Industrial Tribunals Northern Ireland Decisions

 


Leath v University of Ulster (Preliminary Issue) [2002] NIIT 03702_01 (16 September 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 03702/01

APPLICANT: Ted Leath

RESPONDENTS: University of Ulster

DECISION ON A PRELIMINARY ISSUE

The unanimous determination of the Tribunal is that:

(a) the Tribunal has jurisdiction to hear the application in view of the time limit as set out in Article 76 of the Sex Discrimination (NI) Order 1976; and

(b) the Tribunal has jurisdiction to hear the application in view of the time limit as set out in Article 65 of the Race Relations (NI) Order 1997.

Appearances:

Mr Miceal Canavan, Canavan & Company, Solicitors, for the Applicant

Mr O McCullough, Human Resources Department, University of Ulster, for the Respondent

1. THE TRIBUNAL FOUND THE FOLLOWING FACTS

(i) By his Originating Application, presented on 13 November 2001, the Applicant complained that the Respondent discriminated against him ground of his sex contrary to the Sex Discrimination (NI) Order 1976 ["the 1976 Order"], the Equal Treatment Directive 76/206, and the Race Relations (NI) Order 1997 ["the 1997 Order"]. At Section 13 of the Originating Application, the Applicant stated that the matters he was complaining of stemmed from an interview he attended on 1 June 2001. This interview was for the post of Lecturer in Computing at the University of Ulster at Magee College in Derry. The Applicant stated that there were five such positions available, and that he was unsuccessful in his application. He complained that he was better qualified and experienced than the female candidate appointed, whom he believed to be Maeve Parris. The Applicant complained that he is male and of American nationality, and that Ms Parris is female and of Northern Irish nationality. Therefore, the Applicant's complaint was that he had been discriminated against on grounds of his gender and nationality, contrary to the 1976 Order and the 1997 Order respectively. Another male candidate, Mr Shane Wilson, was also appointed. The Applicant alleged he had better qualifications and more experience than Mr Wilson, and that Mr Wilson is also of Northern Irish nationality. Therefore, in respect of Mr Wilson, the Applicant alleged racial discrimination contrary to the 1997 Order

(ii) By its Notice of Appearance, presented on 10 December 2001, the Respondent denied any such discrimination, and alleged that the Applicant had been told he had been unsuccessful in his application in June 2001. The Respondent, therefore, contended that the complaint was presented out of time. The matter was therefore listed before the Industrial Tribunal on the following preliminary issues;

(a) Whether the Tribunal has jurisdiction to hear the application in view of the time limit as set out in Article 76 of the Sex Discrimination (NI) Order 1976; and

(b) Whether the Tribunal has jurisdiction to hear the application in view of the time limit as set out in Article 65 of the Race Relations (NI) Order 1997.

(iii) The agreed facts put to the Tribunal at hearing were that the Applicant (an American male) had applied for the post, and was interviewed for same on 1 June 2001. He was not appointed. Maeve Parris (a Northern Irish female) and Shane Wilson (a Northern Irish male) were also unsuccessful and were put on the reserve list of candidates. The Applicant was not put on the reserve list. It was not agreed when Ms Parris and Mr Wilson were appointed. In due course, Ms Parris and Mr Wilson were both appointed to the positions of Lecturer in Computing. Shane Wilson was appointed to the position on 15 August 2001. In June 2001, the Applicant had a meeting with a Mr Magee, the Respondent Human Resources Manager, and discussed misgivings he had about the interview. The crucial question for the Tribunal was, "when did the alleged act of discrimination arise?"; was it when Mr Wilson and Ms Parris were appointed to the reserve list, or when Mr Wilson and Ms Parris were appointed to their positions?

(iv) From his evidence, the Tribunal found that the Applicant is a Senior Computing Officer with the Respondent, and attended for interview on 1 June 2001 for the position of Lecturer in Computing with the Respondent. He became aware that he had been unsuccessful on 7 June 2001. He became aware that Ms Parris and Mr Wilson had been appointed reserve candidates around 15 June 2001, when these reserve candidates informed him of same. Thereafter, the Applicant had a meeting with Mr Magee to discuss various issues of concern to the Applicant. At that time, the Applicant knew there were reserve candidates, although he considered this odd given that he had been engaged in selection processes for other candidates for the Respondent, and had never seen a reserve candidate list before. The meeting clarified some concerns the Applicant had, and it was Mr Magee who asked if the Applicant felt he may have been discriminated against on ground of race or religious belief. At that time, the Applicant did not consider there may have been discrimination at work in the appointments that had so far been made for the five vacant positions. This concern first entered his mind later when he heard that Ms Parris and Mr Wilson had been appointed to their positions. The Applicant became aware of Shane Wilson's appointment on 15 August 2001. Ms Parris was appointed on 24 October 2001 without further interview. Thereafter, he sought the advice of his solicitor on 9 November 2001, when the issue of the importance of time limits was made clear to him. Although he had been involved in training and selection procedures for appointments panels for the Respondent, the importance of time limits had faded from his memory by mid-June 2001. Two days after consulting his solicitor, the Applicant presented his Originating Application on 13 November 2001. He felt he could not have presented his complaint sooner, or in mid June 2001 in particular, since Ms Parris and Mr Wilson had not been appointed at that time. His allegation is grounded not on who was appointed or offered a position in mid-June, but on the appointments of Mr Wilson (which he believed to be on 15 August 2001) and Ms Parris (which he believed to be on 24 October 2001).

THE DECISION OF THE TRIBUNAL

2. Having considered all the evidence heard in this case, all the submissions, and all the references and case law cited, the Tribunal makes the following decision;

(i) The Tribunal determines that – as the Applicant stated in section 13 of his Originating Application – the acts complained of were (a) the appointment of Mr Wilson on 15 August 2001, whom the he regards as less well qualified and experienced than he, and (b) the appointment of Ms Parris on 24 October 2001, whom he also regards as less well qualified and experienced. The Applicant therefore infers and alleges that, in respect of Mr Wilson, he was the victim of racial discrimination and, in respect of Ms Parris, he was the victim of sex and racial discrimination. The Tribunal determines that, of the other three appointments in early to mid June 2001, the Applicant makes no complaint. As such, the Applicant's complaint falls under Article 8(2) of the 1976 Order and 6(2) (b) of the 1997 Order.

(ii) By Article 76(1) of the 1976 Order, an Applicant complaining of sex discrimination must present a complaint "before the end of the period of thee months beginning when the act complained of was done". The corresponding provision for a complaint of racial discrimination is to be found at Article 65(1) (a) of the 1997 Order. The Tribunal has considered the guidance set out in Harvey 5: T[112], and determines that time should start to run from the date when the cause of the complaint crystallized, rather than on when the Applicant felt discriminated against. As the EAT has pointed out in Clarke v. Hampshire Electro-Plating Co. Ltd [1991] IRLR 490, if the cause of the action is not complete, there would be no point in bringing proceedings. There was no evidence before the Tribunal of dates other than that Mr Wilson had been appointed on 15 August 2001 and Ms Parris on 24 October 2001. It must therefore follow that time started to run - at the very earliest - on 15 August 2001 and expired for the Applicant at midnight on 15 November 2001. Indeed, if the Tribunal had applied Article 76(6) of the 1976 Order and Article 65(8)(b) of the 1997 Order, it could have determined that time began to run from 24 October 2001. However, even by applying the earlier date of 15 August 2001, and in finding that the complaint was presented on 13 November 2001, the Tribunal determines that the complaint has been presented on time.

(iii) Therefore, the Tribunal determines the two preliminary questions put to it and set out in section 1(ii) above in the affirmative, and determines that it has jurisdiction to hear the Applicant's complaints of sex and racial discrimination as they were presented in time.

(iv) Having made the determination at 2(iii) above, it is not necessary to add that, even if the Tribunal had made a different determination than that set out at 2(iii) above, it would have proceeded to consider the just and equitable jurisdiction afforded it by Article 75(5) of the 1976 Order and by Article 65(7) of the 1997 Order. The Tribunal was struck by the credibility of the Applicant's evidence, and by the fact that he had gone to his solicitor on 9 November 2001 and presented his complaint within two days of that consultation.

(v) No further or other Order is made.

Chairman:

Date and Place of Hearing: 16 September 2002, Londonderry

Date Decision Recorded in Register and Issued to the Parties: