Judicial Immunity and the Workplace Relations Commission

Introduction

Can a Judge be held accountable to the Workplace Relations Commission (WRC)? If an individual believes they have been discriminated against by a Judge under the Equal Status Act, 2000, can they refer the matter to the WRC for adjudication? 

Interestingly, in A Complainant -V- An Officer of The Court (ADJ-00025566), the complainant referred a matter in accordance with Section 25 of the Equal Status Act, 2000, to the WRC for adjudication complaining that the treatment he received during court proceedings were biased and discriminatory due to the grounds of his race or ethnic origin.

The Adjudication Officer (AO) commenced their decision by noting that there are sufficient judicial remedies to parties where it determined that the conduct of a Judge of the Irish courts was not proper. 

The AO went on to note that they were generally satisfied that those remedies do not include referring such a complaint to the WRC for adjudication, however, went on to clarify why, in law, that was the case.

However, the AO also clarified what a 'service' was for the purposes of an equality claim.

Equal Status Act

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

( a) access to and the use of any place,

( b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

( c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

( d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;”

Disposal of goods and provision of services is dealt with by Section 5 and section 5(1) of the Act reads,

“(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 22 deals with the dismissal of claims.

“22. (1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

(4) No further appeal lies, other than an appeal to the High Court on a point of law.”

The AO therefore had to decide whether the exercise of judicial function came within the remit of “services” for the purposes of the Equal Status Act, 2000.

English and Welsh law determinations

The AO cited Judy Walsh’s book, The Equal Status Act 2000/2001, at page 42, where she states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

The AO went on to note that the Irish case law supporting this proposition was also emphatic. The AO noted the decision in Dec-S2009 -087 Fogarty v Employment Appeals Tribunal where at paragraph 4.8 of the decision the Equality Officer found, “[T]hat the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.”.

To the AO, this was a significant finding that supported the view that the complaint was not correctly put before the WRC for consideration. However, the AO went on to note a considerable amount of case law that dealt with the issue of judicial immunity.

Judicial Immunity and Case Law

In Kemmy v Ireland [2009] IEHC 178 the principle of judicial immunity and its purpose was addressed:

“This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.”

The AO the Supreme Court decision in Beatty v The Rent Tribunal & Another [2006] 2 IR 191 where the Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that provided to Judges. Mr. Justice Geoghegan’s majority judgment affirmed that the Rent Tribunal was immune from actions and negligence, where he said,

“even though the respondent is a Tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In the circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence....In this respect it is in no different position from Court whether such Court be traditionally categorised as superior or inferior”.

The Supreme Court also determined that the absolute immunity on the basis of judicial immunity, for statutory adjudicative bodies was a matter for the legislature who created the body. Therefore, this indicates that prima facie statutory adjudicative bodies enjoy immunity from suit on the basis of the principle of judicial immunity unless there is an express provision countervailing against this in any statutory provision.

The AO noted in Beatty, Mr. Justice Geoghegan suggested that the principle of judicial immunity was not absolute but equally “he had considerable doubt” that an action for misfeasance in public office would lie “in circumstances where the Court or Tribunal was acting within jurisdiction.”

Conclusion

The AO concluded by noting that the matters complained of related to the conduct of a Judge in court proceedings and its decision thereafter. They noted that such matters were not a service or facility available to the public and therefore did not constitute a service as defined under the Equal Status Act, 2000.

Therefore, the AO was satisfied that this claim under the Equal Status Act was misconceived and incorrectly based in law. It was therefore dismissed outright.