The High Court dismissed a retired Sligo County Council engineer’s personal injuries proceedings, finding that they overlapped substantially with an equality complaint he had chosen to pursue before the Equality Tribunal.
In a judgment delivered on 6 February 2015, President of the High Court Kearns said allowing the common law claim to continue would breach the rule against litigating the same issues repeatedly and would not give effect to section 101(2)(a) of the Employment Equality Act.
The plaintiff had worked for the council for 39 years, beginning as an apprentice technician in 1970 and later becoming a Senior Executive Technician. He alleged that difficulties began around 1996, after a new supervisor was appointed. A 2010 report by Trinity College Dublin’s Anti-bullying Research and Resource Centre described allegations that he was excluded, denied training and promotion opportunities, assigned work below his competence and subjected to hostility. He claimed the treatment caused psychological and physical symptoms.
He lodged an equality complaint in September 2009 concerning alleged discrimination in access to employment, promotion, training and working conditions, among other matters. He also pursued a personal injuries claim, authorised by the Personal Injuries Assessment Board in November 2010 and filed in the High Court in February 2011.
The council argued that both claims arose from the same events and that the plaintiff could not pursue them simultaneously once the Equality Tribunal’s investigation had begun. It relied on section 101(2)(a) and the earlier High Court decision in Cunningham v Intel.
The plaintiff’s counsel argued that the statutory restriction applied to a case already pursued under the equality legislation, rather than to a common law claim based on the same broad underlying facts. Counsel also argued that Cunningham was distinguishable.
Kearns said that, at the start of the Tribunal hearing, the plaintiff had been made aware of the choice between pursuing the equality complaint or the common law claim, and opted to continue before the Tribunal. After a four-day hearing, the Tribunal rejected his claim. The High Court held that he was estopped from resiling from that choice.
The judge concluded that “case” in section 101(2)(a) included the underlying facts giving rise to the complaint. He found the two sets of proceedings concerned the same alleged incidents of mistreatment and declined to depart from Cunningham. The dismissal was of the High Court personal injuries claim; the plaintiff’s right to appeal to the Labour Court remained.