Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 161/04FET

CLAIMANT: Joseph Bowers

RESPONDENT: Amicus (MSF)

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the respondent's application to strike out certain paragraphs or parts of paragraphs of the claimant's amended witness statement is granted in respect of those paragraphs or parts of paragraphs, identified and set out at paragraph 9(i)-(vi) of this decision.

A further amended witness statement should be provided to the respondent by 3 January 2008, with those paragraphs or parts of paragraphs removed.

For the avoidance of any doubt the Tribunal is satisfied that the matters which the claimant removed from his original witness statement were properly removed and should not be included in the further amended witness statement, apart from a reference to the fact that he made previous claims to the Industrial Tribunal, the Fair Employment Tribunal and the High Court and the terms of the agreements reached in relation to them.

Constitution of Tribunal:

President (sitting alone): Miss E McBride

Appearances:

The claimant appeared in person.

The respondent was represented by Mr G Daly, Solicitor, of Francis Hanna & Co, Solicitors.

1. By originating application presented on 15 March 2004 the claimant made a claim of unlawful discrimination on the grounds of political opinion and affiliation which was denied by the respondent in its appearance received on 22 April 2004.
2. In a letter dated 22 October 2004, the claimant identified his political opinion and affiliation in the following terms:-

"The applicant's views are left wing republican views, which are known to Amicus MSF ….

The applicant is a member of MSF Unity Left/Amicus Unity Gazette. The claimant is a member of the Communist Party of Ireland.

3. Following a Case Management Discussion on 18 January 2006 the claimant set out his allegations in relation to his claim, in a letter dated 30 March 2006, as follows.

"It is the claimant's contention that he was denied a fair process in that:-

(1) The selection panel was decided by the National Executive Council after the Claimant's application was received.

(2) The members named as the selection panel were recommended by the General Secretary, Roger Lyons, who had a known prejudice against the Claimant.

(3) The Amicus/MSF Executive Committee Ireland was excluded from selecting its representative(s) on the selection panel.

(4) Member(s) of the selection panel withdrew and were replaced by a non-democratic process. Concerns that a substitute panel member was not suitable were not responded to nor properly considered.

(5) Member(s) of the Executive Committee Ireland were excluded from consideration as panel members.

(6) A longstanding agreement on the constitution of selection panels in Ireland was not adhered to.

(7) Members of the selection panel had a known prejudice against the Claimant.

(8) A list of questions was circulated prior to the interview.

(9) The decision to proceed with the interview after one of the 5 panel members withdrew was unnecessary and compounded the unfairness.

(10) The interview process was inherently flawed."

4. At a Case Management Discussion on 21 February 2007, the issue to be determined by the Tribunal was identified as whether the respondent treated the claimant less favourably than Mr Martin Stroud, Mr Steve Tweed and Mr Walter Wilson, on the ground of political opinion and affiliation, in the arrangements for determining who should be offered the position and by not being offered the position of Regional Officer in the Autumn of 2003. The Hearing was listed to start on 7 January 2008, with the case estimated to take six weeks. At that same Case Management Discussion, in accordance with Rule 9(1) of the Fair Employment Tribunal Rules of Procedure 2005, I made Orders for the preparation and exchange of witness statements for the purpose of the substantive hearing of the case. In accordance with that Order the claimant prepared and provided his witness statement to the respondent.
5. Mr Daly objected to the admissibility of paragraphs 4-24 of the claimant's original witness statement on the grounds of relevance, res judicata, abuse of process and the effect on the length of Hearing. Mr Daly also contended that the admission of the paragraphs would effectively deny the respondent a fair Hearing. A Pre Hearing Review was therefore arranged to consider the respondent's application and the claimant's objections thereto. In his original witness statement, the claimant sought to introduce, among other things, three types of matters namely:-

(i) allegations relating to the respondent's conduct towards 20 named individuals and to the conduct of Bombardier/Shorts in relation to a number of unidentified shop stewards, formerly employed by Bombardier/Shorts;

(ii) allegations/evidence going back to 1990 in relation to himself, which the respondent claimed formed part of proceedings which had previously been brought by him against the respondent to the Fair Employment Tribunal, the Industrial Tribunal and the High Court in 1995, 1996, 1999 and 2002. These cases had been settled between the parties without admission of liability on the part of the respondent and with the claimant agreeing to withdraw his complaints to the Fair Employment Tribunal, the Industrial Tribunal and the High Court upon payment of lump sums. The settlement also contained an agreement that the respondent would not discriminate against the claimant in the future; and

(iii) allegations which, the respondent contended, could have but did not form part of previous proceedings.

6. Over the course of a number of hearings which took place on 17 September 2007, 4 October 2007 and 19 October 2007, I gave the claimant and Mr Daly the decisions in Anya –v- University of Oxford (2001) IRLR 377; Kevin Curley –v- Chief Constable, case reference number 56/98FET; and John O'Prey –v- National Australia Group Limited, case reference number 77/04FET.

The decision of the Court of Appeal in Anya –v- University of Oxford (2001) IRLR 377 set out the circumstances in which a claimant may be permitted to adduce evidence of previous conduct on the part of an individual or individuals who are alleged to have discriminated against him, to support his complaint.

In the case of Kevin Curley –v- The Chief Constable of the Police Service of Northern Ireland, case reference number 56/98FET, I set out the circumstances in which the principles of res judicata and abuse of process applied. I explained to the claimant that if the principles of res judicata and abuse of process applied, then unless special circumstances were established he would not be permitted to pursue complaints which had already been made or which could have been made in previous proceedings brought by him.

In the case of John O'Prey –v- National Australia Group Limited, case reference number 77/04FET, Mr Drennan QC set out:

(i) a Chairman's power to make Orders for the preparation and exchange of witness statements;

(ii) a Tribunal's power to strike out part or parts of witness statements;

(iii) the circumstances in which it would be appropriate for a Chairman to do so at a Pre Hearing Review.

7. Having received further representations from the claimant and Mr Daly at the hearing on 19 October 2007 and having explained the principles of res judicata, abuse of process and the principle laid down in the Anya case, I adjourned the hearing until 26 November 2007 to enable the claimant to reconsider the contents of his original witness statement and to provide an amended witness statement to Mr Daly and the tribunal by 9 November 2007. Mr Bowers did consider the contents of his witness statement and he provided an amended witness statement to Mr Daly and the tribunal, as directed.
8. At the Hearing on 26 November 2007 Mr Daly objected to the admissibility of a number of paragraphs in the claimant's amended witness statement on the grounds of relevance, abuse of process and the effect on the length of hearing. Mr Daly also contended that the admission of the disputed paragraphs would effectively deny the respondent a fair Hearing.
9. It is difficult to identify the disputed paragraphs because of the numbering system used by the claimant. For the avoidance of doubt, I am setting out the disputed paragraphs or parts thereof. They are as follows:-

(i) paragraph 5 – the penultimate sentence:

'Some Labour Party members were defined as fellow Travellers and targeted, for example Barbara Switzer, Dave Peters, Marie Scott,

(ii) paragraph 7(vii), subparagraph 4, last sentence on page numbered 313;

'As a member of the NEC she also supported the disciplinary action taken against Jim Thomas – National Officer (Communist) (Index Page No.33), Keith Sneddon – National Officer (Communist), Guy Dobbie – Regional Officer (Communist), Dave Peters – Regional Officer (Labour Party/Fellow Traveller) Index Page Nos. 34 & 36-38), Marie Scott – Head of Legal Department (Labour Party/Fellow Traveller), Tom Sibley – Head of Research (Communist) and Sue Michie – London Regional, President (Communist) (Index Page No.35).'

(iii) paragraph 7(vii) subparagraph 9 on page number 316

'Michael Sharp facilitated the abnormal appointment of Jerry Shanahan to the position of Deputy National Secretary (Index Page No. 178-179). This position did not exist in the structure of the Union. It was uniquely created for Jerry Shanahan as a reward for his active participation in the MSF For Labour crusade against those characterised as unreconstructed Stalinists, hard liners and fellow Travellers, (Index Page Nos. 39-40, 42-43, 44, & 114-116).'

(iv) paragraph 7(vii) subparagraph 11 on pages numbered 316 and 317

'All of the four panel members supported disciplinary action against Jack Carr – Assistant General Secretary (Communist), Jim Thomas – National Officer (Communist), Keith Sneddon – National Officer (Communist), Tom Sibley – Head of Research (Communist), Marie Scott – Head of Legal Department (Labour Party/Fellow Traveller), Dave Peters – Regional Officer (Labiur Party/Fellow Traveller), Guy Dobbie – Regional Officer (Communist) and myself. Michael Sharp and John Magennis supported disciplinary action against Brian Anderson – National Officer (Ireland) – (Communist) (Index Page No. 41 & 42-43).'

(v) paragraph 8

'The MSF For Labour crusade was also directed at active Labour Party members (Including for example Barbara Switzer who was a member of the Labour Party's National Executive Committee) who were prepared to speak out against the divisiveness and sectarianism of MSF for Labour. Anyone who opposed the crusade was designated as an enemy.'

(vi) paragraph 9

'This crusade, which the 4 panel members supported, also included the establishment of a private relationship between National Officers of the Union and Bombardier/Shorts management which culminated in the dismissal of 10 shop stewards who were perceived to be unreconstructed Stalinists or Fellow Travellers. (Index Page Nos. 172-173).'

(vii) paragraph 17

'I would refer the Tribunal to a memo from Tony Whiteley to Dave Cooke dated 24^th November 1998 (Index Page Nos. 180-181). I believe the contents of this memo should be studied by the Tribunal. It informs what took place after an MSF/Amicus selection panel selected an applicant. The memo outlines a detailed political vetting process the result was that the applicant, Stephen Smith, who properly selected was not appointed. This memo is evidence of the Respondent's determination to ensure that the selection process will not select the "wrong" type. The type of applicant to be excluded was that defined by the MSF For Labour conspiracy ie Communist, Stalinist/Fellow Traveller. The 4 panel members were active supporters of and subscribed to this definition outlined in MSF For Labour's own publication.'

(viii) Paragraph 18

'The memo informs that Mr Whitely "Spoke to John Sheldon General Secretary of PCS. Sheldon had given John as a referee I know John through my own civil service background Johns and CS union politics is regarded as of the right" and "he was not regarded as running with any funny crowd" and "Roger said he had now spoken to Bill Brett who had said Stephen was politically extreme left and by implication hostile to the Labour Party" and "Paul said that he had been worried at first as to whether Stephen might be a member or former member of the CP bearing in mind his left wing views and where he came from in Scotland".

Stephen Smith was not appointed and the entirely improper an unconstitutional interference in the proper decision of a selection panel by Roger Lyons was never challenged by the selection panel or the officers who serviced the selection panel or participated as non-voting members or the National Executive Committee. This evidences the control exercised by MSF For Labour in selection process. It is incredulous to believe the respondents' contention that this conspiracy was uninterested and uninvolved in the selection process which culminated on the 13^th December 2003 especially when it was known that I was a candidate and the history that existed.'

(ix) Mr Daly also objected to the admissibility of paragraphs 11, 12 and 27 of the claimant's amended witness statement on the ground of hearsay.

10. With regard to Mr Daly's objection to the admission of paragraphs 11, 12 and 27 on the ground of hearsay, I am satisfied that hearsay evidence is admissible. The weight, if any, to be attached to that hearsay evidence is for the Tribunal to determine at the substantive Hearing.
11. The other paragraphs, set out at paragraph 9(i)-(viii) above, contain allegations of either unjustifiable treatment, unjustifiable discipline or unjustifiable dismissal by the respondent of 12 named individuals, who were based in Great Britain or the Republic of Ireland. It also contains allegations in respect of 10 individuals who are identified only as shop stewards who were employed, not by the respondent, but by Bombardier/Shorts in Belfast. The claimant does not contend, in his witness statement, that the four members of his selection panel whom he alleges unlawfully discriminated against him on the grounds of political opinion and affiliation were directly involved in that unjustifiable behaviour. He alleges, in his witness statement that they supported this conduct. The conduct alleged is as follows:-

(1) Barbara Switzer who was defined as a "fellow Traveller" and who was employed in Great Britain was targeted over a 9 year period from 1991 to 2000. No evidence to support this allegation is set out in the witness statement. The claimant indicated that it would be possible for Barbara Switzer to give evidence and that up to 30 members of the National Executive Committee were involved in targeting her on behalf of the respondent over that nine year period.

(2) Marie Scott, who was also defined as a "fellow Traveller" and who worked in Great Britain, was unjustifiably isolated by being moved from her open office in one building to a smaller office in another building and that up to 30 members of the National Executive Committee would have had a say in this transfer in or around 1993. She left in 1994 and the claimant contended that this amounted to an unjustifiable dismissal.

(3) Dave Peters, who was also defined as a "fellow Traveller" and who worked in Great Britain was unjustifiably charged with gross misconduct, namely electoral malpractice in 1992. The claimant indicated that this allegation involved all 30 members of the National Executive Committee who would have dealt with this case at various stages of the disciplinary process culminating in Mr Peters' dismissal on 21 December 1995.

(4) Jim Thomas and (5) Keith Sneddon, "communists" who worked in Great Britain were treated less favourably by the National Executive Committee than either 3 or 5 other national officers were treated, in the restructuring of the positions of national officers. This restructuring process took place in 1995 and may have involved up to 30 individuals.

(6) Guy Dobbie "a communist" who worked in Great Britain was unjustifiably disciplined in 1995 when the respondent instituted disciplinary proceedings against him following complaints of racism, obstruction and hostility towards black members of the trade union and in relation to an allegation of inappropriate "sexual" behaviour to a recently recruited member of staff. Again up to 30 members of the National Executive Committee may have been involved in this matter.

(7) Tom Sibley "a communist" who worked in Great Britain was treated unjustifiably by having his wages and status reduced in or about 1994. Again up to 30 members of the NEC may have been involved in this.

(8) Sue Michie "a communist" who was not an employee of the respondent, was unjustifiably suspended from the office of President of a Regional Council.

(9) Michael Sharp "facilitated the abnormal appointment" of Jerry Shanahan, in or about 1995, to the position of Deputy National Secretary which was "uniquely created" for him as a "reward for his active participation in the MSF for Labour crusade against those categorised as unreconstructed Stalinists, hardliners and fellow Travellers". The claimant claimed that the alleged "active participation" included Mr Shanahan's alleged involvement in trying to frame Brian Anderson (who is referred to below) in 1992.

(10) Jack Carr, "communist" who worked in Great Britain was unjustifiably demoted from his position in or around 1992 following a disciplinary process involving a charge of incompetence.

(11) Brian Anderson, "communist" who worked in the Republic of Ireland had his payment of income tax unjustifiably queried.

(12) Ten shop stewards "who were perceived to be unreconstructed Stalinists or Fellow Travellers" were unjustifiably dismissed, not by the respondent, but by the management of Bombardier/Shorts, who had established a private relationship with National Officers of the respondent. Mr Daly pointed out that I was in the process of case managing these ten cases to Hearing as part of a multiple number of cases taken by former employees against Bombardier/Shorts. The claimant indicated that he no longer wished to rely on those dismissals in support of his claim. However he wished to continue to rely on his allegation that the management of Bombardier/Shorts had established a private relationship with National Officers of the respondent.

(13) Stephen Smith – who was not appointed to a position in Great Britain because of his perceived political opinion/affiliation.

12. During the course of his submissions in relation to Stephen Smith which are set out at paragraphs 17 and 18 of his amended witness statement, the claimant read from a copy of the memorandum of 24 November 1998 from Tony Whiteley to Dave Cooke which is referred to at those paragraphs. Mr Daly indicated that the respondent was not objecting to the admission of that memorandum at the substantive hearing. On that basis I am satisfied that paragraphs 17 and 18 should remain in the witness statement and it will be for the tribunal hearing the case to determine the weight, if any, to be attached to those two paragraphs.
13. With regard to the admissibility of the remaining disputed paragraphs, I accept that the matter should normally be left to the Tribunal hearing the case to determine, unless there is good reason for departing from that practice. However, in the particular circumstances of this case where:

(i) the claimant is seeking to raise a significant number of additional cases;

(ii) the cases date back over the past 17 years;

(iii) those cases, according to the claimant, involve up to 30 individuals on the respondent's side;

(iv) the respondent would be obliged to carry out extensive investigations at considerable expense, which will have been unnecessary if the matters are inadmissible;

(v) the claimant could be faced with an application for costs from the respondent;

I consider that there is good reason for me to determine the admissibility of the remaining disputed paragraphs prior to the substantive Hearing.

14. Having considered the oral representations of the claimant, the written and oral representations of Mr Daly, the decision of the Court of Appeal in Anya –v- University of Oxford (2001) IRLR 377 and the original and amended witness statement of the claimant, I am satisfied that the remaining disputed paragraphs should all be struck out of the claimant's amended witness statement. That is because I am not satisfied that they are admissible under the test laid down in Anya as none of the four members of the selection panel is alleged to have been directly involved in that alleged conduct. Nor am I satisfied that the amended witness statement contains any evidence to substantiate the claimant's contention that the four members of the selection panel "supported" the conduct alleged.
15. If I am wrong in that conclusion and if the remaining disputed paragraphs are admissible under the test laid down in Anya on the ground that, if proved, they would tend to support the claimant's claim that the members of the selection panel were prejudiced against him, I am satisfied that they should nevertheless be struck out of the claimant's witness statement under Regulation 3 of the Fair Employment Tribunal Rules of Procedure 2005, for the reasons set out at paragraph 16 below. Regulation 3 provides:-

"(1) The overriding objective of these Regulations and the rules and Schedules 1 …. is to enable tribunals and chairmen to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) A tribunal or chairmen shall seek to give effect to the overriding objective when it or he –

(a) exercises any power given to it or him by these Regulations or the rules in Schedule 1 ….; or

(b) interprets these Regulations or any rule in Schedule 1 ….

(4) The parties shall assist the tribunal or the chairmen to further the overriding objective."

I am satisfied that the overriding objective, set out above, is similar to the principles applicable in the civil courts when the admission of similar fact evidence is being considered once it is ruled to be relevant.

16. Reasons

(1) If the claimant was entitled to adduce evidence to prove these allegations (it would not be appropriate for the claimant to simply make allegations and leave it to the respondent to disprove them), the respondent would be required to carry out extensive investigations of a significant number of matters going back up to 17 years, involving up to 30 individuals before it could respond to the evidence. If, as Mr Daly contends, some of those individuals may no longer be employed or connected with the respondent, it may be unable to investigate the matters or to adduce evidence on its own behalf and will be denied a fair hearing in relation to those matters.

(2) Given the number of potential witnesses involved in these 12 matters, each of them is likely to take three weeks for the evidence to be adduced before the Tribunal can make findings of fact, as it is required to do by Anya. It may take more than three weeks for the evidence in relation to Barbara Switzer to be adduced as the claimant alleges that she was subjected to unjustifiable treatment over a nine year period. That will add at least an additional 36 weeks to the Hearing which is already likely to last six weeks totalling at least 42 weeks.

(3) In view of the number of matters being raised by the claimant in his witness statement to establish prejudice, which the respondent is not seeking to have struck out, I am not satisfied that allowing a 42 week Hearing instead of an already lengthy six week Hearing is proportionate to the complexity or importance of the issues in this case or that it would ensure that the case is dealt with expeditiously and fairly.

(4) As the claimant is no longer in employment and as he is representing himself, it may not cost him a lot financially to attend a 42 week Hearing. However such a lengthy Hearing would be a huge cost to the respondent and its witnesses and to the public purse.

17. A further amended witness statement should be provided to the respondent by 3 January 2008 with the paragraphs or parts of paragraphs identified and set out at paragraph 9(i)-(vi) removed. For the avoidance of any doubt I also make it clear that the matters which the claimant removed from his original witness statement were properly removed and should not be included in the further amended witness statement, apart from a reference to the fact that he made previous claims to the Industrial Tribunal, the Fair Employment Tribunal and the High Court and the terms of the agreements reached in relation to them.

______________________________________

E McBride

President

Date and place of hearing: 17 September 2007, 4 and 19 October 2007 and

26 November 2007, Belfast

Date decision recorded in register and issued to parties: