CASE REFS: 415/04 FET
CLAIMANT: Paul Gannon
RESPONDENTS: 1. Northern Ireland Policing Board
2. Kennedy Recruitment Ltd
The decision of the Tribunal is that:-
(i) the second-named respondent be dismissed from the proceedings, with the consent of the claimant and the first-named respondent; and
(ii) it is not just and equitable, in all the circumstances of the case, to consider the claimant's complaints alleging discrimination on the grounds of his religious belief and his sex, and discrimination by way of victimisation (the claimant having conceded that these complaints were not presented to the Tribunal within the prescribed time limits). Accordingly, these complaints are dismissed.
Constitution of Tribunal:
Chairman: Mr D Buchanan
The claimant appeared in person.
The first-named respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor's Office.
The second-named respondent was represented by Mrs E Kennedy.
|1.||(i)||At the outset of the proceedings, the names of the first and second-named respondents were amended, with the consent of the parties, to those now shown.
|(ii)||Mr Gannon indicated in open Tribunal that he was making no complaint of any kind against the second-named respondent, Kennedy Recruitment Ltd. Consequently, Kennedy Recruitment Ltd was dismissed from the proceedings with the consent of the claimant and the first-named respondent.|
|(iii)||The Tribunal extended the time appointed for entering an appearance by the first-named respondent until 21 October 2005 (the date of the hearing), without objection by the claimant.|
|2.||(i)||By an claim presented to the Fair Employment Tribunal on 12 October 2004, the claimant, Mr Gannon, alleged that the first-named respondent had discriminated against him on the ground of his religious belief and his sex when it failed to afford him the opportunity of applying for the post of District Policing Partnership (DPP) Regional Co-Ordinator in October 2003. The two successful candidates were female and Protestant.
He further alleged discrimination by way of victimisation in late March 2004 when he was not short listed by the first-named respondent for the post of DPP Finance Officer.
|(ii)||The claimant, in his application to the Tribunal and at the hearing before the Tribunal, conceded that both complaints had been presented outside the prescribed time limits.
He sought to persuade the Tribunal that it relation to each of his complaints, it was just and equitable to consider them, notwithstanding that they were out of time.
|(iii)||The Tribunal heard evidence from the claimant, and had regard to the documentary evidence submitted by the parties. It finds the facts set out in the following paragraphs.|
|3.||(i)||The claimant had been employed under a temporary weekly contract with the Policing Board from June 2002 until it was terminated on 14 December 2003.
The reason for its termination was that the claimant had written an anonymous letter to a colleague. While he described this as a prank, it had led to a police investigation and the issue of a caution to the claimant.
|(ii)||The claimant stated that the circumstances of his dismissal, and the fact that he was given no opportunity to state his side of the case, were matters that caused him distress and provided, in part, reasons for his non-compliance with the time limits.|
|(iii)||He also advanced the following reasons for the delay in making his complaints.|
|(iv)||As far as the complaint of sex discrimination and religious discrimination relating to the first-named respondent's alleged failure to allow him the opportunity to apply for the DPP Regional Co-Ordinator post in October 2003 is concerned, the claimant was at that time on the temporary weekly contract with the first-named respondent. He stated that he was concerned that if he raised the issue there was a danger that his contract might have been terminated.
One of the females appointed to the post of DPP Regional Co-Ordinator was the widow of a murdered UDA leader, and he was also concerned that raising the complaint would place him in danger from paramilitary sources.
|(v)||At the time of the failure to appoint the claimant to the post of DPP Regional Co-Ordinator, and to shortlist him to the post of Finance Officer in March 2004, he was under immense personal stress. His mother suffered from Alzheimer's disease, and he had been helping his elderly father cope at home. However, in response to a question from the Tribunal, the claimant indicated that his mother had gone into a nursing home, on a permanent basis, in late February or early March 2003. He accepted that this lessened the pressure on the family.
At this time, although the claimant had consulted his family doctor, he was not put on any medication. He did not rely on any medical ground in relation to his failure to make his complaints within the prescribed time.
|(vi)||Despite the claimant's personal difficulties, and any fear he had of paramilitaries, he nonetheless embarked on writing a series of letters to public figures, including officials and members of the Policing Board, councillors and MLAs.|
|(vii)||In a letter of 17 December 2003, the claimant offered his services to the Policing Board as a consultant on a freelance basis, notwithstanding that his contract had been terminated on 14 December 2003.|
|(viii)||In a letter of 24 March 2004 to the Chief Executive of the Policing Board, after he had not been short listed for the DPP Finance Officer post, he said that he wanted "to draw a line under this entire episode, and move on in my life. Although I do not accept the Board's reasons for not being short listed, I do not intend taking the matter up with the Equality Commission or anyone else. The matter is dead as far as I am concerned".|
|(ix)||He sent further letters to the Chief Executive of Banbridge District Council in late January 2004, to the National Audit Office in London on 25 August 2004, and to an MLA on 30 September 2004 making various complaints about the recruitment exercises in issue.|
|(x)||All the correspondence to which I have referred is articulate and well written, despite the claimant's personal difficulties. It shows that the claimant at all stages had an awareness of the potential claims which he could make. However, he did not pursue them at the time through personal choice.
He had also lodged a claim previously and knew of the existence of time limits, albeit that he did not know the exact time limits for making complaints
|4.||(i)||The relevant law relating to time limits is contained in Article 46(1) and (5) of the Fair Employment and Treatment (Northern Ireland) Order 1998, and Article 76(1) and (5) of the Sex Discrimination (Northern Ireland) Order 1976. These are in similar terms, laying down the time limit for making a complaint, but providing that the Tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it is just and equitable to do so.|
|(ii)||The Tribunal accepts that time limits exist for a purpose and should be observed unless there is good reason not to. However, it is clear that the 'just and equitable' rule (which appears principally in discrimination cases) is wider than the 'reasonably practicable' rule found elsewhere in employment law. (See: Mills and Another v Marshall  IRLR 494 EAT.)|
|(iii)||The delay in these cases is significant.
No good reason has been advanced by the claimant for the delay. He has not relied on any medical ground and no medical evidence has been adduced. As indicated above, he had an awareness from an early stage of his potential claims, and indeed had set out the gist of them in some of the correspondence to which reference has been made. This was notwithstanding any stress he was under, or any implicit threats from paramilitaries. In late 2003, his employment with the respondent had already ended, so that any fears about jeopardising its continuance were no longer an issue
|(iv)||I am further satisfied that by reason of the delay the respondent is now prejudiced in its defence of the proceedings. Some potential witnesses for the respondent are no longer employed by it, and others are out of the country.|
Date and place of hearing: 21 October 2005, Belfast
Date decision recorded in register and issued to parties: