Reassessing Preliminary Issue Hearings in Employment Equality Claims: The McKeown Precedent

Introduction

The case of McKeown v Minister for Defence & Ors ([2025] IEHC 177) brings forward a significant discussion regarding the use of preliminary issue hearings in employment equality claims. In this case, the plaintiff, Amelia McKeown – a qualified pilot and retired officer from the Defence Forces – alleges that her suspension from flying duties was not only arbitrary and ultra vires but was also prompted by alleged gender discrimination and victimisation. Central to the dispute is whether the suspension, which occurred shortly after McKeown raised concerns regarding unequal treatment compared to her male colleagues, contravenes both her contractual rights and the statutory protection provided under the Employment Equality Act 1998 (as amended).

The defendants – the Minister for Defence, Ireland, and the Attorney General – contend that any claim for victimisation or gender discrimination should be pursued through the Workplace Relations Commission (WRC) or the Circuit Court, and not at common law in the High Court. They further argue that, under the provisions of the Act, only claims for breaches of equal remuneration or gender equality clauses may give rise to independent common law actions.

This commentary aims to offer a detailed analysis of the Judgment, reviewing the background of the dispute, the summary of judicial findings, the legal precedents and reasoning applied by the court, and the broader implications for future employment equality litigation.

Summary of the Judgment

Mr Justice Rory Mulcahy’s judgment focuses primarily on the appropriateness of a preliminary trial on several legal issues under the Employment Equality Act 1998. The plaintiff raised a claim that her suspension was tantamount to victimisation and gender discrimination, in breach not only of statutory rights but also of an implied contractual term guaranteeing gender equality.

The defendants, while accepting the plaintiff’s factual allegations for the purposes of the preliminary issues, argued that any claim for victimisation or gender discrimination should be exclusively addressed through the procedures provided under the Employment Equality Act – a claim which they assert precludes the assertion of parallel common law remedies. Moreover, the court noted objections regarding the timing of the defendants’ preliminary application, contending that the exercise had in fact delayed the overall proceedings rather than saving time or costs.

Ultimately, Mr Justice Mulcahy held that the preliminary issues, as originally framed and later reformulated, failed to capture a genuine dispute that could be resolved separately from the broader factual context of the case. The judgment underscored that the issues – primarily whether statutory provisions regarding equality clauses and victimisation claims bind the plaintiff exclusively to the WRC or open the door to common law remedies – were so intertwined with the factual matrix of the case that resolving them in isolation would not yield any material benefits in terms of time or cost savings.

Analysis

Precedents Cited

The Decision references several key precedents to bolster its analysis. Among these are:

Doherty v South Dublin County Council (No. 2) [2007] IEHC 4; [2007] 2 IR 696 – This case supports the proposition that claims under the Employment Equality Act involving victimisation should, in principle, follow a specialized procedural route.
Nolan v EMO Oil Services Ltd [2009] IEHC 15; [2010] 2 ILRM 228 – Nolan’s decision focused on the appropriate forum for redress in similar employment equality disputes, emphasizing statutory mechanisms over common law remedies.
Kearney v Byrne Wallace [2019] IECA 206 – This appellate decision contributed to the discussion on the limits of common law claims where statutory protections exist.
Power v Health Service Executive [2019] IEHC 462 – The judgment in Power further clarifies the boundaries of procedural exclusivity under the Employment Equality Act.
Campion v South Tipperary County Council [2015] IESC 79; [2015] 1 IR 716 – Perhaps the most significant precedent cited in the context of this application, Campion lays out the criteria for determining whether a preliminary trial is warranted. Key factors include: the need for a discrete legal question, the material savings in time and costs, and the overall benefit to the resolution of the case.
Lannegrand and Ors v National University of Ireland Galway [2016] IEHC 518 – The discussion in Lannegrand involved a similar inquiry into the inclusion of gender equality clauses into employment contracts, highlighting the court’s approach when statutory and contract law issues overlap.

These authorities heavily influenced the court’s decision-making process. In particular, the Supreme Court’s articulation in Campion regarding when a preliminary issue hearing is appropriate was pivotal in determining that the current application did not justify a separate trial of the issues.

Legal Reasoning

Mr Justice Mulcahy’s reasoning is multifaceted, touching on both the statutory framework and procedural efficiency:

Characterization of the Plaintiff’s Claims: The court accepted that the plaintiff’s claims included an alleged breach of an implied contractual term—namely, that her employment contract incorporated a gender equality clause by operation of the Employment Equality Act. However, the judge observed that the factual basis of her claims extends far beyond a mere breach, involving general allegations of victimisation that intersect statutory and common law rights.
Jurisdictional and Procedural Questions: One of the pivotal issues was whether claims for victimisation or gender discrimination under the 1998 Act must be exclusively brought before the WRC (or, in certain cases, the Circuit Court) or whether the plaintiff could alternatively avail herself of common law remedies in the High Court. The judgment scrutinized the applicability of section 101 of the Act, which, while clearly encompassing claims related to equal remuneration or equality clauses, does not necessarily restrict claims for broader types of victimisation and gender discrimination.
Efficiency and Prejudice in the Use of Preliminary Hearings: The decision placed considerable emphasis on the cost and time implications of a preliminary issue hearing. The court noted that, contrary to the defendants’ anticipation of saving judicial time and costs, the preliminary hearing ended up further delaying the trial process, drawing attention to the limited scope for any material benefits from such an approach.
Limitations of a Preliminary Issue Approach: A key aspect of the reasoning was the determination that the preliminary issues, particularly as re-formulated during the hearing, did not dissect a genuine dispute between the parties. Instead, they merely repackaged broader arguments already apparent in the pleadings. Moreover, the inherently mixed question of fact and law—such as whether the claim constitutes a breach of a gender equality clause—cannot be decisively resolved outside the full evidentiary context.
Statutory Interpretation: The judgment carefully considered statutory language, particularly in relation to sections 21, 77, and 101 of the Employment Equality Act 1998. The court held that the provision concerning equal remuneration and equality clauses could not logically be limited to proceedings existing before the Act’s implementation, thus upholding a liberal interpretation that supports the plaintiff’s right to pursue a breach of an implied contractual agreement.

Impact on Future Cases and Relevant Area of Law

The McKeown judgment is poised to have a significant impact on both procedural and substantive aspects of employment equality litigation:

Procedural Practice: By underscoring the limited benefits of separating preliminary issues from the overall trial, the judgment cautions against the overuse of preliminary hearings in complex employment disputes. Courts may now be more circumspect in ordering such hearings unless clear benefits in terms of time and cost reductions can be demonstrated.
Choice of Forum: The decision reiterates that while the Employment Equality Act provides specialized redress mechanisms (via the WRC and the Circuit Court), there remains room for claims to be pursued at common law, particularly where a breach of an implied contractual right is involved. This interpretation reinforces the flexibility available to plaintiffs guarding against discriminatory or victimising conduct.
Clarification of Statutory Rights: The ruling reinforces that statutory provisions—such as the automatic inclusion of a gender equality clause in employment contracts—carry significant weight in contractual interpretation. Future litigants may rely on this precedent when arguing that statutory protections transform employment contracts, thereby bolstering claims for breaches that extend beyond conventional statutory redress.
Interplay of Statutory and Common Law Remedies: By acknowledging that the same set of facts may give rise to concurrent statutory and common law claims (albeit not simultaneously pursued due to the prohibition in section 101 regarding damages claims in parallel), the judgment contributes to a more nuanced understanding of how such remedies interact.

Complex Concepts Simplified

For clarity, here are some key legal concepts and terminologies explained in a simplified manner:

Preliminary Issue Hearing: This is an initial hearing where the court is asked to decide on specific legal questions before the trial moves on to a full determination of the case. Its purpose is to potentially narrow the issues in dispute, save time, and reduce costs. However, its appropriateness depends on whether the legal questions can be separated from the factual issues and if a clear benefit is evident.
Implied Contractual Terms: These are provisions that are not written into an employment contract but are assumed to exist by law. In the context of this case, the Employment Equality Act implies a gender equality clause in every employment contract, meaning that employees are entitled to fair treatment regardless of gender.
Victimisation: Under the Employment Equality Act, victimisation refers to an employer retaliating against an employee who has made a complaint of discrimination or participated in related legal proceedings. The statute protects employees from such adverse treatment, which can include disciplinary actions like suspension.
Jurisdiction and Procedural Exclusivity: Jurisdiction refers to a court’s authority to hear a case. Procedural exclusivity means that certain types of claims must be filed in a specific forum (e.g., the Workplace Relations Commission) rather than in the common law courts. The debate in McKeown’s case concerns whether the victimisation claim is categorically bound to the statutory forum or may also be considered in a common law context.
Equal Remuneration and Equality Clauses: These are clauses, either expressed or implied, intended to ensure that employees receive equal treatment in their pay and working conditions. The Act effectively “inserts” such clauses into employment contracts where they do not explicitly exist.

Conclusion

In concluding, the McKeown judgment is instructive on several legal fronts. It highlights that preliminary issue hearings, while potentially useful, must be narrowly tailored to matters that can be decisively resolved without the benefit of the full factual record. The decision reinforces that claims based on implied contractual terms under the Employment Equality Act stand alongside—or even in lieu of—claims for statutory victimisation and gender discrimination.

By carefully examining the nature of the plaintiff’s claims, the court has reaffirmed that any breach of a gender equality clause implied into an employment contract carries with it enforceable rights that may be pursued in the common law, provided that such claims are not rendered moot by statutory limitations. Furthermore, the judgment clarifies the appropriate balance between judicial efficiency and substantive justice, particularly in cases where the issues in dispute overlap statutory remedies with common law claims.

Ultimately, the decision underscores the need for all parties in employment equality disputes to appreciate the full array of remedies available and consider the procedural implications of their chosen forums. Legal practitioners and litigants should take note of the court’s emphasis on context-specific factual inquiry when challenging broad assertions of discrimination or victimisation.

This comprehensive analysis of the McKeown judgment thus serves as a precedent in understanding both the procedural constraints and the substantive rights emerging from the Employment Equality Act. It is likely to influence future litigation by prompting a more cautious approach to the use of preliminary issue hearings and by reaffirming the statutory basis for claims of gender equality in the workplace.