FAIR EMPLOYMENT TRIBUNAL

CASE REF:	84/04FET

CLAIMANT:			William James Coulter		

RESPONDENT:		Down District Council	

DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal is that it does have jurisdiction to hear the claim that the claimant suffered financial loss as a result of alleged incidences of harassment, and is not prevented from making this claim by virtue of a conciliation agreement entered into in respect of the proceedings under case reference number 19/03FET.

The tribunal also finds that the sequence of events of 7 May 2003 as set out in the claimant’s application to the Fair Employment Tribunal received on 26 February 2004 through to the failure to pay the claimant when the comparator had been paid are all acts constituting one ongoing act of discrimination and as such are not outside the time limit.  The tribunal also considers that it would not be just and equitable to extend time in respect of the acts from 5 February 2003 to April 2003. 

Constitution of Tribunal:

Chairman (sitting alone):		Ms Crooke

Appearances:

The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by Legal Department of Belfast City Council.	

The Legal Issue before the Tribunal

1.	The issue before the tribunal was whether or not it had jurisdiction to hear the claimant’s claim for financial loss as a result of alleged incidences of harassment.  The respondent claimed that the tribunal did not have jurisdiction as jurisdiction had been ousted by the conciliated settlement in the previous case under case reference number 19/03FET.

2.	Depending upon the resolution of the first issue, the second issue before the tribunal was in the event that it finds that it does have jurisdiction to entertain the claimant’s claim under case reference number 94/04FET, whether that claim was brought within the period within which proceedings must be brought under Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998.      	

Sources of Evidence

3.	The tribunal heard evidence from the claimant on his own behalf and from Mrs Freda McCormick, Human Resources Manager of the respondent.  Additionally the tribunal had a book of agreed documents before it. 

Analysis of Evidence

4.	In general where there was a conflict in the evidence, the tribunal preferred the evidence given by the claimant as he was one of the signatories to the agreement.  The evidence given on behalf of the respondent was given by Mrs Freda McCormick, Human Resources Manager, of the respondent, who was not the signatory to the agreement and so unable to say what factors operated in her mind before signing the agreement.  Additionally, she did not give the tribunal any insight into the views of Mr Stewart who was the actual signatory to the agreement on behalf of the tribunal.  There was documentary evidence which was not challenged by the respondent, as it in fact emanated from the respondent, stating that Mr Stewart said in a meeting of 19 December 2003 that the agreement covered all issues up to 6 November 2002.    

Findings of Fact

5.	(i)	The claimant had previously issued proceedings in the tribunal under record
number 19/03FET.

(ii)	These related to a failure to investigate a complaint of the claimant lodged under the respondent’s harassment and bullying policy.

(iii)	A conciliated settlement in respect of this case was signed by the claimant on 26 June 2003 and on behalf of the respondent on 3 July 2003.

(iv)	In or around February 2004, the claimant entered a fresh set of proceedings in the tribunal complaining of events from 5 February 2003 to January 2004.

(v)	It was contended on behalf of the respondent that the terms of the conciliated settlement reached in case number 19/03FET were wide enough to oust the jurisdiction of the tribunal to hear this subsequent case as clause 4 of that agreement stated “the applicant acknowledges that the terms and conditions set out herein constitute an adequate disposal of his grounds for complaint insofar as same relate to the Council and its failure to implement the relevant procedures under the harassment and bullying policy”.  The respondent contended that this operated to cover the complaints of the claimant in case 84/04FET and as such the claimant could not bring this claim before the tribunal.

Conclusions of the Tribunal on the Findings of Fact

6.	The tribunal has noted the heading of the conciliated settlement which is as follows:-

	“Agreement in respect of an application made to the Industrial Tribunal”.  

Accordingly, the tribunal was unable to find that it operated to block events which happened between the parties after the initial proceedings under reference number 19/03FET had been lodged in the tribunal.  The tribunal is supported in reaching that conclusion by the contents of the minutes of a meeting on Friday 19 December 2003.  This was a document which emanated from the respondent and minuted a meeting attended by Mr John McGrillen, Clerk and Chief Executive of the respondent, Mr Norman Stewart, Director of Corporate Service of the respondent, Mrs Freda McCormick, Human Resources Manager of the respondent, Mr William Coulter, Dog Warden and Mrs Taryn Trainor, Union Representative.  In this set of minutes, the following statements were made:-

“Mr McGrillen reiterated that a settlement figure had been reached in respect of events prior to 6 November 2002 …” and

“Mr Stewart was of the opinion that the settlement figure was for all issues up to 6 November 2002”.

Clearly employees of the respondent at the most senior level took the view that the proceedings under reference number 19/03FET related to the complaints of the claimant in and around the events of 6 November 2002.

7.	Additionally, the tribunal considers that it is straining credibility somewhat to insist that the claim under reference number 84/04FET relates to the harassment and bullying policy.  While the events may have commenced in or around 5-12 February 2003 with complaints under the bullying policy, the application also contended that in May 2003, Mr Bradley had failed to investigate the complaints of the claimant in the same way as he had investigated the complaints of the comparator.  The tribunal concludes that this is a fresh act of discrimination.

8.	The tribunal accepts Mr Coll’s argument that the “validation claim” which ran from 5 February 2003 to in or around March-April 2003, was plainly out of time contrary to both Article 46(1)(a) and (b).  However, the tribunal concludes that the events running from 7 May 2003 to 28 January 2004, constituted a separate claim which was one continuing course of conduct and as such was brought within time and not contrary to Article 46.

9.	The tribunal was also asked to consider whether in the event of finding that the claim or any part of it was out of time, the tribunal considered that it would be just and equitable to permit the claim to be considered under Article 46(5). 

10.	The tribunal is mindful of the fact that the claimant although he was representing himself, was fully aware of his rights to bring proceedings in the tribunal.  He had previously brought proceedings (those brought under 19/03FET) and as such could have brought proceedings in respect of the events from 5 February 2003 to March-April 2003 within time had he so desired.  

   

Chairman:

Date and place of hearing:	27 April 2006, Belfast. 

Date decision recorded in register and issued to parties: