CASE REF: 354/01FET
CLAIMANT: Derek Cotter
RESPONDENT: Tyrone Irish Crystal
The unanimous decision of the Tribunal is that:-
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Panel Members: Mrs J McCormick
Mr H Fox
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by Aidan Quinn, Solicitor.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.
At the outset of the hearing, the claimant's representative made clear to the Tribunal that his claim of unlawful discrimination contrary to the 1998 Order did not relate to his said dismissal. It will be necessary to refer to this further later in this Decision. The respondent denied, in a Notice of Appearance presented to the Tribunal on 13 August 2001, that the claimant was unfairly dismissed and/or had been unlawfully discriminated against on the grounds of his religious belief and/or political opinion contrary to the 1998 Order.
Further, following the receipt by him of a ticket for speeding, a comment/jibe had been made to him along the following lines, namely "sure your mate Ronnie Flanagan will get you off". The precise date when this occurred was not known; but there was evidence, which the Tribunal accepted, that it occurred in or about the winter of 1999, when the claimant was involved in a large order for the RUC Historical Society.
At a sales meeting, attended by the claimant, in or about 1999, Frank Higgins, who was a keen Gaelic supporter, and the then Chairman and major shareholder of the respondent, at a meeting of the sales representatives, referred to the representatives as "all part of the same Gaelic team", or some similar expression. The claimant had no personal association with Gaelic sports. Mr Higgins, who was called as a witness by the claimant, acknowledged that he probably made such a sporting reference as part of a team talk, given that he was a keen Gaelic supporter. Indeed, the claimant accepted, in evidence, that when Mr Higgins made the remark he had been attempting to pull the sales representatives together as a team.
The claimant never made any complaint about any of the comments referred to above, prior to his dismissal. As he stated in his witness statement, he put up with the comments and they did not cause him a great deal of upset. The claimant, in the period immediately prior to his dismissal, had been obtaining advice from a solicitor – but at that time there was no reference at all by the claimant's solicitor to these comments, nor as a ground of any complaint of unlawful discrimination.
The claimant did not have a specific office, nor a specific computer for his use during the period of his employment. Other members of the sales staff, at a similar level to himself, had an office and computer in that office. The Tribunal is satisfied that, when the claimant was initially employed by Mr Priestley there was a particular concern, shared by them both, that by selling to members of the security forces there was a risk both to the respondent, but also the claimant, from members of the Provisional IRA. In that context, Mr Priestley decided, with the agreement of Mr Higgins, that the claimant would, from the outset, not have a fixed desk/office in the respondent's premises. From the outset of his employment, the claimant personally held considerable data relating to his work involving sales to members of the security forces, which one might have expected to be normally held at the respondent's premises. As the claimant himself acknowledged, in his evidence, there were fears, shared by himself and the senior management, at the time when the original arrangements were entered into, of the security implications of storing sensitive data on the respondent's premises, given the nature of the claimant's work with the members of the security forces. It was, in the Tribunal's view, in the above context that the absence of an individual office/computer for the claimant on the respondent's premises commenced. The claimant never complained about the situation or attempted to challenge it. Indeed, the claimant, because of the nature of his work, spent a considerable proportion of his time 'on the road', rather than at the respondent's premises. It seems that, and in the absence of any complaint from the claimant, no attempt was made to alter the initial arrangement. Indeed, there was no suggestion from the claimant that the absence of an office or a computer had prevented him satisfactorily carrying out his work. However, the Tribunal is satisfied that, during the course of the claimant's employment, considerable data relating to the claimant's work began to be held by the respondent in relation to his work with the security forces; and that, whilst there may have been a reluctance, for security reasons, to store such material at the respondent's premises in the earlier years of his employment, as the general security situation improved during the course of his employment this became less of a priority or necessity. However, despite same, there was no alteration in the claimant's working conditions; but it was also something about which he made no complaint.
"(1) Paragraph (5) the Tribunal shall not consider a complaint under Article 38 unless it is brought before which is the earlier of:-
(a) the end of the period of three months beginning with the day in which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or
(b) the end of the period of six months beginning with the day in which the act was done.
(5) The Tribunal may nevertheless consider any such complaint, claim or application which is out of time, if in all the circumstances of the case, it considers that it is just and equitable to do so.
(6) The purposes of this Article:-
(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and
(b) any act extending over a period shall be treated as done at the end of that period; and
In the Tribunal's view, the sporting reference to the Gaelic team made in the comment by the former Chairman of the respondent in 1999 was of a very different nature to the comments made about the speeding ticket and the helicopter flights, and, in the opinion of the Tribunal, was an unconnected and isolated act for which time began to run when made and was therefore, prima facie, out of time.
However, the Tribunal considered that the comments made against the claimant in relation to the helicopter flights and the speeding ticket were of a similar nature. Although the speeding ticket comments were linked to a specific event and occurred in a specific period of time, and the comments about the helicopter occurred throughout the period of employment, the Tribunal concluded that, given their similar nature, they were part of an ongoing situation/state of affairs and that thus such acts extended over the period of employment and were therefore in time.
In relation to the claimant's claim relating to the failure to provide him with an office, a computer or to give him a choice of car, these were matters which took place throughout the period of his employment and, in the Tribunal's view, were part of an ongoing situation/state of affairs for which the respondent was responsible and in such circumstances were acts extending over the period of the claimant's employment and were therefore in time.
The comment by Mr Higgins was made in 1999. The claimant never made any complaint to Mr Higgins about his remark. There was no suggestion, at any time, that he did not have a good working relationship with Mr Higgins. Indeed, the Tribunal noted that when the claimant wished to complain about the pricing structure he wrote a letter of resignation and had a meeting with Mr Higgins and Mr Donnelly, after which he withdrew his resignation. It does not appear that he took the opportunity to raise the issue of the comment made by Mr Higgins, even at that time. Further, the claimant, when advised by his solicitor in the period leading up to his dismissal, did not refer in correspondence to any complaint of unlawful discrimination relating to this comment.
The comments made by Mr Higgins were not relevant to the claim of unfair dismissal made by the claimant; and which claim it was not disputed by the parties was in time. The Tribunal did not consider the fact that the claimant had such an unrelated timeous unfair dismissal claim was a ground for extending time in relation to the claim of unlawful discrimination on the just and equitable grounds. It was not, as occurred in the case of Berry -v- Ravenbourne National Health Service Trust (1993) ICR 871, where an amendment of a claim was allowed on just and equitable grounds, a situation where the facts in the discrimination claim were held to have very much overlapped and/or were very much the same as those to be determined in the unfair dismissal claim.
The claimant frankly admitted that his failure to complain, when the comment was made by Mr Higgins, was that he decided to put up with it. That, in the Tribunal's view, was his decision; and there was no suggestion in evidence by the claimant that he did not know that he could have taken, if he had wished, Tribunal proceedings. Time limits are there to be observed and, as seen in the Decision of Robertson -v- Bexley Community Centre (2003) IRLR 434, the exercise of the discretion to extend time can be considered the exception rather than the rule. Mr Higgins did not deny that he made such a comment, and thus the Tribunal did not consider prejudice was caused to the respondent by the presentation of the claim out of time. However, the absence of prejudice does not make it just and equitable to ignore the time limit (see further Johnston -v- Chief Constable of the RUC (1998) NI 188).
In light of the foregoing, the Tribunal decided it would not be just and equitable to extend time in relation to the claimant's claim relating to the comment by Mr Higgins about the Gaelic team. The Tribunal therefore did not have jurisdiction to hear any claim relating to the said comment.
Where on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could (Tribunal's emphasis), apart from this Article, conclude in the absence of an adequate explanation of the respondent –
(a) has committed an act of unlawful discrimination or unlawful harassment against the complainant, or
(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant."
In the case of Shamoon -v- Chief Constable of the RUC (2003) IRLR 285, the House of Lords held that detriment was an act which a reasonable employee might feel places them at a disadvantage with regard to the circumstances in which they work.
The Tribunal was satisfied that the treatment relied on by the claimant and for which the Tribunal has jurisdiction to determine, namely the comments in relation to the helicopter and the speeding ticket, the absence of an office and computer and the choice of a car, that such matters could constitute a detriment within the test set out in the Shamoon case.
This, in the Tribunal's view, raised a fundamental issue in relation to the claimant's claim of unlawful discrimination; in particular whether the claimant could establish any such claim on the grounds of political opinion. This required the Tribunal to consider and determine whether the political opinion relied on by the claimant in this matter comes within the terms of the 1998 Order.
Kelly LJ, in delivering a concurring judgement, held as follows:-
"There can be no difficulty as to the meaning of the word "opinion" and none as to the word "political". When they come together in the phrase "political opinion", it means, in broad terms, and without attempting any exhaustive definition, the opinion relating to the policy of government and matters touching the government of the state. The word "political" is defined in the Shorter Oxford Dictionary as: "of, belonging or pertaining to the state, its government and policy; public, civil; of or pertaining to the science or art of government". It seems to me clear that a person who holds an opinion on matters relating to any of the elements of this definition, holds a political opinion."
The phrase was further considered by the Court of Appeal in the case of Gill -v- Northern Ireland Council for Ethnic Minorities (2001) NIJB 299, 311, when Carswell LCJ (as he then was), after concluding that the remarks of Kelly LJ in McKay -v- NIPSA and the dictionary definition quoted by him gave the most useful definition for the present purposes, stated as follows:-
"It seems to us that the type of political opinion envisaged by the Fair Employment legislation is that which relates to one of the opposing ways of conducting the government of the state, which may be that of Northern Ireland, but is not confined to that political entity. The object of the legislation is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy or ideology, and which may predispose the discriminator against him. For this reason, we consider that the type of political opinion in question must be one relating to the conduct of the government of the state or matters of public policy."
In light of the foregoing, and prior to any meeting with the claimant, Mr Nunn believed that he was faced with an accounting issue which had to be dealt with or something which had the potential to be a fraud. This was clear from the notes he made in preparation for his meeting with the claimant, which included a series of questions he wished to ask the claimant. Mr Nunn telephoned the claimant on 15 March 2001 and asked him to attend a meeting the following day to discuss "serious matters" regarding the PRI accounts. He did not provide the claimant with any details at that stage.
The Tribunal does not accept, as set out above, that the claimant's contention is correct, that such questions were not asked, given the notes of the meeting made by Mr Williamson; albeit they were limited and not verbatim. Further, if the meeting was as limited as suggested by the claimant, it could not satisfactorily explain the claimant's contacts with the security forces, as set out below, in the days following the initial meeting. The Tribunal was satisfied that the claimant was fully aware of the nature of Mr Nunn's enquiries by the questions which were asked by Mr Nunn. Otherwise he would have no reason or basis to have made any such contacts. The claimant, as appears from Mr Williamson's notes, clearly believed that at the next meeting outsiders, such as auditors, would be present; but was assured, in response, by Mr Nunn that what he was carrying out was an internal investigation. At some stage, and it is not apparent from the notes who raised the issue; an issue arose about representation of the claimant at this next meeting. Indeed, in the Tribunal's opinion, this further reflects the realisation, by both the claimant and Mr Nunn, of the seriousness attached to the meeting. Whoever raised the issue, the Tribunal is satisfied that the claimant was told at this initial meeting that he had the opportunity to have a representative, such as a solicitor or anyone else he chose at the next meeting. The Tribunal noted that, in giving that opportunity, this was to be contrasted with the respondent's disciplinary procedures relating to misconduct, in which an employee who was the subject of such procedure had the right only to be accompanied by another member of staff of his/her choice.
"The company is carrying out a full internal investigation into some of your accounts. The company seeks your full cooperation during this investigation. I have requested that you keep these matters confidential and do not discuss the situation with any third party, other than your solicitor, should you wish so to do. It is the company's intention to respect the confidentiality of this business during the investigation and request you to do likewise."
Unfortunately, due to the intervening holiday weekend, this letter was not received by the claimant prior to the meeting on 20 March 2001; and he only received a copy of the letter at the outset of the meeting. Apart from making it clear, as set out above, during the course of the meeting, that this was an internal investigation, the Tribunal was not satisfied from the notes, as prepared by Mr Williamson, that Mr Nunn, during the course of the meeting, had stressed the confidentiality of the matter; and certainly not in the terms set out in the above letter.
In response, Mr Nunn stressed that this was an internal investigation and the necessity for him to investigate the matter with the claimant, as the person responsible for the said accounts. During the course of the meeting the claimant referred to the fact that he had a meeting early that afternoon with some people flying in from England. In his witness statement prepared for the purposes of these proceedings, the claimant confirmed that he had spoken to the security forces and that an appointment had been arranged that afternoon with the police and some military personnel, who had flown over to Northern Ireland specifically for the meeting. The Tribunal is satisfied that Mr Nunn, when informed of the above contacts, pointed out that what he was conducting was an internal investigation; and he also expressed disappointment, if not annoyance, that the claimant had not only spoken to his contacts in the security forces, but had become involved in an investigation carried out by them. The Tribunal was not surprised, given the above developments, that Mr Nunn then adjourned the meeting to consider these developments and requested that a further meeting would be held later that morning. When the claimant did not arrive for the adjourned meeting, he was contacted by telephone and informed Mr Nunn that he could not attend, as "he was on the way to meet the people from England and would have to help them with their investigation". Mr Nunn asked him to attend a further meeting the next day, but the claimant indicated that he would be taking advice from his solicitor.
During the course of the meeting, the claimant referred to a discussion he had had with Mr Chris Morgan, the then sales manager for the corporate sales division, who had resigned in January 2001; but who had been required to work his period of notice. He indicated that Mr Morgan had told him on 14 March 2001, there was going to be this investigation; and, in response, Mr Nunn informed the claimant that Mr Morgan would not have known there was going to be the meeting on 16 March 2001.
The Tribunal was satisfied that Mr Nunn and Mr Morgan had met on 14 March 2001, when Mr Nunn, to Mr Morgan's surprise, had informed him he could leave at that time, without working out his full period of notice. Mr Nunn, in explaining his decision, told Mr Morgan that, in the subsequent period, things would get "messy". But the Tribunal accepts that this was said in the context of the difficulties foreseen by Mr Nunn, in relation to the handover to Mr Morgan's successor; and the reaction of customers who would have made the order initially with Mr Morgan, but by the time of actual sale would be dealing with his successor. However, the Tribunal also believes that Mr Nunn made some reference to the fact that something was going on in relation to the claimant. He gave no details; but Mr Morgan wrongly connected the two remarks. Mr Morgan, in conversation with the claimant later that day, upon informing him that he was leaving, repeated the above conversation he had had with Mr Nunn. Mr Morgan did not tell the claimant, as he suggested, that Mr Nunn had told him he was going to be sacked. Indeed, Mr Morgan, a witness for the claimant, made it clear he said no such thing.
In the Tribunal's view, it was not surprising that Mr Nunn may have made some reference to the claimant at that time, as he had already raised queries, without success, with the accounts department and Mr Williamson; and must have already had in contemplation the meeting with the claimant, which was arranged a day later. No detail was given by Mr Morgan to the claimant, as he knew none. Further, the Tribunal does not accept, in the above circumstances, that Mr Nunn's conversation with Mr Morgan was some reference to some preordained decision by Mr Nunn to have the claimant dismissed. It is further concluded that the claimant, for his own reasons, has attempted to put a spin/gloss on what he was told by Mr Morgan with his reference to sacking, which Mr Morgan has made clear was never said.
In evidence, the claimant accepted that in contrast to what was said in the letter and, indeed, as set out below, in subsequent correspondence from the claimant's solicitor, he was never told by the persons in the security forces whom he contacted, and who were never identified by the claimant, not to give the names and addresses of the accountholders to Mr Nunn, as suggested. Despite the earlier reference to a letter from the army, no such letter was ever sent to Mr Nunn, either directly or via the claimant's solicitor. There was never any contact made by letter or orally to Mr Nunn by any members of the security forces, or those who were said by the claimant to be investigating the matter. Nor was there any contact by legal representatives on their behalf. If there had been and, subject to what was said, the Tribunal has no doubt that Mr Nunn would have had to take into account any such contact in any further action that he took.
He stated further:-
"Therefore my client is bewildered at the suddenness of your company in demanding that he respond to your overtures concerning a major investigation by the company revealing a number of serious irregularities, which presumably attend my client's PRI accounts or why else would you have sought to have a meeting with him. Because of the delicacy of these accounts and my client's determination not to compromise the security of any of the persons who do business with your company through the PRI accounts, he immediately sought guidance from the RUC and the army in relation to your correspondence. My client is still awaiting confirmation from these bodies about whether or not he can provide any information about these accounts to you, if indeed that is what you require.
Before my client will consider attending any meeting with yourselves, I would be grateful to receive from you full and comprehensive details of the information you require from him and the exact nature of the major investigation referred to in your letter of 23 March 2001 to this writer, and the serious irregularities that you allege have come to light."
A letter was sent on 2 April 2001 to the claimant himself informing him of the meeting arranged for 5 April 2001; and which included the same reference to the ability to bring a friend, colleague or independent adviser, and once again warning him that if he declined to openly and comprehensively support the ongoing investigation, disciplinary action, up to and including dismissal, would be taken.
By letter to Mr Nunn dated 4 April 2001, the claimant's solicitor referred to the fact that reference had been made to serious irregularities that had come to light in some of the trading accounts of Tyrone Crystal and indicated, inter alia, that before the claimant would attend any meeting Mr Nunn required to put in writing to the claimant's solicitor the questions he wished to pose to the claimant or exactly what information he required from him. He made clear that any attempt by Mr Nunn to pre-empt such an appropriate arrangement by way of disciplinary action would be considered a deliberate act of discrimination and breach of his client's employment rights and of course his client reserved his position with regard to that. He also pointed out that his client would not be attending any meeting until he reflected upon his client's fundamental employment rights, human rights and the rules of natural justice.
In a letter dated 5 April 2001 to the claimant's solicitor, Mr Nunn informed him of the above suspension and the date of the further meeting that had been arranged, and that if the claimant again failed to attend and openly and comprehensively respond to the questions already raised with him, which would again be raised, his employment with the company would be terminated with immediate effect. He also pointed out that in relation to the reference in previous correspondence to the irregularities in the trading accounts, that the respondent was making no judgement as to any association with these irregularities and the claimant.
At this stage, the Tribunal is satisfied that the claimant had decided he would not attend the meeting, as requested, and was fully aware of the consequences of such action. In a response of the same date, Mr Nunn denied any decision had already been made to dismiss the claimant. He pointed out that the letter referred to was a letter sent to major accountholders, which included some PRI accounts, following Mr Nunn's appointment as Group Sales Manager. The Tribunal, having seen an example of such correspondence, is satisfied that this was the purpose of the letter; and again the claimant, for his own reasons, has attempted to misinterpret the purpose of the correspondence. He also pointed out that, although the letter informing the claimant of his suspension had been marked "Private and Confidential", that the claimant had clearly disclosed the contents of that letter to certain customers, who had contacted the company, despite the fact that the claimant had been told during the period of suspension not to have any contact with any such customers.
"(1) (a) the reason (or, if more than one, the principal reason) for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason or a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it –
(d) relates to the conduct of the employee.
"(4) Where the employer has fulfilled the requirements of paragraph (1) of the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
"In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair, the Employment Tribunal has to decide whether the employer who discharged the employee on the grounds of the misconduct in question entertained a reasonable suspicion amounting to belief in the guilt of the employee of that misconduct at that time. This involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief and the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case."
In the case of Farrant -v- Woodroffe School (1998), which was a case where the employer was relying, as the ground for dismissal, on the employee's conduct in refusing to obey an instruction, it was held by the Employment Appeal Tribunal that the lawfulness of that instruction, though relevant, was not decisive in considering the reasonableness of the dismissal.
These were not casual contacts and for an investigation to have begun, as suggested by him, emphasised the nature of the discussions that must have taken place between the claimant and the members of the security forces; but also of his knowledge of what was due to be discussed at the next meeting.
The Tribunal was very aware that at all times, as seen from the series of letters between Mr Nunn and the claimant and/or his solicitor following the meeting on 20 March 2001, Mr Nunn was slow to take the eventual sanction of dismissal. He showed repeated willingness to rearrange meetings to accommodate the claimant, but without success. He also made it clear, at all times, what would be the consequences for the claimant, namely dismissal, if he failed to attend any of the meetings, as requested. Mr Nunn, in the view of the Tribunal, by his said actions, showed that he was not anxious to have to dismiss the claimant. Another employer might have taken the action, which was taken by Mr Nunn in the letter dated 17 April 2001 at an earlier stage. It further shows, in the Tribunal's view, that the claimant was in error when he suggested that Mr Nunn for some time had been anxious to dismiss him, since Mr Nunn had found out he had spoken to a competitor of the respondent. It also has to be noted that the claimant had been a very successful salesman for the respondent, and the respondent was unlikely, in the Tribunal's view, to wish to lose such experience and expertise, without good reason. It could not be said, in the view of the Tribunal, that Mr Nunn had not shown patience before sending the dismissal letter dated 17 April 2001. Mr Nunn had also made it clear, from the outset, that the claimant could be attended at any meeting by his solicitor.
Despite what was stated by the claimant's solicitor in the series of correspondence to Mr Nunn about the inability of the claimant to give the relevant names and addresses in connection with the said accounts, this, as the claimant acknowledged in evidence, was not in fact correct. No such instruction had been given by any member of the security forces with whom he had been in contact. Indeed, he could give no explanation to the Tribunal how his solicitor had come to suggest otherwise in the said correspondence.
As Lord MacKay made clear in Polkey -v- AE Dayton Services Limited (1987) ICR 142, "… An Industrial Tribunal is not bound to hold that any procedural failure by the employer renders the dismissal unfair: it is one of the facts to be weighed by the Industrial Tribunal in deciding whether or not the dismissal was reasonable. The weight to be attached to such procedural failure should depend upon the circumstances known to the employer at the time of dismissal, not on the consequences of such failure …".
Given the contents of the series of correspondence which had taken place between the parties, and in the face of repeated warnings contained therein that the failure to attend the meeting as requested would result in dismissal, Mr Nunn was fully aware the claimant, by this time, was determined to maintain his position. In such circumstances, the failure to inform the claimant in the letter of dismissal of his right of appeal was of little or no weight and the respondent did not thereby act unreasonably in failing to refer to the right of appeal in the letter of dismissal.
Rule 14(1) of the said Rules states:-
"Where, in the opinion of the tribunal, a party has in bringing the proceedings or a party or party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or a party's actions in the proceedings have been misconceived, the tribunal shall consider making; and if it so decides, may make:-
(a) an order containing an award against that party in respect of the costs incurred by another party;
The Tribunal was conscious that any award under the said Rules is an exceptional course of action and the reason for it has to be specified clearly. (See further the judgement of Lord Justice Pill in Lodwick -v- London Borough of Southwark (2004) IRLR 554 at paragraph 26 – in which he also approved the earlier judgement of Sir Hugh Griffiths in ET Marler Ltd -v- Robertson (1974) ICR 72, where he stated "Ordinary experience of life frequently teaches us that what was plain for all to see once the dust of battle has subsided was far from clear to the contestants when they took up arms".
Secondly, the above Rule requires a Tribunal to embark on a two-stage process, namely, firstly, whether there has been, for example, a finding of unreasonable conduct and, secondly, but separately, to consider the exercise of its discretion in making an award of costs (see Criddle -v- Epcot Leisure Ltd, EAT unreported 24 June 2005). The exercise of discretion by the Tribunal under the said Rule has also been held to have been unfettered (see further the case of Beynon -v- Scadden (1999) IRLR 700).
The Tribunal was also very aware that any award of costs is not to be in the nature of a penalty, but rather compensatory.
In relation to the claims of unlawful discrimination which the Tribunal was required to determine, the Tribunal was particularly mindful of the dicta as set out above in the case of Lodwick. Whilst, as set out in the Tribunal's Decision, there were clear difficulties facing the claimant in relation to those claims of unlawful discrimination, not least in relation to the definition of political opinion, it did not consider that by pursuing such claims to hearing he had continued to present an unmeritorious claim and, in circumstances, where an award of costs would be appropriate.
Date and place of hearing: 20 June 2005, 21 June 2005, 22 June 2005, 23 June 2005, 24 June 2005, 15 August 2005, 19 August 2005, Belfast
Date decision recorded in register and issued to parties: