A move to have an ordinary member of the Labour Court who was nominated by the Irish Congress of Trade Unions (Ictu) recuse himself from an age discrimination case taken by the former member of the court he effectively replaced has been rejected.
The application was made by the legal representatives of the Department of Enterprise, Trade and Employment in advance of the hearing of an appeal by former Siptu official Andrew McCarthy of a Workplace Relations Commission (WRC) adjudicator’s decision in an age discrimination case last year relating to the loss of his place on the court.
The department said it believed Mr McCarthy might allege bias at a later date if Paul Bell, also a former senior Siptu official and a former mayor of Drogheda, was involved in hearing the appeal.
Mr McCarthy’s legal team said they were supportive of the application.
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Their client had been nominated to the court, also by Ictu, in 2014 when he was given a three-year fixed-term contract. In 2017 he was given another contract, of a very slightly longer duration, that took him up to his 66th birthday.
At that point, Ictu submitted a list of three nominees for the position that did not include his name. Mr McCarthy argued he was entitled to a contract of indefinite duration on the basis of the two separate terms he had served and that he had been discriminated against because of his age.
The department’s position was that it could only appoint ordinary members of the court who were nominated by Ictu or Ibec and, as McCarthy had not been nominated in 2020, he could not be reappointed. Mr Bell was one of the nominees and he was subsequently appointed.
Mr McCarthy lost the age discrimination case at the WRC which accepted an argument that the need to have a turnover in members of the court in order to maintain “an array of contemporary innovation and talent” was an objective justification for the system of fixed-term contracts used to fill positions at the court.
The department was, however, ordered to pay the complainant €3,000 because it was not “absolutely clear” there had been “strict compliance” with the law on fixed-term contracts.
In advance of the hearing of the appeal, representatives of the department made their application regarding Mr Bell’s involvement after a case management meeting.
Mr McCarthy’s legal representatives then raised separate concerns, arguing that “an email which they became aware of on foot of a Freedom of Information request attributes a statement to the chairman of the court [Kevin Foley] that they submit is harmful to the complainant’s entitlement to a fair hearing, free from an underlying perception of bias”.
In its decision, delivered by chair of the division Louise O’Donnell, the court noted that Mr McCarthy had not worked with Mr Bell and made no mention of him in his substantive complaint; rather he had made assertions regarding the process within Ictu that produced the shortlist of nominees that ultimately gave rise to Mr Bell’s appointment.
“The Respondent expresses concerns that if it does not raise that issue at this stage, it may be challenged at a later stage. The Court notes that this is not something that the Complainant has raised... nor has he availed of the opportunity to comment on the Respondent’s submission on the issue.
The court said that the very limited number of ordinary members of the court meant there were restricted options when it came to dealing with cases.
“The Court finds that the email being relied on (by the complainant) is not linked to any member of the current division. Applying the reasonable person test referenced in the case law set out below, the Court finds that a reasonable person would not have an apprehension of bias based on the facts submitted.”
Having reviewed case law on the issues it found “that an objective bystander informed of all the relevant facts would not be concerned that any member of the division, as currently constituted, would be incapable of an objective, and impartial hearing of the substantive case”.
“The Court both individually, and collectively, do not believe that facts or circumstances of such import as to require one or all of the members of the division to recuse themselves have been established.”
It said another case management conference would be held in advance of the hearing of the substantive case.
