Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 309/04 FET;

2007/04

CLAIMANT: Brian Joseph Grant

RESPONDENTS: 1. Department of Finance & Personnel

2. Northern Ireland Office

3. Department of Public Prosecutions for NI

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the alleged episodes of religious discrimination prior to 26^th April 2004 do not constitute an extended act for the purposes of Article 46(6)(b) of the Fair Employment and Treatment (Northern Ireland) Order 1989 and that it would not be just and equitable to extend time under Article 46(5) of said Order.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr S A Crothers

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Gerald P Henvey Solicitors.

The respondent were represented by Mr A Devlin, Barrister-at-Law instructed by the Crown Solicitors Office and the Departmental Solicitors Office.

1. The issues before the tribunal were as follows:-

In respect of each alleged act of direct and indirect discrimination:

(1) Was the relevant act brought within the time limit specified in Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998?

(2) If not, is it just and equitable to extend the relevant time limit pursuant to Article 46(5) of the 1998 Order?

2. The tribunal heard evidence from the claimant, who was cross-examined by Mr Devlin on behalf of the respondents. In addition the tribunal was presented with an agreed bundle of documents.
3. Mr Grainger, in opening the case on behalf of the claimant, also relied on Article 46(6)(b) of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("The Order") to argue that there was a discriminatory practice operated by the respondents and that this was an act extending over a period from dates in 1989 until 26 April 2004, being the date of the last alleged episode. There was no dispute that the allegation relating to 26 April 2004 was in time, the claim form having been presented to the tribunal on 30 June 2004.
4. Having carefully analysed the evidence before it in relation only to the issues set out above, the tribunal makes the following findings of fact:-

(i) At the date of presentation of the claim to the tribunal the Claimant had been a qualified solicitor for approximately 19 years. His first complaint was that in or about April 1989 he was advised by his line manager, Mr White, that the then Assistant Director of Public Prosecutions, Mr Roy Junkin, on behalf of the respondent's had changed a promotability assessment from "fitted but ineligible" to "unfitted by reason of ineligibility". The claimant was employed as a legal assistant at this time. Mr Junkin had been the claimant's line manager in 1988 when the alleged change was made and was subsequently promoted to Senior Assistant Director of Public Prosecutions. The claimant claimed that at this time 40% of senior management posts were occupied by Roman Catholics and 60% by Protestants. The claimant subsequently met with Mr Junkin who confirmed the change in the promotability assessment. The claimant was aware that Mr Junkin was a perceived protestant from the mid-1980s. The claimant agreed that he was annoyed and irritated by the change in the promotability assessment and considered a formal grievance. However, he did not proceed with this.

(ii) At an unspecified date in the summer of 1989 the claimant claimed that he was invited to participate in a senior management programme. He was assured that sufficient funding would be available for a course at the Civil Service College. Mr Junkin in a one to one discussion informed the claimant that he was not going to apply for such funding for the claimant. The claimant was aggrieved by this decision and thought that he could not apply for such a course again. He could not recall why he did not take the matter further. The claimant claimed that the second named respondent (Northern Ireland Office) had sufficient funding for the course and Mr Junkin, having informed the claimant that the third named respondent's budget (Department of Public Prosecutions) was insufficient to cover the costs, declined to seek funding from the second named respondent. The claimant's consistent line was that although he had not sought any advice on these matters, he had no reason to suspect discrimination on the grounds of religion. When asked in examination in chief as to why he had not formed the view at that time that Mr Junkin's refusal of funding was based on religious discrimination, his explanation was that he had no thoughts about religious discrimination. In his view there was a sufficient number of Catholics in senior positions with the Department of Public Prosecutions at this time. He further added that one had to know the character of Mr Junkin. According to the claimant he could be a bit overpowering and he (the Claimant) did not know whether he was "being Mr Junkin or had an agenda in his mind".

(iii) The claimant also raised a claim of indirect religious discrimination based on the change in the civil service promotion criteria to a competence based approach. He alleged that this change had an adverse impact on Roman Catholics as a group. The claimant was also a perceived Roman Catholic. The indirect discrimination is alleged to have taken place in 1999.

(iv) The claimant also alleged that in January 2001 an Assistant Director with the third named respondent, Mr Matthews, failed to allow the claimant to act-up as an Assistant Director, and on one occasion, having requested the claimant to act-up, within two hours requested another Assistant Director to act up instead. The claimant claimed that this procedure had never been used before within the Department where an Assistant Director was requested to look after a circuit and a Senior Legal Assistant, such as the claimant, was not asked to act-up. However, the claimant knew that the individuals who played a key role in this matter, namely Mr Matthews, Mr Ferguson, and Mr Heron were all perceived protestants. The claimant became angry but asserted that he did not see things in terms of religion at this stage. Under cross-examination the claimant was asked if he had any suspicion. He did not know how to answer but states that he honestly believed that there was something behind it all and asserted that there was an element of bad faith. However he did not initiate any grievance procedure despite his obvious anger. The claimant, despite being legally qualified had not sought advice at this stage and had not consulted any legal text books regarding such employment issues or time limits for lodging tribunal claims.

(v) The claimant alleged that it was only after an incident which occurred on 26 April 2004 when Mr Junkin refused to authorise payment to him of some £50 in travelling expenses to go to Omagh, that the claimant formed the view that such "petty and vindictive" behaviour could be attributed to religious discrimination. He claimed that he was also influenced by the fact that at the time of this incident, there were no Roman Catholics in senior management positions. He suggested that one reason for this may have been that Mr Junkin sat on the interview boards and this could explain why Roman Catholics were not applying for such posts. The claimant explained that he reflected on the previous incidents involving Mr Junkin and realised that the incidents back to 1989 could be attributable to religious discrimination.

5. The law in relation to the above issues is set out in Article 46 of the Order, the relevant portion of which reads as follows:-

"46. (1) Subject to paragraph (5)… the tribunal shall not consider a complaint under Article 38 unless it is brought before which ever 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 six months beginning with the day on which the act was done….".

(5) 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 just and equitable to do so.

(6) For the purposes of this article - …

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

The tribunal also considered relevant extracts from Harvey on Industrial Relations and Employment Law ("Harvey") Volume 5 Section T at paragraphs 113-122 and 277-282, and the relevant cases and principles of law referred to therein.

6. The tribunal heard oral submissions from both parties' counsel. Mr Grainger referred to the claimant's demeanour and to the fact that he was a criminal lawyer and not an employment lawyer and urged the tribunal to find that the various episodes culminating on 26 April 2004 constituted an act extending over a period in accordance with Article 46(6)(b) of the Order and therefore the claims back to 1989 were in time. Alternatively, he urged the tribunal to extend time in accordance with Article 46(5) of the Order. Referring to relevant extracts from Harvey (Supra) Mr Grainger also drew the tribunal's attention to the cases of British Coal Corporation –v- Keeble [1997] IRLR 336 EAT, Hutchinson –v- Westward Television Limited [1997] IRLR 69 EAT, Aniagwu –v- the London Borough of Hackey [1999] IRLR 303 EAT, Southwark London Borough –v- Afolabi 2003 EWCA Civ 15, [2003] IRLR 20 and Owusu –v- London Fire and Civil Defence Authority [1995] IRLR 574. Mr Devlin, on the other hand, urged the tribunal to find that there was not a shred of evidence to enable the tribunal to extend time under Article 46(6)(b) of the Order. In the alternative, and focussing upon the provisions of Article of 46(1) of the Order, he submitted that except for the postponed date of knowledge regarding the promotability issue (April 1989), the claimant knew of the remaining alleged acts at the time they occurred. He had the same body of knowledge available to him prior to 26 April 2004 as he had on that date. The claimant was a fully qualified lawyer and he submitted that it would be an intolerable burden on the respondents to permit claims between 1989 and January 2001. He further submitted that the issue of extending time was so overwhelming against the claimant that the respondents did not have to consider the question of prejudice save only to "copper fasten" their case. Furthermore he submitted that no documents existed in relation to the episodes which allegedly occurred in 1989. The tribunal also heard from both counsel in relation to the issue of prejudice and considered the extracts from Harvey and case law in relation to same.
7. The tribunal having carefully analysed the evidence only in so far as it relates to the issues in the case, together with the submissions, and having applied the principles of law to the facts as found concludes as follows:-

(i) The claims in relation to alleged episodes occurring in 1989, 1999, and January 2001 culminating in the further episode on 26 April 2004 do not constitute a discriminatory practice and therefore an extended act as defined by Article 46(6)(b) of the Order. Furthermore, in all the circumstances of the case, and having also applied provisions of Article 46(1), the tribunal concludes that it would not be just and equitable to extend time under Article

46(5) of the Order in respect of the alleged episodes in 1989, 1999, and January 2001. The case will therefore proceed for hearing before a full tribunal on the remaining issue relating to 26^th April 2004.

Chairman:

Date and place of hearing: 1^st October 2007, Belfast

Date decision recorded in register and issued to parties: