended by s. 83(1)(c)(ii) of the Workplace Relations Act, 2015 (the "2015 Act") provides as follows:-
"(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly." [1]
6. Thus, as the High Court judge observed, it is clear that the act or acts alleged to constitute victimisation or discrimination for the purposes of a complaint under the 1998 Act must have occurred within six months prior to the making of a complaint, but that that six month period may be extended for a period up to twelve months where an applicant can demonstrate reasonable cause for such an extension of time.
7. In this case, the complaint was advanced by the appellant in November 2013. The precise date in November is a matter of some disagreement as between the appellant and the Labour Court. This is recorded in the decision of the Labour Court in which it is stated that the appellant maintained that his complaint had been presented to the WRC on 12th November 2013, while the Adjudication Officer had recorded that the complaint was presented on 28th November 2013. The Determination records that the respondent accepted the date of presentation of the complaint as being 12th November 2013, "notwithstanding the date recorded by the Adjudication Officer, was correct" and that the appellant requested the Labour Court to correct the date. However, the Labour Court declined to do so on the basis that it was not open to it to correct a decision of an Adjudication Officer because the hearing before the Labour Court was a de novo hearing. The appellant maintains that this was an error on the part of the Labour Court and further maintains that the High Court judge erred in failing to correct this error.
8. As will become apparent, it might have been more correct for the Labour Court to have said that the respondent disclaimed any knowledge of the date on which the claim had been submitted but was prepared to acquiesce in the appellant's assertion that it had been submitted on the earlier date. The date on which the claim was submitted was a matter of fact and a matter of record. The hearing before the Labour Court was a de novo hearing and the Labour Court found - as a matter of fact - that the claim had been submitted on 28th November 2013.
9. Moreover, it is apparent that this particular issue is immaterial on the facts of this case. This is because it was not contended by the appellant that any specific act or acts of the respondent upon which the appellant relies were excluded from consideration by the Labour Court by reason of being deemed to have occurred outside the cognisable period on account of the Labour Court's determination of the issue.
10. The Determination records that the appellant submitted to the Labour Court that it ought to extend the cognisable period (being the period in respect of which a claim may be advanced) by a further six months, as permitted by s. 77(5) of the 1998 Act, on the basis that he had been making "strenuous efforts to gather documentation to support his complaint following his dismissal on 5th July 2013."
11. I pause to mention here three things. Firstly, at the hearing of this appeal, the appellant submitted that nowhere in the legislation is the term "cognisable period" used, and he appeared to suggest that usage of the term is an error of some kind. He is correct in his observation that the term does not appear in the 1998 Act, but it is clear that this is a term which has been adopted as a shorthand way of describing the period under the 1998 Act in respect of which a claim may be brought, and it is difficult to understand why the appellant would waste time in cavilling with its use.
12. Secondly the reference by the Labour Court to 5th July 2013 - which appears several times in the Determination and is carried forward into the judgment of the High Court - is clearly in the nature if a typographical error, since the date of dismissal was actually 2nd July 2013. Demonstrably, the error had no impact at all on the substance of the Determination or the judgment of the High Court, but the appellant submitted that it was in the nature of a fraud committed by both, which can only be described as nonsense. In any case, in order to avoid confusion, I will in this judgment at all times refer to the correct date of 2nd July 2013, even when referring to a passage of the Determination or the judgment under appeal where the incorrect date was used.
13. Thirdly, the appellant forcefully and repeatedly argued that the Labour Court erred in its description of the reason why he needed an extension of time, pointing out that he had, on 13th March 2013, prior to his dismissal, made a request of the respondent pursuant to the provisions of the Data Protection Acts, 1988 and 2003, to be provided with a copy of all of his personal data. While the respondent responded to that request, it did not provide all of the appellant's personal data on the grounds - it contended - that this would have involved disproportionate effort. This led to a complaint being made by the appellant to the Data Protection Commissioner, who entered into correspondence with both the appellant and the respondent, and the solicitors for the respondent. Ultimately, the appellant was provided with all of his personal data, but not until 19th December 2013. This was well outside the statutory period for the provision of such data under the Data Protection Acts, which is 40 days from the date of the request, and the Data Protection Commissioner in a decision of 13th August 2014, held that the respondent had contravened s. 4(1)(a) of the Data Protection Acts in not providing the appellant with his personal data within the prescribed statutory period.
14. In light of the appellant's grounds of appeal I will be returning to this last issue in due course. For now it is only necessary to understand the foregoing having regard to the reason which the Labour Court understood to be the basis for the appellant's request to extend the cognisable period under s. 77(5) of the 1998 Act i.e., the failure on the part of the respondent to supply him with his personal data as requested, which the appellant submitted was "reasonable cause" for the purposes of s. 77(5)(b) of the 1998 Act. The respondent, in reply to this submission, submitted that the major proportion of the vast amount of documentation associated with the matter was supplied by the appellant to the respondent rather than vice versa (this is recorded at p. 3 of the Determination), and further submitted that in any case the appellant was not constrained from making a complaint to the WRC by the absence of any documentation.
15. The Labour Court gave careful consideration to this issue on pp. 3 and 4 of the Determination. It referred to a previous Labour Court determination in which this issue had been considered, that being the case of Labour Court Determination Cementation Skanska (formerly Kvaerner Cementation) Limited v. Carroll (WTC/03/2, 28th October, 2003) where the test applied by the Labour Court in that case was set out as follows:-
"It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant's failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case."
16. The Labour Court in this case concluded that "no great degree of documentation" was required by the appellant in order to make his complaint to the WRC as regards any event or occurrence which he believed to constitute discrimination. The court stated:-
"The Court cannot accept that a search for unspecified documentation of unspecified relevance to a complaint of alleged discrimination can constitute reasonable cause for a delay in making a complaint of alleged discrimination. Consequently, the Court makes no direction in accordance with the Acts at s.77(5)(b)."
17. I would add that it follows from the demonstrable fact that the failure of the respondent to provide the appellant with all of his personal data was no impediment to the bringing of the claim when it was brought, that it cannot have been an impediment to the bringing of a claim earlier.
Viewing the Alleged Discriminatory Acts as a Continuum
18. Having reached the decision that it did on the appellant's application to extend the six-month period to twelve months, the Labour Court determined that the cognisable period for the purposes of the appellant's complaint was 29th May 2013 to 28th November 2013. It then proceeded to address the submission of the appellant that he had been victimised and that he had been the subject of a series of discriminatory acts in the period from 2008 until the termination of his employment on 2nd July 2013, and that all the events relied upon by him occurring before 29th May 2013 should be viewed as a continuum of those events occurring within the cognisable period culminating in his dismissal on 2nd July 2013. The respondent opposed this application on the ground that any events occurring before the cognisable period were out of time. In considering this issue, the Labour Court had regard to s. 77(5)(a) of the 1998 Act and also s. 77(6A) thereof which provides:-
"77.(6A) For the purposes of this section–
(a) discrimination or victimisation occurs–
(i) if the act constituting it extends over a period, at the end of the period...."
19. In addressing this issue in the Determination, the Labour Court referred to its own determination in County Cork VEC v. Hurley (EDA 24/2011) which considered the issue as to whether or not events occurring outside the cognisable period of a complaint could be considered to be part of a regime or continuum so as to fall within the jurisdiction of the Labour Court. The effect of this decision was that if an event of discrimination was identified as having occurred within the cognisable period, then the Labour Court could proceed to consider whether events occurring outside of that period could be considered to be part of a continuum or a regime of discrimination.
Consideration of Alleged Discriminatory Acts/Treatment
20. The Labour Court then proceeded to consider the submissions and evidence of the parties regarding the appellant's claims of victimisation and discriminatory treatment in the period from 29th May 2013 to 2nd July 2013. It identified four events/categories of events as follows:
(1) That the appellant was discriminatorily dismissed by the respondent on grounds of race having regard to section 8 of the Act;
(2) That he was victimised within the meaning of the Act;
(3) That he was discriminated against on the race ground in that the respondent failed to promote him; and
(4) That he was discriminated against as regards his remuneration on grounds of his race.
It is stated that the appellant identified three comparators of a different race for the purposes of advancing this complaint.
21. So far as concerns his dismissal, the Determination summarises the appellant's submission and evidence which was to the effect that the respondent failed to afford him fair procedures and natural justice, in particular in the conduct of the Disciplinary Inquiry. However, the Labour Court heard evidence from a Mr. Ted Curran on behalf of the respondent, who had chaired the Disciplinary Inquiry, and who gave evidence that the dismissal of the appellant was for stated reasons and that the Disciplinary Inquiry had been conducted in accordance with the written policies of the respondent, and that he had ensured that the appellant was given a full and adequate opportunity to state his position. He said that it was conducted by personnel who had been selected by the respondent to conduct the inquiry and who had had no previous connection with the matters under consideration. The respondent submitted to the Labour Court that the appellant had identified no connection between any perceived failings in the conduct of the Disciplinary Inquiry (which were in any case denied) and the race of the appellant.
22. So far as pay was concerned, the Determination states that the appellant submitted that in comparison to three named individuals, he was not afforded equal remuneration, contrary to s. 29 of the 1998 Act. The appellant submitted that the alleged failure to afford him equal pay was related to his race.
23. So far as promotion was concerned, the appellant submitted that the respondent had failed to promote him at any time during his employment and that this continued in the period from 29th May 2013 to 2nd July 2013, and the Determination records that he gave evidence in accordance with that submission.
24. The Determination states that the respondent denied any victimisation or discrimination against the appellant so far as concerned pay or promotion, and in particular denied that there was any evidence of any such events occurring in the cognisable period. Insofar as the appellant had relied on comparators, the respondent submitted that the particulars of the earnings of the three comparators relied upon by the appellant demonstrated that the appellant's remuneration exceeded that of each comparator at all material times.
25. The Labour Court then considered the following provisions of the 1998 Act: ss. 6, 29 and 85A(1). Section 6 of the 1998 Act provides, inter alia, that for the purposes of the 1998 Act, discrimination is taken to occur where a person is treated less favourably than another person would be treated in a comparable situation on any of the grounds set out in s. 6(2) of the 1998 Act, and s. 6(2)(f) identifies one of those grounds as being that the persons concerned are of different race, colour, nationality or ethnic or national origins. This is referred to in the subsection as the "race ground".
26. Section 29 of the 1998 Act addresses the entitlement to equal remuneration for like work, and s. 85A(1) thereof provides:-
27. The Labour Court proceeded to consider the implications of s. 85A(1) for the purposes of the appellant's claim, and in this regard referred to its own determination in Southern Health Board v. Mitchell [2001] E.L.R. 201. It noted that for a complainant to invoke s. 85A(1), it is necessary for the complainant to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. The court also stated that it is well settled law that mere assertion cannot be elevated to the status of evidence, and observed that in this instance, the appellant offered no more than mere assertion in support of his contention that the decision to dismiss him was related to his race or ethnic origin and that the respondent did or would have treated other workers of a different race or ethnic origin in a different manner. Therefore, the court concluded, the appellant had failed to identify any causal connection between his race and any alleged failings of process. The court further concluded that the appellant had not presented an example of alleged victimisation or failure to promote him in the period encompassed by his complaint made on 28th November 2013.
28. So far as the appellant's grievance regarding pay is concerned, the Labour Court held that it had been established in the course of the hearing - and that the appellant had accepted (including in the course of his evidence) - that the three named comparators upon whose remuneration the appellant relied for comparison purposes were at all material times in receipt of lesser remuneration than the appellant. Therefore, the Labour Court held, the appellant's claim of discrimination on the race ground in respect of his remuneration must fail. At the hearing of this appeal the appellant denied that he had accepted that the three comparators were at all times paid less than he was. I address this point later in this judgment.
29. Since the Labour Court concluded that the appellant had failed to establish primary facts from which it could be inferred that discrimination of any kind alleged by the appellant had occurred during the cognisable period for the complaint, i.e. during the period of six months prior to 28th November 2013, it further concluded that it must follow that it could not address the contention that events occurring within the cognisable period were part of a continuum of discrimination, and therefore it did not have jurisdiction to entertain complaints made by the appellant relating to alleged acts on the part of the respondent occurring before the cognisable period. All of this led to the Labour Court to conclude that the respondent did not discriminate against the appellant on the grounds of race in contravention of the 1998 Acts at s. 8 or . 29.
Appeal to High Court
30. Appeals to the High Court under s. 90 of the 1998 Act are brought by way of notice of motion. On 14th May 2018, the appellant issued a motion in the High Court seeking an order pursuant to various sections of the 1998 Act referred to in the motion rescinding the findings and conclusions of the Labour Court as set forth in the Determination. The appellant also sought various other orders, including, inter alia, orders for compensation, interest on compensation and reinstatement. The motion was grounded upon an affidavit sworn by the appellant on 14th May 2018.
Grounding Affidavit of Appellant
31. The grounding affidavit of the appellant is not easy to follow. This led the High Court judge to ask the appellant to prepare a summary of the points of law that he was relying upon for the purposes of his appeal to the High Court. Unfortunately, that document was not made available to this Court. I will therefore summarise as best I can the points of law relied upon by the appellant in his grounding affidavit.
32. The appellant claims that the Labour Court violated his right to fair procedures in the conduct of the hearing. He claims that the Labour Court failed to allude to relevant facts, "misconstructed" relevant facts, misconstrued and misinterpreted the law regarding the relevant facts. He complains that the Chairman bullied and harassed him throughout the handling of the appeal.
33. Specifically, the appellant claims that the Labour Court treated him unfairly in denying receipt of his application for an extension of time within which to lodge an equality claim. Somewhat confusingly, he then proceeds to state, at para. 8(f) that the Labour Court offered him an opportunity to make an application for an extension of time, and he avers that he rejected that offer as being dishonest, disrespectful and biased.
34. The appellant claims that he was forced to continue with the hearing on an occasion when he was feeling very unwell, in spite of requesting an adjournment.
35. The appellant avers that the Labour Court erred in failing to treat "numerous related events of discrimination and/or victimization as part of a whole continuous pattern of systematic oppressive practice by an oppressive regime on the grounds of race." As a result, the appellant claims that the Labour Court failed to consider facts relevant to the failure on the part of the respondent to promote him throughout his period of employment as well as numerous incidents of discrimination and victimisation.
36. The appellant claims the Labour Court erred in failing to correct the error on the face of the decision of the Adjudication Officer regarding the date upon which the appellant submitted his complaint to the Equality Tribunal i.e., that he did so on 12th November 2013 and not, as recorded by the Adjudication Officer, on 28th November 2013.
37. The appellant claims that the Labour Court erred as a matter of law in failing to find that the respondent violated his right to fair procedures during the course of the Disciplinary Inquiry.
38. The appellant claims that the Labour Court erred in failing to take account of relevant authorities, specifically: NTOKO v. Citibank [2004] E.L.R. 116, King v. GB China Centre [1991] IRLR 513, A Bank v. Worker (EDA 104) and A Complainant v. A Department Store (DEC-E-2002/017) and North West Thames Regional Health Authority v. Noone [1988] I.C.R. 813 at 822. Specifically, having regard to the dicta of Neill L.J. in King v. GB China Centre (discussed below), the appellant claims that the Labour Court erred in failing to have regard a document produced late by the respondent in which it is stated that the appellant is "not fitting in with culture".
39. The appellant claims that the Labour Court erred in finding that the appellant, in advancing an application to extend the cognisable period under s. 77(5)(b) of the 1998 Act had submitted that the "reasonable cause" upon which he relied was that he had made strenuous efforts to gather documentation to support his complaint following his dismissal on 2nd July 2013, and that this process had led to a delay in the making of his complaint. The appellant quoted from what he claimed he actually submitted to the Labour Court, which (in summary) is that the respondent had failed to provide data in response to a Data Access Request that he had made on 13th March 2013, and that the respondent had thereafter "commenced the final phase of its victimisation plan", and continued to provide access to his data in a piecemeal fashion only between 12th July 2013 and December 2013.
40. The appellant says the Labour Court erred in failing to carry out an inquiry, as requested by the appellant, pursuant to ss. 58 and 59 of the 1998 Act in order to obtain the correct facts regarding the salary of other employees of the respondent, for the purposes of adjudicating upon the appellant's complaint that he was discriminated in his renumeration.
41. The appellant claims that the Labour Court erred in finding that the appellant had accepted that the three named comparators were at all material times in receipt of a lesser remuneration than him. He says that he did "not accept during the said Hearings and at any other time the dishonest and arbitrary evidence provided by the Defendant." The appellant also maintains that he provided more than just three comparators.
42. The appellant says that the Labour Court erred, as a matter of law, in its conclusion that "the Appellant offered no more than mere assertion in support of his contention that the decision to dismiss him was related to his race or ethnic origin and that the Respondent did or would have treated other workers of a different race or ethnic origin in a different manner". In arriving at this conclusion, the appellant says that the Labour Court erred because it did not have regard to the principle of equal treatment as provided for in article 2 of Council Directive 2000/43/EC, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. He claims that he submitted to the Labour Court that the chairman of the respondent's disciplinary panel would not have treated unfavourably persons of the chairman's own racial or ethnic origin, including unfair dismissal, in the same way as he had treated the appellant.
Replying Affidavit of Ms. Catherine Hayes on behalf of the Respondent
43. In a replying affidavit sworn by Ms. Catherine Hayes, solicitor of Lewis Silkin, Solicitors for the respondent, the respondent denies that appellant was subjected to any discrimination by the respondent and contends that the Labour Court did not fall into error either in the manner in which the appeal hearing was conducted or in its interpretation of the law or the facts which it adopted in reaching the Determination.
44. Ms. Hayes stands over the procedures followed by the Labour Court and avers that the manner in which the hearing was conducted by the Labour Court was fair and that all parties were afforded ample opportunity to put their case fully before the court. She acknowledges that the appellant cited the authorities referred to in his grounding affidavit in his written submissions to the Labour Court.
45. Ms. Hayes avers that during the course of the hearing, the Labour Court clarified to the appellant that the case before it was not an unfair dismissal claim, and, on that basis, the appellant was invited to relate any perceived procedural unfairness in the conduct of the Disciplinary Inquiry to discrimination on grounds of race or to submit evidence which would support a prima facie conclusion that his treatment during the disciplinary process was not merely unfair, but also discriminatory. She avers that it is the respondent's case that the appellant did not point to any prima facie evidence of discrimination within the Disciplinary Inquiry.
46. Ms. Hayes denies any unfairness in the conduct of the Disciplinary Inquiry and specifically denies that Mr. Curran was in any way influenced by the appellant's race.
47. Ms. Hayes avers that it is apparent that the appellant does not accept the Labour Court's finding of fact that the appellant had failed to establish primary facts from which it could be inferred that discrimination has occurred during the cognisable period, and further avers that these are not properly matters for consideration in the context of an appeal on a point of law.
48. In relation to the appellant's allegation that the Labour Court refused him an adjournment on health grounds during the hearing on 16th January 2018, Ms. Hayes says that this is incorrect. She avers that the appellant sought a break in the proceedings which he was granted. When the hearing resumed however, the appellant said that he still had a headache and the appellant then sought an adjournment and, Ms. Hayes avers, it was granted "for the asking" with no resistance from the respondent.
49. Ms. Hayes avers that while the respondent did not object to the application of the appellant to amend the date of presentation of his complaint to 12th November 2013, the respondent had no special knowledge as to the correct date. In any case, Ms. Hayes avers, nothing turns on this issue because the appellant had not provided evidence of any specific acts of discrimination occurring between 13th May 2013 and 29th May 2013.
50. Ms. Hayes avers that insofar as the appellant relies upon ss. 58 and 59 of the 1998 Act, these were repealed by s. 7 of the Irish Human Rights and Equality Commission Act, 2014, the relevant provisions of which came into operation on 1st November 2014, long before the appellant made an application by email to the Labour Court in reliance upon the same in 2018.
51. Ms. Hayes further avers that the Labour Court addressed the appellant's equal pay claim in a fair and thorough manner, by way of a de novo hearing. So far as comparators are concerned, Ms. Hayes avers that the respondent submitted to the Labour Court that only three of the employees referred to by the appellant were appropriate comparators and that the salary details of those employees, as provided by the respondent, demonstrated that they were paid less than the appellant at the relevant dates. Ms. Hayes avers that the appellant's complaint under this heading also relates to a finding of fact made by the Labour Court within jurisdiction on the basis of available evidence, and is not therefore properly a matter for consideration in the context of an appeal on a point of law.
52. While further affidavits were exchanged by the parties prior to the hearing in the High Court, nothing of any substance for the purposes of this appeal is raised by those affidavits and there is no need to explore the contents of the affidavit evidence in any detail, not least as no submissions of the parties were specifically directed to the contents of the same.
Judgment of the High Court
53. Having first considered the jurisdiction of the Court in appeals on a point of law, as summarised above, the High Court judge considered the appellant's argument that the Labour Court erred in its treatment of the Preliminary Issue. In his consideration of this issue, the High Court judge referred to the submissions of the appellant from which he quoted verbatim as follows:-
"(a) The Labour Court disproportionately failed to apply fair procedures and consequently erred in the determination of the preliminary issue pursuant to s. 77(5)(a) and s. 77(5)(b) of the Acts 1998 to 2011. North West Thames Regional Health Authority v. Noone [1988] ICR 813 at 822.
(b) The Labour Court disproportionately failed to apply a fair procedure and in this regard failed or refused to consider the precise fact or law in relation to the reasonable cause requirement which I submitted and in this regard, the Labour Court disproportionately erred on its failure to document the precise reason I submitted in relation to my application for extension of time... ."
54. The High Court judge also noted that the appellant sought to rely on s. 71 of the Statute of Limitations, 1957, which provides that where, in the case of an action for which a period of limitation is fixed by that Act, the right of action is concealed by the fraud of the defendant or his agent, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.
55. The High Court judge dealt with the Preliminary Issue very briefly, holding, at para. 20 of the judgment under appeal that the Labour Court had referred in the Determination to the relevant sections of the 1998 Act and also to an earlier decision of that Court which sets out the appropriate test. The judge observed that in his submission, the appellant had identified no point of law where the Labour Court fell into error. The judge also said that the provisions of the Statute of Limitations, and any authorities relating to the same had no relevance to the matters in issue.
56. The High Court judge then proceeded to address the appellant's argument that the Labour Court had erred in failing to treat events relied upon by the appellant and occurring prior to the "cognisable period" as forming a continuum with events occurring within the cognisable period, culminating in the dismissal of the appellant. The judge again noted that the Labour Court had had regard to the relevant statutory provisions (ss. 77(5)(a) and 77(6)(a) of the 1998 Act) and to an earlier decision of its own in which this issue was considered (although not specifically mentioned, the High Court judge was referring here to Cork City Council v. Hurley (EDA 24/2011). Noting that the Labour Court concluded that it must first consider whether an act or acts of discrimination occurred within the cognisable period for the complaint before it could consider whether events outside of that period could be considered to be part of a "continuum" or regime of discrimination, the High Court judge held that the approach adopted by the Labour Court was in accordance with the relevant statutory provisions and was also consistent with its own earlier decisions. The judge stated that the appellant had not identified any point of law indicating an error on the part of the Labour Court in its approach to this issue.
57. The judge then proceeded to consider the application by the Labour Court of its approach to the issue to the events complained of by the appellant, i.e.:
(1) That he was discriminatorily dismissed by the respondent on grounds of race, having regard to s. 8 of the 1998 Act;
(2) That he was victimised within the meaning of the 1998 Act;
(3) That he was discriminated against on the ground of race in that the respondent failed to promote him; and
(4) That he was discriminated against as regards his remuneration on grounds of his race.
The judge noted that in the Determination the Labour Court had stated that the appellant identified three comparators of a different race for the purposes of advancing this complaint.
58. The High Court judge stated, at para. 25 of his judgment, that in his submissions to that Court, the appellant had not identified any basis upon which the High Court could interfere with the findings of the Labour Court on the various complaints. The judge noted that both the appellant and the respondent had adduced evidence establishing that, during the course of the hearing before the Labour Court, the appellant was afforded the opportunity to cross examine the witness called on behalf of the respondent.
59. The judge further observed that the Labour Court had correctly identified the relevant provision of the 1998 Act in which "discrimination" is defined i.e., s. 6 and the judge referred to the passage of the Determination in which the Labour Court observed that it is well settled law that mere assertion cannot be elevated to the status of evidence.
60. The judge held that in his submissions to the High Court, the appellant had not identified any facts that would suggest that the findings of the Labour Court were irrational or unreasonable. So far as the issue of equal pay was concerned, the judge noted in particular that the Labour Court found that the comparators relied upon by the appellant had at all material times been in receipt of lesser remuneration than the appellant. The judge stated that the appellant had not put before the High Court any facts concerning the three comparators to suggest that the finding of the Labour Court in this regard was irrational or unreasonable.
61. The judge concluded by stating that he was satisfied that the appellant had not identified any points of law such as would permit the High Court to uphold his appeal, and for that reason he dismissed the appeal.
62. Finally, the judge held that there was no basis for a request made by the appellant in his submissions to the Court to refer a question to the European Court of Justice ("ECJ") concerning the interpretation of: "European Union (EU) Treaty Articles and interpretation and validity of EU Regulations and Directive (Article 267, TFEU) in relation to the acts and omissions of: ... the Labour Court... ."
Notice of Appeal
63. The appellant's notice of appeal runs to 45 pages the content of which is, for the most part, densely configured. While there are 15 grounds of appeal, unsurprisingly, given the number of pages, there are multiple sub-grounds. He seeks 27 Orders, some of which are also divided into multiple sub grounds. He concludes by asking this Court to refer no fewer than 33 questions to the ECJ. The appellant's submissions exceed the normally permitted number in such matters by almost 2,000 words. His affidavit grounding his notice of motion to the High Court runs to 16 densely packed pages. By contrast, the Determination runs to just a little more than 10 pages and the judgment of the High Court judge similarly runs to just a little more than 10 pages.
64. I mention all of this not by way of complaint but to illustrate the difficulty that this appellant has in seeing the wood from the trees. While I am not intending to suggest that there must always be some form of rigid proportionality between the length of a court decision on the one hand and a notice of appeal on the other, nonetheless it is unhelpful and frustrating in the extreme for both the Court and the other parties to the litigation alike to be faced with grounds of appeal that are not just prolix by comparison to the concise and succinct judgment under appeal, but also steer a course between impenetrable and incomprehensible. This is not to mention that the notice of appeal is littered with gratuitously offensive and scandalous comments about the Labour Court and the High Court judge, as indeed are all of the documents produced by the appellant in connection with the appeal. While the appellant is quite clearly an intelligent person who has put a great deal of time and effort into his notice of appeal and submissions, and has gone to great effort to identify relevant authorities, it is, to put it mildly, highly regrettable that he is unable to restrain himself when committing words to paper, both in volume and in content.
65. The upshot of the appellant's approach to the presentation of his case is that it is extremely difficult to identify precisely what are his grounds of appeal. The appellant should not be surprised by these observations because this has happened twice already in these proceedings. The Labour Court required him to prepare a five-page summary of his case (to which direction he took exception) and the High Court judge required him to identify the points of law which he was relying upon for the purposes of his appeal to that Court.
66. At this point I propose to summarise what I understand to be the appellant's main grounds of appeal as appearing in his notice of appeal and in his submissions. As I understand it, the principal points advanced in the appellant's grounds of appeal are:
(1) The High Court judge erred in failing to establish primary facts;
(2) The High Court judge failed to draw appropriate inferences from the facts;
(3) The High Court judge erred in his in his determination of the Preliminary Issue and in holding that the cognisable period for the purpose of s. 77(5)(a) of the 1998 Act was the period between 29th May 2013 to 28th November 2013 instead of 3rd January 2013 to 2nd July 2013;
(4) The High Court judge erred in failing to extend the cognisable period to the 12-month period prior to the date of the last incident of discrimination i.e., his dismissal on 2nd July 2013;
(5) The High Court judge erred in his determination of the test of reasonable cause for purpose of his application to extend time under s. 77(5)(b) of the 1998 Act, and in applying the test formulated by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) Limited v. Carroll;
(6) The High Court judge erred in failing to identify the precise reason that the appellant offered for reasonable cause which he claims was set out by him in paras. 8(e), 8(f), 8(g) and 8(r) of his grounding affidavit;
(7) The High Court judge erred in failing to apply s. 71 of the Statute of Limitations, 1957 as interpreted by the Supreme Court in Gough v. Neary [2003] IESC 39;
(8) The High Court judge erred in his interpretation of s. 77(6) of the 1998 Act and in failing to conclude that the respondent acted fraudulently in concealing evidence that the appellant was deemed as "not fitting with culture";
(9) The High Court erred in failing to determine that the appellant had been victimised in a series of incidents particularised by the appellant, which incidents are alleged to have occurred between 6th December 2012 and 12th March 2013;
(10) The High Court Judge erred in his interpretation of s. 77(6A) of the 1998 Act and in failing to hold that there was a continuum of incidents of discrimination from the date the appellant's contract of employment of 11th December 2007 up to the date of his termination of his employment;
(11) The High Court judge erred in applying retrospectively the 2015 Act;
(12) The High Court judge was biased and failed to apply fair procedures. The appellant goes so far as to accuse the High Court judge of victimising the appellant with "pernicious harassments, discriminatory and unfair treatments.";
(13) The High Court judge erred in failing to consider the discriminatory conduct of the respondent in matters related to his contract of employment, pay and promotion;
(14) The High Court judge erred in failing to hold that the respondent acted in violation of fair procedures in the conduct of the Disciplinary Inquiry and in particular in preventing the appellant from cross examining essential witnesses by not making them available to the appellant for that purpose;
(15) The High Court judge erred in failing to apply a range of authorities relied upon by the appellant, including those already referred to above;
(16) The High Court judge erred in failing to apply articles 2, 3, 8 and 9 of Council Directive 2000/43/EC.
67. The appellant concludes his notice of appeal by asking this Court to refer 33 questions for determination by the Court of Justice of the European Union ("CJEU").
68. In thus summarising the appellant's very lengthy grounds of appeal, I recognise that it is possible that there are omissions, but such a summary is necessary in order to identify and bring some coherence to what is really at issue in the appeal. Having given careful consideration to the notice of appeal and to the appellant's submissions to this Court, written and oral, I believe that the above represents a fair and accurate summary of his grounds of appeal. While, as one might expect in an appeal such as this, there is a substantial overlap between these grounds of appeal, and his grounds of appeal to the High Court, it is apparent that they are not identical. That said, I think it is fair to say that, in general, and perhaps inevitably, the appellant is of the view that the High Court judge erred in more or less the same manner as the Labour Court in his consideration of the issues and in arriving at the conclusions that he did.
Discussion and Decision
The Preliminary Issue
69. In ground of appeal 3(c) the appellant claims that the High Court judge erred in failing to consider various subsections of the Statute of Limitations (Amendment) Act, 1991, and s. 11 of the Statute of Limitations, 1957 (the "1957 Act"), none of which have any application at all to claims under the 1998 Act. He places particular reliance on s. 71 of the 1957 Act which addresses concealment of causes of action for which a period of limitation is fixed by the 1957 Act. Clearly, this section has no application either, as the limitation period for the issue of proceedings under the 1998 Act is fixed by the 1998 Act, and not by the 1957 Act. This is so clear that it is surprising that the appellant persists with the point.
70. At ground of appeal 3(i), the appellant claims that the High Court judge misdirected himself and erred in law in accepting the test applied by the Labour Court to this issue, as per its own previous decision in Cementation Skanska (formerly Kvaerner Cementation) Limited v. Carroll, which, he claims, the Labour Court applied without considering the "precise fact" that he had submitted constituted reasonable cause for the purpose of s. 77(5)(b) of the 1998 Act. He claims that the Labour Court, and then the High Court, erred in concluding that the reason he relied upon was the fact that he spent a considerable period of time seeking and securing documentation from the respondent. He claims that the actual reason he relied upon is to be found at paras. 8(r), 8(g), 8(f) and 8(e) of his grounding affidavit sworn in support of his appeal to the High Court in order to support his complaint of discrimination. Although paras. 8(e) and 8(f) refer to other complaints the appellant had regarding his application for an extension of time, they do not address this issue at all. Paragraph 8(r) cross refers back to para. 8(g) and the text relied upon is as follows:-
"I did not possess the data and/or evidence within the Respondent's remit, control, viewpoint, jurisdiction and disposal upon which to make the equality claim and also, the Respondent consciously misrepresented the case in that it failed to render Data including a Data Access Request dated 13th March 2013. As per my clear submission, the Defendant had commenced the final phase of its victimization plan (in Exhibit 38 starting with its prior act in Exhibit 39) on 19th Day of April 2013 (as per its 168 page Exhibit 86) instead of rendering me all Data requested within the statutory period of 40 days from my request. The Defendant continued to render in a piecemeal fashion the Data requested starting from in or around the 12th July 2013 till December 2013 after its last act of discrimination and/or victimization e.g. The evidence alluded to on Equal Pay i.e. in Exhibit 9, was received in around early November 2013."
71. It is difficult to see this as anything other than a claim by the appellant that he could not make his claims any sooner than he did because he was trying to obtain documentation from the respondent, through his data access request, before he could formulate, serve and file his claims. While the appellant does refer here by way of example, to one specific document, received in early November 2013, he fails to explain, and did not do so in his submissions, written or oral to this Court, why the absence of that document or any other document prevented him from serving his claims any sooner than he did. Or, to put it another way, he has failed to identify any element of the claims made by him that could not have been constructed without this document, or any other of the documents that he eventually received from the respondent.
72. The appellant advanced to the High Court judge the same argument that he had advanced to the Labour Court - that he had reasonable cause within the meaning of s. 77(5)(b) of the 1998 Act for not filing his complaint any sooner than he did because of the failure of the respondent to comply with its statutory obligations under the Data Protection Acts, and that in failing to so conclude both the Labour Court and the High Court erred as a matter of law. However, he does not engage with the rationale of the Labour Court, which was affirmed by the High Court, that in order to establish reasonable cause, there must be "a causal link between the circumstances cited and the delay" in bring forward his claim. This can scarcely be doubted. To permit an extension of the cognisable period without such a causal link would be to abandon altogether the requirement for reasonable cause. Moreover, the appellant has not identified any authority which identifies or applies a different test to that applied by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) Limited v. Carroll, or which would suggest that that decision of the Labour Court is unsound as a matter of law.
73. While the appellant maintains that the respondent was responsible for the delay because of its failure to comply fully with the appellant's data access request, ultimately the respondent did so comply, and the appellant has not identified any specific documents received in response to his request that he claims were necessary for him to bring forward his claim. Had he done so, the Labour Court might have considered whether the documentation relied upon revealed information critical to the identification of the claim advanced i.e., without which the appellant could not have known that he had a claim at all, or alternatively that the documentation was essential to the any claim having a reasonable prospect of success, amounted to reasonable cause for the purposes of s. 77(5)(b). However, in view of the fact that the appellant submitted his claim to the WRC long before he got all of his data, it is at least very difficult to see any causal connection between the filing of the claim and the appellant's data access request.
74. In my judgment the Labour Court was clearly entitled to have come to the conclusion that the claims advanced by the appellant did not require "any great degree of documentation" and the appellant did not even attempt to explain why this conclusion of the Labour Court was erroneous, still less to identify any error of law which would have justified the intervention of the High Court.
75. For all of these reasons, I consider that the High Court judge was correct to dismiss the appellant's appeal under this heading, and it follows that all grounds of appeal to this Court relating to the Preliminary Issue should be dismissed.
The "Continuum Issue"
76. The appellant submits that the trial judge erred in not treating with events occurring upwards of six months prior to the submission of the claim as being reckonable having regard to both s. 77(5)(a) and s. 77(6A) of the 1998 Act. However, other than referring to the section and re-iterating that these sections permit of the consideration of events occurring more than six months prior to the submission of a claim, the appellant does not cite any authority for his argument or engage with rationale of the Labour Court in its approach to this issue, which was, per Hurley, to consider whether any acts of discrimination occurred within the six months prior to referral of the claim before it could consider whether events outside of that period could be considered to be part of a continuum or regime of discrimination so as to be capable of being brought within the jurisdiction of the court.
77. The analysis of this issue in the judgment of the High Court is to be found at para. 24 thereof. At the hearing of this appeal, the appellant was asked in what manner he submitted the High Court judge erred. He responded that both the Labour Court and the High Court judge had erred in their treatment of this issue by failing to investigate the facts properly. As far as the High Court is concerned, this is of course a misunderstanding of its function in an appeal on a point of law, in which its consideration of matters of fact is limited as discussed in Deely and other authorities.
78. The approach adopted by the Labour Court in Hurley was endorsed by the Supreme Court in Louth VEC v. Brannigan [2016] IESC 40, upon which the respondent relies. In Brannigan, McKechnie J. held as follows at paras. 23 - 25:-
"23. At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances (County Cork VEC v Hurley EDA1124 (Labour Court, 26th July, 2011)). Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision's more general meaning. In such a case the six month period [for] initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.
24. On the other hand, s. 77(5)(a) of the 1998 Act deals with a situation in which there are a series of separate acts or omissions on the part of, say, an employer, which, whilst not forming part of a regime, rule, practice or principle ("regime or practice"), are sufficiently connected so as to constitute a continuum of discrimination. In effect, this deals with a situation whereby there are separate manifestations of the same disposition to discriminate (Bolger, Bruton and Kimber, Employment Equality Law (Dublin, 2012) at para. 16–47). In such a case, once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time.
25. At the level of principle, therefore, where such a regime or practice exists or where a sufficient linkage can be established between separate acts, it is possible to plead matters which have occurred on a date or dates far beyond the six month period. In theory, such could extend for several years prior to the date of complaint. Even if that should occur, however, provided that the circumstances intended to be covered by the subsections are established, all such incidents will be regarded as being within time and thus will be within the competence of the Equality Tribunal to investigate for redress purposes. However, one should note the specific provisions of s. 82(1) of the 1998 Act in respect of the periods for which compensation may be given."
79. It is therefore clear from Brannigan that the approach adopted by the Labour Court in Hurley was correct, and that it was correct to apply that approach to the appellant's complaints. Moreover, if the appellant's argument were to be accepted, this would have the effect of substantially undermining the six-month time limit prescribed in s. 77(5), as it would lead to a situation where an event or events with no identifiable link to an event occurring within the six-month period prior to the making of a complaint could form the basis of a complaint. This could not have been the intention of the Oireachtas. In my view, the High Court judge was correct to conclude that the approach of the Labour Court was in accordance with the 1998 Act and that the appellant had not identified any point of law under this heading indicating an error on the part of the Labour Court.
80. The appellant also relied upon article 8(5) of Council Directive 2000/43/EC (the Race Equality Directive). Article 8 appears under the heading "Burden of proof", and article 8(5) must be read in conjunction with article 8(1). These articles provide:-
"1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case."
81. Article 8 was implemented in this jurisdiction through the insertion (by s. 38 of the Equality Act, 2004) of s. 85A in the 1998 Act. Article 8(5) is clearly optional and has no application in this jurisdiction in circumstances where the State has chosen to give effect to article 8(1) through the passing into law of s. 85A of the 1998 Act, which is for the benefit of claimants.
Authorities relating to Claims of Discrimination
82. The appellant relies on the authorities referred to at para. 38 above. He complains that the High Court judge erred in failing to have regard to these authorities. Before embarking upon a consideration of the grounds of appeal relating to events alleged to have occurred during the cognisable period, it would be helpful at this juncture to consider some of those authorities as well as some authorities relied upon by the respondent.
83. In his notice of appeal, and in his oral submissions to this Court, the appellant cited the following passage from the judgment of May L.J. in North West Thames Regional Health Authority v. Noone:-
"It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an inadequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds."
84. In Noone the complainant, a national of Sri Lanka, had applied for a vacancy as a consultant microbiologist in Ashford Hospital laboratory. The evidence established that her qualifications were superior to those of the other applicants, who were, to use the word used in the judgment "indigenous". There was evidence that those involved in making the appointment were concerned that the successful applicant should "fit in" to the laboratory. The complainant won her case in the Court of Appeal.
85. The appellant also places reliance upon a later decision of the Court of Appeal of England and Wales in the case of King v. Great Britain China Centre (op. cit) in which Neill L.J., following a review of relevant authorities (including Noone) identified the following principles as being applicable to claims of racial discrimination under the Race Relations Act, 1976 in the United Kingdom:-
"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption 'he or she would not have fitted in'.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw....
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone, 'almost common sense'.
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
86. In King the majority of the Industrial Tribunal found that it was unarguable that the complainant had been less favourably treated than other candidates in a job application and that there was a difference (with other candidates) in race. The Tribunal majority concluded that the respondent had failed to demonstrate that the applicant had not been treated unfavourably or that such unfavourable treatment was not because of her race. This led the Tribunal to conclude that the complainant had been discriminated against because she did not come from the "same, essentially British academic, background" as the existing staff. In his conclusion, Neill L.J. held:-
"In the end I am quite satisfied that reading the relevant parts of the reasons as a whole the majority's decision was not flawed by an error of law. They clearly had in mind that it was for Miss King to make out her case: see the reference to Noone in paragraph 8 of the reasons. They were entitled to look to the centre for an explanation of the fact that Miss King was not selected for interview. They were not satisfied with the explanation and they were entitled to say no. It was therefore legitimate for them to draw an inference that the discrimination was on racial grounds. This process of reasoning did not involve a reversal of the burden of proof but merely a proper balancing of the factors which could be placed in the scales for and against a finding of unlawful discrimination."
87. King was referred to in the decision of the Labour Court in Ntoko v. Citibank (op. cit) upon which the appellant also relies. In Ntoko the Labour Court observed that the approach summarised by Neill L.J. in King had been adopted in this jurisdiction in a decision of the High Court (Quirke J.), Davis v. Dublin Institute of Technology (Unreported, High Court, Quirke J., 23rd June, 2000).
88. In the course of its decision in Ntoko, the Labour Court, in a passage relied upon the appellant, stated as follows:-
"Flexo Computer Stationery v. Colton [an earlier decision of the Labour Court] is but one in a line of decisions of this Court which held that where a complainant establishes facts from which discrimination may be inferred it is for the respondent to prove that there has been no infringement of the principle of equal treatment. The Court normally requires the complainant to establish the primary facts upon which the assertion of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination (see Mitchell v. Southern Health Board [2001] E.L.R. 201).
This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent's capacity of proof."
89. In Ntoko the complainant had been dismissed summarily for making a personal phone call at work, contrary to the respondent's staff handbook. However, the evidence established that the prohibition was not routinely enforced, and no other individual had ever been disciplined for making a personal call simpliciter. Indeed, the evidence established also that two other employees were making personal calls at the same time as the complainant. The Labour Court was satisfied that the complainant had proved as a matter of probability that he was singled out for special unfavourable treatment by his manager, and that another employee of a different racial origin would not have been so treated. The Labour Court was of the view that those facts were of sufficient significance to raise a presumption of discrimination. It was not satisfied with the respondent's explanation, and the court was therefore satisfied that the respondent in that case had failed to satisfy the Labour Court that the respondent's decision to dismiss the complainant was not racially motivated. For those reasons the complainant in that case succeeded.
90. It is readily apparent from the above summaries of Ntoko, Noone and King that they are distinguishable in a material way from the instant case, because in each case there was clear evidence of discrimination. Ntoko is particularly analogous, involving as it does a case of dismissal. There the complainant was in a position to adduce evidence that the very same conduct that gave rise to his dismissal had not given rise to any disciplinary action in the case of other employees of different racial origin. There was no equivalent evidence given by or on behalf of the appellant. He relies on alleged procedural irregularities in the Disciplinary Inquiry, on the fact of his dismissal and on his race, but the essential evidence of discrimination or of facts from which discrimination may be inferred is absent.
91. This is also in contrast to the facts of another case relied upon by the appellant, that of Campbell Catering Ltd. v. Aderonke Rasaq [2004] E.L.R. 310. In Campbell, the claimant, a native of Nigeria, had been summarily dismissed for taking food from the workplace contrary to the employer's rules. The Labour Court found that it was normal practice to afford employees accused of serious misconduct fair procedures in the investigation of allegations against them. It found as a fact that the claimant had not been accorded such fair procedures and that she was, therefore, treated less favourably by the respondent than other employees. The Labour Court concluded that that finding was sufficient in itself to shift the probative burden to the respondent employer to show that the claimant had not been discriminated against on grounds of race. In the course of its decision, the Labour Court stated:-
"Before the claimant can succeed in her claim, the Court must be satisfied that she was treated less favourably than a comparator of a different racial origin is, was, or would be treated in similar circumstances... ."
The Labour Court considered Ntoko and the passage which I have already cited above in which it stated that normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach. It also noted that its decision in Mitchell v. Southern Health Board, established that a claimant bears the onus of proving facts from which discrimination may be inferred.
92. It is difficult to see how the decision of the Labour Court in Campbell is of any assistance to the appellant. While he has referred to it as authority for the proposition that a failure to afford a claimant fair procedures in an investigation of misconduct could amount to discriminatory treatment, the decision of the Labour Court on this issue in this case was that the appellant had offered no more than mere assertion that the decision to dismiss him was related to his race or ethnic origin, and that he had not identified any causal connection between his race and any alleged failings of process in the Disciplinary Inquiry. In other words, even taking the appellant's case at its height i.e., that there were procedural deficiencies in the conduct of the Disciplinary Inquiry, there was no evidence at all that suggested that those deficiencies were in any way linked to the appellant's race or that a person of different racial origin would have received more favourable treatment.
93. The respondent relies upon two decisions of the Labour Court, Cork City Council v. McCarthy (EDA 21/2008) and Valpeters v. Melbury Developments Limited [2010] E.L.R. 64. In McCarthy, in addressing a claim of discrimination on grounds of age, the Labour Court considered the impact of s. 85A of the 1998 Act on the burden of proof in complaints of discrimination and stated:-
"The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination in Mitchell v Southern Health Board [2001] ELR 201. That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his case cannot succeed."
94. In Valpeters, the Labour Court was required to consider a claim for discrimination brought by a Latvian national against his employer that he had been treated less favourably than an Irish worker would have been treated insofar as he had been treated as a self-employed sub-contractor, that he had received no written contract of employment, no pay slips, no health and safety training and that he had ultimately been dismissed from his employment without being afforded the benefit of any of the procedures which would have been available to a worker of Irish nationality. In considering the complaints, the Labour Court had regard to the effect of s. 85A of the 1998 Act, and reiterated that in the first instance a complainant must establish facts from which discrimination may be inferred. It stated that these facts must be based on credible evidence, and continued as follows:-
"Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule."
Alleged Events of Discrimination within the Cognisable Period
95. In the opening paragraph of his written submissions to this Court, the appellant says that "This is a facts-dependent Council Directive ("Directive") 2000/43/EC and Employment Equality Acts, 1998 to 2011... appeal of the Findings of Primary Facts, Conclusions and Determinations of The High Court". At para. 8 of his written submissions, the appellant identifies as one of the matters to be determined in the appeal "The establishment of an unbiased and impartial Findings of Primary Facts in relation to Defendant's continuous multiple patterns of racist harassments, discriminatory treatments and victimisations that I submitted."
96. Given that the appeal to the High Court is on a point of law only, it is somewhat surprising that the appellant should describe this appeal as being a facts-based appeal. Later in his written submissions, the appellant devotes eleven consecutive pages to allegations of fact regarding the alleged conduct of the defendant in respect of which the High Court judge made no findings whatsoever. That the High Court judge made no findings in respect of these matters is hardly surprising in an appeal to the High Court on a point of law only, and it is certainly not an error on the part of the judge. However, the appellant submits that the High Court judge failed to draw "reasonable Conclusions from an unbiased Findings [sic] of Primary Facts" and further erred "on the establishment of an unbiased Findings of Primary Facts". Of course, it is stating the obvious that in order to draw inferences from facts it would have been necessary for the High Court to have made findings as to facts in the first place, and since the High Court judge made no findings as to facts the question of drawing inferences from facts does not arise.
97. However, to be as fair as possible to the appellant, so far as matters of fact are concerned I think it is probably correct to say that his main grievance with the judgment of the High Court is that, in his submission, the High Court erred in failing to find that the Labour Court erred in failing to find as proven the facts upon which the appellant relies in support of his allegations of victimisation and discrimination, and in failing to draw from those facts inferences of victimisation and discrimination.
98. In general, the appellant submits that the facts upon which he relies establish that he was paid less than others whom he identified as comparators; that he was not promoted when he should have been, in spite of having previously received performance awards from the respondent; and that he was dismissed following a disciplinary hearing during which, on account of his race, he was denied fair procedures. As I understand his argument, it is that, as a matter of law, the High Court erred in failing to find these facts because a reasonable decision maker should have found those facts on the available evidence. It is the obverse of the first principle in Deely, which is that, in an appeal on a point of law, a court may set aside findings of primary fact in respect of which there is insufficient evidence or no evidence at all.
99. So far as his dismissal is concerned, it is necessary to bear in mind that, as was pointed out to the appellant by the Labour Court, he did not bring a claim for unfair dismissal, notwithstanding that it was open to him to so on such grounds as he saw fit, without assuming the burden of establishing facts from which it might have been inferred that he was dismissed by reason of race. In a claim for unfair dismissal, once the fact of dismissal was established, the onus would have been on the respondent to satisfy the Labour Court that the dismissal was fair. However, the appellant chose to limit his dismissal claim to one of discrimination contrary to ss. 6 and 8 of the 1998 Act i.e., that he was "discriminatorily dismissed". The consequence not claiming unfair dismissal under the Unfair Dismissals Act, 1977, and instead claiming that his dismissal was an act of discrimination contrary to ss. 6 and 8 of the 1998 Act, was that the burden of proving that his dismissal from employment was an act of racial discrimination rested with the appellant himself.
100. The appellant contends otherwise however, and in this regard he relies on s. 85A(1) of the 1998 Act, which, it will be recalled, provides:-
"85A.(1). Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
101. So far as his dismissal is concerned, I understand the appellant to rely on alleged procedural unfairness at the Disciplinary Inquiry as being evidence of discrimination. The unfairness relied upon by the appellant before the Labour Court included allegations that he was denied the opportunity to cross-examine certain personnel of the respondent, that he was not provided with enough time to prepare for the hearing, and that new allegations were made at a late stage further depriving him of the opportunity to prepare and respond. All of these allegations were denied by the respondent. The Labour Court heard evidence about all of this including evidence from Mr. Curran that the Disciplinary Inquiry had been carried out in full compliance with the respondent's procedures. However, it did not arrive at any conclusion about these matters in the Determination. Instead, it concluded:-
"It is well settled law that mere assertion cannot be elevated to the status of evidence. In this case the Appellant offered no more than mere assertion in support of his contention that the decision to dismiss him was related to his race or ethnic origin and that the Respondent did or would have treated other workers of a different race or ethnic origin in a different manner. The Appellant is clearly dissatisfied with the conduct by the Respondent of the procedures used to arrive at the decision to dismiss him. The Court cannot find however that the Appellant has identified any causal connection between his race and any alleged failings of process."
102. As I have already said above, what this means is that, even taking the appellant's case at its height, and assuming there was some unfairness in the conduct of the Disciplinary Inquiry, there was no evidence at all that suggested that those procedural deficiencies were in any way linked to the appellant's race or that a person of different racial origin would have received more favourable treatment. The appellant has not identified any facts that would engage s. 85A of the 1998 Act.
103. In his consideration of this issue, the High Court judge stated that the appellant had identified no facts as would suggest that the findings of the Labour Court were irrational or unreasonable. In my view it is beyond doubt that the High Court judge was correct in so holding and the appellant's appeal under this heading must be dismissed.
104. The appellant runs into much the same difficulties in regard to his claims of discrimination regarding pay and promotion. It must be borne in mind that in this regard it was necessary for the appellant to provide evidence of discrimination in these matters in the six months prior to the making of his claim. So far as promotion is concerned, this would have required him to demonstrate that during that period he was overlooked for promotion. He provided no such evidence.
105. Similarly, so far as pay is concerned, it would have been necessary for him to provide evidence that during this period he was paid less than others of the same grade. In its conclusion on this issue, the Labour Court stated that the appellant had accepted that the three comparators upon which he relied were, at all material times, in receipt of lesser remuneration than him. The appellant denies making any such admission in his affidavit grounding this appeal. Whether he made this admission or not, it is apparent that the Labour Court found that the comparators offered by the appellant were paid less than he was at all material times. This is a finding of fact, and not a matter of law, and unless the appellant could demonstrate, with clarity, that this was not a finding which any reasonable tribunal could arrive at on the evidence before it, then it is not amenable to review in a hearing on a point of law. The appellant has not even come close to demonstrating this.
106. It follows from the above that those grounds of appeal relating to discrimination in matters of pay and promotion must also be dismissed. Since the appellant's claim of victimization was contingent upon him succeeding with other elements of his claim, this too must be dismissed.
Retrospective Application of the 2015 Act
107. The appellant claims in his grounds of appeal that the High Court judge erred in applying to his appeal, retrospectively, the amendments to the 1998 Act made by the Workplace Relations Act, 2015. This is slightly surprising in circumstances in which the appellant's High Court notice of motion and grounding affidavit referred to the 2015 Act. The 2015 Act was passed into law on 20th May 2015, and by 1st October 2015, most of its provisions had been commenced. This had the effect of changing the procedures applicable to appeals from decisions of an Adjudication Officer (previously an Equality Officer) and the appellant's appeal to the Labour Court was processed under the new procedure. In so far as the High Court judge referred to the "Acts" as including the 2015 Act, it is apparent to any sensible reader of his judgment that he was doing no more than reflecting that the architecture for the handling of such appeals had been changed, by the 2015 Act. There is no question of any interference with rights enjoyed under the legislation before the enactment of the 2015 Act, and the appellant has not identified in what way he claims to have been prejudiced by reference in the judgment under appeal to the 2015 Act. [2] The point is misconceived.
Allegations of Unfair Procedures
108. The appellant's grounds of appeal include claims that he was not accorded fair procedures by the High Court judge, although they are not always expressed in such restrained language. So, for example, as already observed above, the appellant accuses the High Court judge of victimising [the appellant] with: "pernicious racist harassments, discriminatory and unfair treatments." The appellant provides no examples at all of any such alleged treatment, and indeed to do so he would have had to procure a transcript of the proceedings in the High Court. His accusations are no more than a scurrilous attack on the High Court judge made because the decision of the judge is not to his liking. The same may be said of similar accusations levelled by the appellant at the Labour Court. All such comments are to be deprecated, and it hardly needs to be said that any grounds of appeal dependent on such baseless and unsupported accusations must be dismissed.
"Does not fit into the Cisco culture"
109. This ground of appeal appears several times in the papers both in the notice of appeal to this Court, and in the appellant's written submissions to this Court. It also appears in the appellant's affidavit grounding his appeal to the High Court. All of that being the case, and having regard to the significance that the appellant appears to attach to it, I propose to address it even though he did not address this Court about it in his oral submissions.
110. The appellant appears to claim that in November 2013 he received a document from the respondent (presumably in the course of the respondent's tardy compliance with his data access request) in which it is stated that the appellant did "not fit into the Cisco culture". Reference to such a document is also made at p. 70 of the appellant's densely packed 72-page first submission to the Labour Court. The appellant claims that this document is evidence of racial discrimination on the part of the respondent, and relies on the second of the principles of May L.J. in King, which identifies sentiments of this kind as being indicative of racial discrimination. A similar issue arose in Noone.
111. This Court was not provided with a copy of this document which was, apparently, attached to the appellant's 72-page submission to the Labour Court. The submission itself was provided in the appeal papers, but without any of the attachments. The appeal papers were prepared, following a ruling by this Court, not by the appellant but by the respondent, owing to the appellant's failure to comply with Practice Direction CAO6 regarding the filing of appeal papers. The respondent has not denied the existence of the document, or its contents, either in the detailed replying affidavit of Ms. Hayes or in its respondent's notice or any of its submissions.
112. While the document is not referred to in the Determination, it is not apparent if the appellant made any oral submissions to the Labour Court regarding its import, and nor is it apparent if he cross-examined the witnesses of the respondent about it at the Labour Court hearing. If the document were to be attributed the weight which the appellant now submits should have been attributed to it, such cross-examination and submissions would have been necessary. It would not have been sufficient simply to leave it buried in a mountain of papers and expect the Labour Court to identify it and draw the very significant conclusions that the appellant now submits (in his written submissions on the appeal to this Court) should be drawn from it, if that is what occurred.
113. Whether that is actually what occurred or not, the appellant ought to have made to make submissions to the High Court as to why he contended that the Labour Court erred, as matter of law, in its treatment of the issue or in failing to treat with the issue at all. However, it is not apparent from the papers whether or not the appellant made any submissions, written or oral to the High Court, about this document. If he did, he did not mention them in his submissions to this Court. All he did was to allege the existence of such a document. Generally speaking, an appellant cannot expect to succeed in persuading an appellate court that a court of first instance has erred in a point of law, without demonstrating to the appellate court as to what was submitted or argued in the court below.
114. A statement in a single document that the appellant does not fit in with "Cisco's culture" could not, without more, be taken to be evidence of racial discrimination, notwithstanding the observation of Neill L.J. in King. The nature of the document and the context in which the statement was made would be critical to a true understanding of its meaning. In order to shift the onus to the respondent to explain the document, all the appellant had to do was to put the document to the respondent's witnesses who gave evidence to the Labour Court in the course of cross-examination, and ask them to explain what was meant by it. He failed to satisfy this court that he ever did so. As is apparent from the above, there is no way of knowing if the appellant did that, and, if he did, whether he made any submissions to the High Court judge about it. The appellant has failed to satisfy this court that he had proved facts from which the Labour Court and/or the trial judge could reasonably conclude, in the absence of an adequate explanation, that the respondent company had committed any act of discrimination against him. It was not open to either, or to this court on appeal, to infer such. It follows from all of the above that this ground of appeal must also be dismissed.
Request to Refer 33 Questions to the CJEU
115. At the end of his notice of appeal, the appellant requests this Court to refer no fewer than 33 questions to the CJEU. I have reviewed all of the proposed questions. None of them raise an issue of interpretation of European law or concern the transposition of European law into the domestic law of the State. Instead, the proposed questions would invite the ECJ to adjudicate upon issues solely relating to the appellant's dispute with the respondent. That is not the purpose of a reference to the CJEU. I would therefore refuse this request.
Conclusion
116. The right of appeal to the High Court available to the appellant under s. 90(1) of the 1998 Act is a right of appeal on a point of law. The substance of the judgment of the High Court was that he had failed to identify a point of law. The appellant has failed to identify any error of law on the part of the High Court judge. He has also failed to identify any facts such as would establish that the High Court judge erred as a matter of law in failing find that the Labour Court should have made findings of fact proving discrimination or from which an inference of discrimination on the part of the respondent against the appellant should have been drawn. All of the appellants grounds of appeal are therefore hereby dismissed.
Costs
117. Since the respondent has been entirely successful in this appeal, as that term is used in s. 169 of the Legal Services Regulation Act, 2015, my preliminary view is that the respondent is entitled to an order for the costs incurred by it in resisting this appeal. If the appellant wishes to contend for a different order, he may do so by written submissions, not to exceed 1,500 words, to be filed within 14 days from the date of delivery of this judgment. In such event, the respondent shall file any replying submissions it may wish to make, also not to exceed 1,500 words, within a further 14 days.
118. As this judgment is being delivered electronically, Whelan and Allen JJ. have authorised me to indicate their agreement with it.
Result: Appeal dismissed.
[1] Section 77, in its original form, was slightly different. What is now s. 77(5) was contained in two subsections, i.e. subsections 77(5) and (6). This was prior to the establishment of the Workplace Relations Commission. Section 77(6) as originally enacted provided for the possibility of an applications to the Director of Equality Investigations, the Labour Court or the Circuit Court for an extension of the six-month period in exceptional circumstances where those circumstances prevented the complainant's case being brought within the time prescribed by s. 77(5). In such exceptional circumstances, the Director of Equality Investigations, the Labour Court or the Circuit Court as the case might be had power to direct that the reference in s. 77(5) to six months should have effect as if there were substituted a reference to a period not exceeding twelve months. The principal changes effected by the 2015 Act were, firstly, to substitute the Director General of the Workplace Relations Commission for the Director of Equality Investigations - and secondly, to provide for an extension of the six month-period for reasonable cause rather than in exceptional circumstances. The latter amendment was clearly in ease of applicants. This may be relevant in the context in which the appellant has submitted that the 2015 Act was erroneously applied to the proceedings. This is also of some relevance to a point made by the appellant regarding what he claims was the retrospective application of the 2015 Act by the High Court judge - see para.107 below.
[2] See also footnote 1 above (at end of page 4) regarding the amendment of s.77(5).