Industrial Tribunals Northern Ireland Decisions

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Cite as: [2003] NIIT 1535_3, [2003] NIIT 1535_03

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INDUSTRIAL TRIBUNALS

CASE REF: 1535/03

APPLICANT: Renee Elizabeth Gordon

RESPONDENT: 2^nd Battalion Royal Irish Regiment

DECISION ON A PRELIMINARY HEARING

The unanimous decision of the tribunal is that first, the tribunal does not have jurisdiction to hear the application in view of the time limits as set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 and secondly, that the applicant has not complained in accordance with the service redress procedures and so is precluded from bringing a claim under the Sex Discrimination (Northern Ireland) Order 1976 (as amended).

Appearances:

The applicant was represented by Ms C O'Neill Barrister-at-Law, instructed by Malpas and Greene Solicitors.

The respondent was represented by Mrs N Murnaghan Barrister-at-Law, instructed by the Crown Solicitor's Office.

At the outset of the hearing it was agreed between the parties that the tribunal did not have jurisdiction to determine a complaint of unfair dismissal presented by a member of the Armed Forces and therefore the first question referred to the tribunal for a decision was withdrawn and not considered by the tribunal.

In relation to the second and third questions, the tribunal had to consider whether the claim of sex discrimination presented by the applicant on 6 June 2003 and received in the Office of the Industrial Tribunals on 9 June 2003 was within the time limit set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 as amended by the provisions of the Sex Discrimination (Complaints to Industrial Tribunals) (Armed Forces) Regulations (Northern Ireland) 1998. The third question was whether the applicant had invoked the service redress procedures, a procedural prerequisite for bringing a claim of sex discrimination against the armed forces.

It was common case that the applicant's complaint related to an assault on her by another member of the Sergeant's Mess on 13 July 2002. She complained about this assault to a senior officer. It was common case that her complaint had led to an investigation against the staff member concerned, resulting in a Court Martial. As a result of this, her assailant was found guilty and received twenty eight days' detention. The applicant complained about the fact that the assault occurred in the first place and secondly, about the treatment which she had received after she had made her complaint on 13 July 2002. This was not disputed by the respondent. However the respondent did dispute that the applicant had invoked service redress procedures, a prerequisite for launching a claim of sex discrimination by a member of the Armed Forces under the provisions of the Sex Discrimination (Complaints to Industrial Tribunals) (Armed Forces) Regulations (Northern Ireland) 1998 (referred to hereafter as the 1998 Regulations).

Prior to the introduction of the 1998 Regulations, it had not been possible for a member of the Armed Forces to bring a claim of Sex Discrimination under Article 63 of the Sex Discrimination (Northern Ireland) 1976 ("The 1976 Order"). The provisions of the 1998 Regulations provide at Regulation 2 as follows:-

(i) "A person may present a complaint to an Industrial Tribunal under Article 63 of the Sex Discrimination (Northern Ireland) Order 1976, not withstanding that Article 82 (9B) of that Order would otherwise preclude the presentation of such complaint, where:-

(a) He has made a complaint in respect of the same matter to an Officer under the Service Redress Procedures; and

(b) That complaint has not been withdrawn.

(ii) For the purposes of paragraph (i) (b) a person shall be treated as having withdrawn his complaint if, having made a complaint to an Officer under the service redress procedures he fails to submit that complaint to the Defence Counsel under those procedures".

It was accepted by both parties that the applicant had not presented any written document to invoke the service redress procedures. She however said that her oral complaint to her superiors of the serious assault she had suffered should be treated as a complaint under the relevant procedure.

The tribunal was provided with a copy of the service redress procedures, which amongst other things stipulate that, once a complaint is made by an individual, they should be provided with assistance from another Officer to assist in the preparation of admissions under the Army Redress Procedure (see paragraph 70.014 of Volume 2, Chapter 20 "Redress of Complaints and access to Industrial Tribunals", issue 138) produced by the Ministry of Defence.

The tribunal did not have the benefit of hearing evidence from the applicant as to the exact steps that she had taken and whether in fact she had been refused any assistance under the procedure or whether she had in fact been made aware of the provisions of the Service Redress Procedures.

The tribunal has to decide first of all, whether the Redress Procedures were actually followed and secondly, if they were not followed, whether the tribunal has jurisdiction to deal with the complaint under the 1998 Regulations, in the light of the provision of Article 6(1) of the European Convention of Human Rights, which was raised (albeit briefly) by the applicant's representative.

The 1998 Regulations are brief and to the point. In order to present a claim of sex discrimination before an Industrial Tribunal, an applicant who is a member of the armed services must have made a complaint in respect of the same matter to an Officer under the Service Redress Procedures and that complaint must not have been withdrawn. There is no discretion allowed to the tribunal to waive the requirement that the Service Redress Procedures must have been invoked.

It is clear from the information before the tribunal that the Service Redress Procedures were not invoked in this case. While this may in part have been to do with lack of information and guidance given to the applicant by her Senior Officers, in contravention of the Army's own procedures, the tribunal does not have any discretion to waive this requirement. It appears to the tribunal that the respondent in this case may well have failed the applicant in neglecting to provide her with the assistance necessary to invoke the service redress procedures and in treating her complaint purely as a disciplinary matter, rather than a claim of sex discrimination. Regretfully therefore the tribunal finds that the service redress procedures were not invoked.

The further question for the tribunal to consider is whether, in the light of the applicant's failure to invoke the Service Redress Procedures, the tribunal has jurisdiction to deal with the applicant's claim of sex discrimination. The parties did not make detailed submissions in relation to the application of Article 6(1) of the European Convention of Human Rights to this particular case, but since the issue was raised by the applicant's representative the tribunal has considered whether Article 6(1) of the European Convention has any bearing on the matter. The first sentence of Article 6(1), which is most relevant in this case, reads as follows:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

The tribunal has been assisted by the consideration already given to this particular point by various decisions of the European Court and Human Rights, the House of Lords in Matthews –v- Ministry of Defence [2003] UKHL 2003 and most recently by the Industrial Tribunal in Belfast in the case of Pauline Joan Anderson –v- The Ministry of Defence (Case Ref. No: 405/02). While those cases related to a claim of unfair dismissal rather than a case of sex discrimination, the application of Article 6(1) is still relevant. The House of Lords decision in Matthews makes it clear that Article 6(1) only applies to civil rights which can be said on arguable grounds to be recognised under domestic law. It does not itself guarantee any particular content for those civil rights and obligations in the substantive law of the contracting states. Lord Bingham in Matthews recognised that Strasbourg Jurisprudence has distinguished between provisions of domestic law which altogether preclude the bringing of an effective claim, to which the provisions of Article 6 will not be applicable and provisions of domestic law which impose a procedural bar on the enforcement of a claim, to which the provisions of Article 6 will be applicable.

Unlike claims of unfair dismissal which are prohibited under domestic law in the United Kingdom for members of the Armed Forces, claims of sex discrimination may be brought by members of the Armed Forces, provided that certain procedural conditions are met. Article 6(1) may therefore be applicable to these procedural conditions, which are set out in the 1998 Regulations and are set out above.

It is relevant to note that while an applicant must first invoke the Service Redress Procedures, in order to bring a sex discrimination claim, the time limit for initiation of a claim of sex discrimination under Article 76 of the 1976 Order is extended from three months to six months in cases covered by the 1998 Regulations. Although, therefore, the applicant must go through the procedural step of a complaint under the Service Redress Procedures, he/she is given additional time in which to lodge their complaint of sex discrimination. It is also notable that while a claim must be initiated under the Service Redress Procedures to allow the applicant to commence a claim of sex discrimination, it is not necessary for that claim to have been determined in advance of the Industrial Tribunal proceedings being commenced. The only stipulation is that the complaint has been made and has not been withdrawn. While therefore the stipulations in the 1998 Regulations set out a procedural hurdle to be crossed by the applicant in pursuing a claim of sex discrimination, it is not a complete bar to the initiation of proceedings and is not in the view of the tribunal unduly onerous. The tribunal therefore finds that the procedural requirements of the 1998 Regulations and the provisions of the 1976 Order as amended by Section 22 of the Armed Forces Act 1996 do not contravene Article 6(1) of the European Convention on Human Rights, insofar as Article 6(1) can apply to a member of the Armed Forces of the Crown.

There remains for consideration the question of whether the tribunal should apply its discretion under Article 76(5) of the 1976 Order to entertain the applicant's claim, even though lodged out of time, on the basis that it would be just and equitable to do so. The tribunal believes that it is not open to it in these circumstances to exercise that discretion, given that the procedural requirements of the 1998 Regulations have not been met and accordingly it so finds.

The answers to the questions before the tribunal for preliminary ruling are therefore as follows:-

Question 3 Whether the applicant complained in accordance with the Army Redress Procedures. For the reasons set above, the tribunal answers, no.

Question 2 Whether the tribunal has jurisdiction to hear the application in view of the time limits as set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 as amended by the Armed Forces Act 1996 and the provisions of the 1998 Regulations. For the reason set out above, the tribunal answers, no.

In the light of the above the applicant's claim of sex discrimination will be dismissed.

Chairman:

Date and place of hearing: 5 November 2003, Belfast.

Date decision recorded in register and issued to parties: