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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Maidment v University of Ulster [2005] NIIT 380_02 (23 February 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2006/380_02.html
Cite as: [2005] NIIT 380_2, [2005] NIIT 380_02
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- The claim of the claimant against the second respondent is dismissed following its withdrawal without objections.
- The claimant was unlawfully discriminated against contrary to the Disability Discrimination Act 1995 by the respondent; and the tribunal orders the respondent to pay the claimant the sum of £3,262.44 by way of compensation.
- During the course of the hearing the claimant withdrew his claim against the second respondent, without any objections, and the said claim is therefore dismissed, as set out above. The claims of the claimant proceeded against the first respondent, hereinafter referred to as "the respondent".
- The claimant, on 30 January 2002, presented to the Industrial Tribunal, by way of an IT1, an originating application against the University, which was given the case reference number 380/02; and on 30 January 2002 also presented to the Fair Employment Tribunal, by way of an FET1, an originating application which was given the case reference number 64/02FET. In the said complaint, made on the FET1 to the Fair Employment Tribunal, the claimant also made claims, which were claims which required to be made to the Industrial Tribunal; but unfortunately, due to an administrative error, these claims were not at the time of registration given a separate Industrial Tribunal case reference number, in accordance with the tribunal's normal practice.
- .1 At the outset of the proceedings, before the tribunal, Mr Mulqueen made an application, inter alia, that the tribunal should determine, as preliminary issues, whether the tribunal had jurisdiction to hear the claimant's claims of unfair dismissal and/or breach of contract, in view of the provisions of Article 3 of the Employment Rights (Northern Ireland) Order 1996 and Article 2 of the Industrial Tribunals (Northern Ireland) Order 1996, with regard to the definition of "employee" contained therein.
- .2 The tribunal, having regard to the terms of the overriding objective and acting under its general powers to regulate its own procedure and to conduct the hearing in such manner as it considered most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings, decided with the consent of the claimant to hear and determine the said issues, which were discrete, as preliminary issues, at the outset of the proceedings and before hearing any evidence in relation to any of the other claims (see Rule 11(1) and 15(4) of the Industrial Tribunals Rules of Procedure 2004, which were in operation at the relevant time).
- .3 The tribunal then proceeded to hear evidence from the parties in relation to the said preliminary issues. The claimant gave evidence himself and also called as a witness Ms S Hunter, who is the Head of Equality, Policy and Practice with the respondent. The respondent, in relation to these said issues, called as a witness Mr O McCullough, the Head of Legal and Administrative Services with the respondent.
- .0 The tribunal found the following facts, as set out below:-
- .1 The said contract (hereinafter referred to as "the contract") entered into between the claimant and the respondent was headed:-
- .2 The claimant was born on 9 July 1935. For some 28 years prior, to the summer of 2000, the claimant was in full-time employment with the respondent, as a lecturer in sociology. Having reached the respondent's normal age for retirement at 65 on 9 July 2000, the claimant formally retired from the University, with effect from 30 September 2000. There was no dispute between the parties that, as a lecturer, until his said retirement, he was an employee of the respondent for the purposes of the Employment Rights (Northern Ireland) Order 1996 and the Industrial Tribunals (Northern Ireland) Order 1996.
- .3 On or about 22 November 1999, while still an employee of the respondent, the claimant brought a claim of unlawful discrimination, contrary to the Disability Discrimination Act 1995, against the respondent, and also Professor Birrell. The said claim was given the case reference number 04705/99.
- .4 The claimant, as he came close to his retirement in the summer of 2000, was anxious, for financial reasons, but also due to his love of his work, to continue as an employee of the respondent past the normal retirement age. He sought to do so. Whilst it was acknowledged by the respondent that, in exceptional circumstances under its statutes, it could allow an employee to do so, he was informed that the respondent was not willing to so extend his employment, for technical reasons. However, Professor Allen, then the Dean of the Faculty of Health, Sciences and Education, indicated to the claimant that the University was prepared to consider an alternative to extending his employment, as aforesaid. After negotiations between the claimant and the respondent the said alternative proposed by Professor Allen culminated in the contract entered into between the parties, as set out above.
- .5 Neither Professor Allen, nor any other employee of the respondent involved on behalf of the respondent in the said negotiations, at any time informed the claimant, during the course of the negotiations which led up to the contract, that under any new contract to be entered into between the claimant and the respondent, for the period following his retirement, he would be an employee of the University. However, the respondent did not challenge the claimant's evidence that Professor Allen, in the course of the negotiations leading up to the said contract, had stated that the claimant would have "full use of the usual facilities". There was no dispute that, in the carrying out of the terms of the contract, the claimant, as he had done as an employee, was able to make use of his old office in the University, and also of the University's library services. As shall appear later in this Decision, there was a dispute between the parties as to the precise nature and extent of the secretarial services available to the claimant. The claimant was also provided during the term of the contract with public liability insurance cover. The tribunal had no reason to doubt the claimant's evidence that other members of staff employed by the respondent, when they saw the claimant working around the University and in his old office, made an assumption that he must still be employed by the respondent. However, this was merely an assumption on their part; and, as shall be set out later, a wrong assumption.
- .6 In a letter dated 6 March 2000, to Professor Allen, the claimant informed Professor Allen, inter alia, that he was pleased to accept his offer of an honorary lectureship in the Faculty. By a memo dated 13 March 2000, Ms Hunter indicated, following receipt of the said letter, she had asked Professor Allen to draw up the precise terms of the proposed honorary lectureship. She also indicated that she hoped that, upon receipt of that document, he would feel able to withdraw his Industrial Tribunal claim. The terms of the contract entered into between the parties, as set out above, did not refer to such an honorary lectureship. Ms Hunter confirmed in evidence that she had not drafted the contract and it was in fact drafted by a member of staff in the finance department. As noted above, at the same time as the claimant entered into the contract, he withdrew his claim of unlawful discrimination, under the Disability Discrimination Act 1995, against the University and Professor Birrell. The tribunal was not referred by either party to any other relevant correspondence/memo in relation to the negotiations between the parties, which culminated in the contract.
- .7 The claimant, following his retirement in the summer of 2000, was paid his University occupational pension. If the claimant had been an employee, on foot of the contract entered into between the parties, then under the terms of the Occupational Pension Scheme the claimant would not have been entitled to receive his said pension until he had ceased to be an employee.
- .8 Prior to his retirement, as an employee of the respondent, the claimant was paid net of income tax and national insurance under the PAYE scheme. He was further given paid annual leave and had, inter alia, to deliver as part of his duties, as a lecturer at the University, a series of timetabled lectures to students during term time.
- .1 At the conclusion of the evidence, the claimant and the respondent's representative each made submissions on the said preliminary issues. The claimant contended that he believed that the contract which he had entered into was at all times, on its proper interpretation, a contract of employment; and indeed it was what he had always intended to enter into and that the tribunal therefore had jurisdiction to consider his complaint of unfair dismissal and breach of contract. On the other hand, the respondent's representative stated that the contract was not, on a proper interpretation, a contract of service, and therefore a contract of employment; but rather was a contract for services. The respondent submitted that, in such circumstances, the tribunal therefore did not have jurisdiction to consider the said complaints.
- .2 The tribunal, having reserved its decision overnight, informed the parties, when the hearing resumed, that, having considered the evidence given and in particular the terms of the contract entered into between the claimant and the respondent and the submissions of the parties, it was not satisfied that the claimant, at the material time, was an employee and therefore the tribunal did not have jurisdiction to consider the claimant's claims of unfair dismissal and/or breach of contract and that the said claims had therefore to be dismissed. It was agreed that the tribunal would proceed to hear the remaining claims of the claimant and would set out, in this written Decision, its reasons for holding the claimant was not an employee and that the tribunal did not therefore have jurisdiction to hear the said claims.
- .1 In order for a claimant to bring a claim of unfair dismissal and for the tribunal to consider same, it was necessary for him to show that he was an employee under the provisions of the Employment Rights (Northern Ireland) Order 1996.
- .2 In order for a claimant to bring a claim for breach of contract under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, it is necessary for a claimant to show that he is an employee under the provisions of the Industrial Tribunals (Northern Ireland) Order 1996. Under Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, insofar as material and relevant, it provides that proceedings may be brought before an Industrial Tribunal in respect of the claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries), if the claim arises or is outstanding on the termination of the employee's employment. For the purposes of the said 1994 Order, the definition of "employee", "employer" and "contract of employment" is now contained in Article 2(3) of the Industrial Tribunals (Northern Ireland) Order 1996, which is in the same terms as that contained in Article 3 of the Employment Rights (Northern Ireland) Order 1996, as set out above.
- .3 By way of contrast, it has to be noted that, in order for a claim to be brought under the Disability Discrimination Act 1995, under Section 68(1) of the said Act, "employment" is defined as follows:-
- .0 Central to the task of the tribunal in considering the said preliminary issues, in determining whether the claimant was, at the material time, an employee or not of the respondent, was the said contract entered into between the parties and consideration of the terms of the contract, as signed by the parties.
- .1 In order for a person to be an employee, it has also been held that, in order to establish that there is a contract of employment, that mutuality of obligation and the requirement of control on the part of the potential employer are the irreducible minimum (see further Carmichael -v- National Power (2000) IRLR 43 and Montgomery & Johnson Underwood (2001) IRLR 269B274 and Stephenson -v- Delphi Diesel Systems Ltd (2003) ICR 871). Further, in the case of Hall (Inspector of Taxes) -v- Lorimer (1994) IRLR 171, which applied the multiple test, Mummery J (as he then was) stated "The object of the exercise is to paint a picture from the accumulation of detail …. It is a matter of the evaluation of the overall effect of the detail which is not necessarily the same as the sum of the individual situation".
- .2 As stated above, there is required to be a mutuality of obligation. The question, in essence, is often whether the employer is under an obligation to provide work and the worker to do it when offered. In this particular case, the claimant was required to carry out the various consultancy tasks set out in the Appendix to the contract and for which, subject to the satisfactory completion of quarterly performance reviews, he was entitled to be paid remuneration by the respondent. Under the contract, the tasks required the claimant to carry out various projects on the respondent's behalf in various areas such as disability awareness, interdisciplinary research programme and in connection with the University's Disability Strategy; and which involved carrying out, inter alia, reviews/giving advices/drawing up syllabus and making recommendations. The first question to be answered, as set out in the dictum of McKenna J, in the Ready Mixed Concrete case set out above, relates, in essence, to whether the necessary mutuality of obligation has been shown. Mutuality of obligation determines whether there is a contract in existence at all. Clearly, under the contract the claimant agreed to carry out the work, namely, the various tasks referred to above, using his skill, for which the employer agreed in turn to pay. There was thus, in the tribunal's view, for the period of the agreement, mutual obligations on both the claimant and the respondent.
- .3 It is correct that the Appendix set out target completion dates for the completion of the work and was subject to the said quarterly performance reviews. Thus, it has to be recognised that there was some degree of control, but the issue was whether there was sufficient to satisfy the said test. Clearly, this degree of control was required to ensure that the claimant was carrying out his work and progressing it to the target dates set out in the Appendix, and for which he was being paid in advance by the system of monthly payments on account. However, within these wide time constraints, the claimant was unsupervised and free to do the work when and how he liked. Indeed, in evidence to the tribunal, the claimant accepted he had a "wide time span of discretion" to carry out the tasks specified in the Appendix to the agreement. Such absence of control, other than at the quarterly reviews, clearly might have suggested, but no more, in the tribunal's view, that this was a contract for services, and not of services. As a lecturer, the claimant was required, for example, to deliver a series of timetabled lectures to students during term time. Clearly, there was no such requirement to do so in this contract. The claimant's contract of employment, as a lecturer, was not produced in evidence by either party. In relation to his other duties as a lecturer, such as research, whilst clearly, as the claimant recognised, he remained at all material times under the overall supervision and control of the Dean of the Faculty and other senior management of the respondent, the tribunal was not satisfied, on the limited evidence before it, that in relation to his duties, other than the timetabled lectures, the degree of control was rigorous and, in reality, greatly different to that under this contract; though the frequency of contact with his supervisors may have been different, as a lecturer, in comparison to the quarterly reviews under the contract.
- .4 Crucially for the tribunal, there were a number of other material factors which the tribunal considered, in particular, were inconsistent with the existence of a contract of service.
- .5 Taking into account, in particular, the heading of the agreement and the fact that the claimant's pension was continued to be paid; but, in particular, the various factors referred to in paragraph 7.4 herein which the tribunal considered to be inconsistent with the existence of a contract of service, the tribunal concluded, after looking at the matter as a whole and evaluating the overall effect of the detail, so found, that the contract, which was entered into by the claimant with the respondent, was a contract for services, and not of service.
- .6 Thus, the claimant was not an employee on foot of the said contract and therefore the tribunal does not have jurisdiction to consider the claimant's claims of unfair dismissal and/or breach of contract, and they must each be dismissed.
- .1 Having made its decision in relation to the claimant's claim of unfair dismissal and breach of contract, the tribunal, with the agreement of the parties, then commenced to hear the claimant's remaining claims of unlawful discrimination, including his claim of discrimination by way of victimisation, under the Disability Discrimination Act 1995 ("DDA").
- .2 The DDA was amended by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004. The amendment of the DDA by the said Regulations has also resulted in the renumbering of the DDA, together with a number of particular amendments. Under Regulation 2 of the said Regulations, the transitional provisions, the said amendments, subject to one matter to which reference is made below, came into operation on 1 October 2004 and therefore did not apply to the alleged acts of discrimination, the subject matter of this claim. In the circumstances, in this Decision, the tribunal has referred to the above Sections of the DDA, prior to any amendment. The one exception to the foregoing related to amendments made to the DDA, relating to enforcement and, in particular, the burden of proof in Industrial Tribunal proceedings under the DDA – which, following amendment of the DDA, are now contained in Section 17A(1B) of the DDA. Further detailed reference will be made later in this Decision to Section 17A(1B) of the DDA. Under Regulation 2 of the said Regulations, Section 17A(1B) of the DDA applies in relation to a complaint presented to an Industrial Tribunal before 1 October 2004, as well as one presented after that date, but it does not affect any case in which a complaint was determined by an Industrial Tribunal before 1 October 2004. Therefore the tribunal was satisfied that Section 17A(1B) of the DDA, as amended, applied to the tribunal's determination of the claimant's claims under the DDA.
- .3 As stated previously, in paragraph 6.3 of this Decision, there was no dispute that under the terms of the contract entered into by the claimant and the respondent the claimant satisfied the definition of employment, as defined in Section 68(1) of the DDA.
- .1 The claimant's claims of unlawful discrimination under the DDA comprised of claims under the said Act pursuant to Section 5(1) [Disability Related Discrimination], Section 5(2) [failure to comply with a duty to make reasonable adjustments] and Section 55(1) [victimisation]. It will be necessary to consider elsewhere in this Decision the said Sections of the DDA in more detail.
- .2 The tribunal then proceeded to hear the claimant's said claims under the DDA.
- .3 The claimant sought, in relation to his claim, pursuant to Section 5(1) of the DDA, to rely, inter alia, on the following alleged acts of discrimination which were contained in the claimant's replies to particulars of his said claim under the DDA, set out at page 67-69 of the trial bundle, and which the claimant accepted contained the particulars of his said claim to be determined by the tribunal in these proceedings:-
- .4 The respondent's representative objected to the claimant relying on such acts of unlawful discrimination, pursuant to Section 5(1) of the DDA, on the grounds that these acts had been the subject matter of a claim brought by the claimant against Professor Derek Birrell and the University of Ulster (case reference number 04705/99D) and, which as previously stated in paragraph 4.3 of this Decision, had been dismissed by the tribunal following its withdrawal without any objection by a decision of the tribunal dated 2 October 2000 and registered and issued to the parties on 3 October 2000. The said withdrawal, having been given by the claimant by notice to the tribunal dated 29 August 2000, the same date as he signed the contract. The claimant frankly acknowledged that the withdrawal of the said claim arose from his entering into the contract with the respondent. The respondent's representative stated that, in such circumstances, the claimant was estopped, having regard to the said decision following the said withdrawal, from reactivating the said actions as part of these proceedings. The tribunal, after hearing submissions from both parties, and after considering the terms of the originating application presented to the tribunal on 22 November 1999, (case reference number 04705/99), decided that the acts of discrimination relied on by the claimant, as set out in paragraphs 1(a)(i) and (ii) of the said replies, referred to in the previous paragraph, were the same acts of discrimination which were the subject matter of the claimant's claim against Professor Birrell and the University of Ulster (case reference number 04705/99). Further, the tribunal, having noted that the said claim had been dismissed by the tribunal following withdrawal by the claimant in the circumstances outlined above, decided that the claimant was thereby estopped from relying on the above alleged acts of discrimination set out in the said replies, as matters of complaints to be determined by the tribunal in these proceedings (see further Harvey on Industrial Relations and Employment Law, section T, paragraphs 1011-1017).
- .5 The tribunal then proceeded to hear evidence from the parties in relation to the claimant's claim under Section 5(1) of the DDA [save insofar as the tribunal had determined, as set out above, the claimant was estopped from doing so], Section 5(2) of the DDA and Section 55(1) of the DDA. The claimant gave evidence and also called as a witness in relation to his said claims under the DDA Mr O McCullough, the Head of Legal and Administrative Services with the respondent.
- .1 There was no dispute between the parties that the claimant had a physical impairment which fell within the definition of Section 5(1) of the DDA – which section states as follows:-
- .2 At the conclusion of the claimant's case in relation to his said claims under the DDA, the respondent's representative, Mr Mulqueen, made an application, inter alia, for the dismissal of the said claims on the grounds that the tribunal did not have jurisdiction to hear these said claims and the respondent should not be required to defend the said claims.
- .3 In light of its said ruling, the tribunal therefore did not require the respondent to call any evidence in relation to the claimant's claim under Section 5(1) of the DDA. Further, in the above circumstances, the tribunal has not in this Decision made any findings of fact, save as set out in the said ruling, in relation to the factual allegations, the subject matter of the claimant's claim pursuant to Section 5(1) of the DDA.
- .4 The tribunal then proceeded to hear evidence from the respondent's witnesses, Professor Wilson and Professor Birrell, in relation to the claimant's claims under Section 55(1) and Section 5(2) of the DDA.
- .1 In relation to the claimant's claims under Section 5(2) and Section 55(1) of the DDA, at the conclusion of the evidence presented by both parties to the tribunal, the respondent's representative renewed his application, which is referred to in the ruling, that the claimant's claims under Section 55(1) and Section 5(2) of the DDA were out of time and the tribunal therefore had no jurisdiction to hear the said claims.
- .2 The claimant's claims of victimisation, pursuant to Section 55(1) of the DDA, as set out in the claimant's said replies to particulars, set out at pages 67-69 of the trial bundle, were as follows:-
- .3 During the course of the hearing, the tribunal ruled that the particulars set out at (iii) above were not acts of discrimination, the subject matter of these proceedings, and for which the tribunal could provide a remedy; in view of the fact that the originating application in these proceedings had been presented on 30 January 2002. The claimant had not presented any subsequent claim in relation to the events in June 2002. In so ruling, the tribunal made it clear that this was without prejudice to the claimant's ability to seek to rely on evidence relating to such matters, insofar as relevant and appropriate, in proof of the alleged acts of unlawful discrimination, which were the subject matter of these proceedings (see further Anya -v- University of Oxford (2001) IRLR 377).
- .4 The DDA sets out provisions in relation to the period within which proceedings must be brought under Schedule 3 of the 1995 Act:-
- .5 The claimant's claim of victimisation, as set out in (i) of the said replies, related to an alleged act of unlawful discrimination which occurred between May and July 2000, when it was alleged a proposal was initiated by Professor Birrell and advanced by Professor McConkey, which proposal modified or deleted modules presented by the claimant for inclusion in degree courses from October 1999.
- .6 The claimant's further claim of victimisation, pursuant to Section 55(1) of the DDA as set out in the said replies to particulars of victimisation (see paragraph 3(a)(ii)) related to the claimant's claim that the respondent had failed to comply with the duty to make reasonable adjustments in relation to the provision of secretarial services, following a written request by the claimant for same to Professor Birrell in November 2000. As the claimant made clear in the said reply, the claim for failure to comply with the said duty was made not only pursuant to Section 55(1) of the DDA as a claim of victimisation, but also as a claim of discrimination under Section 5(2) of the DDA. In addition, in paragraph 1(a)(v) of the said replies to particulars in relation to particulars of acts of discrimination, to which earlier reference has already been made, the claimant repeated the same claim, under Section 5(2) of the DDA in the following terms:-
- .7 As with the claimant's claim of victimisation in relation to the said modules, the tribunal, in determining whether the tribunal had jurisdiction to hear the claimant's said claim of victimisation and/or direct discrimination arising out of the alleged failure to comply with the duty to make reasonable adjustments in relation to the provision of secretarial services, the tribunal considered each of the said claims of the claimant, "at their height", in relation to the issue of whether the said claims had been presented to the tribunal in time and the tribunal therefore had jurisdiction to hear the said complaints; before, considering, if appropriate, in light of the decision on the time issue, whether the said claims had been established by the claimant.
- .8 The claimant contended, in essence, that in or about November 2000, when he was working for the respondent on foot of the contract for the provision of consultancy services, he sought, in a written request at that time to Professor Birrell, provision of secretarial services, and which services were not provided by the University from that date until the date when the contract was terminated. There was some dispute between the parties as to the date when the said contract was terminated. In a letter dated 10 January 2002, Professor McAllister from the University wrote to the claimant, referring to previous correspondence when she had indicated that she would be terminating the contract with effect from 31 October 2001. Subsequently in the letter Professor McAllister referred to work in progress received in October from the claimant, which was supplemented at the beginning of November by receipt of a report. She contended that neither submission satisfied the requirements of the current contract, but indicated that she was prepared to make a payment to the claimant for consultancy services provided in October 2001. She stated that this would be the final payment under the said contract. She concluded the letter, dated 10 January 2002, by stating "The contract is now terminated". Initially, the claimant had believed that the contract had been terminated on 31 October 2001. However, Mr Mulqueen, on behalf of the respondent, accepted that, given the terms of the said letter from Professor McAllister, that it would be possible for the claimant to successfully contend that the contract was terminated on or about 10 January 2002. For reasons which shall appear later in this Decision, it was immaterial, for the purposes of determining this time issue, whether the contract was terminated on 31 October 2001 or 10 January 2002.
- .9 The first issue that the tribunal had to consider was whether either of the said claims were in time and, if not, whether time should be extended on the just and equitable grounds.
- .1 In light of the foregoing, it was therefore necessary for the tribunal to consider the claimant's remaining claims, pursuant to Section 5(2) and Section 55(1) of the DDA.
- .2 As set out previously in paragraph 6.3 of this Decision, there was no dispute between the parties that the claimant, whilst working for the respondent, pursuant to the terms of the contract for the provision of consultancy services, was entitled to the protection of the DDA. Further, as set out in the ruling of the tribunal, attached to this Decision, the claimant in relation to his claim under Section 5(2) of the DDA, unlike in relation to his claim under Section 5(1) of the DDA, relied on his physical impairment, which was accepted by the parties to be a disability within the terms of the DDA. Further, as set out in the ruling, the respondent's representative accepted that in relation to any claim of victimisation under Section 55(1) of the DDA, the claimant's disability was not relevant to establishing any such claim.
- .3 In relation to the said claims, the tribunal made the following findings of fact, insofar as relevant and material to the said claims:-
- Professor Birrell stated that he had no recollection that he had ever received such a letter or request relating to secretarial assistance from the claimant in or about November 2000. Professor Birrell did not deny that there had been correspondence and/or conversations between the claimant and himself, when the claimant was still a lecturer at the University in relation to hearing loss. In any event, he made clear, that in or about November 2000, he was not the claimant's line manager and any issue relating to secretarial assistance would not have been for him but for the Dean of the Faculty of Social Health Sciences and Education, the principal under the contract, who at that time was Professor Wilson.
- The tribunal noted that Professor Birrell, in his evidence, firmly maintained that he had no recollection of receiving such a letter or request. However, the tribunal is satisfied, given the previous proceedings by the claimant against him and their previous correspondence/conversations in relation to the claimant's hearing loss, that he would have remembered, if he had received it, such a letter or request. Given that the issue of secretarial assistance for the claimant was not a matter for him, but for the Dean, under the contract, the tribunal suspects, if he had received it, he would have passed it on to the Dean in any event; and to do so would not have been an issue for him and require him to take any decision. The claimant, whilst acknowledging the lack of written or other evidence to support his claim, sought to persuade the tribunal that, given the previous proceedings brought by him against Professor Birrell and their correspondence/ conversations in relation to the claimant's hearing loss, that it should conclude that in fact Professor Birrell had received the request/letter and taken no action.
- It is correct that when the claimant was in his position as a lecturer with the University, there was an issue relating to the provision of assistance in relation to the claimant's physical impairment in respect of his hearing loss and that he had communicated with Professor Birrell about it and in particular the provision of hearing supplements. As stated previously, Professor Birrell did not deny that there had been such communication between him and the claimant. However, in that case, unlike in relation to this issue of secretarial assistance, there was some documentation produced to the tribunal, albeit limited, from the University's records. Professor Birrell's memory, after sight of the said documents, was somewhat hazy, but the tribunal was satisfied that Professor Birrell had responded to the request; and that, whilst there may have been some delay in dealing with the request, any delay was understandable, as Professor Birrell had to seek advice from the Occupational Health before completing the relevant purchase forms and an issue had arisen as to whether there was external funding available for the purchase, or whether it had to be obtained by the University and from whose budget it would be obtained. Professor Birrell was adamant that at no time had he or would have taken any action or failed to act in relation to this matter because of the fact that the claimant had brought previous proceedings against him and the University. As stated previously, the claimant had brought a claim of unlawful discrimination pursuant to the DDA against Professor Birrell and the University of Ulster (case reference number 04705/99D), which was dismissed following its withdrawal without any objections. The tribunal is also satisfied that Professor Birrell was not directly involved, albeit he was made aware of the outcome, which resulted in the withdrawal of this claim, and the claimant entering into the contract for the provision of consultancy services. Further, Professor Birrell was no longer the claimant's line manager following his retirement and the commencement of the duties under the contract. Indeed, the tribunal concluded that the contact between Professor Birrell and the claimant, following his retirement and taking up his duties under the contract, were at best infrequent and more of a casual informal nature.
- The tribunal was satisfied that, from the evidence given by Professor Birrell and Professor Wilson, that at the material time they were aware of the claimant's physical impairment to his arm/hand affecting his writing ability.
- The claimant acknowledged that he did not expressly raise the issue of secretarial assistance with Professor Wilson in writing – but maintained that he would have stated, when sending in to Professor Wilson written documents as part of his duties under the contract, a cover note with words to the effect – "I apologise for writing by hand, I hope this is legible enough". He assumed that Professor Wilson would thereby have realised from the above that he had not got secretarial assistance. Indeed, he recalled having commented orally to Professor Wilson at a meeting he did not have such secretarial assistance. Neither this conversation, nor the type of cover notes referred to above, was challenged in evidence by the respondent. Professor Wilson indicated he was not made aware of the claimant's letter to Professor Birrell in November 2000. The tribunal accepts that Professor Wilson was at no time made aware of any request to Professor Birrell. It equally accepts that no specific written or oral request was made by the claimant to Professor Wilson for secretarial assistance. However, it is satisfied that Professor Wilson, arising out of the above conversation, together with his receipt of the handwritten documents with the cover note, would have been aware that the claimant was not receiving secretarial assistance in carrying out his duties under the contract. It seems that Professor Wilson was quite prepared to accept handwritten documents from the claimant.
- Subject to what has been stated previously in paragraph 8 herein, and before amendment and renumbering, the statutory provisions for the purposes of these claims and contained, so far as relevant and material, is contained in Section 5 and 6 and 55 of the DDA.
- As stated previously, the DDA was further amended by the Disability Discrimination Act 1995 (amendment) Regulations (Northern Ireland) 2004, which came into operation on 1 October 2004. The said Regulations not only amended the provisions of the original 1995 Act, but as a consequence, also resulted in a renumbering of the 1995 Act. The said Regulations did not apply to any act of alleged discrimination which occurred prior to the coming into operation of the said Regulations on 1 October 2004. In the circumstances, the tribunal has therefore, for the purposes of this Decision, used the original numbering of the DDA.
- The tribunal is not aware of any Decisions of the Court of Appeal in Northern Ireland, where the provisions of subsection (1B) of Section 17A of the DDA have been considered. Section 63 of the Sex Discrimination Act 1975 is in similar terms. The leading authority on the interpretation of that section is the recent Decision in the Court of Appeal in England and Wales in the case of Igen -v- Wong (2005) IRLR 285, which approved, with amendment, the guidelines set out in the earlier Decision of Barton -v- Investec Henderson Crosthwaite Securities Ltd (2003) IRLR 332. The tribunal, in the absence of any other relevant authority, considered it appropriate to follow the said guidance as amended.
- The tribunal, following the said guidance, recognised it was necessary, in light of the facts as found by the tribunal, as set out in the preceding paragraphs of this Decision, to firstly identify whether the claimant had established facts from which "the tribunal could" conclude, in the absence of an adequate explanation, as defined, that the respondent had committed an act of unlawful discrimination contrary to the provisions of the DDA. In so doing, the tribunal was careful to note that, since the wording of subsection (1B) of Section 17A of the DDA, as amended, refers to "could", it was not required, at this stage, to reach a determination that such facts would lead to a finding of unlawful discrimination.
- In relation to the claimant's claim under Section 5(2) of the DDA (failure to comply with the duty to make reasonable adjustments), it is not necessary for the disabled person to point to an actual non-disabled person who is not placed at a substantial disadvantage by reason of the particular arrangement.
- In Section 4(2)(d) of the DDA, it is unlawful for an employer to discriminate against a disabled person, whom he employs …. by subjecting him to any other detriment.
- In light of the facts, as found by the tribunal, the tribunal identified the following facts from which the tribunal "could" make a finding of unlawful discrimination contrary to Section 5(2) of the DDA, in the absence of an adequate explanation, as required under the Igen guidance.
- It is to be noted in considering whether any such finding could be made that in relation to the duty to make reasonable adjustments in relation to the arrangements made on behalf of the employer, no duty is imposed if the employer does not know or could not reasonably be expected to know of the disabled person's disability and that person was likely to be placed at a substantial disadvantage by the arrangements (see Section 6(6) of the DDA).
- The tribunal, as set out above, was satisfied that at the time when the claimant entered into the contract that the senior management of the University knew or could reasonably have been expected to know the claimant was disabled; and, in particular, that would have included those who negotiated the contract with the claimant on behalf of the respondent. Further, he was informed, during the negotiations, that in connection with his work that the claimant would have "full use of the usual facilities". However, there was no discussion or apparently any consideration given, despite the claimant's disability, to what secretarial assistance was required to be given to the claimant as part of those usual facilities or in addition to same. The claimant, as a lecturer, had the assistance of a secretary – but under the contract any assistance the secretary gave to him was on an informal/ad hoc basis, as she was not supposed to provide her previous service to him, now that he was no longer a lecturer. Although it was known he would require to present written reports and the like, under the contract, and which work was likely to be as much and probably greater than his written work as a lecturer; but yet nothing was specifically arranged. The mere fact he had the use of his old office it appears to have been assumed he would have the same secretarial assistance.
- Therefore, in light of the foregoing, the tribunal could find that the provisions of Section 6(1) imposed a duty on the respondent to make a reasonable adjustment. The respondent, in the opinion of the tribunal, took no steps as it would have been reasonable in the circumstances for it to have taken in order to prevent the arrangements having the effect of placing the claimant at a substantial disadvantage in comparison with persons who are not disabled. A simple assessment could have been carried out to establish what amount of secretarial assistance was required in light of the written work required to be carried out by the claimant. The University could then have considered what secretarial assistance it had amongst its own employees. There clearly was a secretarial service in the claimant's previous Department and steps could have been taken to ensure that the informal ad hoc arrangement was formalised. If this was not possible due to pressure of work on that secretary, the tribunal is satisfied that the University, without great practical difficulty or cost, could have employed, as required, one or other of its secretaries whom it employs across the various Departments of the University to provide the necessary assistance, when required, to the claimant. As stated above, the ad hoc informal arrangements with the secretary in the Department were not sufficient.
- The defence of justification (see Section 5(4) of the DDA) is also available to a respondent. However, as was made clear in the case of Collins -v- Royal National Theatre Board Limited (2004) IRLR 395, the only workable construction of Section 5(4) of the DDA was that it did not permit the justification of a breach of Section 6 to be established by matters relevant to establishing the duty itself under Section 6. In light of the foregoing, no ground of justification, in the opinion of the tribunal, could be established by the respondent.
- Having so found, it was therefore necessary for the respondent to discharge the burden of proof, in accordance with the guidance set out in the case Igen, which, insofar as relevant, stated ….
- In relation to the claimant's claim of victimisation under Section 55 of the DDA, the tribunal, for the reasons set out above, found that the respondent had failed in its duty to make reasonable adjustment. The claimant claimed that this failure was also the basis of his claim of victimisation under Section 55 of the DDA.
- The tribunal, having been satisfied that the respondent had unlawfully discriminated against the claimant contrary to Section 5(2) of the DDA in failing to comply with the duty to make reasonable adjustment in relation to the provision of the said secretarial services, then considered the remedy to which the claimant was entitled.
- The tribunal was satisfied that, as a result of the said unlawful discrimination, the claimant had suffered injury to his feelings. It has to be stated that the claimant's evidence on this aspect was somewhat limited and indeed it required some prompting on the part of the tribunal for him to make it clear that he was making a claim for injury to his feelings.
- In regard to the various bands set out in the case of Chief Constable of West Yorkshire Police -v- Vento (2003) IRLR 102, the tribunal came to the conclusion that the appropriate award for the said injury to the claimant's feelings was in the lower band, referred to in the said case. The tribunal concluded that the claimant should be awarded the sum of £2,250 by way of compensation for the said injury to his feelings.
- The tribunal considered whether to award interest under the provisions of the Industrial Tribunals (Interest and Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 ("the Regulations") and concluded that it should include interest on the sum so awarded in relation to the injury to the claimant's feelings.
CASE REF: 380/02
CLAIMANT: Paul Alan Maidment
RESPONDENTS: 1. University of Ulster
2. Professor D McAllister
The unanimous decision of the tribunal is that:-
Constitution of Tribunal
Chairman: Mr N Drennan QC
Panel Members: Ms J Townsley
Mr R Lowden
Appearances
The claimant appeared in person and was unrepresented.
The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by the University.
On 24 October 2002 the claimant's claims of unlawful discrimination on the grounds of religious belief and/or political opinion, which were before the Fair Employment Tribunal (case reference number 64/02FET) were dismissed, following their withdrawal by the claimant. This therefore left, before the Industrial Tribunal, the claimant's claims set out in the FET1, which had not been given a separate IT case reference number, and the claims set out in the IT1, which had been given the case reference number 380/02. It was agreed, at a Hearing for Directions on 29 April 2003, as set out in the Record of Proceedings dated 1 May 2003, that all the claims which were properly before the Industrial Tribunal, whether contained in the said FET1 or IT1, should, in the circumstances, be continued under the case reference number 380/02, set out above. It was agreed, as set out in paragraph 1 of the said Record, that the following claims which remained to be determined by the Industrial Tribunal, were the claimant's claim of (1) unfair dismissal; (2) breach of contract; and (3) disability discrimination, which also included a claim of victimisation.
There was no dispute between the parties that the relevant contract for the purpose of determining the said claims was the contract entered into between the claimant and the respondent on or about 29 August 2000 – to which further reference shall be set out below.
University of Ulster
Contract for the Provision of Consultancy Services
The first party of the contract was named as the University of Ulster (represented by the Dean of the Faculty of Social and Health Sciences and Education) referred to as "the principal".
The second party was the claimant and was referred to as "the consultant".
There was an Appendix A – which contained a schedule of consultancy tasks and targets.
The following were the material and relevant terms of the contract:-
(1) Commencing from 1 October 2000, it is agreed that for a period of not less than 12 months and not more than 24 months, the consultant will provide to the principal the consultancy services specified in Appendix A.
(2) The consideration for the consultancy service provided by the consultant to the principal and specified in Appendix A will be £6,000, exclusive of VAT.
(3) The principal will pay the consultant "monthly payments on account" of £500 each month, in or around the last week of each calendar month, for the duration of the contract period. Payment of all 12 monthly payments on account is subject to the satisfactory completion of quarterly performance reviews of the consultancy services.
(see paragraph 6)
(4) Monthly payments on account will be paid gross without deduction of income tax or national insurance and will be transferred directly to a bank nominated by the principal.
(5) In addition to the remuneration specified at paragraph 2, the consultant will be paid out-of-pocket expenses, providing that the consultant has obtained prior approval from the principal. Out-of-pocket expenses may include claims for the use of a motor vehicle owned by the consultant, excepting that, mileage for travel between the residence of the principal and the University's Jordanstown campus are specifically excluded.
(6) During the months of December 2000, March 2001, June 2001 and September 2001, the principal will, in conjunction with the consultant, conduct reviews of the provision of the consultancy services.
(7) The quarterly reviews referred to in paragraph 6 will be conducted by the principal, assessing achievement of the tasks and targets specified in Appendix A.
(8) The principal may suspend monthly payments on account if the assessment specified in paragraph 7 concludes that tasks and targets set out in Appendix A have not been completed by the required date. Such suspension of payments will be notified by the principal to the consultant in writing.
(9) The consultant is responsible under this agreement to pay all income and direct taxes arising from the transactions here specified. The consultant will indemnify the principal for any tax levied on it by the Inland Revenue or Customs and Excise.
On 29 August 2000, the claimant signed the contract, indicating that he accepted the contract for the provision of consultancy services on the above terms and conditions. On a date, not set out on the contract, the contract was signed on behalf of the respondent by Professor Wilson, who at that time was the acting Dean. There was no dispute the contract was in effect from on or about 30 September 2000, when the claimant formally retired from the respondent.
On 29 August 2000, the same date as the claimant signed the contract, the subject matter of the said preliminary issues, the claimant signed a form notifying the tribunal of his withdrawal of the said claim. By a decision dated 2 October 2000, and registered and issued to the parties on 3 October 2000, the said claim was dismissed, following its withdrawal without any objections.
Article 126(1) of the said Order provides:-
"An employee has the right not to be unfairly dismissed by his employer."
Article 3(1) of the said Order states:-
"In this Order "employee" means an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment."
Article 3(2) of the said Order states:-
"In this Order "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing."
Article 3(4) of the said Order states:-
"In this Order "employer", in relation to an employee …, means the person by whom the employee … is (or, where the employment has ceased, was) employed.
Article 3(5) of the said Order states:-
"In this Order "employment" –
(a) In relation to an employee, means (except for the purposes of Article 206) employment under a contract of employment, and
…
and "employed" shall be construed accordingly."
"Employment" means, subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work (tribunal's emphasis) and related expressions are to be construed accordingly.
Therefore, unlike the said definitions set out under the Employment Rights (Northern Ireland) Order 1996 and the Industrial Tribunals (Northern Ireland) Order 1996, employment is not restricted to a claim brought by a person employed under a contract of service, but includes also a person employed under a contract personally to do any work.
The respondent's representative accepted that, given the said wider definition of employment, under the Disability Discrimination Act 1995, the claimant, for the purposes of his claims under the said Disability Discrimination Act 1995, was employed under the said contract made between the parties under a contract personally to do the work. Therefore, unlike in relation to his claim for unfair dismissal/breach of contract, the claimant was not thereby prevented from bringing his claim under the 1995 Act; and, as shall appear subsequently in this Decision, the respondent did not raise any such jurisdictional issue in relation to his claims under the 1995 Act (see further Loughran & Kelly -v- Northern Ireland Housing Executive (1998) IRLR 593).
It is to be noted that nowhere in the contract entered into was there any reference to the honorary lectureship, which had been the subject of correspondence between the parties prior to the drafting of the terms of the agreement made between them. In addition, there is no reference, on the face of the contract, to the claimant being an employee of the respondent or employed by the respondent or that this was a contract of employment and/or was a continuation, in some way, of the contract of employment which had concluded, following the retirement of the claimant – albeit other members of staff employed by the respondent, seeing the claimant working around the University and in his old office had assumed he was still employed by the respondent.
Indeed, the agreement is headed "Contract for the Provision of Consultancy Services" which, taken on its own and in the absence of any other consideration, clearly suggested that this was not a contract of service, but rather was a contract for services, and therefore not of employment.
However, the tribunal was mindful that the name that the parties may have given to the contract was not conclusive of itself. As Harvey on Industrial Relations and Employment Law, paragraph A83 makes clear, "How the parties themselves label their relationship is a relevant, but not conclusive, consideration. The status of the worker is to be decided by an objective assessment of all the factors and the label attached by the parties is but one of these factors. The parties cannot change the nature of the contract by attaching the "wrong" label. That is to say, if on reviewing the whole of the evidence, the court or tribunal concludes that the worker is definitely a servant (or, as the case may be, definitely an independent contractor), then it will so hold, despite the fact that the parties themselves may have agreed the opposite."
In deciding whether a person is an employee or not, legal authorities have over the years often referred to various tests to assist the tribunal, which have become known as the "control test", "the organisational test", "the economic reality test". It has been found that each test has its own difficulties and, as stated in Harvey on Industrial Relations and Employment Law, paragraph A71, referring to a multiple test stated: "The modern approach is to deny that any one test or feature is conclusive. All the so-called tests should be regarded as useful general approaches, but in every case it is necessary to weigh all the factors in the particular case and ask whether it is appropriate to call the worker a servant." This multiple test was to be found in the case of Ready Mixed Concrete (South East) Ltd -v- Minister of Pensions and National Insurance (1968) 2QP497, when McKenna J referred to three questions which required to be answered.
1. Did the worker undertake to provide his own work and skill in return for remuneration?
2. Was there a sufficient degree of control to enable the worker fairly to be called the servant?
3. Were there any other factors inconsistent with the existence of a contract of service?
In the above circumstances, and not without some hesitation, the tribunal came to the conclusion that the above degree of control could in fact be sufficient to establish the claimant was a servant – but the tribunal felt that of itself this was not determinative of the matter and the tribunal, before coming to a conclusion, had to consider all the other material and relevant factors.
The contract was, subject to what has been stated previously, headed "A Contract for the Provision of Consultancy Services". It further required the claimant to provide certain services for which he was to be paid a fixed sum for this work. The fact that he was to be paid the said sum monthly was not sufficient, in the tribunal's view, to show it was evidence of a contract of service, as such sums were to be paid "on account". Further, the sum of £6,000 was exclusive of VAT. It is correct the claimant was not registered for VAT; but it was a further indication that the manner of remuneration was more akin to that of a contract for services, and not of services.
Whilst he may not have done so, the claimant was not restricted in any way from carrying out consultancy or other works for someone other than the respondent. His only requirement was to carry out the tasks set out in the Appendix, subject to the said quarterly reviews.
Of significant importance to the tribunal was the fact that the claimant was, unlike when he was an employee, paid gross without deduction of income tax or national insurance. Under the contract, he was further made responsible for the payment of all income and direct taxes arising, and to indemnify the respondent for any taxes levied on the respondent by the Inland Revenue or the Customs & Excise. Such a requirement would not normally have been made of an employee. In addition, there was no provision, as the claimant had had as an employee, for paid annual leave. The contract further made no provision for the payment of sick leave or similar payments.
It is correct that the claimant was allowed to continue to use his old office in the University, and was able to continue to avail of the University's library services; but, significantly, in the tribunal's view, this was not a requirement of the contract and the claimant was free to do the work how and where he liked. He was not required to do it at the University or to make use of the University's facilities in preparing his work. However, the tribunal can fully understand, from a practical point of view, how it was of considerable practical benefit to the claimant to be allowed by the respondent to do so. It also has to be noted that a person under a contract for services, depending on its nature, could be required to do the work at the premises of the other person to the contract. Each case has to be looked at on its own facts. If the claimant had been required to do his work at the University's premises that, in the tribunal's view, would have been a factor, albeit not conclusive in itself, pointing to the conclusion that this was a contract of services and not for services. He thus attended the University, when and if he wished to do so, to carry out his work under the contract. This has to be also contrasted with the nature of his attendance at the University, as a lecturer in full-time employment.
The claimant was paid for his services under the contract in the amount and manner as set out above, and which the tribunal considered to be a material factor in determining whether the contract was a contract of service or not. It is correct that the claimant was also paid out of pocket expenses, which could include claims for use of a motor vehicle owned by the claimant, but excluding mileage for travel between the residence of the 'principal' [which the tribunal consider must have been a typographical error and should have stated consultant] and the University's Jordanstown campus. It is correct that an employee would also not normally be allowed to claim for mileage from his home to place of work. A person carrying out consultancy work away from the principal's place of work, subject to the terms of the specific contract, might be allowed such expenses, when required to attend the principal's place of work. The exclusion of such expenses was not, in the tribunal's view, conclusive of whether or not this was a contract of employment. It was probably a recognition of the fact that it was known that the claimant in carrying out his work under the contract would in fact use, although not required to do so, the University's premises/facilities.
Finally, the tribunal noted that the claimant was paid his pension under the respondent's Occupational Pension Scheme, which he would not have been able to be paid, if he had continued to be in employment with the University. The payment to the claimant of his pension in the above circumstances, albeit not conclusive of itself, was a further factor pointing to the conclusion that this was a contract for services and not of services.
"1(a) (i) By October 1998, the applicant was required to state his hours of teaching to the Dean of Faculty, Professor Jim Allen, and did so as zero hours as a member of staff in the School of Social and Community Services. He was the only person in that school with recognised disabilities, and then alleged that he was unlawfully discriminated against by Professor D Birrell.
(ii) In July 1999 the applicant's prospects of teaching his subject specialism of disability studies before and beyond his retirement were threatened. His Head of School indicated to a colleague in the School of Nursing, Professor McConkey, that the applicant would not be able to provide teaching from September 2000, due to retirement, and no mention was made of part-time teaching. In September 1999 the applicant's direct line manager confirmed that no provision would be made for disability studies teaching from 12 months forward."
"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of the Act, if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities.
(2) In this Act "disabled person" means a person who has a disability."
The physical impairment of the claimant, insofar as relevant to these proceedings, involved impairment of movements of his arm/hand involving difficulties with blood circulation/nerves and also impairment of hearing.
The tribunal, after hearing submissions by both parties in relation to the said application, reserved to consider its ruling on foot of the said application.
The tribunal, having so reserved, orally delivered its unanimous ruling on foot of the respondent's said application, a copy of which dated 13 December 2005 it provided to both parties; and which marked "A" is attached hereto and forms part of this Decision.
"3(a)(i) Between May and July 2000 a proposal was initiated by Professor Birrell and advanced by Professor McConkey. This proposal was to modify or delete modules presented by the applicant for inclusion in degree courses from October 1999. This resulting exclusion of his modules, without notice, gave rise to his perception of being victimised for proceeding against Professor Birrell, a view confirmed by legal advice from the Equality Commission.
(ii) No reasonable adjustment for his disabilities was offered to the applicant, on his written request in November 2000, by Professor Birrell or by any other officer at the University. This failure is also construed as victimisation by the claimant.
(iii) Eviction and clearance of his workstation, without notice, on June 12th 2002, are seen by the applicant as victimisation for pursuing his present claim, and for applying for a post relating to disability on 7 June 2002. This action by Mr O McCullough and subsequent statements by him refute the applicant's legal right to remain in post for the duration of his contract."
Further, as appears from the foregoing, the claimant's claim under Section 5(2) of the DDA (failure to comply with the duty to make a reasonable adjustment) was also to be found in the particulars set out at (2) above.
"3(1) An Industrial Tribunal shall not consider a complaint … unless it is presented before the end of three months beginning when the act complained of was done.
(2) A tribunal may consider any such complaint which is out of time, if in all the circumstances of the case, it considers that it is just and equitable to do so.
(3) For the purposes of sub-paragraph (1) –
(a) where an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it."
There was considerable dispute between the parties in relation to the evidence given to the tribunal concerning whether any such proposal had been made and/or, if it was made, the nature of any such proposal and the terms of same. Indeed, there was little or no documentary evidence presented to the tribunal to support the contentions put forward by the claimant. However, the tribunal considered that, in determining the said time issue, and therefore whether the tribunal had jurisdiction to consider the claimant's claim, it should consider the claimant's claim "at its height", before considering whether the claim itself had been established. The claimant's claim therefore was that the respondent, by its servants and agents, had between May and July 2000 made a proposal to modify or delete modules from the said degree courses, which, having been adopted, resulted in their subsequent exclusion by the respondent. This adoption of the said proposal, in the tribunal's view, was therefore a 'one-off act' on the part of the respondent, albeit with continuing consequences, namely the exclusion of the said modules; rather than a continuing act of discrimination (see further Sougrin -v- Haringey Health Authority (1992) IRLR 416). The claimant's originating application having been presented to the tribunal on 30 January 2002, the claimant's said claim of victimisation relating to the alleged proposal was therefore out of time. The claimant sought to persuade the tribunal that, if the claim was out of time, that the tribunal should still consider the claim on the grounds that it was just and equitable to do so.
The claimant contended, in evidence, that the first he became aware of the matter was on or about 8 February 2001, when he was informed by a colleague that the said modules could not be marketed because of the said deletion, following the said proposal. He frankly acknowledged that, when he was so informed, he immediately considered that he had been unlawfully discriminated against contrary to the DDA. The tribunal would have been prepared, on just and equitable grounds, to extend the period until in or about February 2001; as it was prepared to accept the claimant's evidence that, prior to that time, he had not been aware of the said deletion of the said modules. However, the tribunal was not prepared to extend the period indefinitely and, in particular, until the claimant presented his originating application on 30 January 2002 – almost 12 months after the claimant became aware of the matters, the subject matter of his complaint. The claimant accepted that he was fully aware of the said three month time limit, having brought proceedings himself, as set out previously, in 1999 against the University and Professor Birrell, and also having acted, prior to these proceedings, as a representative in unrelated proceedings involving other parties. He further stated that, although he considered he had a claim against the University arising out of the above matters, he decided that, whilst he was in a contractual relationship with the University, namely the contract of August 2000 for the provision of consultancy services, he would not bring any claim for victimisation against the University at that time – albeit he was fully aware that he could do so. This was, in the tribunal's opinion, a conscious act on the part of the claimant. Indeed, he did not seek to obtain any advice in relation to his decision at that time. In addition, the claimant relied on the fact that he was given, at or about this time in February 2001, some part-time teaching to do by the University and decided that he would get on with this teaching rather than pursue any claim against the University. Further, consistent with his decision not to pursue the matter at that time, he made no internal enquiries in the University about the matter. He decided, as he put it in evidence, that "this was something that I could not and did not need to involve myself with. I got on with what had to be done, cleared the wreckage away, accepted these courses would never be or not in the short-term available for me to teach. Since I had other duties, I pursued those duties. It would have been unhelpful to the University for me to take any decision like promulgating a claim at that time …". The claimant only decided to reconsider his earlier decision not to pursue the matter following termination of the said contract for the provision of consultancy services.
Time limits are there to be observed and, as seen in the Decision of Robertson -v- Bexley Community Centre (2003) IRLR 434, the exercise of the discretion to extend time can be considered the exception rather than the rule. The discretion is undoubtedly wide and required the claimant to satisfy the tribunal that it was just and equitable to extend the time. The claimant was at all times fully aware of the tribunal's time limits; but decided, for his own reasons, not to bring a claim following discovery of deletion of the modules in or about February 2001. Having clearly decided not to bring a claim at that time, and in effect to 'accept his lot' and/or 'not rock the boat', the tribunal does not consider it just and equitable that he should be entitled to reconsider his earlier decision whenever his contractual relationship with the University had ended. Parties cannot expect a tribunal to extend time to make a complaint until contractual relationships have ended. Claims, where appropriate, have to be made during the currency of the contractual relationship and parties cannot rely on the tribunal extending time in such circumstances.
The tribunal did not consider that any undue prejudice would be caused to the respondent by the presentation of this claim (in relation to the deletion of the modules on foot of the proposals) out of time. But the absence of prejudice does not make it just and equitable to ignore the time limit (see further Johnston -v- Chief Constable of the RUC (1998) NI 188 approving Hickey -v- Lagan t/a The Fly Bar (1995) unreported).
The tribunal, having concluded that the said claim of victimisation in relation to the deletion of the modules on foot of the proposals was out of time, did not consider it was just and equitable in the circumstances set out above to extend the time from in or about February 2001 until 30 January 2002, when the claimant made his application to the tribunal. The tribunal therefore did not have jurisdiction to consider this said claim of victimisation. In the circumstances, it therefore has not made any findings of fact in relation to that claim.
"1(a)(v) – In November 2000 the applicant requested reasonable adjustment for his disabilities in performing a contract agreed in February 2000 to start the same October. No reply was given by Professor Birrell and no support was provided."
Whilst there was some small difference in the wording of the above paragraph and that seen in paragraph 3(a)(ii), the acts relied on were, in the tribunal's view, essentially the same – but brought pursuant to a claim under Section 55 and Section 5(2) of the DDA.
Certainly, the claimant's claims were based on the fact that the request for the provision of such secretarial services was made in November 2000, which clearly is outside the primary time limit of three months, if applicable, given that the claimant did not bring his originating application until 30 January 2002. However, the tribunal is satisfied that, putting the claimant's claim at its height, and on a proper interpretation of the claimant's said replies to particulars and his evidence to the tribunal, he was not solely relying on the written request to Professor Birrell in November 2000, but also the ongoing failure by any other officer at the University to provide the said secretarial services from the commencement of the contract until the termination of the contract. In essence, the tribunal was satisfied that the claimant was claiming that these said acts of victimisation and/or direct discrimination relating to the failure to comply with the duty to make reasonable adjustments in relation to the provision of secretarial services extended over the said period; and was not restricted to a one-off act, namely the request to Professor Birrell, but rather were claims of continuous discrimination. The originating applications having been presented to the tribunal on 30 January 2002, if the said claims extended over the period until the termination of the said contract, whether the contract was terminated on 31 October 2001 or 10 January 2002, in either case the said claims would have been in time (ie the said claims would have been presented within the said three month time limit from the termination of the said contract).
In the case of Hendricks -v- Commissioner of Police for the Metropolis (2003) IRLR 96, it was stated:-
"In determining whether there was an act extending over a period as distinct from a succession of unconnected or unsolicited specific acts, for which time will begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of an "act extending over a period"."
In the tribunal's view, the claimant's claims of victimisation and/or direct discrimination arising from the failure to comply with the duty to make reasonable adjustments in relation to the provision of secretarial services were such an ongoing situation/continuing state of affairs from the date of the request until the termination of the said contract. The said contract, having been terminated at the earliest on 31 October 2001, and the originating application having been presented on 30 January 2002, the tribunal was satisfied that each said claim was in time and the tribunal had jurisdiction to hear each said claim.
(1) The claimant, for some 20 years prior to his retirement in or about September 2000, had been disabled and in particular had a physical impairment in his arm/hand which affected, inter alia, his writing ability. The tribunal is further satisfied, from their contact with the claimant over the previous 21 years, that the fact that the claimant was so disabled would have been known to the senior management of the University and, in particular, those involved in the negotiations, including Professor Allen, the then Dean, which led up to the contract made between the claimant and the University for the provision of consultancy services. It was also to be noted, in this context, that the claimant had become so impaired, following a well publicised bomb attack at the University, and was registered as disabled. In addition, the claimant had brought the previous proceedings under the DDA – which had resolved with the entering into the contract for the provision of consultancy services.
(2) As a lecturer, prior to his retirement, the claimant had access to, inter alia, secretarial assistance from the secretary of the Department in which he was working. This secretary worked part-time. The claimant availed of her services for typing documents, whenever he required to produce materials in relation to his duties as a lecturer and associated administrative tasks. This secretary carried out typing work, not only for the claimant, but also other lecturers in the Department. It would appear she was under considerable work pressure – but the claimant had no complaint at that time in relation to the secretarial assistance provided to him by her.
(3) Under the contract, the claimant was required to carry out more writing in preparing reports and the like than would have been the situation as a lecturer. Under the contract, there was no specific term in relation to the provision of secretarial services. However, as indicated previously, the claimant in the course of negotiations was told that he would be able to make full use of the usual facilities; but in relation to same, there does not appear to have been any specific discussion about or reference to the provision of secretarial assistance to the claimant in the course of his work under the contract and, in particular, who would provide such services now he was no longer a lecturer.
The claimant, on occasion, sought the assistance of this same secretary for typing services, who had previously typed for him when he was a lecturer, after he had retired and commenced work on the contract. However, the claimant stated in evidence, which the tribunal accepted, that he was not able to do this very often because she was under considerable pressure anyway; but, more importantly, was not supposed to do typing for him, as he was no longer part of that Department, having retired as a lecturer. Thus, any work she did for him appears to have been on an informal basis and an ad hoc basis. Strictly, as he was no longer a lecturer, albeit working as aforesaid in his old office, she was not supposed to do any typing for the claimant at this time. The fact that she did, when she could, was clearly to her credit and, as a consequence, meant that the claimant was not totally bereft of secretarial assistance during the period of the contract.
(4) The claimant maintained that in or about November 2000 he sought, in a written request to Professor Birrell of the University, the then Head of the School of Social and Community Sciences, reasonable adjustments for his disabilities and, in particular, in relation to the provision of secretarial assistance. As Head of that Department, Professor Birrell had line management responsibility for the secretary and the work done by her; but he no longer had line management responsibility for the claimant.
The precise terms of any such letter is not known, as neither the original letter nor any copy of it has ever been produced to the tribunal. Professor Birrell stated that he never received it and the University have never been able to find it or any copy of the letter. The claimant stated that he had retained a copy of the letter amongst his papers in his desk – but when the contents of his desk were returned to him at his home, following the termination of the contract, the said document was not amongst the said contents. The claimant could not recall the precise terms of the letter. However, he stated, in evidence, that he sought, in essence, secretarial assistance; as he anticipated there would be a considerable amount of written work in carrying out his duties under the contract, and which in fact proved to be the case. The claimant may have been somewhat uncertain about the precise terms of the request, but, despite some vigorous cross-examination, continued to maintain that such a request had been made by him at that time. He was, however, also adamant that the secretary assured him that his written request had been passed on by her to Professor Birrell – which evidence was not challenged by the respondent. The relevant secretary involved in this matter was not called to give evidence by the respondent, either as to the amount of work, if any, that she did for the claimant following his retirement or, in particular, in relation to the said request for secretarial assistance, which the claimant insisted he had made, and for which she was clearly the conduit, if it took place. In the tribunal's view, this person would have been in a very relevant position to give evidence on these matters. No explanation was given to the tribunal for not calling this witness.
As was stated in the case of Lynch -v- Ministry of Defence (1983) NI 216, approval was given for the principles set out in O'Donnell -v- Reichard (1975) VR 916 at page 929:-
"Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that person's case; if the jury draw that inference, then they may properly take it into account against the party in question for the purposes, namely:-
(a) in deciding to accept any particular evidence, which has in fact been, either for or against that party which relates to a matter with respect to which the person not called as a witness could have spoken; and
(b) in deciding whether to draw inferences of fact which are open to them upon evidence which had been given again in relation to matters with respect to which the person not called as a witness could have spoken."
Not without some hesitation, the tribunal came to the conclusion that the claimant did make the said written request to Professor Birrell for secretarial assistance and that it would have been, at least, passed up the administrative chain by her to Professor Birrell for his attention.
The claimant acknowledged that he did not follow up the request; but said that he did not consider it would be of assistance, as he felt that Professor Birrell had not been very helpful to him in relation to difficulties in previous years in relation to his hearing. Nevertheless, the tribunal was surprised that, despite whatever views he held about Professor Birrell, that the claimant did not follow up with Professor Birrell his failure to reply to his request; but apparently waited to raise the issue of the failure to respond to his written request until he commenced these proceedings. Indeed, the tribunal was concerned that this failure to follow up his request with Professor Birrell illustrated the fact that, whilst the claimant certainly was seeking secretarial assistance, the lack of same was not as great as he might have maintained in the course of this hearing, and particularly bearing in mind the informal assistance of the secretary.
In light of the foregoing, the tribunal was not persuaded that what had taken place previously, between Professor Birrell and the claimant, gave support to the claimant's contention that Professor Birrell had in fact received the letter/request but taken no action. The tribunal therefore came to the conclusion that, although the letter/request had been sent up the administrative chain to Professor Birrell, by the secretary, he had not, for some reason, in fact received it. On the evidence before it, the tribunal was not prepared to infer that this failure was more than some breakdown in the administrative chain.
Section 5:-
(1) ….
(2) For the purposes of this part, a employer also discriminates against a disabled person if –
(a) he fails to comply with the Section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3) ….
(4) For the purposes of subsection (2), failure to comply with Section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
Section 6:-
(1) Where –
(a) any arrangements made by or on behalf of an employer, or
….
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements …. having that effect.
(2) Subsection (1)(a) applies only in relation to –
(a) arrangements for determining to whom employment should be offered;
(b) any term, condition or arrangements of which employment, promotion, transfer, training or any other benefit is offered or afforded.
[(3) sets out examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1).]
(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to:-
(a) the extent to which taking the step would prevent the effect in question;
(b) the extent to which it is practicable for the employer to take the step;
(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of the employer's financial and other resources;
(e) the availability to the employer of financial or other assistance with respect to taking the step.
(6) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not be reasonably expected to know –
(a) in the case of an applicant or potential applicant, that the disabled person concerned, is or may be an applicant for the employment; or
(b) in any case, that person has a disability and is likely to be affected in the way mentioned in subsection (1).
Section 55:-
(1) For the purposes of part 2 …., a person ("A") discriminates against another person ("B") if –
(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's; and
(b) he does so for a reason mentioned in subsection (2).
(2) The reasons are that –
(a) B has –
(i) brought proceedings against A or any other person under this Act; or
(ii) given evidence or information in connection with such proceedings brought by any person; or
(iii) otherwise done anything under this Act in relation to A or any other person; or
(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or
(b) A believes or suspects that B has done or intends to do any of those things.
(3) Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a).
(4) Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith.
As consequence of the amendments made by the said Regulations, Section 8 of the DDA was moved and renumbered Section 17A.
Insofar as material and relevant, Section 17A includes subsection (1B), which states:-
"Where on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this part, the tribunal shall uphold the complaint, unless the respondent proves that he did not so act."
Under the transitional provisions, set out in Regulation 2 of the said Regulations, subsection (1B) of Section 17A applies in relation to a complaint presented to an Industrial Tribunal before the commencement date, as well as one presented on or after that date; but does not affect any case in which a complaint was determined by an Industrial Tribunal before 1 October 2004.
In the case of Shamoon -v- Chief Constable of the RUC (2003) IRLR 285, the House of Lords held that detriment was an act which a reasonable employee might feel places them at a disadvantage with regard to the circumstances in which they work.
Therefore, at the time when the claimant commenced to work on foot of the contract for the provision of consultancy services, the respondent had the relevant knowledge that the claimant was so disabled. However, as seen above, for the duty to be imposed it was also necessary for the respondent to know or to be reasonably expected to know that the claimant was likely to be placed at a substantial disadvantage by the arrangements. The duty therefore can only arise where the disabled person is put at a substantial disadvantage in comparison with persons who are not disabled. Substantial, for the purposes of measuring the disadvantage, simply means more than minor or trivial. Whilst the claimant was getting, on occasion, in an ad hoc informal way, some secretarial assistance from the secretary of the Department where he previously worked as a lecturer, the tribunal was satisfied that this assistance, when given, was limited and meant that for the majority of his work under the contract, which he did without assistance, he was therefore at a substantial disadvantage.
At the time of the negotiations for the contract and after it was signed and the claimant commenced his work, there was at no time any assessment of his secretarial needs, which he had previously had as a lecturer, when working under the contract and/or from whom he was to obtain such assistance. In the tribunal's view, this failure to do anything about his secretarial needs before he commenced work was then compounded by what happened after he began work.
The claimant had sought assistance via the secretary from Professor Birrell – but unfortunately, for whatever reason, this request was not received by Professor Birrell and therefore acted upon. However, the claimant did speak to Professor Wilson about the absence of secretarial assistance. Further, it was clear, in the opinion of the tribunal, by what the claimant wrote on the various cover notes to Professor Wilson that he was having to handwrite his work. Professor Wilson was quite prepared to accept handwritten work from the claimant and, thus, in the tribunal's view, never addressed his mind to the issue of the provision of secretarial assistance by the respondent. In the circumstances, the tribunal was therefore of the opinion that the respondent also had the relevant knowledge that he was at the relevant disadvantage for the purposes of the above section. Whilst, in light of the foregoing, it could be suggested the respondent had in fact the necessary knowledge from the actual commencement of the contract, the tribunal noted that the claimant made his request to Professor Birrell in November 2000 and the receipt of the handwritten work to Professor Wilson would, at the earliest, have been some time in October 2000. The tribunal concluded that, in the circumstances, the respondent had the knowledge from in or about 1 November 2000. The respondent, having the relevant knowledge, was therefore, in the tribunal's opinion, not able to claim it was excluded from the obligation to make reasonable adjustment.
In light of the foregoing, a finding that there had been a failure to comply with the said duty to make reasonable adjustment could therefore be made.
"(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of [disability], then the burden of proof moves to the employer.
(10) It is then for the employer to prove that he did not commit or, as the case may be, is not to be treated as having committed that act.
(11) To discharge that burden, it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [disability] since "no discrimination whatsoever" is compatible with the burden of proof directive.
(12) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it has adequately discharged the burden of proof on the balance of probabilities that [disability] was not a ground for the treatment in question."
The Igen guidance makes clear that a tribunal would normally expect cogent evidence to discharge that burden of proof.
The respondent, in relation to the said claim, did not take any steps, as it contended that it had not the relevant knowledge, which the tribunal has not accepted. Similarly, the tribunal did not accept that the ad hoc informal arrangements were sufficient. In the circumstances, the tribunal was therefore not satisfied that the respondent had discharged the necessary burden and the respondent was therefore, in the circumstances, under a duty to make reasonable adjustments pursuant to Section 6 of the DDA and the said failure to comply was an act of unlawful discrimination contrary to Section 5(2) of the DDA.
In relation to the claimant's claim of victimisation under Section 55 of the DDA, in order to show that a person has been less favourably treated, a comparison must be made between the person who has done one of the protected acts set out in Section 55(2)(a) and another real or hypothetical comparator. As stated previously, the disability status of the person who is victimised is not relevant.
Thus, the proper comparison is between a person who has done one of the protected acts and a person who has not done one of the protected acts. As seen in the House of Lords Decision in the case of the Chief Constable of West Yorkshire -v- Khan (2001) IRLR 830, there requires to be a comparison between the treatment afforded to the claimant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.
In relation to this claim, the claimant relied on a hypothetical comparator and did not rely on any real comparator.
In essence, as the judgement of the House of Lords in the Khan case made clear, victimisation occurs when a person is treated less favourably than others because he has done one of the protected acts.
The claimant had brought proceedings previously against Professor Birrell and the University. However, the tribunal was not satisfied that there was any evidence to show that the reason for the above failure to comply with the said duty was the fact that the claimant had brought these previous proceedings. In the opinion of the tribunal, the claimant had to establish something more than the mere fact of the previous proceedings in relation to this claim of victimisation. The claimant's claim of victimisation was specifically directed, by the claimant, at Professor Birrell and his failure to respond to the request made in November 2000 for secretarial assistance. He relied heavily on the fact that there had been previous difficulties between himself and Professor Birrell in relation to his hearing loss. However, as stated previously, the tribunal concluded that Professor Birrell had acted properly and any delay in dealing with the matter was acceptable. The tribunal again noted that, at the relevant time of the above failure, Professor Birrell had little or no direct contact with the claimant and indeed had not been directly involved in the withdrawal of the previous claim and, in particular, the negotiations which led to the contract for the provision of consultancy services.
Further, for the reasons previously stated, in relation to the claimant's claim under Section 5(2) of the DDA, the tribunal was not satisfied that the request for secretarial assistance was in fact received by Professor Birrell and he was therefore not responsible for the failure to provide such assistance by the respondent. There was therefore no evidence that Professor Birrell had any involvement in the failure to provide such assistance. There was also no evidence that the failure to provide such assistance was because the claimant had brought the said previous proceedings. Indeed, Professor Birrell categorically denied that was the case.
In the circumstances, the tribunal was not satisfied that the claimant had established sufficient facts from which the tribunal "could" make a finding of victimisation, contrary to the DDA, in the absence of an adequate explanation as required under the Igen guidance.
The claimant, during the course of a Case Management Discussion on 24 March 2004, was recorded in the Record of Proceedings, dated 31 March 2004, as stating "He was not alleging detriment in not getting secretarial assistance". There is then recorded details of financial loss, as items of detriment relied on by the claimant, in relation to other heads of claim in this matter, which are not relevant having regard to the tribunal's decision on liability in relation to those matters. Whilst the tribunal has no doubt that the claimant made the said statement, as recorded above; but it is also satisfied, on hearing his explanation during the course of this hearing, that he was not referring at that time to any claim of injury to his feelings, but merely to any claim for financial loss arising out of the claim for unlawful discrimination relating to the failure to provide secretarial services. In particular, despite the absence of such services, he always completed the work he was required to do by hand. The tribunal, whilst recognising that the claimant did complete his work by hand, and which was acceptable to the respondent, nevertheless suffered some injury to his feelings by reason of the said unlawful discrimination. The tribunal also noted, in considering the injury to his feelings, that he had had some limited assistance, from the secretary in the Department, and this would have had the effect of reducing the injury to his feelings. In addition, the tribunal considered, after hearing the evidence of the claimant, that the injury so sustained in relation to the absence of secretarial services was not as significant for the claimant as the injury to feelings which he claimed arose out of other matters for which the tribunal, in light of its determination on liability, is unable to make any award of compensation – such as the removal of his effects from his office to his home and the removal of the said modules.
For the purposes of the Regulations:-
| Date of the first act of discrimination: |
1 November 2000 |
| Calculation date: |
22 May 2006 |
| The tribunal therefore awards compensation as follows: |
|
| (a) Injury to the claimant's feelings: |
£2,250.00 |
| (b) Interest @ 8% per annum from 1 November 2000 to 16 June 2006: |
£1,012.44 |
| (c) Total award of compensation:- |
|
| (a) + (b): | £3,262.44 |
This is a relevant Decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 23 February 2005, 24 February 2005, 25 February 2005, 27 April 2005, 28 April 2005, 29 April 2005, 12 May 2005, 30 September 2005, 12 December 2005, 23 January 2006, 6 February 2006, 7 February 2006, Belfast
Date decision recorded in register and issued to parties: