The Labour Court has halted the hearing of a case taken by a former RTÉ employee about being forced to retire at 65 due to inappropriate comments made by a member of the court yesterday.
The unusual move occurred in the case of Anne Roper versus RTÉ, on what was to be the fifth day of the hearing, and will impose a significant additional costs burden on the parties faced with another rehearing of the case.
Yesterday, a member of the division, Arthur Hall, said that questioning by RTÉ's counsel Marguerite Bolger SC was "ageist and sexist".
Responding, Ms Bolger, who is an expert in employment and equality law, said that she was rarely lost for words, but had always prosecuted every case in line with her client's instructions and the code governing her profession.
This morning, the Chair of the three-person Labour Court Division hearing the case Alan Haugh held a private hearing with the lawyers involved on both sides.
When the hearing went public, Mr Haugh announced that the division had taken the decision to recuse itself from continuing the hearing as a consequence of certain remarks made yesterday during the hearing.
Mr Hall then said he wanted to offer a sincere apology for his comments yesterday.
He said they were not directed at her as an individual but were just about some comments that had been made.
Ms Bolger accepted his apology.
Mr Haugh then said on behalf of the court that he wished to reiterate the court's regret to the parties, saying it was conscious of the significant inconvenience and mindful of the costs both parties have incurred in running the case to date.
He assured the parties they would do their "absolute best" to ensure the matter was reassigned to another division at the earliest opportunity - and proposed that a case management conference might allow the issues to be narrowed in advance of the next hearing.
Today's development means a delay in security finality as regards a case on mandatory retirement ages which is viewed as potentially significant by employment lawyers.
It also means that both sides face a significant increase in their legal costs.
In the normal courts, the winning party pays the costs of the losing side, but in the Workplace Relations Commission, each side bears their own costs, whether they win or lose.
Both sides in the Roper v RTÉ are represented by both solicitors and barristers.
The Labour Court declined to comment on today's recusal hearing.
However, informed sources said it was "extremely rare and practically unheard of" for a division of the Court to recuse itself in the middle of a hearing.
They said that where a recusal arises, it is usually before a hearing commences where a conflict arises or could be perceived as arising.
They did not know whether the legislation makes any provision for disciplinary or other measures where a recusal arises in such circumstances.
The sources acknowledged that the costs of the abandoned five-day hearing will be very large, adding that there was a question as to how Ms Roper and RTÉ were expected to sustain those costs.
RTÉ asked the Department of Enterprise, Trade and Employment how often recusals of this nature occur, whether a further investigation or disciplinary steps might arise, and whether measures would be taken to compensate the parties for the costs accrued during the abandoned five-day hearing.
A Department spokesperson said the Labour Court was independent in the manner in which it discharges its statutory functions, and Minister for Enterprise Trade and Employment Leo Varadkar had no role in the matter.
"Recusals are rare. They do arise from time to time in circumstances where fair procedures so dictate," she concluded.
