Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 128/06FET

2363/06

CLAIMANT: Cecil William Bell

RESPONDENT: Child Support Agency (CSA)

Constitution of Tribunal:

Chairman (Sitting Alone): Mr B Greene

Appearances:

The claimant appeared in person and was assisted by Mr Long.

The respondent was represented by Mr F O'Reilly, of counsel, instructed by the Departmental Solicitor's Office.

DECISION ON A PRE-HEARING REVIEW

SOURCES OF EVIDENCE

1. The Tribunal did not hear any evidence. This matter was dealt with by submissions and by reference to the pleadings in the case.

THE CLAIM AND DEFENCE

2. The claimant made a number of claims;-

(a) Claim 13/06FET, was lodged on 12 January 2006. The claim was against the CSA and 4 named individuals. The claimant claimed discrimination on grounds of religious belief and political opinion and victimisation. He indicated in his claim form that he had made a complaint on 13 December 2005 and had awaited 28 days.

(b) Claim 79/06FET, was lodged on 20 June 2006. The claimant claimed against the CSA and 2 named individuals not previously mentioned. The claimant's claim was for discrimination on the grounds of religious belief and political opinion and victimisation. The relevant events had occurred on 24 March 2006. The claimant recorded in his claim form that he had made a complaint to the respondents on 7 March 2006 and had awaited 28 days.

3. On 13 September 2006 the claimant wrote a letter to a member of staff in the Office of the Industrial Tribunals and Fair Employment Tribunal, in which he stated in the body of the letter,

"Thank you for letter of 1 September 2006. I am quite happy for both my cases 79/06FET and 13/06FET to be heard together. The ongoing victimisation has continued by my being dismissed from the Child Support Agency. Due to the seriousness of this case and in order to highlight the following of correct procedures I would urge the tribunal to bring forward a preliminary hearing of this case.

Yours sincerely

Cecil Bell".

The letter of 1 September referred to in the claimant's letter was a letter from a member of the Tribunal staff proposing that case refs: 13/06FET and 79/06FET be considered and heard together as it appeared there were some common questions of law or fact or that the relief claimed arose from the same set of facts. The letter requested a response by 15 September 2006.

4. The Office of Industrial Tribunals and Fair Employment Tribunal has treated the letter of 13 September 2006 as revealing an ongoing claim of victimisation on grounds of religious belief or political opinion and a claim for unfair dismissal. The case reference number 128/06FET was given to the fair employment claim. It also was given a case reference of 2363/06 in relation to a claim of unfair dismissal. Both claims were against the CSA.
5. The respondent in its responses to both these claims indicated that it did not believe that the claimant had properly commenced proceedings in the letter of 13 September 2006 and secondly that the letter did not satisfy the provisions of the Industrial Tribunals (Constitution of Rules of Procedure) Regulations (Northern Ireland) 2005, Schedule 1 and the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004, Schedule 1 in that the claimant has not used the prescribed form; nor included the "required information"; not sought relief from the Tribunal. The respondent sought a preliminary hearing to deal with these jurisdictional points. Accordingly, a Pre-hearing Review was arranged for 24 April 2007.

THE ISSUES

6. This matter was listed to deal with following issue:-

(a) Whether the Tribunal has jurisdiction to consider the claims in case ref: 128/06FET and 2363/06 in view of the provisions of Schedule 1 of the Fair Employment (Rules of Procedure) Regulations (Northern Ireland) 2005 and Schedule 1 of the Industrial Tribunals (Constitution of Rules of Procedure) Regulation (Northern Ireland) 2005.

FINDINGS OF FACT

7. While no evidence was adduced in this particular hearing the following matters appear from the pleadings and the submissions of the parties not to be in contention;-

(a) On 12 January 2006 the claimant lodged a claim (case ref: 13/06FET) in which he claimed discrimination on grounds of religious belief and political opinion and victimisation. He also indicated in the claim form that he had made a complaint on 13 December 2005 and had awaited 28 days.

(b) On 20 June 2006 the claimant lodged a second claim (case ref: 79/06FET) in which he claimed discrimination on grounds of religious belief and political opinion and victimisation. The complaint, he stated, had been referred to the respondent on 7 March and he awaited 28 days.

Whilst the CSA was a common respondent in both these claims the other named individuals differed in each claim.

(c) On 1 September 2006 the Office of Industrial Tribunals and Fair Employment Tribunal wrote to each of the parties in cases ref nos: 13/06FET and 79/06FET proposing that the claims should be considered and heard together because there appeared to be some common questions of law or fact arising in the claims and or that the relief claimed in the claims arose from or was in respect of the same set of facts. It asked the parties to set out in writing before 15 September 2006 their reasons why such an order should not be made.

(d) On 13 September 2006 the claimant wrote to the Office of Industrial Tribunals and Fair Employment Tribunal and indicated that he was happy to have claims 13/06FET and 79/06FET consolidated. In the course of the letter he also claimed he suffered from ongoing victimisation and had been dismissed.

(e) The letter of 13 September 2006 has been treated by the Office of Industrial Tribunals and Fair Employment Tribunal as making two further claims one of victimisation on the grounds of religious belief or political opinion which has been given a case ref: 128/06FET and unfair dismissal which has been given a case ref: 2363/06.

(f) Mr O'Reilly for respondent indicated that the letter of 13 September 2006 was in reality a letter of consent to consolidation and was not intended to be a further claim of victimisation on the grounds of religious belief or political opinion or of unfair dismissal. He further stated that even if such an attempt were made it failed to satisfy the requirements of the Industrial Tribunals (Rules of Procedure) Regulations 2005 and the Fair Employment (Rules of Procedure) Regulations 2005 in that it failed to provide the required information and failed to indicate that the statutory grievance procedure had been used and 28 days had elapsed before lodging of the claim.

(g) The claimant was quite adamant that his letter of 13 September 2006 did constitute a claim for ongoing victimisation and for unfair dismissal. The claimant's contention is that there are no new respondents being named; that what has been relied on in his letter of 13 September 2006 is the fact that he had been dismissed; and that there was ongoing victimisation.

THE LAW

8. (a) The Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, Schedule 1 require a claimant to make a claim in writing to the Office of Industrial Tribunals and Fair Employment Tribunal. Schedule 1 paragraph 1(4) sets out a number of requirements that must be included in the form from (a) and (h).

(b) The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, Schedule 1, paragraph 1 requires a claim to an industrial tribunal to be in writing. Schedule 1, paragraph 1(4) set out from (a) to (k) the matters which must be included in the claim form.

(c) In Grimmer –v- KLM City Hoppers UK 2005 IRLR 596 the EAT considered what was to be included in the claim forms in order to satisfy the requirements of Schedule 1 of the English Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which are substantially the same as the Regulations applying in Northern Ireland. The EAT held that in determining whether an application to an Employment Tribunal contains "details of the claim" as required under Rule 1(4) the test is whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the Employment Tribunal. If that test is met, there is no scope for either the Tribunal Secretary or a Chairman interpreting "details of the claim" as being "sufficient particulars of the claim". The EAT further held that in deciding whether the requirements of the Rules have been met, the Chairman, as an independent judicial person, has to do more that merely run down a check list. It is a very serious matter to deny a claimant the opportunity of having an employment rights issue resolved by an Employment Tribunal. The threshold for access, in the interest of justice should be kept low.

(d) In Richardson –v- U Mole Ltd 2005 IRLR 668 Burton J urged Tribunal Chairmen to take care not to cause injustice by rejecting claims at the "gateway", on grounds that they do not include all the relevant information under Rule 1(4) where the omission is one that is immaterial.

APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES

9. (a) The claimant's letter of 13 September 2006 appears to be a response to an invitation to comment on a proposal from the Office of Industrial Tribunals and Fair Employment Tribunal to consolidate claims case ref: 13/06FET and 79/06FET. Indeed in the letter of 13 September 2006 the claimant positively responds to such a proposal.

(b) Even if the letter of 13 September 2006 is a response to that request from the Office of Industrial Tribunals and Fair Employment Tribunal to consolidate it does not prevent it from at the same time constituting a claim.

(c) The respondent attacks the letter of 13 September 2006 as not constituting a proper claim on 3 grounds;-

(i) that the claimant did not use the prescribed form;

(ii) that the form does not include the "required information"; or

(iii) that the claim does not seek relief from the Tribunal.

(d) In considering this matter the letter of 13 September 2006 must be considered in the context of and against the background of the claimant's other 2 claims, case refs: 13/06FET and 79/06FET. In both these claims the claimant is claiming discrimination on grounds of religious belief and political opinion and victimisation. There is an overlap in the matters complained about which prompted the Office of Industrial Tribunals and Fair Employment Tribunal to propose consolidation.

(e) In Northern Ireland claimants are not required to use a prescribed form.

(f) In considering what is the required information as set out in Regulation 14 of Schedule 1 to the Fair Employment (Rules of Procedure) and the Industrial Tribunals (Rules of Procedure) most of the requirements set out therein are clear from the letter itself or from the 2 claims that are the background and context of this letter.

(g) Two matters which are not obvious from the letter itself are the details of the claim and or whether the claimant has complied with the requirements to lodge a grievance and to wait 28 days for presenting his claim to the Office of Industrial Tribunals and Fair Employment Tribunal.

(h) The claimant in his letter of 13 September 2006 talks about ongoing victimisation. It is clear from the letter and from that comment that the claimant is implying that that which he had earlier complained about in his earlier claims was ongoing. The Tribunal is satisfied that this is sufficient detail for the purposes of this application when viewed in the context of the cases of Grimmer -v- and KLM City Hooper UK and Richardson -v- U Mole UK.

(i) The second matter, which is a new matter referred to in the letter of 13 September 2006 is the claimant's claim of unfair dismissal. The details of that claim that were not obvious from the letter of 13 September 2006 can be gleaned from his earlier claims of 13/06FET and 79/06FET and therefore the Tribunal is satisfied that the details of the unfair dismissal claim have also been provided or are obvious from his earlier claims.

(j) The requirement to lodge a grievance and wait 28 days is not applicable where unfair dismissal is claimed. In relation to the ongoing victimisation claim no comment is made as to whether a grievance has been lodged. Given that this is a claim of ongoing victimisation and in his earlier applications the claimant has alleged that he served a written grievance on his employer it may well be that he seeks to rely on that earlier grievance as satisfying the requirements to lodge a grievance for the purposes of the instant claim of 128/06FET.

(k) Accordingly the Tribunal is satisfied that the claimant has in his letter of 13 September 2006, against the background of his earlier claims, satisfied the requirements set out in the Industrial Tribunals (Constitution Rules of Procedure) Regulations (Northern Ireland) 2005 and the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

(l) This claim can now proceed to hearing.

Chairman:

Date: 7 June 2007.

Date decision recorded in register and issued to parties: