Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2008] NIFET 190_01FET, [2008] NIFET 190_1FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 190/01 FET;

1746/01

CLAIMANT: Ms M M T O'Hare

RESPONDENTS: 1. Queen's University of Belfast

2. Professor R W Stout

3. Doctor McCluskey

4. Professor B G McClure

DECISION ON AN APPLICATION FOR REVIEW

The unanimous decision of the Tribunal is that the respondents' application is allowed in part in so far as paragraph 6(6) (a) to (j) of the original decision is clarified. Otherwise the Tribunal confirms its decision.

Constitution of Tribunal:

Chairman: Mr B Greene

Panel Member: Mrs S Butcher

Appearances:

The claimant was represented by Mr M Potter, of counsel, instructed by Savage & Company, Solicitors.

The respondents were represented by Mr F O'Reilly, of counsel, instructed by Elliott Duffy & Garrett, Solicitors.

On 23, 24, 25, 26, 27, 31 January; 1, 2, 3 February; 10, 13, 15, 16 March; and 4, 6, 7, 10 April; 19, 20, 21, 22, 23, 26, 27, 28, 30 June; 15, 16, 22, 23, 24, 29, 30 August; 18 September 2006 a claim for unfair dismissal, breach of contract and discrimination on the grounds of sex and religious belief or political opinion against the respondents was heard.

The Tribunal determined that the claimant had suffered discrimination on the grounds of her sex and religion, her contract of employment had been breached and that she had been unfairly constructively dismissed by the respondents.

The Tribunal's decision was issued on 31 August 2007.

By letters of 13 and 14 September 2007 the respondents requested a review of the Tribunal's decision on the grounds that the decision was made as a result of an administrative error; and/or that the interests of justice required such a review.

Mr J Crockett, a panel member in the original hearing, had become seriously ill. The parties agreed that the review should be heard before the remaining two panel members.

Accordingly the respondents' application for a review of the Tribunal's decision was listed for hearing on 14 February 2008.

Mr O'Reilly stated to the Tribunal that the only ground for seeking a review of the Tribunal's decision, upon which the respondents were relying, was that the interests of justice require such a review (Regulation 30(3)(e), The Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).

In support of the respondents' application for a review Mr O'Reilly stated:-

(1) A number of the Tribunal's conclusions, when it applied the law and the findings of fact to the issues, could not be correct. Specifically;-

(a) At paragraph 6(6)(b) the Tribunal attributed the failure to consult with the claimant about the closure of the Child Health Laboratories in 1998 to all respondents although the third respondent (Dr McCluskey) was not involved.

(b) At paragraph 6(6)(c) the Tribunal attributed the failure to consult with the claimant about her transfer from Child Health to the Department of Medicine to all respondents although the third respondent (Dr McCluskey) was not involved.

(c) At paragraph 6(6)(d) the Tribunal attributed the failure to provide the claimant with new terms and conditions of employment and a job description or to specify her new tasks to all respondents when the third (Dr McCluskey) and fourth (Professor McClure) respondents could not have been involved.

(d) At paragraph 6(6)(e) the Tribunal attributed the failure to integrate the claimant into the Department of Medicine to all respondents although the fourth respondent (Professor McClure) was not involved.

(e) At paragraph 6(6)(g) the Tribunal attributed the failure to take steps to prevent the claimant from doing the work of a technician to all respondents at a time when the fourth respondent (Professor McClure) had retired.

(f) At paragraph 6(6)(h) the conclusion could not apply to the fourth respondent (Professor McClure) as he had already retired.

(g) At paragraph 6(6)(i) the Tribunal attributed the raising of difficulties in relation to the claimant's participation in the work of the Department of Medicine to all respondents when the specific conclusions at A and B related to other members of the first respondent (QUB) who were not named respondents. Therefore the conclusion should relate to the first respondent (QUB) only.

(h) At paragraph 6(6)(j) the Tribunal attributed the failure to include the claimant in the sub-committee on the pricing of assays to all respondents and this conclusion should relate to the first respondent (QUB) only.

If the decision were amended to reflect the above points there is no implications for the decision, Mr O'Reilly advised the Tribunal.

(2) There should not have been a finding of discrimination against the second (Professor Stout), third (Dr McCluskey) and fourth (Professor McClure) respondents as the claims against them were out of time.

(a) The last meeting that the second respondent (Professor Stout) had with the claimant was on 5 October 2000 about which there is not a specific complaint by the claimant. This is more than three months before the claimant lodged her claim on 29 March 2001 and there had not been an application to extend time to bring the claim.

(b) The fourth respondent (Professor McClure) had left the university for a period of 15 months before the claimant's claim and there had not been an application to extend time to bring the claim.

(c) The last meeting the third respondent (Dr McCluskey) had with the claimant was in November 2000 and there had not been an application to extend time to bring the claim.

Even if the claimant succeeds in her claim of discrimination on the basis that "a discriminatory state of affairs" (Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96) existed until her departure that can only relate to the first respondent (QUB).

(3) That a number of the persons involved in this case are not referred to in the decision e.g. Dr Cross, Dr Salmond and Mr Gill.

(4) Mr O'Reilly posed the question as to whether the Tribunal had considered the evidence of Mr Gill and Dr Cross which would have contradicted the claimant's evidence on the training course.

(5) That apart from the criticism of the claimant for failing to attend the appraisal every finding of fact has been resolved in favour of the claimant.

(6) In relation to paragraph 4(23) the two members of the AUT never went back to the claimant nor did she contact them which must cast doubt on any belief she had on discriminatory treatment.

(7) In relation to paragraph 4(24) the claimant's research materials were not removed and remained there up to the date of the hearing.

(8) In relation to paragraph 4(25) that finding is correct if the Tribunal disbelieved Dr Cross. She gave evidence of spending three days with the claimant training her on the mass spectrometer and left her with an appropriate manual. She also testified to having received unhelpful treatment from the claimant as regards laboratory access.

(9) In relation to paragraph 4(36) the claimant had been told that Dr Curry did not want her in the department and he is the person to whom she turned about her unhappiness with Professor Johnston as her line manager.

(10) In relation to paragraph 4(44) the training course did not take place until 10 months later.

(11) In relation to paragraph 4(45) the Tribunal should have concluded that the claimant was unreliable.

(12) In relation to paragraph 4(46) it was wrong for the Tribunal to use emotive words "summoned" and "demanded" whereas at paragraph 4(44) it used the word "asked" and at paragraph 4(53) it used "inviting".

(13) In relation to paragraph 4(52) the third respondent (Dr McCluskey) could not find the claimant on a number of occasions.

(14) There was no analysis of the reasons for the claimant's failure to attend for appraisal with the third respondent (Dr McCluskey).

(15) In relation to paragraph 4(59) the claimant's explanation for not attending a meeting with the third respondent (Dr McCluskey) is presented as a fact without a finding of fact.

(16) In relation to paragraph 4(64) Dr Curry asked the claimant to give lectures and gave her his notes. Dr Ardill asked her to give lectures but she did not give them.

(17) In relation to paragraph 4(68) Mrs Short was alleged by the claimant to have left the room during the meeting. Mrs Short denied leaving the room. The claimant's counsel did not put it to Mrs Short that she had left the room. Therefore an unchallenged assertion by the respondent should have become a finding of fact by the Tribunal.

(18) In relation to paragraph 4(75) the finding of fact about the second respondent (Professor Stout) is not less favourable treatment and therefore cannot amount to discrimination.

(19) Paragraphs 4(76), 6(6)(i) and (j) and 6(12)(m) are examples of the claimant's silence in face of alleged exclusion and such a silence should have prevented the Tribunal from drawing any conclusion or inference adverse to the respondents.

(20) In relation to paragraph 6(6)(m)F the Tribunal was wrong to state that the second respondent (Professor Stout) exaggerated the difficulties of the claimant's non-attendance for appraisal.

(21) In relation to paragraph 6(6)(o)G "did not attend" the meeting becomes "excluded".

(22) In relation to paragraph 6(30) by reason of the submissions above the Tribunal's conclusion can only apply to the first respondent (QUB). The claimant cannot succeed against personal respondents because of the time limits.

(23) The Tribunal's discretion in relation to a review in the interests of justice must go beyond the previous restrictive "procedural mishap" consideration. The discretion has, by reason of the overriding objective, been widened (Sodexho Ltd v Gibbons [2005] IRLR 836 EAT).

In addition the Tribunal that heard the case, heard the witnesses and acquired a deep knowledge of the evidence is the ideal body to decide if there were errors, omissions or contradictions.

(24) The Tribunal's decision should be set aside and a new hearing ordered. The constitution of a new tribunal is for the Tribunal to decide.

(25) The respondents do not challenge the exposition of the authorities as set out by the Tribunal. If the Tribunal adheres to its findings of fact the respondents do not disagree with the Tribunal's application of the law to the issues.

Mr Potter, for the claimant, asserted:-

(1) The decisions of Williams v Ferrosan Ltd [2004] IRLR 607 EAT, Sodexho Ltd v Gibbons [2005] IRLR 836 EAT and Maresca v Motor Insurance Repair Research Centre [2005] ICR 197 EAT have not converted a review into some sort of an appeal.

(2) In relation to paragraph 6(6)(a) to (j) the claimant accepts that the matters referred to by Mr O'Reilly could constitute a 'procedural mishap'. The claimant would have no objection to the Tribunal clarifying its findings against specific respondents and making such amendments.

(3) The criticisms made of the Tribunal's decision amount to an attempt to appeal the decision by the back door.

(4) The respondents are challenging whose evidence the Tribunal preferred.

(5) The criticism in relation to paragraph 4(68) about claimant's counsel's failure to challenge Mrs Short's evidence that she did not leave the room is not accepted. However the argument is essentially that the Tribunal's finding was perverse which is a matter for an appeal to the Court of Appeal.

(6) The respondents cannot now raise a new argument about the claimants' claims being out of time as against the second (Professor Stout), third (Dr McCluskey) and fourth (Professor McClure) respondents when that argument was not made during the hearing.

(7) The respondents' points save those about paragraph 6(6) (a) to (j) are frivolous and vexatious.

(8) If the respondents' argument is that the Tribunal's decision was flawed or that no reasonable tribunal could have come to that decision that is a matter for the Court of Appeal.

(9) If the respondents' argument is that the Tribunal's decision was perverse that is a matter for the Court of Appeal.

Mr Potter applied for costs against the respondents for 1¾ hours amounting to £300 + VAT for making submissions on matters which are in reality matters for the Court of Appeal.

Mr O'Reilly sought costs against the claimant for 40 minutes for Mr Potter's references to the Court of Appeal and judicial review which are irrelevant to a review application.

Applications for a review where the only ground relied on is the interests of justice fall into two broad categories : those in which there has been a 'procedural mishap' (see Trimble v Supertravel Ltd [1982] IRLR 451 at 453) and those in which the tribunal's decision has been undermined by events occurring shortly thereafter (Harvey T [1139]).

In this review the respondents do not rely on either of these broad categories to support their application.

Since the introduction of the 'overriding objective to deal with cases justly' in the Tribunal Rules 2004 the 'interests of justice' ground should not now be construed as restrictively as it was prior to their introduction (Sodexho v Gibbons [2005] IRLR 836 at 843, 78).

The Tribunal considers that it is in the interests of justice that it should be specific in its decision at paragraph 6(6)(a) to (j) as Mr O'Reilly's advocated in his submissions. Mr Potter did not dispute that that should be done. In ease of reading the amended decision the Tribunal sets out paragraph 6(6) in its amended form;-

"6(6) From 1996 the claimant was treated unfavourably. Among the instances of this unfavourable treatment are:-

(a) The claimant was not properly appraised in 1996 and 1997 by the fourth respondent (Professor McClure) (male and Protestant) and as a consequence was denied the benefits of the appraisal process.

(b) The first (QUB), second (Professor Stout) and fourth (Professor McClure) respondents failed to consult with the claimant about the closure of the Child Health laboratories in 1998 despite the fact that she was in charge of the laboratories. The fourth respondent (Professor McClure) had discussed with departmental heads (all male and Protestant) and Mr McMaster (male and Protestant), a technician line-managed by the claimant, about the closure of the laboratories.

The claimant's research materials were removed from the laboratories without informing her or seeking her consent. She was not advised to where her materials were removed or where she was to continue her research.

(c) The first (QUB), second (Professor Stout) and fourth (Professor McClure) respondents failed to consult with the claimant about her transfer from Child Health to the Department of Medicine, although discussions were taking place about her transfer in her absence. They failed to seek her views on the transfer or explain the rationale for the transfer or how it fitted into the research strategy or how it assisted her career development and what work she was to do. This is inexplicable in the light of the respondents' assertion that she had the option not to transfer, which was never communicated to her.

(d) The first (QUB) and second (Professor Stout) respondents, following the claimant's transfer, failed to provide the claimant with new terms and conditions of employment, a job description or to specify her new tasks.

(e) The first (QUB), second (Professor Stout) and third (Dr McCluskey) respondents failed to integrate the claimant into the Department of Medicine. Little or no attempt was made to make her welcome or to acquaint her with the work of the department or to involve her in the work or discuss with her involvement in the work of the department or to inform her of her new responsibilities or to attempt to implement any of the proffered reasons for her transfer.

(f) Once the claimant had moved to the Department of Medicine the third respondent (Dr McCluskey) was reluctant to become her line-manager. She had not had a line-manager for 11 months.

(g) The first (QUB), second (Professor Stout) and third (Dr McCluskey) respondents did not take any steps to prevent the claimant from having to do the work of the technician, Kathleen Hanna, who was off work ill from August/September 1999 and her position remained unfilled while the claimant was in the employment of the first respondent (QUB).

(h) At the Laboratory Management Committee meeting in November 1999 the claimant was excluded by the first (QUB) and third (Dr McCluskey) respondents from the research and development grant application being undertaken while the other four members of the Laboratory Management Committee were included in the application.

(i) Difficulties were raised by the first respondent (QUB) (A to D below), the second respondent (Professor Stout) (D below) and the third respondent (Dr McCluskey) (C and D below) in relation to the claimant's participation in the work of the Department of Medicine. This manifested itself in a number of ways which included:-

A Objecting to the claimant line-managing Kathleen Hanna, the technician charged with working on the mass spectrometer, of which the claimant was in charge, because the claimant was in the Department of Child Health and Kathleen Hanna was in the Department of Medicine.

This was done on at least two occasions despite the objectors being aware that the claimant was being transferred to the Department of Medicine. Yet Dr Ardill, who is not an employee of the first respondent (QUB) but an honorary lecturer, was able to line-manage Bronagh McKibben an employee of the first respondent (QUB).

B The refusal to allow the claimant to order pipettes, essential to the claimant's research, or provide her with a supply of the same when apparently Dr Curry had taken possession of all the pipettes.

C The purported imposition of verbal and disciplinary warnings on the claimant, by the third respondent (Dr McCluskey) on 15 December 1999 for her failure to attend an appraisal meeting without implementing any of the essential procedures of a fair disciplinary procedure.

D The exaggerating of complaints against the claimant, by the second and third respondents (Professor Stout and Dr McCluskey), subsequent to her failure to attend appraisal meetings by erroneously claiming she was in breach of sickness procedures or alleging she was wrongfully absent from work even though the claimant did not have specific hours of work and without producing any evidence of her wrongful absence from work.

(j) In November 2000 the first (QUB) and third (Dr McCluskey) respondents failed to include the claimant in the sub-committee for the pricing of assays. They had failed to invite her to the meeting to discuss the pricing of assays. The list of assays, prepared by Dr Ardill, contained errors. It did not give credit to the claimant for the assays she had developed whereas it did give credit to others who had developed assays. "

12. The respondents' argument that the findings of discrimination against the second (Professor Stout), third (Dr McCluskey) and fourth (Professor McClure) respondents should be dismissed as the claims were outside the prescribed time limits cannot be considered at a review hearing because this argument was not made at the hearing. It is therefore a new point of law.

The failure of a party's representative to make submissions would not normally constitute a ground for review under the interests of justice ground (Lindsay v Ironsides Ray & Vials [1994] ICR 384 EAT).

At an appeal hearing before the Employment Appeal Tribunal the general rule is that a party will not be permitted to raise points or issues of law which were not part of the submissions made to the employment tribunal (Jones v Governing Body of Burdett Coutts School [1998] IRLR 521CA). The Court of Appeal held that the discretion to allow a new point of law to be raised or a conceded point reopened should only be exercised in exceptional circumstances particularly where in doing so it would be necessary to open new issues of fact which had not been investigated thoroughly or at all before the tribunal (ibid at 524, 20). The general rule was reiterated by the Court of Appeal in Leicestershire County Council v Unison 2006 [IRLR] 810.

This restrictive approach to consideration of points of law not raised at the hearing also applies even where jurisdictional issues arise (Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 and Mingeley v Pennock and Another T/A Amber Cars EAT 1170/02).

It seems to the Tribunal that there are not any exceptional circumstances to justify allowing the respondents to raise a new point of law which was open to them to make at the hearing and they did not do so. The Tribunal is fortified in that view in that the claimant would have to be given the opportunity to meet this point and to deal with the discretion to extend time in her favour even if the claims against the second (Professor Stout), third (Dr McCluskey) and fourth (Professor McClure) respondents were out of time and this might well involve the hearing of more evidence.

13. The respondents also challenge the Tribunal's findings of fact. The challenge seems to the Tribunal to be that;-

(1) The respondents disagree with many of the Tribunal's findings of fact;

(2) The Tribunal omitted to make findings of fact;

(3) There was no evidence to support some of the Tribunal's findings of fact; and

(4) Some of the Tribunal's findings of fact are perverse.

14. In so far as the challenge amounts to an assertion that there was no evidence to support the Tribunal's findings of fact or that the Tribunal's findings were perverse the Tribunal rejects those criticisms and asserts that these are matters for the Court of Appeal and are not properly the subject of a review application.

15. In relation to the criticism that the Tribunal omitted to make findings of fact the Tribunal says that it is not required to make findings of fact on every factual matter but is required to make such findings as enables it to deal justly with the claims before it. The Tribunal is satisfied that it discharged that duty and thus it rejects that criticism.

16. In so far as the respondents disagree with some of the Tribunal's findings of fact and any inferences or conclusions therefrom the Tribunal is satisfied that there was sufficient evidence before it to enable it to make its findings of fact and draw its inferences or conclusions and the Tribunal rejects this criticism also.

17. Apart from the clarification of its decision set out at paragraph 11 above the Tribunal was not satisfied that the ground for a review had been established.

18. Accordingly, the Tribunal in the interests of justice clarifies its decision at paragraph 6(6) (a) to (j) as set out at paragraph 11 above. Apart from that change the Tribunal rejects the other submissions of the respondents and confirms its decision.

19. The Tribunal does not make any order for costs for or against either party in relation to the review hearing.

Chairman:

Date and place of hearing: 14 February 2008, Belfast.

Date decision recorded in register and issued to parties: