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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Bohill v Police Service of Northern Ire... [2010] NIFET 00009_09FET (28 January 2010)
URL: http://www.bailii.org/nie/cases/NIFET/2010/00009_09FET.html
Cite as: [2010] NIFET 00009_09FET, [2010] NIFET 9_9FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 00009/09FET, 00076/09FET and 00861/08
CLAIMANT: John Kevin Bohill
RESPONDENT: Police Service of Northern Ireland
DECISION
The unanimous decision of the Tribunal is that the claimant is not entitled to the protection of the Fair Employment and Treatment (Northern Ireland) Order 1998, and therefore the Tribunal has no jurisdiction to consider his claim, which is dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr B McGuire
Mr M Roddy
Appearances:
The claimant was present and represented himself.
The respondent was represented by Mrs N Murnaghan, Barrister-at-Law, instructed by the Crown Solicitor’s Office.
THE CLAIM
1. (1) The claimant claimed that the respondent had discriminated against him on the grounds of religion/perceived political opinion in failing to appoint him to a position on the occasions that his name was put forward by Grafton Recruitment. The respondent denied his claim and contended that the Tribunal had no jurisdiction to hear the case.
(2) Prior to the hearing the claimant had already withdrawn his claim against Grafton Recruitment Ltd (“Grafton Recruitment”). He also withdrew Claim Ref: 861/08 at the outset of the Tribunal hearing. This claim is therefore dismissed.
THE ISSUES
2. (1) Case Management Discussions were held on 20 October 2008, 5 March 2009, 6 May 2009, 18 June 2009, and 24 September 2009. At the Case Management Discussion held on 24 September 2009, the issues were agreed by both parties. Taking into account the withdrawal of his claim against Grafton Recruitment, the agreed issues before the Tribunal were as follows:-
(i) Whether the respondent discriminated against the claimant on grounds of religion/perceived political opinion in failing to appoint him to a position on the occasions that his name was put forward by Grafton Recruitment.
(ii) Whether the claimant was applying for a position with the respondent as an agency or contract worker in a self employed capacity. If so:-
(iii) Whether he is entitled to the protection of the Fair Employment and Treatment (Northern Ireland) Order 1998 in view of the decision of the EAT in Muschett v HM Prison Service.
(2) The case was listed for three days. The claimant indicated that, in addition to himself, he intended to call 7 witnesses non of whom were relevant to issues (ii) and (iii). The respondent’s counsel indicated that at least 8 witnesses would be called for the respondent should the 3 issues set out above be dealt with by the Tribunal. The respondent’s counsel therefore made an application at the outset of the hearing for the Tribunal to hear the claimant’s evidence-in-chief on all issues subject to him being cross-examined only on issues (ii) and (iii) on the basis that the Tribunal, at that stage, would decide whether it had jurisdiction to deal with the claimant’s substantive claim. The Tribunal, having considered the matter, acknowledged the position being taken by the respondent’s counsel and indicated that it would consider the position further when she had completed her limited cross-examination on issues (ii) and (iii). Upon completion of her cross-examination of the claimant on the limited basis proposed, the respondent’s counsel renewed her application for the Tribunal to decide on the jurisdictional issue. The Tribunal then arose to consider the matter, and unanimously decided to proceed along the lines suggested by the respondent’s counsel, having taken into account the Tribunal’s overriding objective, and the claimant’s position in the matter.
SOURCES OF EVIDENCE
3. The Tribunal heard evidence from the claimant and was presented with agreed bundles of documentation. The Tribunal took into account only documentation referred to in the course of evidence.
FINDINGS OF FACT
4. Having considered the evidence insofar as same related to issues (ii) and (iii), the Tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant retired from the respondent’s employment in February 2001. Grafton Recruitment was responsible for conducting recruitment for temporary positions under a contract for services for temporary workers. The respondent selected candidates from lists sent to it by Grafton Recruitment. The claimant’s claim related to a number of such temporary positions from 14 March 2003 until 18 December 2007. It was common case that the claimant had not been assigned to the respondent under any such contract for services with Grafton Recruitment.
(ii) At the Case Management Discussion held on 24 September 2009 the respondent accepted that any decision not to offer the claimant a position with the respondent was made by the respondent and that Grafton Recruitment played no part in that decision. The respondent therefore accepted liability for any unlawful conduct in the refusal to appoint the claimant to any position.
(iii) The Tribunal was shown a draft contract for services for temporary workers which the claimant would have had to sign with Grafton Recruitment had he been successfully assigned to the respondent. The Tribunal finds it useful to set out the material terms of such a contract for services as follows:-
“1. DEFINITIONS
1.1 In these Terms of Engagement the following definitions apply:-
“Assignment” means the period during which the Temporary Worker is supplied to render services for the Client;
“Client” means the person, firm or corporate body requiring the services of the Temporary Worker together with any subsidiary or associated company;
“Employment means Grafton Recruitment Ltd
Business”
“Temporary means name of Temporary
Worker” Worker
“Relevant Period” means the longer period of either 14 weeks from the first day on which the Temporary Worker worked for the Client, or 8 weeks from the day after the Temporary Worker was last supplied by the Employment Business to the Client. …
2. THE CONTRACT
2.1 These Terms constitute a contract for services between the Employment Business and the Temporary Worker and they govern all Assignments undertaken by the Temporary Worker. However, no contract for services shall exist between the Employment Business and the Temporary Worker between Assignments.
2.2 For the avoidance of doubt, these Terms shall not give rise to a contract of employment between the Employment Business and the Temporary Worker. The Temporary Worker is engaged as a self-employed worker, although the Employment Business is required to make statutory deductions from the Temporary Worker’s remuneration in accordance with clause 4.1. …
3.1 … The Temporary Worker shall not be obliged to accept an Assignment offered by the Employment Business.
3.2 The Temporary Worker acknowledges that the nature of temporary work means that there may be periods when no suitable work is available and aggress; that the suitability of the work to be offered shall be determined solely by Employment Business; that the Employment Business shall incur no liability to the Temporary Worker should it fail to offer opportunities to work in the above category or in any other category; and that no contract shall exist between the Temporary Worker and the Employment Business during periods when the Temporary Worker is not working on an Assignment. …
4. REMUNERATION
4.1 The Employment Business shall pay to the Temporary Worker remuneration calculated at a minimum hourly rate of £_____, for all hours worked. The actual rate will be notified on a per Assignment basis, for each hour worked during an Assignment (to the nearest quarter hour) to be paid weekly in arrears, subject to deductions in respect of PAYE pursuant to Sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003 and Class 1 National Insurance Contributions and any other deductions which the Employment Business may be required by law to make.
4.2 Subject to any statutory entitlement under the relevant legislation, the Temporary Worker is not entitled to receive payment from the Employment Business or Clients for time not spent on Assignment, whether in respect of holidays, illness or absence for any other reason unless otherwise agreed. …
8.2 The Temporary Worker is not obliged to accept any Assignment offered by the Employment Business but if s/he does so, during every Assignment and afterwards where appropriate, s/he will:-
a) Co-operate with the Client’s reasonable instructions and accept the direction, supervision and control of any responsible person in the Client’s organisation;
b) Observe any relevant rules and regulations of the Client’s establishment (including normal hours of work) to which attention has been drawn or which the Temporary Worker might reasonably be expected to ascertain;
c) Not engage in any conduct detrimental to the interests of the Client;
d) Not at any time divulge to any person, nor use for his own or any other person’s benefit, any confidential information relating to the Client’s or the Employment Business’ employees, business affairs, transactions or finances. …
9. TERMINATION
9.1 The Employment Business or the Client may terminate the Temporary Worker’s Assignment at any time without prior notice or liability.
9.2 The Temporary Worker may terminate an Assignment at any time without prior notice or liability.
9.3 If the Temporary Worker does not inform the Client or the Employment Business [in accordance with clause 8.3] should they be unable to attend work during the course of an assignment this will be treated as termination of the assignment by the Temporary Worker in accordance with clause 9.2 unless the Temporary Worker can show that exceptional circumstances prevented him from complying with clause 8.3.
9.4 If the Temporary Worker is absent during the course of an assignment and the contract has not been otherwise terminated under clauses 9.1, 9.2 or 9.3 above, the Employment Business will be entitled to terminate the contract in accordance with clause 9.1 if the work to which the absent worker was assigned is no longer available for the Temporary Worker.
9.5 If the Temporary Worker does not report to the Employment Business to notify his availability for work for a period of three weeks, the Employment Business will forward his/her P45 to his last known address.”
THE LAW
5. (i) Article 20 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (the Order) provides as follows:-
“…contract workers
20.—(1) This Article applies to any work for a person (“the principal”) which is available to be done by individuals (“contract workers”)—
(a) who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal; and
(b) who, if they were instead employed by the principal to do that work, would be in his employment in Northern Ireland.
(2) It is unlawful for the principal, in relation to work to which this
Article applies, to discriminate against a contract worker—
(a) in the terms on which he allows him to do that work; or
(b) by not allowing him to do it or continue to do it; or
(c) in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or
(d) by subjecting him to any other detriment.”
(ii) Article 22 of the Order provides as follows:-
“…employment agencies
22. —(1) It is unlawful for an employment agency to discriminate against a person,
(a) in the terms on which the agency offers to provide any of its services; or
(b) by refusing or deliberately omitting to provide any of its services; or
(c) in the way it provides any of its services.”
(iii) The Tribunal also considered Article 19 of the Order which provides as follows:-
“…applicants and employees
19. —(1) It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland,—
(a) where that person is seeking employment—
(i) in the arrangements the employer makes for the purpose of determining who should be offered employment; or
(ii) in the terms on which he offers him employment; or
(iii) by refusing or deliberately omitting to offer that person employment for which he applies; …”
(iv) The Tribunal also considered the employment appeal Tribunal case of Muschett v HM Prison Service [2008] UK EAT/0132/08 (“Muschett”) and the authorities referred to therein.
SUBMISSIONS
6. The Tribunal heard oral submissions from the respondent’s counsel and the claimant. It was prepared to allow the claimant considerable time to prepare his submissions but he chose not to avail of that opportunity. The respondent’s counsel, relying on Muschett, urged the Tribunal to conclude that it had no jurisdiction to hear the claimant’s claim and that Articles 19, 20, and 22 of the Order could not be relied on by the claimant. The respondent’s counsel also submitted that in the Muschett case the individual concerned had worked for some four months in accordance with a contract for services for temporary workers entered into between himself and Brook Street (UK) Ltd. She submitted that it would be entirely inconsistent to conclude that the claimant could claim jurisdiction in a case where he had never been engaged in a contractual arrangement with Grafton Recruitment when the claimant in the Muschett case failed to establish jurisdiction having already been engaged on a contract for services for temporary workers for some four months. The claimant submitted that he never thought of himself as self-employed and sought to rely on provisions contained in the Police (Northern Ireland) Act 2003 and the 50:50 Rule for recruitment which he claimed also applied to police support staff. He also submitted that as far as he was concerned Grafton Recruitment and the respondent were one and the same for the purposes of his claim. The claimant had been aware of the Muschett case for some time, and had ample time to consider it.
CONCLUSIONS
7. The Tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-
(i) Although the Muschett case has factual differences when compared to the claimant’s case, the principles of law as set out therein apply in relation to discrimination cases. In paragraphs 29 and 30 of his judgment, his Honour Judge Ansell states as follows:-
“29 …The absence of a contract is therefore fatal to claims being raised under either employment or discrimination legislation.
30 As regards the contract worker provisions, again Mr Muschett’s claims are defeated if one looks carefully at the provisions. It requires that the person who is providing the contract worker to the principal has to be in a relationship with an employment contract with the worker. The words are:
“Who are employed not by the principal himself but by another person”. In other words, in the circumstances of this case Mr Muschett would have to show that he was employed by Brook Street”.
(ii) The Tribunal is satisfied that in the event of a successful assignment, the claimant would have had to enter into a contract for services for a temporary worker as a self employed worker. However, he had not even reached this stage. The Tribunal is therefore satisfied that the claimant cannot rely on Articles 19, 20 or 22 of the Order so as to enable the Tribunal to have jurisdiction to hear his substantive claim, which is therefore dismissed.
Chairman:
Date and place of hearing: 11 – 12 January 2010, Belfast.
Date decision recorded in register and issued to parties: