Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00056/98FET

CLAIMANT: Kevin Curley

RESPONDENTS: 1. Chief Constable of the Police Service of Northern Ireland

2. Chief Superintendent Huston

3. Superintendent Lamont

4. Superintendent Allen

DECISION

The unanimous decision of the Tribunal is that it only has jurisdiction to consider the claimant's complaint that he was unlawfully discriminated against by the respondents, on the ground of religious belief, by not being promoted to the position of Sergeant in 1997. The claimant is ordered to pay £500 towards the costs incurred by the respondent in respect of the hearing on the 15 March 2005.

Appearances:

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Edwards & Co, Solicitors.

The respondents were represented by Mr N McCombe, Barrister-at-Law, instructed by the Crown Solicitor's Office.

1. The preliminary issue for the Tribunal to determine was:-

"Whether the Tribunal has jurisdiction to consider all aspects of the claimant's claim or are matters pleaded, out of time."

The Facts

2. The claimant joined the Royal Ulster Constabulary, as it then was, as a police constable on 20 July 1986.
3. On 28 January 1989 he passed the Sergeant's examination.
4. Between 1989 and 1997 the claimant applied for promotion to the position of Sergeant on eight occasions and was turned down on each occasion.

Case Reference Number 128/93FET

5. By originating application dated 14 May 1993 the claimant made a complaint of unlawful discrimination to the Fair Employment Tribunal on grounds of religious belief and political opinion against the first respondent. This complaint related to:-

(1) his failure to be promoted to the position of Sergeant on the first four occasions from 1989 to 1992;

(2) his failure to pass the Inspector's examination on two occasions in 1992 and 1993;

(3) travelling expenses; and

(4) relocation expenses.

6. By Notice of Appearance dated 30 June 1993 the respondent denied the complaints.
7. On 26 April 1994 that complaint was dismissed by the Fair Employment Tribunal, without a hearing on its merits, following its withdrawal by the claimant without objection from the respondent.

Case Reference Number 02805/96SD

8. By originating application dated 25 June 1996 and received on 28 June 1996, the claimant made a complaint of unlawful discrimination on the ground of sex to the industrial tribunal against the first respondent and Superintendent Hooke. This complaint related to the first four Sergeants' Promotion Boards which took place from 1989-1992 (see paragraph 5 above) and three further Sergeants' Promotion Boards which took place from 1993-1996.
9. At paragraph 15 of the originating application form, the claimant was asked "Are you alleging that you were unlawfully discriminated against on the grounds of religious belief or political opinion?" The form notified the claimant that if he indicated that he was, the Office of Tribunals may regard his complaint as a complaint to the Fair Employment Tribunal. The claimant indicated that he was not alleging that he had been unlawfully discriminated against on grounds of religious belief or political opinion.
10. This complaint was listed for hearing before an industrial tribunal. It was dismissed on 13 December 2000, following its withdrawal, after the claimant's previous counsel had opened the case on behalf of the claimant. The respondent consented to the withdrawal.

Case Reference Number 00056/98FET

11. By originating application received on 19 January 1998, the claimant made a complaint of unlawful discrimination on the ground of religious belief against the respondents listed in the title.

At paragraph 9, the claimant indicated that his complaint related to the eighth Sergeants' Promotion Board in 1997 and the previous seven Sergeants' Promotion Boards from 1989-1996. Those previous seven Sergeants' Promotion Boards were included in the claimant's complaint of unlawful discrimination on the ground of sex (case reference number 02805/96SD) which was dismissed following its withdrawal on 13 December 2000. The first four Sergeants' Promotion Boards were also included in the claimant's complaint of unlawful discrimination on the grounds of religious belief and political opinion (case reference number 128/93FET) which was dismissed following withdrawal on 26 April 1994.

The claimant also alleged that he had been subjected to sectarian harassment on a number of occasions throughout his eleven and a half years service, particularly during his first years.

12. By Notice of Appearance received on 2 March 1998 the respondent denied discriminating against the claimant on the ground of religious belief.
13. On 21 June 2001 an Order was made requiring the claimant to provide further particulars of each and every act complained of since 1986. By correspondence dated 4 July 2001 the claimant furnished replies which confined his complaint to the eighth Sergeant's Promotion Board which took place in 1997.
14. The claim was listed for hearing from 20-24 October 2003. On the morning of 20 October 2003 the claimant served amended replies to the Order for Further Particulars dated 21 June 2001. In those replies he gave further particulars of his complaint in relation to the 1997 Sergeants' Promotion Board. In addition he indicated that his complaint included the following:-

(1) alleged sectarian harassment while he was stationed at Bessbrook. That was from 28 November 1986 to 17 December 1989 and from 27 February 1990 to 4 March 1990;

(2) the alleged treatment he received in relation to a road traffic accident in 1989;

(3) the alleged comments of colleagues in relation to the Masonic Order which took place while he was stationed in Antrim between 5 March 1990 and 6 December 1992;

(4) the alleged treatment he received in relation to a road traffic accident which took place while he was stationed in Antrim between 5 March 1990 and 6 December 1992; and

(5) the seven previous Sergeants' Promotion Boards which were all included in case reference number 02805/96SD and the first four of which were included in case reference number 128/93FET.

15. The Tribunal adjourned the hearing to enable the following preliminary issue to be determined:-

"Whether the Tribunal has jurisdiction to consider all aspects of the applicant's claim or are matters pleaded, out of time?

16. There was no dispute that the claimant's complaint in relation to the eighth Sergeant's Promotion Board which took place in 1997 had been presented within the statutory time limit and that the Tribunal therefore had jurisdiction to hear and determine it.
17. The dispute related to the previous seven Sergeants' Promotion Boards from 1989 to 1996 together with the alleged sectarian harassment and comments with regard to the Masonic Order which took place from 1986 to 1992 and the road traffic accidents which took place in 1989 and between 1990 and 1992.

The Contentions of the Parties

18. Relying on the decision of the Court of Appeal in Hendricks –v- Commissioner of Police for the Metropolis [2003] IRLR 96, Mr Mulqueen submitted that all the above acts constituted a "continuing act" within the meaning of the statutory provisions and were therefore to be treated as done at the end of the period over which the act extended, which meant that they were in time.
19. Mr Mulqueen conceded that if the tribunal did not accept that the above acts constituted part of a continuing act, then, apart from the 1997 Sergeants' Promotion Board, they were all out of time and an extension of time was not being sought. In those circumstances, relying on the Court of Appeal decision in Anya –v- University of Oxford & Another [2001] IRLR 377, Mr Mulqueen submitted that it was only fair and just that the Tribunal hear all the evidence in relation to the matters at paragraph 14 above, in order to ascertain if an inference could be drawn that such prior history could or clearly did affect the claimant's prospect of promotion in 1997.
20. Relying on the decisions of the Court of Appeal in Barber –v- Staffordshire County Council [1996] IRLR 209, Sajid –v- Sussex Muslim Society [2002] IRLR 113 and Ako –v- Rothschild Asset Management Ltd [2002] IRLR 348, Mr McCombe submitted that the claimant could not pursue complaints in relation to the first four Sergeant Promotion Boards, whether by way of individual complaints or as part of a continuing act. That was because complaints of unlawful discrimination on the grounds of religious belief had already been made and withdrawn in respect of them. They were therefore subject to issue estoppel. That was unless special circumstances existed which would allow the claimant to bring forward the claims again. Mr McCombe submitted that no special circumstances existed in the present case.
21. Relying on the principle in Henderson –v- Henderson [1843] 3 Hare 100, the Court of Appeal decisions in Talbot –v- Berkshire County Council [1993] 4 All ER 9 and Devine - Bortey –v- London Borough of Brent [1998] IRLR 525 and the House of Lords decision in Johnson –v- Gore Wood & Co [2001] 1 All ER 481, Mr McCombe submitted that the claimant should not be allowed to pursue his complaints of unlawful discrimination on the ground of religious belief in relation to the fifth, sixth and seventh Sergeants' Promotion Boards, the alleged sectarian harassment and comments with regard to the Masonic Order from 1986 to 1992 and the road traffic accidents which took place in 1989 and between 1990 and 1992, unless special circumstances existed. That is because it would amount to an abuse of process to allow them to be raised now when some of them could have and should have been raised in the first complaint to the Fair Employment Tribunal and when the remainder could have and should have been raised in the second complaint to the Industrial Tribunal.
22. Mr McCombe submitted that the Anya case could be distinguished on its facts. That was because whereas in the Anya case the applicant alleged that a member of the interview panel had treated him less favourably on a number of previous occasions the claimant was making no such allegation in relation to the 1997 interview panel. Mr McCombe also submitted that the Anya principle could not apply when the principles of issue estoppel and abuse of process applied.
23. In response, Mr Mulqueen submitted that the claimant's first complaint to the Fair Employment Tribunal (case reference number 00128/93FET) contained complaints about four matters:-

(1) the first four Sergeants' Promotion Boards;

(2) efforts made to pass Inspectors examinations in January 1992 and 1993;

(3) travel expenses; and

(4) relocation expenses.

Mr Mulqueen submitted that for the purposes of the present proceedings the claimant was only relying on the alleged unlawful discrimination in relation to the first of those four matters (the first four Sergeants' Promotion Boards). Mr Mulqueen submitted that the claimant's complaints in respect of the first four Sergeants' Promotion Boards were not affected by issue estoppel. That was because they were out of time when the 1993 complaint was made (case reference number 128/93FET), and the claimant did not therefore seek to rely on them at that stage. The respondent produced the bundle of documents which was prepared by the respondent in relation to that earlier claim. It was clear from those documents that the claimant did in fact seek to rely on the first four Sergeants' Promotion Boards as part of that claim. That point was not then pursued on behalf of the claimant.

24. Mr Mulqueen also submitted that special circumstances existed in relation to the withdrawal of the first claim and that issue estoppel should not apply for that reason. The hearing was adjourned and reconvened to enable the claimant to adduce evidence in relation to those special circumstances. Prior to the reconvened hearing, the respondent provided documents to the claimant. The claimant did not pursue his claim that special circumstances applied at the reconvened hearing.
25. In relation to the claimant's second claim of unlawful sex discrimination to the industrial tribunal in respect of the first four Sergeants' Promotion Boards and the three further Sergeants' Promotion Boards, Mr Mulqueen submitted that it would not be an abuse of process to permit the claimant to pursue claims in respect of the last three. That was because the claimant was unaware, at that time, that he could make a claim of unlawful discrimination on the ground of religious belief to the Fair Employment Tribunal in respect of those matters. Given that the applicant was specifically asked, at paragraph 15 of his application form, if he wished to make a complaint of unlawful discrimination on the ground of religious belief the Tribunal gave Mr Mulqueen the opportunity to take instructions from the claimant on that point. Having taken instructions, Mr Mulqueen conceded that the claimant had considered raising the issue of unlawful discrimination on the ground of religious belief at that stage and did not do so.

The Statutory Provisions

26. Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides:

"Subject to paragraph (5), the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of –

(a) the end of the period of 3 months beginning with the day on 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 6 months beginning with the day on which the act was done.

Article 46(5) provides:

"A Court or 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."

Article 46(6) provides -

"For the purposes of this Article –

(a) ….

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) …."

The Relevant Legal Principles

An act extending over a period

27. In Hendricks –v- Commissioner of Police for the Metropolis (2003) IRLR 96 the facts were that Joy Hendricks, who is black, joined the Metropolitan Police Service as a police officer in January 1987. From March 1999, she was on long term sick leave with stress. On 8 March 2000, she presented a tribunal application complaining that through most of her service of 11 years she had been subjected to race and sex discrimination and to harassment. She subsequently supplied further particulars which alleged numerous incidents of less favourable treatment from 1989 down to, and even after, the presentation of the originating application. These included nearly 100 specific allegations of discrimination, mainly in the period 1989 to 1994, involving 50 or more officers.

The Court of Appeal held that Ms Hendricks was entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of "an act extending over a period".

Issue Estoppel

28. In Sajid –v- Sussex Muslim Society [2002] IRLR 113 the Court of Appeal set out the underlying policy behind estoppel as follows:-

"The underlying policy of cause of action estoppel and related doctrines, usually classified under the heading res judicata, is that of finality of litigation and the avoidance of multiplicity of proceedings on the same issue. Save in special circumstances, it is contrary to public policy and may be an abuse of the process of the Court to attempt to re-open in new proceedings a case which has already been litigated and finally determined by a Court or tribunal in proceedings between the same parties, or issues which could have been litigated properly between the parties in relation to the subject matter of the earlier litigation. This doctrine embodies a principle of justice, not just policy. In the absence of special circumstances, it is unjust for a party who has spent time and money in obtaining a final determination of a claim or an issue in a claim to be faced with fresh proceedings from the other party seeking to re-litigate the same cause of action or the same issue".

The facts in that case were that Mr Sajid had withdrawn a tribunal claim for damages for breach of contract in order to pursue the same claim in the High Court. His claim was for £75,000 and, in his application to the tribunal, he acknowledged that the tribunal only had power to award damages of £25,000, and expressly reserved the right to claim the balance in another Court. In those circumstances, the Court of Appeal concluded that the tribunal's order dismissing the claim 'was not, and could not have been, intended either by the parties or by the tribunal to constitute a final and binding determination dismissing his claim'.

29. In Barber –v- Staffordshire County Council [1996] IRLR 209 the Court of Appeal held that "the principles of cause of action or issue estoppel apply to an industrial tribunal application which is dismissed by a tribunal following its withdrawal by the applicant. There is nothing in those principles of estoppel which stipulate that they can only apply in cases where a tribunal has given a reasoned decision on the issues of fact and law in the previous litigation."

The facts in that case were that Mrs Barber had abandoned her previous tribunal proceedings on the basis that she did not think that they could succeed, and did not at the time have any intention of bringing fresh proceedings in any form. She was thus barred from proceeding with her subsequent claim.

30. In Ako –v- Rothschild Asset Management Limited [2002] IRLR 348, the Court of Appeal held that "cause of action estoppel does not apply to employment tribunal cases where it is clear, on an examination of the surrounding circumstances, that the withdrawal of the application is in substance a discontinuance of the proceedings. Discontinuance does not release or discharge the cause of action. It preserves the right to establish an untried claim on the merits in other proceedings. …. Barber –v- Staffordshire County Council and Lennon –v- Birmingham City Council do not preclude application of the general principle that a Court may have regard to the matrix of fact in order to understand the meaning and effect of a consensual act. Nor are they authority for the proposition that it is never permissible to have regard to the circumstances surrounding a consent order in order to determine the extent of the consent given to the making of the order and the extent of the estoppel arising from it. In relation to the question whether a dismissal following withdrawal gives rise to a cause of action or issue estoppel, the reasons for the withdrawal are relevant if they shed light on the crucial issue of whether the person withdrawing the application intended thereby to abandon the claim or cause of action. If it is clear that an applicant was not intending to abandon the claim or issue that was being withdrawn, then he or she will not be barred from raising the point in subsequent proceedings unless it would be an abuse of process to permit that to occur."

The facts in the Ako case were that Ms Ako, on advice from the CRE, withdrew a claim for unfair dismissal and race discrimination against Rothschild in order to re-issue the same proceedings citing another company as an additional respondent. The Court of Appeal held that there was no cause of action estoppel, since she had clearly not intended to abandon her claim.

Abuse of Process

31. In the Court of Appeal decision of Talbot –v- Berkshire County Council [1993] 4 ALL ER9 Stuart-Smith LJ set out the principle in Henderson –v- Henderson [1843] 3 HARE 100 as follows:-

"Where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time".

The Rule is thus in two parts. The first relates to those points which were actually decided by the Court; this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second is not a true case of res judicata but rather is founded upon the principle of public policy in preventing multiplicity of actions, it being in the public interest that there should be an end to litigation; the Court will stay or strike out the subsequent action as an abuse of process."

With regard to the existence of special circumstances, Stuart-Smith LJ stated at page 7 "the mere fact that a party is precluded by the Rule from advancing a claim will inevitably involve some injustice to him, if it is or may be a good claim; but that cannot of itself amount to a special circumstance, since otherwise the Rule would never have any application. The Court has to consider why the claim was not brought in the earlier proceedings. The plaintiff may not have known of the claim at that time; or there may have been some agreement between the parties that the claim should be held in abeyance to abide the outcome of the first proceedings; where some representation may have been made to the plaintiff upon which he has relied, so that he did not bring the claim earlier. These would be examples of special circumstances, though of course they are not intended to be an exhaustive list."

32. In Devine–Bortey –v- London Borough of Brent [1998] IRLR 525 the Court of Appeal held that "the wider form of issue estoppel established in Henderson –v- Henderson applies equally to employment tribunal proceedings. Accordingly, parties to litigation must bring forward their whole case, and, except in special circumstances, will not be permitted to bring fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings but was omitted through negligence, inadvertence or accident."

The facts in that case were that Mr Devine-Bortey was dismissed on grounds of redundancy following a reorganisation of the section in which he was employed. The reorganisation involved the abolition of twelve existing administrative posts and the creation of eight new positions in their place. Following interviews, Mr Devine-Bortey was not selected for one of the new posts. He complained of unfair dismissal, alleging that he should have been one of those appointed. In the course of the tribunal proceedings, the evidence of one of the employer's witnesses indicated that Mr Devine-Bortey's African accent had a bearing on the decision not to appoint him to one of the new posts. The union official representing Mr Devine-Bortey cross-examined the witness but no application was made to add a complaint under the Race Relations Act. The tribunal concluded that the selection process had been fairly and properly carried out and the dismissal was not unfair. The reasons for that decision did not indicate in terms whether the racial issue had been taken into account in reaching that conclusion. Mr Devine-Bortey then made a fresh complaint, alleging unlawful racial discrimination. A tribunal chairman dismissed the complaint on the ground that the matter was res judicata. The EAT allowed an appeal concluding that there were special circumstances for not applying the wider form of issue estoppel established in Henderson –v- Henderson that ordinarily a person is precluded from bringing fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings but was omitted through negligence, inadvertence or accident. The EAT held that the fact that the proceedings in question arose in an Employment Tribunal where it is encouraged that cases are conducted by parties without general knowledge of the law, constituted a special circumstance justifying departure from that rule. The Court of Appeal held that the EAT had erred in its approach to the proper application of the Henderson –v- Henderson rule in employment tribunals and stated:

"The wider form of issue estoppel established in Henderson –v- Henderson applies equally to employment tribunal proceedings. Accordingly, parties to litigation must bring forward their whole case and, except in special circumstance, will not be permitted to bring fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings but was omitted through negligence, inadvertence or accident. It is not a 'special circumstance' such as to displace that rule that parties in employment tribunal proceedings are encouraged not to be legally represented. The rule applies in full measure in ordinary courts irrespective of whether the person being estopped was or was not legally represented in the earlier proceedings. Moreover, the EAT's own jurisprudence clearly establishes that a point not taken by a party in an employment tribunal cannot be taken on appeal to the EAT, even though the failure to take it originally was due to the lack of skill or experience of the parties' advocate and even though the omission could have been rectified by the tribunal taking the point itself. In particular, this is so when the fresh point would require further facts to be investigated. The same considerations apply to the operation of the Henderson –v- Henderson rule in employment tribunals.

Nor, in the present case, were there any special circumstances sufficient to disapply the rule arising from the fact that the possibility that the applicant's selection for redundancy may have been racially motivated did not emerge until the tribunal hearing, when reference to his African accent was made by one of those who carried out the selection interviews. Any complaint of racial discrimination should then and there have been grafted on to the existing unfair dismissal proceedings, if necessary an adjournment being sought for that purpose."

Previous Conduct

33. In Anya –v- University of Oxford [2001] IRLR 377, the Court of Appeal held that:

"Very little direct discrimination today is overt or even deliberate. The guidance from case law tells tribunals to look for indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias."

The facts in the Anya case were that Dr Anya, a black Nigerian permanently resident in the UK, applied for a post as a post-doctoral research assistant. He was rejected following an interview, and the post went to the other shortlisted candidate, Dr Lawrence, who is white. Dr Anya complained that this decision was racially discriminatory. The interview was conducted by a panel of three, including Dr Roberts who was Dr Anya's supervisor. Dr Roberts had already formed a view that Dr Anya was not suitable for the post. He let one of the other panel members know about this prior to the interview. Dr Anya claimed that Dr Roberts had a preconceived hostility towards him which was racially motivated.

The Court of Appeal held that Dr Anya was entitled to adduce evidence in respect of previous conduct of Dr Roberts towards him to establish that the alleged hostility existed. The Court of Appeal also held that such hostility may justify an inference of racial bias on the part of Dr Roberts towards Dr Anya if there was nothing else to explain it.

CONCLUSIONS

34. The tribunal concludes that as no special circumstances have been established, the claimant is estopped from pursuing complaints of unlawful discrimination on the grounds of religious belief in relation to the first four Sergeants' Promotion Boards, from 1989 to 1992, either as individual complaints or as part of an act extending over a period. That is because a complaint of unlawful discrimination on the ground of religious belief has already been made (case reference number 128/93FET) and dismissed following its withdrawal by the claimant without objection from the respondent. The fact that there was no hearing on the merits does not, per se, amount to special circumstances: Barber –v- Staffordshire County Council [1996] IRLR 209.
35. The Tribunal concludes that as no special circumstances have been established, it would be an abuse of process to permit the claimant to pursue complaints of unlawful discrimination on the ground of religious belief in relation to:-

(1) alleged sectarian harassment from 1986 to 1990;

(2) alleged treatment in relation to a road traffic accident in 1989;

(3) alleged comments of colleagues in relation to the Masonic Order from 1990 to 1992; and

(4) alleged treatment he received in relation to a road traffic accident which took place between 1990 and 1992:

either as individual complaints or as part of an act extending over a period. That is because those complaints had arisen before the claimant's complaint of unlawful discrimination on the grounds of religious belief and political opinion (case reverence number 128/93FET) had been brought. They could therefore have been and should have been brought forward at that time.

36. In relation to the three Sergeants' Promotion Boards from 1993 to 1996, in respect of which a claim of unlawful discrimination on the ground of sex was made to an industrial tribunal in 1996 (case reference number 02805/96SD), the Tribunal concludes that, as no special circumstances have been established, it would be an abuse of process to permit the claimant to pursue these complaints to the Fair Employment Tribunal either as individual acts or as part of an act extending over a period. That is because the claimant was aware that he could make a claim of unlawful discrimination on the ground of religious belief in relation to those three Promotion Boards when making his complaint of unlawful discrimination on the ground of sex to the industrial tribunal in 1996. The originating application form completed by the claimant at the time specifically asked him if he wished to make a complaint of unlawful discrimination on the grounds of religious belief at the same time. The claimant therefore could and should have brought forward his complaint of unlawful discrimination on the ground of religious belief in relation to those three Promotion Boards when making his complaint of unlawful discrimination on the ground of sex to an industrial tribunal in 1996 (case reference number 02805/96SD).
37. Neither representative was able to find any authority as to whether or not the principles of Anya would apply in relation to previous acts which were subject to either or both issue estoppel and abuse of process. The Tribunal concludes that, in the absence of special circumstances (which do not exist in this case), it would be contrary to the public policy that there should be finality to litigation to permit the claimant to adduce evidence of previous acts which are subject to issue estoppel and abuse of process as indicators of sectarian bias on behalf of the members of the eighth Promotion Board which took place in 1997. Alternatively, if the Tribunal is wrong in that conclusion, the Tribunal agrees with Mr McCombe that the Anya case can be distinguished from the present case on its facts. That is because Dr Anya was permitted to adduce evidence of previous conduct on the part of the alleged discriminator to establish his pre-conceived hostility which was racially motivated. In the present case there was no suggestion that any of the members of the 1997 Sergeants' Promotion Board (which is the only Board the Tribunal has jurisdiction to consider) had been involved in any of the earlier matters raised by the claimant.
38. The Tribunal wishes to make it clear, for the avoidance of any doubt, that if the claimant is alleging that there was an envelope attached to his personnel file at the time of the 1997 Sergeants' Promotion Board and that any member of the selection panel had access to it at that time, then he is entitled to adduce evidence in relation to that matter. However he is not entitled to adduce evidence of how he alleges it may have been used by previous selection panels. That is because it would be an abuse of process to allow him to raise that issue when it could have been and should have been raised as part of the earlier claims.

Costs

39. Mr McCombe made an application for the costs of the hearing on 15 March 2005 on the ground that the hearing could reasonably have been avoided if the claimant had notified the respondent and the Tribunal in advance that he did not intend to pursue the issue of special circumstances. Mr Mulqueen opposed the application on the ground that it was only after discussing matters with him that morning that the claimant decided not to pursue the issue of special circumstances.
40. The Tribunal found the following relevant facts in relation to this application.

(1) At the hearing on 6 December 2004, Mr Mulqueen raised the issue of the existence of special circumstances on behalf of the claimant.

(2) The hearing was adjourned to enable the respondent to check documents before indicating whether it could agree that special circumstances existed, without the need for oral evidence.

(3) On 9 December 2004 the respondent provided a bundle of documents to the claimant and to the Tribunal and indicated that in the light of those documents it could not agree the existence of special circumstances.

(4) A further hearing was therefore arranged for 15 March 2005 to enable the claimant to adduce oral evidence in relation to the matter.

(5) On the morning of 15 March 2005, Mr Mulqueen indicated that the claimant was no longer relying on the existence of special circumstances.

The Tribunal is of the opinion that as the claimant's solicitor had the documents from on or about 9 December 2004, it was unreasonable not to notify the respondent prior to the hearing on 15 March that the claimant no longer wished to pursue the issue of the existence of special circumstances. If the claimant had notified the respondent in advance, the hearing on 15 March 2005 would not have been required. The Tribunal therefore orders the claimant to pay £500 towards the costs incurred by the respondent in respect of the hearing on 15 March 2005.

____________________________________

E McBRIDE

President

Date and place of hearing: 5 November 2004, 6 December 2004 and 15 March 2005,

Belfast

Date decision recorded in register and issued to parties: