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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McGivern v Northern Ireland Assembly Comm.. [2009] NIFET 70_08FET (06 February 2009)
URL: http://www.bailii.org/nie/cases/NIFET/2009/70_08FET.html
Cite as: [2009] NIFET 70_8FET, [2009] NIFET 70_08FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 70/08FET, 672/08,
71/08FET, 674/08, 72/08FET, 675/08
CLAIMANTS: 1. Claire McGivern
2. Tom Evans
3. Joseph Reynolds
RESPONDENTS: 1. Northern Ireland Assembly Commission
2. Department of Finance and Personnel
3. Department for Employment and Learning
4. Department of Education
DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal is that the claimants are not estopped from pursuing their claims in the Fair Employment Tribunal.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
Appearances:
The claimants were represented by Mr Hopkins BL, instructed by Edwards & Co Solicitors.
The first respondent was represented by Mr Wolfe, BL, instructed by Rosemary Connolly Solicitors.
The 2nd, 3rd and 4th respondents were represented by Mr Coll, BL, instructed by the Departmental Solicitor’s Office.
ISSUES
This hearing has been arranged to consider the following issues:
Are the claimants’ claims barred by reason of issue estoppel?
Are the claimants’ claims barred by res judicata?
The parties agreed that the only issue that required determination was whether the claimants’ claims were barred by reason of issue estoppel as the respondents accepted this was the only form of estoppel that was in issue in this case.
REASONS
Each of the claimants, at various dates, was seconded to work for the first respondent from their permanent positions in Departments of the Northern Ireland Civil Service. Those Departments are the second, third and fourth respondents.
In or about July 2007, the first respondent decided to appoint independent consultants to carry out a review of the operations of the Assembly secretariat. The Assembly secretariat provided all the services to the Assembly, including staff, security and research. The review was conducted by Mr John Hunter who reported to a Steering Group whose Chairman was George Reid, the former Presiding Officer of the Second Scottish Parliament.
Part of the review examined the capability of the Senior Management Board (SMB). The SMB was composed of the three claimants and Mr Arthur Moir. The conclusions of the review were critical of the performance of the SMB. These conclusions were accepted by Mr Reid and his Steering Group and they passed the report to the first respondent with a recommendation that it be accepted. The report was unanimously accepted by the first respondent. The first respondent, the Assembly Commission, is composed of the Speaker of the Assembly and one elected member from each of the main political parties in the Assembly.
The first respondent decided to seek the termination of the secondments of each of the claimants. The second, third and fourth named respondents agreed that the secondments should be terminated and in late 2007/early 2008 it was agreed that the claimants would return to work for their original Departments.
Mr Moir by the time of the final capability review report had ceased to work for the first-named respondent. He was nearing his retirement and was eligible to take early retirement from early 2008. He left the first-named respondent in October 2007.
The claimants were very dissatisfied with how the capability review had been instituted and conducted. They also had concerns about how the report came to be accepted by the first respondent. They believed that their legal rights had been infringed.
Each of the claimants simultaneously challenged the capability review and its conclusions by way of an application for judicial review to the High Court.
The grounds set out upon which they sought High Court relief included the following:
“(xiv) The Northern Ireland Assembly Commission was influenced in its decision by irrelevant factors including the religious belief of the applicants and acted in breach of Section 75 of the Northern Ireland Act 1998;
(xv) The decision of the Northern Ireland Assembly Commission is in breach of the first protocol of the European Convention on Human Rights both as a free-standing claim and further read in conjunction with Article 14 of the Convention on the grounds of the decision to terminate the applicant’s appointments being influenced by their religious belief.”
The factual basis for the complaint of discrimination for the purposes of the judicial review application were set out by the claimants in their grounding affidavits.
Mr Reynolds in his affidavit states:
“24. I believe that the decision of the Speaker and his colleagues in the Commission with regard to removing me from the position of Deputy Clerk, and removing my colleagues from the SMB, was not taken on the basis of objective assessment and could have been motivated by religious/political bias”.
Ms McGivern in her grounding affidavit states:
“46. I believe that from that time, I have been discriminated against on the basis of my position as a perceived Roman Catholic and on grounds of political opinion and that the termination of my appointment was pre-determined and sought by certain factions and the capability review was used as a mechanism to achieve that objective. I believe this incident also supports a number of the other grounds set out above by reason of which I believe this decision of the Commission is fundamentally flawed.
47. Furthermore, I believe that the Commission’s decision is an infringement of our rights under the first protocol and Article 14 of the European Convention on Human Rights, as the decision was based on, or influenced by, the applicant’s religious beliefs and/or political opinions. I further believe that Arthur Moir, who is of a different religious belief to my fellow applicants and me, received more favourable treatment in the manner in which he was treated as a result of the review. He was referred to in very favourable terms at his retirement ceremony, yet we were treated without dignity or concern for our health and reputations.”
Finally, Mr Evans in his affidavit sets out:
“34. However, I also believe that the Commission has acted in bad faith. Prior to and during the conduct of the review, the Speaker, the Commission and the review team acted with the express purpose of ensuring that I and my SMB colleagues were removed from our positions within the Assembly secretariat following the completion of the review. The Speaker and the Commission also acted in bad faith in their treatment of the Deputy Clerk, the Director of Legal Services and me, compared to the treatment afforded to the former Clerk to the Assembly, which I believe can only be explained on the basis of our religious background and/or political beliefs”.
The position was further expanded upon by the skeleton argument before the High Court. At leave stage, Counsel for the claimant said in their skeleton argument:
“15. The applicants believe that the Commission was influenced in its decision by the religious belief of the applicants. The evidence for this is contained within the affidavits but principally focuses on the striking distinction between the treatment afforded to the applicants and Arthur Moir.
16. In assessing any allegation of discrimination, it is suggested that the Court should have regard to the issue of proof. For the purposes of a leave application, the applicants need only establish an arguable case with a reasonable prospect of success. The issue of discrimination is mooted on the basis of the less favourable treatment of the applicants (as Roman Catholics) in comparison to Arthur Moir (Protestant)”.
A further skeleton argument was submitted for the substantive hearing. At paragraph 5.1 the skeleton argument states:
“5.1 The applicants refer to the previous skeleton arguments submitted on this topic. The further evidence now available in relation to Mr Moir permits a like for like comparison and demonstrates the difference in treatment between the applicants and Mr Moir”.
The respondents in their skeleton argument contended, amongst other arguments, that one of the essential problems in the claimants’ application for Judicial review was:
“ that there are complex factual issues which the court is simply not in a position to adjudicate upon and which should instead be dealt with at either or both of the alternative forums proposed by the respondent, i.e. the High Court in the context of an application for an injunction or the industrial Tribunal/Fair Employment Tribunal.”
The respondent acknowledged such claims had been lodged at the Fair Employment Tribunal “which is the statutory forum established for that very purpose.”
The claimants obtained their leave to apply for judicial review on all the grounds including the complaints of discrimination.
The judicial review application was listed before the High Court for hearing on 12 June 2008. The case did not proceed that day. However, Senior Counsel for the claimants informed the Court that they would not be proceeding with the religious discrimination aspect of the claim. A transcript of the comments was obtained by the respondents:
“Can I just mention one thing which in fairness I think I should mention at the earliest possible stage. At the leave stage we did in a fairly measured way raise an issue of what was said was potential discrimination because we saw a difference in treatment between Mr Moir, a retired Clerk, and the three applicants which we believe called at least for an explanation. Now, having seen the explanation and having looked on it considerable (sic), realising what the duties are in this case, we will not be proceeding with the discrimination aspect – we will not be proceeding with the religious discrimination aspect of the claim”.
Subsequently, on 16 June 2008 the claimants each decided to withdraw the entirety of their judicial review applications and the judge dismissed the applications for judicial review with no order as to costs.
The Fair Employment Tribunal
After the High Court had granted leave to the claimants to apply for judicial review, but before those proceedings were dismissed, the claimants each lodged claims before the Fair Employment Tribunal and Industrial Tribunal.
Each of the claimants appended their judicial review affidavit to their claim forms and described their complaints in similar terms. Mr Reynolds, in his claim form, states:
“I was treated less favourably than Mr Arthur Moir, another member of the Senior Management Board (“SMB”) who is of a different religious belief to me. I believe the treatment afforded to me discriminates against me on grounds of religious belief and political opinion for which I have issued proceedings in the High Court by way of judicial review and I exhibit hereto my affidavit and rely upon the other affidavits of Claire McGivern, Tom Evans and Arthur Moir already within the possession of the respondents. These proceedings are launched on a protected basis pending determination of the judicial review”.
Mr Evans and Ms McGivern have lodged claims in similar terms.
Mr Reynolds’ claim also includes a claim for victimisation and Ms McGivern’s claim includes a claim for sex discrimination. The first respondent does not seek to challenge the right of Mr Reynolds or Ms McGivern to pursue these claims. The second, third and fourth respondents challenge Ms McGivern’s right to pursue a claim for sex discrimination on grounds of issue estoppel.
The submissions of the parties
Mr Wolfe, on behalf of the first respondent, contended that the Tribunal complaints raised by the claimants repeat the same allegations and are based upon the same facts as those which grounded the discrimination aspect of their dismissed High Court applications. Mr Wolfe accepted that this was not a case in which the respondents could claim cause of action estoppel nor was it a case falling within the rule in Henderson v Henderson. Mr Wolfe made his case on issue estoppel. He contended that the issue which was to be adjudicated upon in the judicial review and the facts on which that was to be based was and is precisely the same as the issue to be determined in the Tribunal, that is whether or not the claimants were treated less favourably than Arthur Moir on the grounds of religious belief. The claimants in the proceedings before the Tribunal rely on their affidavits to ground their complaints to the Tribunal. Whilst Mr Wolfe accepted different remedies were available in the High Court proceedings that did not affect the consideration of whether or not the same issue was involved. In essence, both the High Court and the Tribunal are asked to scrutinise and determine the same thing.
Mr Wolfe did not believe it was necessary to try and interpret precisely what senior Counsel said in withdrawing the religious discrimination claim but to the extent that comments were made there is no ambiguity. The discrimination complaints were isolated and identified as matters that the claimants would not continue to prosecute. Subsequently the entirety of the proceedings in which the discrimination claims were made was withdrawn and was dismissed on 16 June 2008.
Mr Wolfe contended that issue estoppel can apply notwithstanding the fact that there has been no hearing on the merits. (Barbour v Staffordshire County Council [1996] IRLR 209 and Lennon v Birmingham City Council [2001] IRLR 826).
In withdrawing proceedings in the High Court no attempt was made on behalf of the claimants to reserve their rights to proceed with a Tribunal case. No notice of discontinuance was served in relation to the religious discrimination aspect of the claim. Mr Wolfe contended that having raised the allegations of discrimination before the High Court the claimants are now estopped from raising them again before the Tribunal and their complaints should be dismissed.
Mr Coll, appearing on behalf of the second, third and fourth respondents, endorsed and adopted Mr Wolfe’s comments. He added however that whilst the first named respondent did not seek to include Mr Reynolds’ claim for victimisation or Ms McGivern’s claim for sex discrimination within the ambit of their application for issue estoppel, his clients would contend that Ms McGivern’s claim for sex discrimination was also estopped.
In the judicial review proceedings Ms McGivern suggested there were breaches of Section 75 of the Northern Ireland Act 1998. That Section was designed to ensure that public authorities cannot act in a fashion which amounts to discrimination under various headings including sex discrimination. There is a clear overlap in Ms McGivern’s claim of sex discrimination to the Tribunal with the judicial review proceedings to the High Court and it stands no differently from her claim of religious belief discrimination in that regard.
Mr Coll accepted that the detailed argument put forward focused on religious belief or political opinion discrimination but did not accept that there was no attempt to raise a sex discrimination aspect in the judicial review proceedings. In her claim form to the Tribunal, Ms McGivern makes specific claims of sex discrimination relying on Mr Moir as comparator. Her claim form also expressly refers to her claim for sex discrimination “for which I have issued proceedings in the High Court”.
Mr Hopkins, on behalf of the claimants, agreed with the factual background set out by Mr Wolfe. He also agreed that the only form of estoppel to be considered was issue estoppel. He submitted that the question to be answered by the Tribunal now is a narrow question – is the claim already decided by a Court of competent jurisdiction such as to estop the current proceedings? He contended that the issues between the parties were different. He accepted that there is a clear factual overlap as the facts in the High Court proceedings and the Tribunal proceedings were effectively the same but the question to be answered was whether or not the same issue was decided. He pointed to the authorities and in particular the Northern Ireland High Court decision of Ulster Bank v Fisher & Fisher [1998] NICh 7.
The claimants, in their High Court proceedings, sought a number of reliefs. Two grounds upon which they sought relief from the High Court included that the first named respondent was influenced in its decision by irrelevant factors including the religious belief of the applicants and acted in breach of Section 75 of the Northern Ireland Act 1998 and in breach of Article 14 and the first protocol of the European Convention on Human Rights. These points were developed in a skeleton argument and Mr Hopkins pointed to the claimants’ skeleton argument at paragraph 1.8 where it is stated
“finally the Court may feel that the facts give rise to an impression of unfairness including actual or perceived bias, evidence of unequal treatment and/or discrimination which contaminates the process so as to demand a review by the respondent of its conclusions”.
The claimants’ case relating to religious discrimination was put no higher than that. It was a sub-point for the substantive hearing and it was clear that the respondent was aware that the Tribunal claims had been lodged and that the religious belief issue should be dealt with at the Tribunal and not the judicial review proceedings. Mr Hopkins drew the distinction between the public law remedy sought in the High Court proceedings and the private law remedy at Tribunal.
In fact the respondents in their affidavits make the case that any question of discrimination should be dealt with in the Fair Employment Tribunal. The language of the legislation pleaded in the High Court proceedings differs markedly from the language of the Fair Employment and Treatment Order.
Mr Hopkins contended that issue estoppel was not fact estoppel and referred to the case of Munir v Jang [1989] IRLR 224. Mr Hopkins referred to Senior Counsel’s comments when withdrawing the religious discrimination aspect and in particular the words “realising what the duties are in this case”. It was clear that the claimants were looking at this matter in the context of the case that they were making in the High Court and did not proceed with that claim. Senior Counsel was not contending that there was no discrimination but rather that the duties under Section 75 of the Northern Ireland Act 1998 and the European Convention of Human Rights, in the consideration of the claimants, meant that they would not pursue that aspect of the claim.
Mr Hopkins contended that there had to be a decision to ground the estoppel. He referred to New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1 and said that a judgement must deal “necessarily and with complete precision” with the issue. It was not sufficient to conclude that an issue had been decided but whether or not that issue was a necessary finding or a collateral fact. Mr Hopkins contended that the High Court did not make a necessary finding to the issue of religious discrimination such as to create an estoppel for the Tribunal proceedings.
Finally, Mr Hopkins submitted that the Tribunal should not deny the claimant access to justice and a fair hearing. The interests of justice would not be served unless the estoppel was clear in the clearest terms. It was for the respondent to show that the issue has been decided through a necessary and relevant finding such as to create the estoppel. In this case they rely on the withdrawal of the judicial review proceedings and the subsequent dismissal. Mr Hopkins contended that the burden of proof had not been discharged and the application should fail.
The law
Mr Hopkins referred to the case of Ulster Bank Ltd v Fisher and Fisher [1998] NICh7 for a statement of the definition of issue estoppel. Mr Wolfe agreed with this definition. In that case, Mr Justice Girvan said:
“11. The party relying on the estoppel must prove identity of subject matter, that is that his opponent is seeking to re-argue some question of law or fact which has been the subject of a final decision between the same parties in a Court of competent jurisdiction. “Cause of action estoppel” is an estoppel which “prevents a party from asserting or denying as against the other party the existence of a particular cause of action the existence or non existence of which has been determined by a Court of Competent jurisdiction in previous litigation between the same parties” (Per Diplock LJ in Thoday v Thoday [1964] P181).
12. The classic statement of the principal of issue estoppel which has never been bettered in subsequent cases is to be found in the judgement of Coldridge J in R B Hartington, Middle Quarter inhabitants (1855) 4 E and D 780 at 794:
“The judgement concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the growing work of the decision itself, though not then directly the point at issue” and is “conclusive evidence not merely of the facts directly decided, but of those facts which are … necessary steps in the decision”, in the sense that they are “so cardinal to it that, without them, it cannot stand”.
13. Unless they are necessary steps the rule fails and they are collateral facts”.
Halsbury (volume 16 (2) para 980) defines issue estoppel as follows :
“Issue estoppel means that a party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of the first and second claims or actions are different, the finding on a matter which came directly an issue in the first claim or action, provided it is embodied in a judicial decision that is final, is conclusive in a second claim or action between the same parties and their privies. Issue estoppel will only arise where it is the same issue which a party is seeking to relitigate. This principal applies whether the point involved in the earlier decision, and as to which the parties are estopped, is one of fact or one of law or one of mixed fact and law”.
Although a judicial decision may give rise to an estoppel without a hearing on the merit, that decision must relate to the same issue which is sought to be raised in the second set of proceedings.
Mr Wolfe seeks to make the case that this is an issue of fact. Mr Hopkins contends it is an issue of mixed fact and law.
In Munir v Jang an Employment Tribunal made a finding at a preliminary hearing that six co-workers of the claimants were also on strike at the same time as the claimants and were not dismissed. This gave the Tribunal jurisdiction to hear the claimants’ claims for unfair dismissal by virtue of Section 62 of the Employment Protection (Consolidation) Act 1978.
At the subsequent substantive Tribunal hearing the Tribunal heard from different witnesses. The Tribunal found that there was no unfair dismissal under Section 57 of the same Act as the employers had not acted unreasonably in believing the six co-workers were returning to work.
The employers appealed, arguing that the Tribunal’s finding that the 6 employees were returning to work was contrary to the finding of the pre-hearing review and that the findings of fact at the pre-hearing review were binding at the substantive hearing.
The Court of Appeal dismissed the appeal. Lord Justice Dillon said:
“I would accept that there is issue estoppel to the extent of precluding the respondent employees from re-opening the issue under Section 62, but I do not think it extends to fact estoppel to require the full Tribunal to disregard the evidence which, in the context of this case, was put before them on the issue under Section 57(3)”.
Lord Justice Stoughton considered the nature of the estoppel in the same case. He said that the task of the Tribunal at pre-hearing review was simply to determine the issue in terms of the Tribunal’s jurisdiction under Section 62 but not to determine anything else. That result was binding on the parties in the interests of finality of litigation. He then went on to say:
“The question is what part, if any, of the primary facts which lay beneath that conclusion is included in the estoppel. The nature of the enquiry is described by Lord Justice Diplock in Thoday v Thoday (1964) P 181 at page 198:
“the determination by a court of competent jurisdiction of the existence or non-existence of a fact, the existence of which is not of itself (my emphasis) a condition the fulfilment of which is necessary to the cause of action which is being litigated before that court, which is only relevant to proving fulfilment of such a condition, does not estop at any rate per rem judicatem either party in subsequent litigation from asserting the existence or non-existence of the same fact contrary to the determination of the first court”.
One must adapt that to this particular case where it is said that the decision of the Tribunal on a preliminary issue gives rise to an estoppel per rem judicatem. Was what Mr Nissar said to Mr Khan of itself a necessary condition for establishing that Section 62(2) applied, or was it only relevant as tending to prove that there were other men on strike who were not dismissed, which in itself was a necessary condition? In answering that question, one does not, in my view, look behind the record and enquire what particular facts were relevant to proving the fulfilment of the necessary condition in this particular case. One looks only at the condition itself”.
In this case, the facts on which the respondents seek to establish issue estoppel are not, in my view, facts the fulfilment of which is necessary to the cause of action which was being litigated before the High Court in judicial review proceedings. The facts as alleged are only relevant to proving the fulfilment of a condition, that is that Section 75 of the Northern Ireland Act 1998 and Article 14 and Protocol 1 of the European Convention on Human Rights have or have not been breached. On the tests set out by Lord Justice Diplock quoted above this does not prevent the existence or non-existence of the same facts, that is whether there has been less favourable treatment on the grounds of religious belief, from being asserted at a subsequent Tribunal, considering the responsibilities of the parties under the Fair Employment and Treatment Order 1998. The condition in this case is whether or not Section 75 of the 1998 Act and the provisions of the European Convention of Human Rights were breached so as to render unlawful the decisions of the first respondent.
The issue in this case is not one of bald facts. The respondent in their skeleton argument in the High Court proceedings acknowledge that the factual disputes were not suitable for judicial review proceedings. I consider that the issue before the High Court was a mixed issue of fact and law. The facts were being considered in the legal matrix of public law rights and remedies. The allegation of religious discrimination was specifically withdrawn by senior Counsel, in his words, “realising what the duties are in this case”.
In Ulster Bank Ltd v Fisher & Fisher [1998] NICh7, the bank took proceedings against the solicitors seeking an order requiring them to lodge documents of title and by an additional claim ordering the solicitors to lodge net proceeds of sale. That Notice of Motion came for hearing before Mr Justice Campbell, who held that the solicitors had fulfilled their undertaking as to the documents of title but the undertaking to lodge the net proceeds of sale had not been complied with. However he declined to exercise his discretion to make an order for compensation against the solicitors as this would have been an order of a disciplinary nature in the context of the proceedings before him. The bank made a fresh claim asserting negligence and breach of contract. Mr Justice Girvan considered the different forms of res judicata and defined issue estoppel as I have earlier quoted. In reaching his conclusions, Mr Justice Girvan said:
“In the present proceedings the judgement sought by the bank in the statement of claim is in no way inconsistent with the judgement or order of Campbell J. The claim does not seek to re-litigate the same or essentially the same issue which fell to be and was determined in the earlier proceedings, the new proceedings raising distinct issues which could not be raised or determined in those earlier proceedings. Nothing in the previous decision would lead to the conclusion that the bank’s present claim was without merit.”
In this case the proceedings before the Tribunal raised distinct issues which could not have been raised or determined in the earlier proceedings. In my view, the claimant does not seek to re-litigate the same or essentially the same issue which fell to be and was determined in the earlier judicial review proceedings and I do not consider that the claimants’ claims before the Tribunal are estopped from proceeding.
In the alternative and if I am incorrect in this finding, I refer then to the definition of the scope of issue estoppel contained in Halsbury referred to me by Mr Wolfe. Halsbury states at paragraph 981:
“It is now established that the question whether the raising of an issue in subsequent proceedings amounts to an abuse of process is one to be decided in a broad, merits based way in the light of all the circumstances”.
I do not consider that the claimants’ proceedings before the Tribunal represent an abuse of process for the following reasons:
The respondents have been fully aware of the claimants’ claims to the Tribunal at all times. Indeed in High Court proceedings it was argued by the respondents that the correct forum for this aspect of their complaint was the Fair Employment Tribunal.
The claim for judicial review was withdrawn in circumstances where the claims in the Fair Employment Tribunal had already been made.
The claim in the judicial review proceedings was specifically withdrawn “realising what the duties are in this case”.
There has been no determination on the merits one way or the other.
The difference between what was done and what should have been done in the withdrawing of the judicial review proceedings is minimal. Mr Wolfe has accepted that if the claimant’s had reserved their rights to the Tribunal proceedings and withdrawn their High Court proceedings, it would be an entirely different situation.
It cannot be in accordance with the general merits of the case that because of what is at worst a procedural slip up, the claimants should be deprived of an opportunity of putting their substantive claim and having it dealt with on the merits. There is no injustice to the respondents who have anticipated this claim. There has been no evidence adduced by the respondents of any prejudice suffered other than a potential costs issue.
In light of these findings, I make no decision on whether or not judicial review proceedings can create an estoppel on the basis that it is (a) not a final decision and (b) that different parties are involved in the private law proceedings compared to those in the public law proceedings. These points were not fully argued before me and neither party referred to the case of R V Secretary of State for Environment Ex Parte Hackney London Borough Council and Another [1983] ALL ER 358.
In light of the above conclusions, I find that the claimants are not estopped or precluded from continuing with their claims in the Fair Employment Tribunal.
Chairman:
Date and place of hearing: 15 December 2008, at Belfast
Date decision recorded in register and issued to parties: