APPROVED [2025] IEHC 177
harp graphic.
THE HIGH COURT
Record No.: 2019/5447 P
BETWEEN:
AMELIA McKEOWN
Plaintiff
-and-
THE MINISTER FOR DEFENCE, IRELAND AND
THE ATTORNEY GENERAL
Defendants
JUDGMENT of Mr Justice Rory Mulcahy delivered on 28 March 2025
Introduction
1. The plaintiff is a qualified pilot and retired officer of the Defence Forces, and was a member of the Air Corps, where she was based at Casement Aerodrome in Dublin.
2. The plaintiff resigned from her position in June 2015. At the time of her resignation, the plaintiff had been suspended from flying duties. The circumstances surrounding that suspension are at the heart of these proceedings. In very brief terms, it appears that the plaintiff had raised an issue with her superior officer in respect of being treated less favourably than her male colleagues. At that time, it seems, she was the only female Air Corps pilot. Her suspension followed shortly after she raised this issue, and the plaintiff claims that the suspension amounted to gender discrimination and victimisation.
3. The plaintiff seeks a declaration that the suspension is void and that the decision to suspend her from flying duties was arbitrary, ultra vires, void and of no effect. In this regard, it is the plaintiff's case that the existence of the suspension on her record has continuing impacts on her ability to earn a living as a pilot.
4. For present purposes, the most relevant aspects of the plaintiff's claim are her claim that the decision to suspend her from flying duties amounts to victimisation contrary to section 74 of the Employment Equality Act 1998, as amended, and her claims for damages of her contractual right to equal treatment and for gender discrimination and/or victimisation.
5. The defendants deny all the plaintiff's claims and, in particular, deny that any suspension - which in the defence is characterised as a 'withdrawal' - from flying duties was motivated by gender or in response to her previous complaint. Notably, the defendants deny that there is any private law contractual relationship between the parties.
6. The defence contains the following plea:
Without prejudice to the foregoing [denials], the Defendants will assert either as a preliminary point, or during the trial of the action, that proceedings for redress in respect of any alleged breaches of rights conferred by the Employment Equality Acts 1998 - 2015 shall only be brought before the Workplace Relations Commission or the Circuit Court in accordance with the provisions of those Acts and not at common law in the High Court.
7. There has been a full exchange of pleadings and discovery between the parties. On 4 October 2024, the plaintiff's solicitors wrote to the Chief State Solicitor's Office indicating that they would be applying for a hearing date. On 15 October 2024, the defendants issued the motion the subject of this judgment, an application for an order pursuant to Order 25, rule 1 and/or Order 34, rule 2 of the Rules of the Superior Court ("the Rules") directing a trial of a preliminary issue of law on the following points:
a) Whether, as a matter of law, the Employment Equality Act 1998, as amended, modifies the terms of the Plaintiff's contract of employment deemed to include an implied right to gender equality and/or confers on the Plaintiff an independent cause of action at common law for alleged breach of contract?
b) If the answer to question a) above is in the affirmative, does the 1998 Act require that any proceedings for redress in respect of any alleged breaches of rights conferred by that Act shall only be brought before the Workplace Relations Commission or the Circuit Court in accordance with the provisions of that Act or does the Act also permit the Plaintiff to seek, in the alternative, redress at common law in the High Court?
c) Whether as a matter of law, European Law gives rise to an independent cause of action against the Defendants for damages for breach of an alleged implied contractual right to gender equality, which is justiciable by the Court in light of the implementation by the State, through the 1998 Act of the principles of law contained in European Law and the establishment therein of statutory procedures for the pursuit of complaints of discrimination on the ground of gender?
d) Whether, if such a cause is [sic]action does lie, the Plaintiff's claim is statute barred having been brought outside the time limits prescribed in the 1998 Act?
8. As discussed below, at the hearing of the application, the defendants suggested a slight reformulation of the second question.
9. On 17 October 2024, the plaintiff consented to the order sought. However, in an affidavit filed in response to the motion, the plaintiff avers that the only purpose of the motion is to delay her claim and that she is "at a loss as to the Defendants purpose in raising a preliminary issue" in light of the admissions made by the defendants regarding statutory and common law duties and the fact that the defendants must accept the facts as pleaded by her for the purpose of trying a preliminary issue. In her legal submissions, her agreement to the trial of a preliminary issue is explained in the following terms:
"[The] Plaintiff consented to the Order as sought for the purpose of expediting the within proceedings and without prejudice to a court on the hearing of the preliminary issue using its discretion and directing the case should proceed to full trial with facts and evidence, in order to have the issues of law determined in the context."
10. The defendants have filed a replying affidavit vehemently denying that their purpose in bringing this application was to delay the proceedings.
11. In light of the foregoing, it is necessary to consider not only the questions identified in the motion, but also whether these are appropriate for determination by way of preliminary issue at all.
12. It is perfectly understandable that a party anxious to progress proceedings would consent to an application which they did not consider merited in a bid to expedite proceedings. However, in this instance, it has proved unfortunate that such an approach was taken. As will appear from the discussion below, there is no question that the application to try a preliminary issue would have been refused had it been contested. It has not, and never could have, resulted in a saving of time and costs. On the contrary, both have almost certainly been increased. Whatever the defendants' intentions, and I reach no conclusion on that, the effect of this application has been to delay from coming to trial proceedings which relate to events which happened a decade and more ago. Moreover, the questions as framed (and re-framed during the hearing) do not even capture a disputed issue between the parties, albeit that there are significant disputed issues regarding the application of the 1998 Act. Had the application been contested and both parties been required to engage with the merits of the application, this might have become apparent to both at an early stage and the need for any pre-trial hearing avoided. As it is, one and a half days' court time have been devoted to the hearing of a preliminary trial which should never have been proposed.
Employment Equality Act 1998
13. Before addressing the parties' arguments on this application, it is helpful to understand the provisions of the Employment Equality Act 1998, as amended ("the 1998 Act") which are alleged to be engaged.
14. Section 74 of the 1998 Act defines 'victimisation' as follows:
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
15. Section 77 of the 1998 Act provides that persons may seek redress under the Act for, inter alia, victimisation:
(1) A person who claims—
(a) to have been discriminated against or subjected to victimisation,
(b) to have been dismissed in circumstances amounting to discrimination or victimisation,
(c) not to be receiving remuneration in accordance with an equal remuneration term, or
(d) not to be receiving a benefit under an equality clause,
in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director General of the Workplace Relations Commission.
...
(3) If the grounds for such a claim arise—
(a) under Part III, or
(b) in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or Equal Treatment Directive is relevant,
then, subject to subsections (4) to (9), the person making the claim may seek redress by referring the case to the Circuit Court instead of to the Director General of the Workplace Relations Commission.
16. Sections 77(9) and (10) of the 1998 Act contain special provisions relating to members of the Defence Forces. They require that the procedure contained in section 104 of the Act be followed before any claim for redress can be made under section 77(1). It is not in dispute that those procedures were followed by the plaintiff.
17. The key provision for the purpose of this application is section 101(1):
(1) If an individual has instituted proceedings for damages at common law in respect of a failure, by an employer or any other person, to comply with an equal remuneration term or an equality clause, then, if the hearing of the case has begun, the individual may not seek redress (or exercise any other power) under this Part in respect of the failure to comply with the equal remuneration term or the equality clause, as the case may be.
18. An 'equality clause' is defined in the interpretation section of the 1998 Act, section 2, as meaning "a gender equality clause, as defined in section 21 or a non-discriminatory equality clause, as defined in section 30."
19. Section 21 is contained in Part III of the 1998 Act, referred to in section 77(3)(a) quoted above. Part III is entitled 'Specific Provisions as to Equality Between Women and Men'. Section 21, in relevant part, provides as follows:
(1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a gender equality clause, they shall be taken to include one.
(2) A gender equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if—
(a) A is employed in circumstances where the work done by A is not materially different from that done by B in the same employment, and
(b) at any time A's contract of employment would (but for the gender equality clause)—
(i) contain a term which is or becomes less favourable to A than a term of a similar kind in B's contract of employment, or
(ii) not include a term corresponding to a term in B's contract of employment which benefits B,
then the terms of A's contract of employment shall be treated as modified so that the term in question is not less favourable to A or, as the case may be, so that they include a similar term benefiting A.
20. Though not relied on in the course of this application, for completeness, section 30, which defines a non-discriminatory equality clause, is in the following terms:
(1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause, they shall be taken to include one.
(2) A non-discriminatory equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if—
(a) C is employed in circumstances where the work done by C is not materially different from that done by D in the same employment, and
(b) at any time C's contract of employment would (but for the non-discriminatory equality clause)—
(i) contain a term which is or becomes less favourable to C than a term of a similar kind in D's contract of employment, or
(ii) not include a term corresponding to a term in D's contract of employment which benefits D,
then the terms of C's contract of employment shall be treated as modified so that the term in question is not less favourable to C or, as the case may be, so that they include a similar term benefiting C.
21. Section 101 also references an 'equal remuneration term'. This term is defined by sections 19 and 20:
19.—(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
...
20.—(1) Where a person is employed under a contract which does not include (expressly or by reference to a collective agreement or otherwise) a term satisfying subsection (1) of section 19, the contract shall be taken to include a term giving effect to that subsection; and, if such an implied term conflicts with an express term, it shall override the express term.
Arguments
22. The defendants have made clear that they accept, as they must, the facts as pleaded by the plaintiff for the purpose of determining the preliminary issues. In discussion with counsel, it was accepted that this necessarily means that the defendants accept, for the purpose of this application, that the plaintiff was employed under a contract of employment and that it was a term of that contract of employment that she would not be subjected to victimisation or gender discrimination.
23. The defendants' arguments were directed towards the issues identified in their motion rather than to the merits of those issues being tried by way of preliminary issue.
24. The defendants' main premise is that a person is only entitled to pursue a claim for victimisation contrary to the 1998 Act before the Workplace Relations Commission (WRC). They contend, therefore, that insofar as the plaintiff seeks a declaration that she has been victimised contrary to section 74 of the 1998 Act and seeks damages for such victimisation, this is a claim that can only be pursued before the WRC. They refer to various authorities in support of this proposition, including Doherty v South Dublin County Council (No. 2) [2007] IEHC 4; [2007] 2 IR 696, Nolan v Emo Oil Services Ltd [2009] IEHC 15; [2010] 2 ILRM 228, Kearney v Byrne Wallace [2019] IECA 206, and Power v Health Service Executive [2019] IEHC 462. As noted at the hearing, I delivered judgment on an interlocutory application in the week before the hearing in Ronan v Commissioner of An Garda Siochána [2025] IEHC 79, a claim for a remedy under the 1998 Act, touching on similar issues.
25. The defendants acknowledge, however, that there are circumstances in which a claim for breach of certain rights contained in the 1998 Act can be pursued in court. Section 77(3) expressly provides that certain claims may be pursued in the Circuit Court instead of the WRC. Moreover, it is implicit in section 101 of the 1998 Act that there are some claims which can be pursued either before the WRC (or Circuit Court, where applicable) or before the courts as a common law claim.
26. Section 101 prohibits the bringing of a claim for redress under the Act where that person has instituted proceedings for damages at common law arising from a failure to comply "with an equal remuneration term or an equality clause", where the hearing of that case has begun. This clearly contemplates the bringing of common law claims.
27. The defendants argue that section 101 identifies the only claims arising under the Act which can be pursued at common law, claims for breaches of an equal remuneration term or an equality clause. They contend that the plaintiff's claim is not for a failure to comply with an equal remuneration clause or an equality clause and therefore can only be pursued in the WRC.
28. Insofar as the benefits of having these issues determined in a preliminary hearing were in issue, the defendants acknowledge that the answers would not be determinative of the proceedings, but claimed that there would be significant saving of time and costs if the issues were decided in their favour and the case, accordingly, narrowed. In their affidavit grounding the application, it was averred as follows:
"I say further and am advised that a full hearing of all matters at issue will take at least six days. By comparison, the Defendant's preliminary application will require approximately one day with the prospect of reducing the substantive hearing by approximately three days if that is successful."
29. The defendants contended, therefore, for an overall saving of two days' hearing time (with attendant saving of costs), from a total of at least six days, based on their assertion that, if the questions were to be determined in the defendants' favour, "a significant portion of the Plaintiff's claim in these proceedings" would be disposed of. As it happens, the preliminary hearing was listed for, and lasted, one and a half days and thus the purported saving of time, even on the defendants' case, was even more marginal. It is fair to say that there was some emphasis by the defendants on the fact that the preliminary hearing having taken place, with the issues fully argued, there was no value in deferring consideration of those legal issues to the trial of the action, thus losing any benefit of that hearing.
30. The plaintiff, despite consenting to the trial of a preliminary issue, argued that the issues set down for hearing were not appropriate for determination in a preliminary application because, principally, it would have little or no bearing on the length and complexity of the trial of the action and would not lead to any material saving in time and costs. The plaintiff's counsel made clear that her case was not confined to a claim for victimisation and gender discrimination contrary to the provisions of the 1998 Act, but raised a number of other issues, all of which would have to be addressed irrespective of the outcome of the preliminary trial. Moreover, even in respect of victimisation and gender discrimination, the plaintiff's case was not confined to a breach of the Act, she was also claiming that the alleged victimisation and gender discrimination was contrary to the terms and conditions of her employment, independent of any rights conferred by the 1998 Act. The plaintiff's counsel took some time to explain the evidential basis for her claim that she had a contractual right independent of the operation of the 1998 Act.
31. The plaintiff also objected to the delay by the defendants in bringing the motion, noting that the matter was effectively ready for trial when the question of trying a preliminary issue was first raised.
32. On the preliminary issue itself, the plaintiff argued that there was no prohibition in the 1998 Act on her pursuing a claim for breach of rights protected by that Act. Her primary position is that there is no procedural exclusivity and that claims for redress arising out of the 1998 Act can be pursued before either the WRC or the courts, although not both. As a fallback, she argued that even if there was procedural exclusivity in relation to some claims, it was clear from section 101 that claims for breaches of a gender equality clause or an equal remuneration clause could be pursued at common law. She contended that, so far as it was necessary to do so, she would argue that her claim was a claim for a breach of a gender equality clause, and therefore, a claim she was entitled to pursue before either the courts or the WRC.
33. In response to the argument that a victimisation or gender discrimination claim can be regarded as a claim for a breach of a gender equality clause, the defendants refer to section 77(1), which, they argue, clearly distinguishes between claims for discrimination or victimisation and claims for breaches of equal remuneration or equality clauses.
Applicable principles - trial of a preliminary issue
34. The principles by which the question of whether it is appropriate to direct a preliminary trial should be decided are as set out by the Supreme Court in Campion v South Tipperary County Council [2015] IESC 79; [2015] 1 IR 716:
"[35] The following therefore is a summary of the legal position before O. 25 of the Rules of the Superior Courts can be successfully invoked:-
· there cannot exist any dispute about the material facts as asserted by the relevant party: such can be agreed by the moving party or accepted by him or her, solely for the purposes of the application;
· there must exist a question of law which is discrete and which can be distilled from the factual matrix as presented;
· there must result from such a process a saving of time and cost, when the same is contrasted with any other suggested method by which the issues may be disposed of: in default with a unitary trial of the entire action. In the absence of admissions, appropriate evidence will usually be necessary in this regard: impressions of what might or might not be will not be sufficient;
· the greater the impact which a decision on the preliminary issue(s) is likely to have on the entire case, the stronger will be the argument for making the requested order;
· conversely if irrespective of the court's decision on that issue(s), there should remain for determination a number of other substantial issues or issue(s) of a substantial nature, the less convincing will be the argument for making such an order;
· exceptionally however, even if the follow on impact will not dispose of any other issue, the process may still be appropriate where the subject issue is substantial in its own right and where its determination will clearly benefit the action in an overall sense;
· as an alternative to such a process in such circumstances, some other method or mode of proceeding, such as a modular trial may be more appropriate;
· it must be 'convenient' to make such an order: at one level this consideration of itself, can be said to incorporate all other factors herein mentioned, but for the purposes of clarity it is I think more helpful to retain the traditional separation of such matters;
· 'convenience' therefore should be understood as meaning that the process will enhance in an overall way the most efficient, timely and cost effective method of disposing of the entire litigation;
· the making of such an order must be consistent with the overall justice of the case, including of course fair procedures for all parties;
· the court at all times retains a discretion whether or not to make such an order: when so deciding it should exercise caution so as to make sure that if an order is made, it will meet the purposes intended by it; finally
· subject to giving due and proper weight to the decision of the trial judge, the appellate court can substitute its own views for those of the High Court where it thinks it is both necessary and appropriate to so do."
35. It is clear that even where the trial of a preliminary issue is directed, the court retains a discretion to refuse to determine the issues raised, as identified in LM v Commissioner of An Garda Síochána [2015] 2 IR 45 (see also Craughwell v Government of Ireland [2025] IECA 63).
Discussion
36. As noted above, the defendants accept the facts as pleaded by the plaintiff for the purpose of this application. This includes the factual plea by the plaintiff, at paragraph 7(ix) of her claim that she had a "legitimate expectation and/or a contractual right that... the Defendants would not permit victimisation and gender discrimination of employees and in particular the Plaintiff by either of them or their servants or agents."
37. In other words, quite apart from the operation of the 1998 Act, the defendants accept that the plaintiff will be able to pursue a claim for breach of contract arising from her allegations of victimisation and gender discrimination. Of course, the defendants may dispute that contractual entitlement at the hearing of the action, but that remains a claim that the plaintiff will be entitled to fully ventilate at the hearing of the action. All necessary evidence may be called to prove the alleged contractual term and, importantly, to prove the alleged victimisation and gender discrimination. It is not merely that the plaintiff's case is not confined to her victimisation claim, but also that her victimisation claim is not confined to a claim that there has been a breach of her statutory rights. Put otherwise, all the evidence regarding the plaintiff's claim that she has been victimised will require to be addressed irrespective of the outcome of this preliminary application.
38. That being so, the defendants' suggestion that the length of the substantive hearing of the action would be reduced by, at most, half if the issues identified were determined in a preliminary hearing is hard to understand. It is difficult, in fact, to see how it was anticipated that any saving of time or costs could be achieved by having a trial on these preliminary issues.
39. That being so, one of the main criteria for the trial of a preliminary issue identified in Campion is not met on this application. I have no doubt that had the application to try a preliminary issue been contested, the application would have been refused. In those circumstances, the defendants request that I simply adjourn all issues to the trial of the action, exercising the jurisdiction identified in LM. The position here is, however, somewhat different from that in LM. In LM, the court concluded that it was not possible to determine the issues raised divorced from a consideration of the factual matrix. A conclusion that the issues should be dealt with in a full hearing was appropriate, even inevitable, in those circumstances. Where, however, the court, in a preliminary trial, forms the view that the anticipated benefits in saving of time and costs will not be achieved, consideration must be given to the best way forward, having regard to the fact that the preliminary trial has taken place. It might not serve either party's interests, the overall justice of the case, or, to use the language of Campion, be "convenient" simply to leave issues which have already been fully argued to the trial of the action. Having got to this point, it is appropriate to consider whether the questions posed can be answered and, if so, whether there is a benefit to doing so at this juncture, notwithstanding the foregoing objections. As it happens, there are other difficulties with the preliminary issues identified in this case.
40. In Campion, the Supreme Court recognised that " exceptionally however, even if the follow on impact will not dispose of any other issue, the process may still be appropriate where the subject issue is substantial in its own right and where its determination will clearly benefit the action in an overall sense ." Is there anything exceptional about the issues raised in this application other than that the preliminary hearing has actually been conducted? Or, put differently, will addressing any of the issues raised clearly benefit the action in an overall sense.
41. The only exceptional factor I have been able to identify is that it seems that none of the questions posed, at least as originally framed, are grounded in any issue actually in dispute in these proceedings. It appears that rather than being tailored to issues which are appropriate to be determined by way of preliminary issue in these proceedings, they have been transplanted, in substantially identical terms, from the decision of the High Court (Binchy J) in Lannegrand and Ors v National University of Ireland Galway [2016] IEHC 518.
42. That case involved a claim by a number of lecturers who claimed that promotion competitions had been conducted by the plaintiff in breach of gender equality clauses implied into their contracts of employment by section 21 of the 1998 Act. As noted in the judgment, it was not pleaded in that case that any such contractual term arose other than by operation of law. In that case, the court ordered the trial of preliminary issues, although it appears that the proceedings were settled before the preliminary hearing took place. The court ordered the preliminary trial in circumstances where it was satisfied that such a trial "if the defendants are successful, will either be dispositive of the entirety of the proceedings, or in the alternative will dispose of substantive issues which may shorten the full trial or, at worst, will dispose of issues which will in any event take up the same time at the full trial of the proceedings."
43. Of course, that was never put to the test. And in any event, the same simply cannot be said in this case. In Lannegrand, as made clear in the court's judgment, the only pleaded basis for the plaintiffs' claims was that there had been a breach of the clauses implied into their contracts by sections 21 and 30 of the 1998 Act. In this case, the plaintiff pursues a claim for breach of the same type of contractual clause wholly independent of the 1998 Act, in addition to a number of other claims concerning the procedure by which she was suspended from duty. The fact that the court identified procedural benefits in Lannegrand does not, therefore, translate to any benefit in these proceedings.
44. Moreover, it is not just the plaintiff who pursues arguments different from those pursued in Lannegrand; the defendants, at least on the basis of the arguments advanced at the hearing of this application, also pursue different arguments.
45. In Lannegrand, the defendant contended that, notwithstanding the provisions of section 101 of the 1998 Act, which refer to claims for damages at common law for failure to comply with an equal remuneration or equality clause, it was impermissible to maintain such a claim. It seems to have been argued - or that it was intended to argue at the hearing of the preliminary issue - that section 101 only applied to proceedings existing at the time that the 1998 Act came into force.
46. The defendants did not argue in this application for such an interpretation of section 101. Rather, they accepted that it is permissible to pursue a claim before the courts or the WRC for failure to comply with an equal remuneration clause or equality clause, but that it was not permissible to pursue a claim for damages for victimisation or gender discrimination. The latter type of claim, it argues, can only be pursued before the WRC, or, in certain cases, the Circuit Court, pursuant to section 77 of the 1998 Act.
47. The question of whether section 101 should be taken to refer only to proceedings in being at the time the 1998 Act came into operation was not, accordingly, in issue before me. I am bound to say, however, that it is very difficult to see how the section could be so interpreted. Applying the ordinary rules of statutory interpretation, there is nothing in the wording of the section which suggests that its scope is limited to apply to proceedings in being at the time the 1998 Act came into force. Moreover, the section would be rendered entirely incoherent if it were so interpreted. The section refers to actions at common law for failure to comply with equal remuneration or equality clauses. These are defined terms in the 1998 Act, referencing clauses deemed to form part of every contract of employment by operation of sections 19, 20, 21 and 30 of the 1998 Act. There could not, therefore, be any proceedings in being for failure to comply with such terms before the Act came into operation. To interpret the section as referring only to such proceedings would render it nonsensical.
48. Rather, what the section seems to recognise is that equal remuneration clauses and equality clauses, as deemed contractual provisions, have the same status as any other contractual provision. An employee can seek damages at common law for failure to comply with other contractual terms, and the section contemplates that an employee should likewise be permitted to bring such a claim for breach of statutorily implied terms. However, it makes clear that if such a claim is pursued, a parallel claim under the Act cannot be maintained.
49. The crucial point, for present purposes, is that the defendants accept that the plaintiff can bring a claim for breach of the terms of her contract, including for breach of an equality clause implied by the Act. They dispute, however, whether the plaintiff's claim for victimisation and gender discrimination is a claim for breach of an equality clause. But that is not a dispute which any of the preliminary issues identified, at least as originally framed, seek to resolve.
50. The first question in the defendants' application is as follows:
Whether, as a matter of law, the Employment Equality Act 1998, as amended, modifies the terms of the Plaintiff's contract of employment deemed to include an implied right to gender equality and/or confers on the Plaintiff and independent cause of action at common law for alleged breach of contract?
51. The defendants accept, as they surely must, that section 21 of the 1998 Act does modify the plaintiff's contract of employment to include in it a gender equality clause, unless, of course, the contract is found to already contain one. Moreover, the defendants accept that the plaintiff can maintain an action for breach of contract, including breach of terms implied into her contract by operation of the 1998 Act. It is not, perhaps, a right "conferred" by the 1998 Act, rather a right "recognised" by it, but that quibble aside, the first issue identified is not, therefore, in dispute between the parties.
52. The second issue is, in truth, merely a different way of asking the same question and, accordingly, is not in dispute. An amendment to the wording of the issue was proposed at the hearing of the application. I will return to that below.
53. The third issue, whether EU law confers a cause of action for breach of contractual terms implied into a contract in order to give effect to rights founded in EU law would only arise had it been contended that there were no such cause of action as a matter of national law. It was not so contended by the defendants and therefore this issue does not arise for determination in this application.
54. The fourth issue queries whether, if there is a cause of action which can be pursued in the courts, it is subject to the same time limits as contained in the 1998 Act. Neither party advanced any argument in written or oral submissions on this point. That is an issue which must, accordingly, be deferred to the trial of the action.
55. As noted, the second issue identified was modified in the following way during the hearing:
If the answer to question (i) is in the affirmative, does the 1998 Act require that any proceedings for redress in respect of any alleged breaches of rights conferred by that Act otherwise than in relation to an equal remuneration or equality clause shall only be brought before the Workplace Relations Commission or the Circuit Court in accordance with the provisions of that Act or does the Act also permit the Plaintiff to seek, in the alternative, redress at common law in the High Court?
56. This revised question does, in part, capture a dispute between the parties. As was apparent from the hearing of the application, the defendants' position is that the plaintiff is bound to seek redress by using the mechanisms set out in the 1998 Act, unless the claim relates to failure to comply with an equal remuneration or equality clause deemed to form part of the plaintiff's contract. The plaintiff's position is that she is entitled to seek redress in respect of any breach of rights conferred by the 1998 Act, or in the alternative, the breach complained of in this instance does consist of a failure to comply with an equality clause.
57. The question of whether the plaintiff's claim should be regarded as a claim of failure to comply with an equality clause is not captured even by the reformulated question. In circumstances where I have concluded that this is not a case in which the trial of a preliminary issue was warranted, I do not consider that it would be appropriate to try and address this question in advance of the trial. The question of whether the plaintiff's claim can be regarded as a claim for breach of gender equality clause is, in any event, a mixed question of fact and law, or at least a question which should not be considered divorced from the overall context.
58. Nor do I think it appropriate to address the reformulated question insofar as it might capture a dispute between the parties. The plaintiff did not have a proper opportunity to address the question as reframed at the hearing of this application. As identified in the defendants' submissions, there is a significant body of case law supporting their contention that procedural exclusivity applies in relation to claims for breaches of employment rights conferred by statute. The overall justice of the case would be served by providing the parties an opportunity to consider that case law more fully in light of the evidence adduced at the hearing. There is no basis for thinking that that evidence will be different irrespective of the answer to the question. The only saving in time and costs which might be achieved by answering that question now, divorced from that evidential context, therefore, is in the marginal additional time it will take to address that legal issue, if necessary, at the hearing of the action. Moreover, it is a question which simply may not arise for determination in these proceedings if, for instance, the plaintiff succeeds in establishing that her claim was a claim for breach of an equality clause.
Conclusion
59. As noted above, the plaintiff invited the court to exercise its jurisdiction per LM and simply adjourn all the issues to the trial of the action. Despite my very significant reservations regarding the merits of having set down any issues regarding the application of the 1998 Act for preliminary trial, I have nonetheless sought to engage with the issues for the purpose of ensuring that the time and costs which were invested in the preliminary application were not entirely wasted.
60. However, on such examination, it appears that the questions as originally framed do not advance matters in light of the positions adopted by the parties. The main issue identified in the issues raised is not in dispute. The parties did not pursue any argument regarding the application of the limitation periods in the 1998 Act.
61. In light of my reservations regarding use of this procedure, I consider it inappropriate to consider a reformulated question advanced for the first time at the hearing of the application, a question which may not arise for consideration in these proceedings at all. The legal issue identified in the reformulated question seems, in any event, to have been the subject of significant prior judicial consideration. The main issue of dispute between the parties is not captured even by the reformulated question and is a mixed question of fact and law, not appropriate for determination in a preliminary hearing.
62. As previously advised, I will list the matter for mention on 10 April 2025 at 10.30 am in order to deal with any consequential orders, any directions necessary to ensure these proceedings progress to trial in early course, and the question of costs.
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