Iarnród Éireann -v- Mannion; Neutral citation (2010) IEHC 326. High Court.Judgment was delivered on July 27th, 2010, by Mr Justice John Hedigan.
Judgment
An application from Iarnród Éireann to judicially review a decision of the Equality Tribunal that it had discriminated against and victimised an employee on the grounds of gender was rejected by the High Court as lacking any merit in law or on the facts.
Background
The proceedings arose out of a complaint by Monica Murphy that Iarnród Éireann had discriminated against her in relation to her conditions of employment and her access to promotion and had harassed and victimised her.
She began work with CIÉ in 1971 and was one of three staff to be awarded a scholarship to UCD, attaining first place in international marketing and a first class degree in commerce. She joined CIÉ’s marketing department and was involved in setting up Iarnród Éireann.
She complained that when she returned from a career break in 2003, her career took a nosedive, which she attributed to her gender. She complained to the Equality Tribunal.
The respondent, an equality officer with the tribunal, received the complaint and sought information from Iarnród Éireann, which did not respond to her request.
An investigation was begun and an oral hearing took place on December 3rd, 2008. Further documentation was sought following this hearing.
Some was provided, but two categories of documentation were not. These related to whether budgets were available to employees in the marketing section while not being available to the complainant and whether the company had paid professional subscriptions and expenses for people reporting to the director of strategy and business development. They were not produced to the High Court either.
The equality officer found that Iarnród Éireann had discriminated against Ms Murphy on the ground of gender in relation to her conditions of employment and access to promotion, and had victimised her.
In her report, she referred to the non-production of the requested documentation and stated that she drew appropriate inferences from it.
She said that the company did not deny that male employees had their professional fees paid by it, while those of the complainant were not.
The company claimed that her decision, based on the inferences, was made ultra vires in that the equality officer had statutory powers to order the production of documents and had not used them. It also argued that she should have warned the company she intended to draw such inferences and had not done so.
Decision
Mr Justice Hedigan pointed out that it was admitted by a witness for the company that the complainant had no proper job title since 2003 and it was not denied that she had no budget to spend on marketing campaigns.
The matter of the budget was very far from being the only complaint upon which the equality tribunal made her decision. The applicant also had not disputed that Ms Murphy’s male colleagues had their professional subscriptions paid.
Referring to the issue of ultra vires, he said that the statute which provided the equality officer with powers did not prevent her from making an informal agreement to obtain information. When that was not provided, she could either make an order under the Act or she could proceed without any order to draw any reasonable inference.
There was no duty on her to come back to the defaulting party seeking an explanation for their default.
Referring to fairness of procedures, he said case law had held, in relation to discrimination law, that it was just and equitable to draw inferences from an evasive or equivocal reply to a questionnaire.
To show on judicial review that inferences made were a violation of a party’s fair procedures it would be necessary to show that the inference was not properly made, that it was clearly wrong and was an essential part of the ultimate decision made. This was not shown here.
“In the light of the fact that the documentation has never been produced even at this hearing, when it was central to the application, demonstrates beyond doubt in my view that such an inference was correct,” the judge said.
Mr Justice Hedigan said that the applicant had studiously avoided any reference as to the content of the documentation in question. If it existed, but was unfavourable to the applicant, then the company was concealing evidence from both the equality officer and the court. If the company considered, as stated in affidavit, that it was too much trouble to comply with the agreement to produce, this was disrespectful to the equality officer and manifestly disrespectful to the court.
“Any one of the above scenarios constitutes conduct by the applicant so unacceptable that I cannot conceive of any court exercising its discretion in judicial review in their favour even were it persuaded that the application had any merit,” he said.
However, the application was devoid of any merit in law or on the facts.
The full judgment is on www.courts.ie
Roddy Horan SC and Cathy Maguire BL, instructed by Michael Carroll, for Iarnród Éireann; Mark Connaughton SC and Conor Power BL, instructed by Síle Larkin, for the Equality Tribunal; Patrick Keane SC and Fergal Sweeney BL, instructed by Kent Carthy solicitors, for the notice party.