Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 309/04FET

2007/04

CLAIMANT: Brian Joseph Grant

RESPONDENTS: 1. Department of Finance and Personnel

2. Northern Ireland Office

3. Department of Public Prosecutions for NI

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

DECISION ON AN APPLICATION FOR REVIEW

I hereby extend the time limit for a review application in accordance with Rule 31(1) of the Fair Employment Tribunal (Rules of Procedure) 2005. I revoke the decision of the Tribunal under Rule 32(3) of the said rules, and order the decision to be taken again.

1. The decision of the tribunal dated 20 January 2007 in this case ("Grant") was that the claimant could not properly compare himself with female senior legal assistants in the Department of Finance and Personnel, and therefore his claim for equal pay was dismissed. This decision was not appealed by the claimant. However pursuant to the promulgation by the Industrial Tribunal of the decision in Desmond McCann -v- 1. Northern Ireland Office, 2. Department of Finance and Personnel, 3. Northern Ireland Civil Service (Case Ref: 111/07) on 4 June 2007 ("McCann") the claimant's solicitor obtained a copy of the decision from the Law Society Library on 26 June 2007. A further copy was then forwarded to the claimant's counsel on 26 June 2007 and received by him on 29 June 2007. Following a consultation with the claimant on the late afternoon of Monday 2 July 2007, the claimant's solicitors requested a review of the Grant decision in correspondence to the Tribunal dated 5 July 2007 under Rule 30(3)(d) and (e) of the Fair Employment Tribunal (Rules of Procedure) 2005 ("the Rules") on the grounds that:-

"(i) New evidence has become available since the conclusion of the hearing to which the decision relates, and could not reasonably have been foreseen at the time of the hearing; and (ii) the interests of justice require such a review."

2. The claimant's solicitor also requested an extension of time for such an application for review and further requested that if the McCann decision were to be appealed to the Court of Appeal the application for review should be permitted and stayed pending the decision of the Court of Appeal or other superior court. Following correspondence from the tribunal dated 18 July 2007 the claimant's solicitors furnished further detailed correspondence dated 23 August 2007 outlining the grounds for a request for a review in the Grant case in more detail. This response was delayed largely due to Counsel's holiday arrangements. In that correspondence the claimant's solicitor states, inter alia, "The tribunal is further requested to note that it appears that the respondents in the case of Desmond McCann –v- Northern Ireland Office, Department of Finance and Personnel and the Northern Ireland Civil Service have now indicated that they do not propose to appeal this finding.

In those circumstances since the legal position on this question appears to be accepted by the respondents it is submitted, a fortiori, that it is inimical to good practice, fairness, consistency, certainty, the interests of justice and common sense that there is held to be a "single source" in one case and not in another in comparable circumstances". The decision in McCann was that the claimant could compare himself to solicitors in the Departmental Solicitors Office for the purposes of an equal pay claim.

3. The issues before the tribunal were:-

(1) Whether time should be extended under Rule 30(1) of the Fair Employment Tribunal Rules of Procedure 2005;

(2) If extended, the tribunal was to consider the application for review, and if granted, to hear the review.

4. The relevant portion of Rule 30(3) of the Rules reads as follows:-

"(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) the interests of justice require such a review".

Reasons

(1) The tribunal heard detailed submissions from both counsel. Counsel for the respondent agreed that it was not necessary to call evidence to establish the sequence of events after the claimant's solicitor obtained a copy of the McCann decision. Mr Grainger, on behalf of the claimant, submitted that the principle at the heart of both decisions was in relation to the "single source" argument. He submitted that the circumstances in both cases were comparable but that different evidence had been given by Mr Ryan Dobson on behalf of the Department of Finance and Personnel in the McCann decision which, in his submission, was critical to the finding in that case. The McCann decision was, he submitted, in conflict with the Grant decision. He further submitted that no appeal by the respondents in McCann meant that they had accepted the ruling of the tribunal regarding the single source. He maintained that the only person who could not now make a comparison was Mr Grant. Referring to the first issue before the tribunal Mr Grainger submitted that this was an unusual case. Once a copy of the McCann decision had been obtained his instructing solicitor acted quickly to apply for a review. In his view there was no more fitting case for an extension of time. Furthermore such an extension would be in accordance with the tribunal's overriding objective and would be in the interests of fairness and justice. He also referred to the principles set out in the case of Wileman -v- Minilec Engineering Limited 1998 ICR 318 EAT which established that a party seeking to introduce new evidence must show that:-

(i) The evidence sought to be introduced could not with reasonable diligence have been obtained for use before the tribunal;

(ii) The evidence is so relevant that it would probably have an important influence on the result of the case, although it need not be decisive in itself;

(iii) The evidence is apparently credible though it need not be incontrovertible.

Under the heading of "Interests of justice" Mr Grainger referred the tribunal to the EAT decisions in the cases of Flint -v- Eastern Electricity Board 1975 IRLR 277, Williams -v- Ferroson Ltd 2004 IRLR 607 and Sodexho Ltd. -v- Gibbons 2005 IRLR 837. He also submitted that had the evidence given by Mr Dobson in McCann been available in the Grant Case it could have had the effect of influencing the tribunal in reaching a different conclusion. He submitted that the existence of this evidence could not have been reasonably known of or foreseen at the time of the McCann decision and reiterated that the respondent's decision not to appeal McCann effectively indicated a concession by the respondent regarding the single source argument.

(2) In response to Mr Devlin's submissions on behalf of the respondents (Infra) Mr Grainger submitted that, by its very nature, reference to evidence in a tribunal decision is a partial and selective summary. He also pointed out that Mr Dobson had given evidence in McCann for the best part of a day and if some crucial part of his evidence had been omitted by the tribunal in its decision the respondent had a right of appeal but this had not been done. Instead the tribunal had had regard to Mr Dobson's evidence in so far as it had a bearing upon the single source argument. In his submission the tribunal was perfectly entitled to do this as it was the norm. Furthermore Mr Grainger agreed that the respondent had no obligation to tender Mr Dobson as a witness in the Grant case. However he submitted that in a practical sense it was not reasonably foreseeable in advance of the evidence in Grant that Mr Dobson would give evidence of the nature recorded in the McCann decision bearing in mind the correspondence relied on by the respondent in Grant. He further submitted that in theory any claimant could have obtained a witness order but the tribunal had to look at the practicalities operating in the Grant case. As regards Mr Devlin's submission that some of the respondent's were different in the two cases, Mr Grainger submitted that the two parties fundamental to the single source argument ie the Northern Ireland Office and Department of Finance and Personnel were in both cases and essentially the same question arose in both. He further submitted that the concession referred to by Mr Devlin in paragraph 3 of the McCann decision in respect of the Crown Solicitor's Office was immaterial. In summary, Mr Grainger urged the tribunal in the circumstances and given the fundamental issue relating to the single source issue, to grant the claimant's application for review, to revoke the Grant decision and order a re-hearing.

(3) Mr Devlin as Counsel for the respondents submitted that the correspondence requesting the review dated 5 July 2007 was some 5 months out of time and the further correspondence of 23 August 2007 was some 7 months out of time. Turning to the aspect of new evidence he submitted that the McCann decision contained what was a partial and selective summary of Mr Dobson's evidence and, as such, a partial and selective summary of evidence and findings of fact could not be relied upon as new evidence. He submitted that the McCann decision contained very little of Mr Dobson's evidence and, pointing to the section between paragraphs 5.10 and 5.16 of the McCann decision, he submitted that one looks in vain for any detailed analysis of Mr Dobson's evidence. Furthermore the evidence of Miss Carole Graham (relied upon as the respondents' sole witness in the Grant Case) had none of her evidence recorded in the McCann Decision. Moreover, Mr Devlin submitted that there was no basis for the suggestion that Mr Dobson's evidence could not have been known of or foreseen by the claimant in advance of the Grant hearing. He pointed out that the tribunal in Grant had proceeded by way of an agreed statement of facts. The parties were also at liberty to call additional evidence above and beyond the agreed facts. The respondent had called whatever witnesses they wished to tender in the Grant case and the claimant could have called Mr Dobson if they had wished, as he was present at the tribunal hearing. As it turned out, the only oral evidence in addition to the agreed statement of facts was from Mrs Carole Graham, Head of Pay and Policy at the NIO. Mr Devlin also submitted that if the claimant had wished to have evidence adduced as to the nature of the delegation from the Department of Finance and Personnel perspective, Mr Dobson could have been asked to give such evidence and the claimant could have enquired as to the corresponding person to Miss Graham in the Department of Finance and Personnel who was in fact Mr Dobson. He reiterated on a slightly different basis that if the claimant had wished to adduce evidence regarding the issue of delegation from the Department of Finance and Personnel to the Northern Ireland Office or the limited scope of such delegation Mr Dobson or someone similar could have been called by the claimant. In his submission it was "bogus" to state that such evidence was incapable of being seen in advance and at any rate it was available at the Grant hearing. The respondents had not been requested to identify Mr Dobson by the claimant's representatives nor were they asked to identify the person who performs the role similar to Miss Graham in the Department of Finance and Personnel. He further reiterated his submission that the material summarised in the McCann decision regarding Mr Dobson is not evidence and no witness statement had been produced by him. Mr Devlin then referred the tribunal to Harvey on Industrial Relations and Employment Law Volume 5 at T1136-1138 on the relationship between Rule 33(d) and (e) of the Rules of Procedure. He referred to the case of Flint -v- Eastern Electricity Board (Supra) and the case of General Council of British Shipping -v- Deria 1985 ICR 198 EAT. He pointed out that where a review has been refused under paragraph (d) that there had to be exceptional circumstances to justify a review under paragraph (e) where one was excluded under paragraph (d).

(4) Mr Devlin then made further submissions in relation to additional circumstances as to why the claimant could not rely on Rule 30(3)(e). He submitted that the two decisions were decisions on their own facts and should be analysed and accepted as such. They were cases which sat uneasily with each other but this was nothing unusual. He also pointed out that in Grant one respondent was the Department of Public Prosecution for NI but this respondent was not included in the McCann case. However the Northern Ireland Civil Service was included as a respondent in McCann and not in Grant. Furthermore the approach taken to evidence was radically different in the two cases. In Grant there were 10 pages and 41 paragraphs of agreed facts. This was not the case in McCann. Moreover, important aspects of evidence recorded in Grant were left out of McCann and were not recorded in that decision. However, Mr Devlin submitted that whereas in Grant the 1997 delegation was mentioned together with 10 additional differences in relation to terms and conditions, nothing was referred to of this nature in McCann and there appeared to be no reference to the new grading and pay structure referred to in the Grant decision. He submitted that if these aspects of evidence had been before the tribunal in McCann the tribunal may have reached a different decision as these all went to undermine the single source argument. He further emphasised that the extent of differences between the two decisions went beyond the involvement of Mr Dobson. In addition, he submitted that in McCann there had been no reference to the case of Armstrong -v- Newcastle-upon-Tyne NHS Hospital Trust (2006) IRLR 124 which had been referred to in Grant. That case held that a claimant must show that the employer was also the body responsible for setting the terms of both groups of employees and whether this was the case depended on the evaluation of the evidence. This was a Court of Appeal Decision which post-dated the case of Department for Environment Food and Rural Affairs -v- Robertson and Others 2005 EWCA CIV 138. Each case therefore depended on the tribunal's evaluation of all of the evidence. The Grant decision was referred to in McCann but no treatment or analysis of it was contained in that decision and Mr Devlin's submission was that this was unconvincing. He also referred to the concession made in relation to the Crown Solicitor's Office recorded in paragraph 3 of the McCann decision. No such concessions were made in Grant. In relation to the submission made by Mr Grainger regarding the fact that the McCann decision was not appealed by the respondent, Mr Devlin submitted that Mr Grainger's assertion that the respondent had effectively conceded the single source argument could not be right. He went on to point out that his instructions were that the McCann Decision was not appealed on the basis of the findings of fact on a selection of evidence. It was therefore considered difficult to overturn the decision on appeal. He suggested that the position might have been different if there had been a more fulsome resumé of the facts or a witness statement available. However the fact that there was no appeal did not mean that there was an acceptance of the single source argument.

(5) This is a difficult case and there are strong arguments on both sides. I am satisfied however that it would be just and equitable to extend the time limit under Rule 31(1) of the Rules. It is clear that the tribunal in McCann relied heavily on the evidence given by Mr Dobson in reaching its conclusion on the single source issue. This is reflected in the findings of fact set out in paragraph 5.10ff of the McCann decision and in the conclusion reached by the tribunal as referred to particularly in paragraphs 8.4 and 8.5 of the decision where specific mention is made of Mr Dobson's evidence. Having carefully considered the submissions together with the relevant authorities and rules, I am further satisfied that there was sufficient in the McCann decision to warrant the conclusion that Mr Dobson's evidence did represent new evidence in the context of this review application. I am satisfied that the tests outlined in Wileman –v- Minilec Engineering Limited (Supra) have been met and that this evidence has become available since the conclusion of the hearing to which the decision relates and its existence could not have been reasonably known of or foreseen at the time of the hearing in Grant. In the alternative, I am satisfied that, in accordance with the tribunal's overriding objective, it would be in the interests of justice to review the decision in Grant under Rule 30(3)(e). Accordingly the Grant decision is revoked. I therefore order the decision to be taken again in accordance with Rule 32(3) of the Rules. The respondents will also have a full opportunity of addressing the issues again at a new hearing in light of the evidence given by Mr Dobson in McCann.

Chairman:

Date and place of hearing: 25 September 2007, Belfast

Date decision recorded in register and issued to parties: