Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 46/03 FET

128/03 FET

CLAIMANT: Norman Harold Magowan

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

DECISION ON A PRE-HEARING REVIEW

(i) By consent, the respondent is granted leave to amend his responses in Case Reference Nos: 46/03 FET and 128/03 FET.

(ii) Claim, Case Reference No: 46/03 FET, (insofar as it concerns an alleged incident on 31 October 2002 which the claimant has indicated in open Tribunal is the incident on which he relies) has been presented in time.

(iii) Claim, Case Reference No: 128/03 FET, was not presented within the time limit specified by Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998, and it is not just and equitable, in all the circumstances of the case, to consider the complaint notwithstanding that it is out of time.

Appearances:

The claimant appeared in person.

The respondent was represented by Mr S Ritchie, Barrister-at-law, instructed by The Crown Solicitor's Office.

1.	(i)	The claimant, Mr Norman Magowan, had two claims before the Fair Employment Tribunal.
	(ii)	The first of these claims (Case Reference No: 46/03 FET), presented to the Tribunal on 29 January 2003, was a claim that he had been victimised following an earlier application. That earlier claim (Case Reference No: 335/01 FET) had been dismissed following its withdrawal before the Tribunal. It will be necessary to say more about the circumstances following this withdrawal and dismissal subsequently. In Case Reference No: 46/03 FET the claimant gave four specific instances of alleged victimisation which took place on 1 August 1001, 2 September 2001, 3 March 2002, and 31 October 2002. The respondent, by his response, contended that the matters raised by the claimant did not constitute an act extending over a period and denied that the application, apart from the alleged incident of 31 October 2002, had been presented within the prescribed time limit.
	(iii)	The second claim (Case Reference No: 128/03 FET) was an allegation of religious discrimination and victimisation following the claimant's non-appointment to the post of Systems Integration Architect with the Police Service of Northern Ireland. This claim was presented to the Tribunal on 5 March 2003. The matter about which the claimant complained, according to the details on his claim, took place in October 2002, and he stated that he first knew about it on 8 December 2002. The respondent, in addition to denying discriminating against the claimant on the ground of religious belief and victimisation, again contended that the claim had not been presented within time.

1. These matters were listed for a pre-hearing review to determine the following issues:-

(i) Whether the respondent's responses should be amended as follows:-

The respondent denies that the claimant is entitled to rely on the protection afforded by Article 3(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998 and asserts that the Tribunal does not have jurisdiction to determine claim, 46/03 FET, for the following reasons:-

(a) On 22 February 2005 the claimant withdrew proceedings (335/01 FET) against the Chief Constable of the Police Service of Northern Ireland and others before the Fair Employment Tribunal, accepting in writing that those proceedings were misconceived.

(b) In the current proceedings (46/03 FET) the claimant alleges he was victimised because he brought the earlier proceedings.

(c) The withdrawal by him and acceptance that those proceedings were misconceived was an acknowledgement by him that the asserted facts were incapable of amounting in law to an act of discrimination by the respondent.

(d) Consequently, the bringing of those proceedings against the Chief Constable did not constitute a protected act and the claimant is therefore prevented from relying on the provisions of Article 3(4) of the 1998 Order.

(ii) If amended, whether in withdrawing and accepting claim, 335/01 FET, as misconceived, the claimant is prevented from relying on Article 3(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998, on the basis that the proceedings in 335/01 FET did not constitute a protected act.

(iii) If the Tribunal has jurisdiction to consider and determine the above complaints, notwithstanding the withdrawal of claim 335/01 FET, were the complaints brought within the specified time limit?

(iv) If not, whether it is just and equitable, in all the circumstances of the cases, for the Fair Employment Tribunal to consider the claims despite the fact that they are out of time.

3.	(i)	At a hearing on 16 August 2005, the claimant indicated in o'pen Tribunal that he had no objection to the amendment to the respondent's responses as set out at Paragraph 2.(i) above. Consequently, the Tribunal gave leave to the respondent to so amend those responses.
	(ii)	At the outset of a resumed hearing on 8 September 2005, the claimant indicated that his only complaint in relation to Case Reference No: 46/03 FET was in relation to the alleged incident of 31 October 2002 (the allegedly unjustified lowering of his Performance 'Box' Marking) and that he was not relying on the other incidents of August 2001, September 2001, and March 2002 as separate headings of complaint (which he accepted would be out of time), but was relying on them as background information to his complaint of 31 October 2002. This being so, it was accepted by Mr Ritchie BL, for the respondent, that as far as Case Reference No: 46/03 FET was concerned, there was no issue between the parties as to time limits and it had been presented in time.
	(iii)	In order to determine the remaining issues before the Tribunal, it heard evidence from the claimant and had regard to the documentary evidence submitted by the parties.
4.	(i)	The relevant law relating to the period within which proceedings before the Fair Employment Tribunal must be brought is set out at Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 which provides as follows:-

" … [t]he Tribunal shall not consider a complaint … unless it is brought before whichever is the earlier of –

(a) the end of a period of three 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 complaint of; or

(b) at the end of the period of six months beginning on the day on which the act was done.

Paragraph (5) of Article 46 provides that the time limit may be extended if, in all the circumstances of the case, it is just and equitable to do so.

It is also provided that a continuing act, or an act extending over a period shall be treated as done at the end of that period.

(ii)

Article 3(4) and (5) of the 1998 Order deals with discrimination by way of victimisation. The protected acts which bring discrimination by way of victimisation into play are, shortly stated:-

(i) bringing proceedings against the respondent or any other person under the 1998 Order;

(ii) giving evidence or information in connexion with such proceedings brought by any person or any investigation under the Order;

(iii) alleging that the respondent or any other person has contravened the Order; or

(iv) otherwise doing anything under or by reference to the Order in relation to the respondent or any other person.

		Paragraph (6) of Article 3 provides that a claimant will not be protected where any allegation made by him was false and not made in good faith.
	(iii)	The nature of a protected act was considered by the Court of Appeal in England and Wales in Waters v Commissioner of Police for the Metropolis [1997] IRLR 589, to which fuller reference is made below.

5. The Tribunal finds the following facts:-

(i) On 28 June 2001 the claimant, Mr Magowan, presented an application to the Fair Employment Tribunal. That complaint was Case Reference No: 335/01 FET and related to a promotion exercise in which he had been unsuccessful.

The respondents in that case denied liability.

(ii) When that matter came before the Tribunal the claimant's then counsel and the respondent's counsel on that occasion (not Mr Ritchie BL) drew up an agreement whereby the claimant agreed to withdraw his application to the Tribunal and both parties consented to an Order dismissing the proceedings, with no Order as to costs between the parties. A formal decision to this effect issued on 23 February 2005.

(iii) The agreement continued at Paragraph 2 thereof:-

"The [claimant] accepts that in light of analysis of the factual and legal basis of the above-mentioned proceedings that his claim for religious discrimination is misconceived".

The fourth paragraph of the agreement stated that the factual and legal complexity of the case may have given rise to the claimant's perception of religious discrimination.

Paragraph 6 of the agreement stated:-

"The [claimant] and respondent recognise that the [claimant] has two other extant cases against the respondent. The [claimant] is not legally represented in those proceedings. The foregoing agreement is without prejudice to those proceedings."

(iv) In the copy of the document before us, Paragraph 6 contained the following lines, which had been deleted by lines through them : "and the terms of this agreement and its existence shall not be raised by any party in relation to those extant proceedings". These had been replaced by the words "The [claimant] enters into this agreement in the recognition that the respondents are firmly contesting those applications". Both the deleted and substituted versions appeared before the signature of the respective counsel.

6.	(i)	On the first day of this hearing the claimant indicated to the Tribunal that he had not previously seen the agreement in its amended form.
	(ii)	Mr Ritchie BL, for the respondent, without having the opportunity to consider the authorities, very fairly conceded that if the true agreement were that as originally drafted, the respondent might well be estopped from relying on it. He also accepted that if the Tribunal were against him on his main submission (ie that the bringing of Case Reference No: 335/01 FET did not constitute a protected act, thus preventing the claimant from relying on Article 3(4) of the 1998 Order) then it was not necessary to determine whether the claimant was bound by the agreement of his counsel.
7.	(i)	In order to determine whether the bringing of the previous proceedings (Case Reference No: 335/01 FET), constituted a protected act for the purposes of the law of victimisation, it is necessary to consider the statutory provisions set out at Paragraph 4. (ii) above and the decision in Waters v Commissioner of Police for the Metropolis (op cit).
	(ii)	Waters was concerned with two consolidated appeals, one of which related to a common law negligence claim and need not concern us. The other related to the victimisation provisions set out in Section 4(1) and (2) of the Sex Discrimination Act 1975. Those sections correspond to Article 3(4) and (6) of the 1998 Order. There are some differences in wording, but nothing turns on these.
	(iii)	The claimant, Ms Waters, a police officer in the Metropolitan Police lived in a room in a police section house. In the early hours of the morning, a male constable came to her room. At the time they were both off duty. They went out for a walk, then returned to the section house. Ms Waters alleged that at that stage she was subjected to a serious sexual assault by the male officer. She reported the alleged assault to her superiors. An internal enquiry was held, but no action was taken against the male officer. Ms Waters alleged that from that time on she was subjected to harassment, unfair treatment and victimisation by other police officers, which led to ill-health, including mental illness and post-traumatic stress disorder.
	(iv)	An industrial tribunal dismissed her claim on the ground that the complaint of sexual assault by the male officer was not a protected act, in that he could not have been acting in the course of his employment when the alleged assault took place, as both parties were off duty at the time, the act was not committed at the place of employment, and if it did take place, it was deliberate, unauthorised and unlawful. Since the alleged assault had not been committed by the male officer in the course of his employment, the Commissioner could not be held vicariously liable for it. Therefore, the allegation of victimisation was not in respect of an act by the employer which "would amount to a contravention of [the Sex Discrimination] Act".
	(v)	Ms Waters appealed to the Employment Appeal Tribunal, which upheld the decision of the employment tribunal. A further appeal to the Court of Appeal by the claimant was dismissed. At that appeal the claimant submitted that Section 4(1)(d) should be interpreted purposively, and construed in such a way as to treat as protected acts those allegations which, objectively considered, were aimed at claiming protection under the legislation, notwithstanding that if the complaint continued to a hearing it was bound to fail because some requisite element (eg such as the vicarious liability of the employer) could not be made out. In other words, the protection should arise from the making of the complaint, not the terms in which it was set out.
	(vi)	This approach was rejected by Waite LJ, who gave the court's decision on this point. He stated, at p597:-

"[The claimant's] submission fails, in my judgment, for this reason. True it is that the legislation must be construed in a sense favourable to its important public purpose. But there is another principle involved – also essential to that same purpose.

Charges of race or sex discrimination are hurtful and damaging and not always easy to refute. In justice, therefore, to those against whom they are brought, it is vital that discrimination (including victimisation) should be defined in language sufficiently precise to enable people to know where they stand before the law. Precision of language is also necessary to prevent the valuable purpose of combating discrimination from becoming frustrated or brought into disrepute through the use of language which encourages unscrupulous or vexatious recourse to the machinery provided by the Discrimination Acts. The interpretation proposed [on behalf of the claimant] would involve an imprecision of language leaving employers in a state of uncertainty as to how they should respond to a particular complaint, and would place the machinery of the Acts at serious risk of abuse. It is better, and safer, to give the words of the sub-section their clear and literal meaning. The allegation relied on need not state explicitly that an act of discrimination has occurred … All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer … The facts alleged by the complaint in this case were incapable in law of amounting to an act of discrimination by the Commissioner because they were not done by him, and they cannot (because the alleged perpetrator was not acting in the course of his employment) be treated as done by him for the purposes of Section 4(1) [of the 1975 Act]".

8.	(i)	Mr Ritchie BL, for the respondent, in the course of a skilful and concise argument, contended that the bringing of the original claim (335/01 FET) by the claimant did not amount to a protected act. The facts alleged in that application were incapable in law of constituting an act of discrimination. This had been conceded by the claimant when he had accepted, in the agreement drawn up by respective counsel prior to withdrawal, that the proceedings were misconceived. According to Mr Ritchie, it made no logical sense if the principle of Waters only applied to the making of allegations short of active proceedings.
	(ii)	The Tribunal recognises the force of Mr Ritchie's submission. Against this, the decision in Waters has been much criticised as tending to weaken the effectiveness of anti-discrimination statutes in affording protection against victimisation to complainants. It does not seem to me to sit easily with the otherwise wide wording of the victimisation provisions which give protection where false allegations are made in good faith, or where there are true allegations not made in good faith.
	(iii)	In interpreting Section 4(1)(a) (equivalent to Article 3(5)(a)(iii)) Waite LJ spoke of giving the words of the sub-section their clear and literal meaning. If one gives a literal meaning to Article 3(5)(a)(i) then it refers to the situation where a person has 'brought proceedings against [the alleged discrimination] or any other person under [the Fair Employment and Treatment] Order'. The bringing of proceedings is not qualified in any way by reference to their merits or to potential success, or to whether it is reasonable to bring them or whether they are misconceived.
	(iv)	It also seems to me that the proper and understandable concerns which Waite LJ expressed relating to the nature of allegations of discrimination and the difficulty in rebutting them, with the consequent need for such allegations to be set out with reasonable precision so that people would know where they stood, do not have the same weight when the protected act relates to the bringing of proceedings. While it may be easy to make allegations of contravention of the legislation outside the judicial context and complainants should be discouraged from making such allegations, if allegations are made in Tribunal proceedings which turn out not to be well-founded, then the person making them is at risk of costs being imposed upon him, where the proceedings have been brought unreasonably or are misconceived.
	(v)	Consequently, I am not prepared to hold on the authority of Waters that the proceedings in Case Reference No: 335/01 FET do not constitute a protected act on which the claimant can rely in subsequent proceedings.
9.	(i)	We now turn to the outstanding issue of whether the claimant's claim (Case Reference No: 128/03 FET) is in time. A brief indication of the nature of that claim has been set out at Paragraph 1.(iii) above.
	(ii)	The facts relevant to the determination of that issue are set out in the following paragraphs.
10.	(i)	In late June 2002, the respondent carried out a trawl for the post of Systems Integration Architect. It was a management post and the post holder would have been a Head of Department or Section.
	(ii)	The claimant was interviewed for the post on 3 October 2002, and by letter of 9 October 2002 he was informed that he had been unsuccessful.
	(iii)	The successful candidate was a Mr Crozier, who had gone from the respondent's employment to work for Nortel, where he had remained until offered the job of Systems Integration Architect with the respondent.
	(iv)	The claimant was surprised that Mr Crozier had been appointed to the post. He was aware of the work Mr Crozier had done in the respondent's employment, and the nature of the experience which he would have acquired. He considered that Mr Crozier's skills did not match the job. There was a criterion of five years senior management experience in the last seven years which the claimant considered the successful candidate could not have met on the basis of his employment with the respondent.
	(v)	The claimant's evidence was that this did not of itself lead him to believe that he had been victimised, as Mr Crozier could have acquired the necessary management experience with Nortel. However, the claimant accepted that when Mr Crozier had previously worked for the PSNI, it had been at a junior level. Bearing in mind the comparatively short period he had been with Nortel, he could not have satisfied the criterion of five years senior management experience by the time of the trawl in June 2002.
	(vi)	In any event in late October/early November 2002 the claimant made enquiries of someone he knew who worked in Nortel. On 8 December 2002 he received a phone call from his contact in Nortel, who told him that Mr Crozier had been employed there as a Support Engineer. The claimant's evidence was that the position of Support Engineer was a much lower one than that advertised. According to the claimant, this confirmed the suspicion he already had.
11.	(i)	On 10 December 2002, after considering the matter and discussing it with colleagues, the claimant sent an e-mail to the respondent's Director of Personnel, Mr Michael Cox, stating that the successful candidate did not have the required experience of five years experience gained in the last seven years at a senior level in the required area.
	(ii)	There followed a series of e-mails between the claimant and Personnel. By 17 January 2003, according to the claimant, he had begun to suspect that he had been victimised on account of the previous proceedings, and decided that this in fact had been the case on 28 January 2003 by which time it had become clear to him that the respondent's Personnel Department was not going to take any action about his complaint. He thought 'long and hard' about what he should do, and ultimately issued proceedings on 5 March 2003.
	(iii)	Nothing of significance had happened in relation to this complaint between the end of January 2003 and 5 March 2003. However, it was on 29 January 2003 that the claimant presented his second claim (Case Reference No: 46/03 FET) to the Tribunal. As indicated previously, one of the complaints contained in that application – indeed the only one on which he now relies – related to alleged victimisation on 31 October 2002 when his Box Marking for the period April 2001 – March 2002 was lowered from a 2 to a 3. It is surprising that the claimant did not include his complaint relating to the promotion exercise in that application, even allowing for his view that the lowering of the Box Marking was a matter of more significance for him than the failure to obtain promotion. The claimant's explanation that this was a completely different matter raising different issues, and that he did not make any link at the time is somewhat disingenuous.
12.	(i)	I am satisfied that for the purposes of the claim that the time limit of three months beginning with the day on which the claimant first had knowledge or might reasonably be expected to have knowledge, of the act complained of or the end of the period of six months, beginning with the day on which the act was done (whichever is the earlier) runs from 9 October 2002, when the claimant was told he had been unsuccessful. Therefore his proceedings, which should have been presented by 9 January 2003, are out of time.
	(ii)	It is necessary to go on to consider whether, in the circumstances of the case, it is just and equitable to extend that time limit. Time limits exist for a purpose and should be adhered to except for good reasons. However, the 'just and equitable' rule, found in discrimination law, is wider than its 'reasonably practicable' counterpart (see : Mills and Another v Marshall [1998] IRLR 494 EAT). In this case, while satisfied there would be no prejudice to the respondent in extending the time limit, it cannot be said that the claimant acted promptly in initiating proceedings. On his account, he made up his mind on 28 January 2003 that he had suffered victimisation, but he did not issue proceedings until 5 March 2003 (notwithstanding that he issued other proceedings alleging victimisation on 29 January 2003). The claimant was aware of the importance of time limits, victimisation as a ground of complaint was to the forefront of his mind, and I do not consider that he was someone who was in any way reluctant to bring proceedings against his employer. When asked in cross-examination if he had taken advice about these proceedings in late 2002/early 2003, his reply was that he did not know, which was vague and unhelpful.
	(iii)	In these circumstances, I do not consider it appropriate to extend the time for bring complaint Case Reference No: 128/03 FET, and that complaint is dismissed.
	(iv)	Claim, Case Reference No: 46/03 FET, will now be listed for hearing in due course.

Chairman:

Date and place of hearing: 16 August 2005 and 8 September 2005, Belfast

Date decision recorded in register and issued to parties: