THE FAIR EMPLOYMENT TRIBUNAL 

CASE REF:	141/02FET

APPLICANT:		Ciarán  Ó Maoláin

RESPONDENT:		1.	The Equality Commission
2.	Beverley Jones
3.	Jones & Cassidy, Solicitors

DECISION

The unanimous decision of the Fair Employment Tribunal is that it does not have jurisdiction to consider the complaint made by the applicant, and it is dismissed.

Appearances:
The applicant Mr Ó Maoláin, in person.
The respondents were represented by Ms Fiona Cassidy, Solicitor of Jones & Cassidy.

1.	This matter was listed for a preliminary hearing on the issue of whether or not the Tribunal had jurisdiction to consider the applicant’s complaint.  The applicant, Mr Ó Maoláin, and the respondents’ Solicitor, Ms Cassidy, each provided the Tribunal with written submissions, and expanded upon these orally at the hearing.  The background to, and the facts relating to, the applicant’s complaint, which are essentially not in dispute, are set out in the succeeding paragraphs.

2.	On 21 March 2002, the applicant, by letter to the Office of the Tribunals (which he asked to be treated as an originating application) alleged ‘discrimination by way of victimisation, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 and/or other Northern Ireland and European legislation in that [the respondents] libelled him in letters sent … to the Office of the IT and FET on 17 January 2002, and 30 January 2002’.  In his written submission he further alleged that the respondents’ motive in telling these alleged untruths about him was to deny him what he described as his European Convention right to a fair hearing before the Tribunal in relation to such complaints as he had made, or might make.  He referred to the Human Rights Act 1998, and Articles 6 and 14 of the Convention (right to a fair trial and freedom from discrimination respectively).  

3.	(i)	The letters of 17 and 30 January 2002 were written by the second named respondent.  She is a partner in the firm of Solicitors who are the third named respondents.  They had acted for the first named respondent in previous claims brought against the latter by the applicant, and the correspondence in issue related to those claims.  In determining the preliminary issue as to whether the alleged libellous remarks in these letters could give rise to a claim of victimisation before the Tribunal, it was common ground that it was not necessary for the Tribunal to decide whether the remarks in question were, in fact, damaging or defamatory.	
			
	(ii)	Mr Ó Maoláin, in his letter/originating application of 21 March 2002, and at the hearing, indicated that he was aware that he could bring libel proceedings in the High Court.  However, he wished to bring an action before a Tribunal as well as (or instead of) a libel action because of the context in which the alleged libels were uttered, ie they potentially constituted victimisation because he had brought earlier complaints before the Tribunal.  He also was very honest in his acceptance that cost factors came in the equation, because of the unavailability of legal aid for defamation proceedings in the ordinary courts.	
			
	(iii)	The Tribunal does not regard the fact that the applicant does have other remedies, by way of a common law action for damages, as being determinative on the issue of the Tribunal’s jurisdiction, notwithstanding that it does appear strange that what is being urged is that what is essentially that a complaint of libel should be adjudicated upon by the Fair Employment Tribunal.	
			
4.	(i)	The applicant had, over a period of years, sought employment with 3 of the 4 bodies that are now subsumed within the remit of the Equality Commission.  He had always wanted to work in this area, and he had been shortlisted and interviewed on 3 or 4 occasions.  He described himself as a ‘standing applicant’ for employment with the Commission and its predecessors.  While he very fairly conceded that at the relevant time, 17 and 30 January 2002 he had no application pending for any job vacancy which actually existed, he nonetheless argued that as someone who wanted to work for the Equality Commission, and who had a history of applications for vacant posts, he was a ‘person …… seeking employment’ within Article 19(1)(a) of the Fair Employment and Treatment (Northern Ireland) Order 1998, and that, correspondingly, the Commission was an ‘employer’ within Article 2(2), as a body with ‘employment available’.	
			
	(ii)	The Tribunal is, however, unable to accept this contention.  We agree with the submissions advanced by the respondents that in order for an allegation of discrimination (including discrimination by way of victimisation) to succeed, it must arise ‘in circumstances relevant for the purposes of the Order’.  [See Article 3(4) of the 1998 Order].  This is expanded on by Article 3(7) which makes it clear that the alleged discrimination must occur in one of the situations encompassed by the legislation, the relevant context here being Part III of the Order, relating to ‘Discrimination in the Employment Field’.	
			
	(iii)	We are fortified in the above conclusion by the decision in Chief Constable of West Yorkshire -v- Khan [2001] IRLR 830.  

When considering the similar victimisation provisions in Section 2 of the Race Relations Act 1976, the House of Lords made it clear that the alleged victimisation must take place in circumstances where discrimination is unlawful by virtue of some provision of the legislation (See: per Lord Nicholls at pp 832,833).	
	(iv)	In short, we are not satisfied that the applicant’s complaint, even if based on facts which are true, falls within the scope of the employment relationship or potential employment relationship covered by Article 19 of the 1998 Order, which we find contemplates complaints relating to vacancies which do in fact exist.  The applicant, although he referred to Article 19(1)(a) and its reference to a person seeking employment, has also tended to overlook how that is qualified by the succeeding                  sub-paragraphs (i) – (iii).  This qualification seems to us to support our finding above.	

5.	Before the Tribunal, Mr Ó Maoláin also argued that his rights under the European Convention on Human Rights, as incorporated into municipal law by the Human Rights Act 1998, had also been infringed.  He alleged breaches of Article 6 (the right to a fair trial) and Article 14 (protection against unlawful discrimination).  Before us he submitted that it was necessary to construe Article 19 of the 1998 Order in the way that he had urged, in line with the Convention.  However, in view of our finding that he does not have a right to complain to the Tribunal in the circumstances which we have outlined, we consider that the provisions of Article 6 are of no assistance to him.  Article 14 (which is not free-standing, but depends on the existence of another Convention right) cannot assist the applicant either.  He is not, however, left without any remedy, as a common law action for damages remains open to him.	
		
6.	The Tribunal therefore decides, as a preliminary issue, that it does not have jurisdiction to consider the applicant’s complaint.	

Chairman:

Date and place of hearing:  26 August 2002

Date decision recorded in register and issued to parties: