In A Legal Representative v Chairman of a Division of the Labour Court (ADJ-00042833), the Applicant submitted that she had experienced discrimination by the Chairman who had failed to provide reasonable accommodations for her disability. While acting as a legal representative, the Applicant informed the court that she required accommodations such as breaks for her to take medication and to alleviate physical discomfort. The Applicant submitted that the Court engaged in prohibited conduct through their treatment of her as a result of her impairment, their failure to provide requested accommodations, and their characterisation of the opposing representative as “more professional”. The Adjudication Officer considered the scope of ‘judicial immunity’ and on the applicable case-law identified that prima facie adjudicative statutory bodies enjoy this immunity. Therefore, the Adjudication Officer concluded that they did not have jurisdiction to hear the case and accordingly dismissed the case as misconceived.
The Adjudication Officer determined that “the Court is providing a service which is available to the public generally” and accordingly fell under the scope of the Equal Status Acts. This appeared to follow the rationale of the Equality Officer in Fogarty v Employment Appeals Tribunal (DEC-S2009-087) which delineated between the decision-making functions of the tribunal and separately the ‘administrative’ functions of the reception, processing, organising, and hearing of complaints. The latter were deemed to be a service or facility for a person seeking to utilise the mechanism which the tribunal was statutorily obliged to provide.
Therefore in Fogarty, the non-provision of an Irish Sign Language interpreter prohibited his full participation in the hearing and was “an impediment to the complainants participation in the hearing and was in breach of his right to a fair procedures and natural justice and his right to be heard”. The parallel assessment conducted in respect of the Complainant queried, by virtue of her role as a legal representative, if the refusal of the accommodations interfered with her capacity to effectively represent her client. The Adjudication Officer noted that on that point, if the Complainant felt her client’s case was impacted than she could appeal the decision on a point of law to the High Court or sought judicial review. This illustrates the borderline nature of this case, as it appears to draw the hearing of the complaint as a matter of procedure quite close to the decision-making function which is excluded from the definition of ‘service’.
This was somewhat inconsequential as the Adjudication Officer followed the view in Zalewski v Adjudication Officer & Ors [2021] IESC 24 that the Labour Court was engaged in the administration of justice. On their analysis of the applicable case-law, they found that the immunity from litigation enjoyed by those engaged in the administration of justice was well-established. On their reading, Beatty v The Rent Tribunal & Anor [2006] 2 IR 191 established that unless specifically removed by statute or they fail to act bona fide within their jurisdiction then judicial immunity extents to statutory adjudicative bodies. This flows from the underlying rationale to judicial immunity recognised in Kemmy v Ireland [2009] IEHC 178, therein it was noted that by being free from action and question at the suit of an individual a judge may be free “in thought and independence in judgment”. The Adjudication Officer further noted the benefit of judicial immunity in preventing collateral challenges to judicial or quasi-judicial decisions advanced by those unhappy with the ultimate outcome of the proceedings. The Adjudication Officer therefore concluded judicial immunity was enjoyed by the members of the Labour Court and dismissed the proceedings as misconceived.
This decision illustrates the need to ensure a high standard of the administration of justice across the spectrum of judicial and quasi-judicial bodies in Ireland. In the United Kingdom, the Equal Treatment Bench Book offers extensive guidance for courts and tribunals for understanding and responding to the different circumstances of people appearing before them. Its chapter on physical disability outlines a range of considerations and potential accommodations which, if applied, could have addressed the circumstances complained of by the Applicant. The Guidelines for the Judiciary on Conduct and Ethics, as adopted by the Judicial Council, appear to accept that differential treatment through accommodations can be necessary for the proper fulfilment of judicial obligations as “[a] judge shall carry out judicial duties with appropriate consideration for all persons … without differentiation on any irrelevant ground, immaterial to the proper performance of such duties”. The introduction of an official resource enumerating aspects of this principle in practice would likely be welcome and perhaps reduce the potential for the conduct complained of by the Applicant.