Industrial Tribunals Northern Ireland Decisions

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Cite as: [2006] NIIT 970_5, [2006] NIIT 970_05

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THE INDUSTRIAL TRIBUNALS

CASE REF: 970/05

CLAIMANT: Brian Lacey

RESPONDENTS: University of Ulster

Paul Davidson

DECISION ON PRE-HEARING REVIEW

The decision of the tribunal it cannot be said that this claimant's complaint has little reasonable prospect of success. Therefore it would be quite inappropriate for the tribunal to make an order on foot of rule 20 of the Industrial Tribunal Rules of Procedure (2005) contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The matter may now proceed to a full hearing on the merits, without further Order.

Constitution of Tribunal:

Chairman: Mr J V Leonard (sitting alone)

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.

The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by the University of Ulster.

Reasons

Reasons are given in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter. The tribunal heard oral evidence from the claimant and from Mr Oliver McCullough and Mr Barry Mulqueen. In addition the tribunal had before it a bundle of documents prepared on behalf of the claimant and a bundle of documents prepared on behalf of the respondents. Furthermore, during the course of the hearing, by agreement, the tribunal was furnished with some additional documentation.

The Issue

The claimant presented a claim form dated 21 June 2005, received by the Office of Tribunals on 24 June 2005, in which the claimant claimed sexual orientation discrimination. In response to the claimant's claim, the University of Ulster ("the University"), on behalf of the respondents, indicated an intention to resist the claim and contended that the claim had been lodged out of time and denied that the respondent was discriminated against in any way contrary to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, or contrary to any other equality legislation.

The matter had been earlier listed for a hearing on the issue of whether the claim had been presented within time. A decision on Pre-Hearing Review was promulgated on 2 February 2006 ("the February 2006 decision") in which a tribunal, Chaired by Mr Palmer sitting alone, found that, although the claim had been presented out of time, on balance it was just and equitable for an industrial tribunal to consider the complaint, notwithstanding that fact.

The matter was further listed for a Pre-Hearing Review before this tribunal upon the following issue:-

"whether the contentions put forward by the claimant have little reasonable prospect of success".

Accordingly the tribunal had to determine that preliminary issue.

The Tribunal's Findings

On foot of the oral and documentary evidence adduced before it, the tribunal made the findings of fact set out below, material to the issue for determination, upon the balance of probabilities.

(a) The tribunal does not intend to recite in detail the findings of fact which are already recorded in the February 2006 decision. It should be sufficient to state that the claimant was aggrieved at his failure to be short-listed by the University for interview in respect of an academic post. On 15 June 2005 the claimant contacted the Equality Commission for Northern Ireland ("the Commission") in order to seek advice. The Commission responded by, on 16 June 2005, sending to the claimant some information and documentation including a claim form for the claimant to complete if he desired to pursue a claim. The claimant then duly completed the claim form, dated that claim form 21 June 2005, and submitted that to the Office of Tribunals.

(b) Insofar as material, the claim form contained the following:-

Paragraph 8.1 [which contains the invitation: "Please tick the box or boxes to indicate the type of discrimination (including victimisation) you are claiming about"] was completed by the claimant with the box entitled "Sexual Orientation Discrimination" being ticked by him.

Paragraph 12 (entitled "Other information") was completed by the claimant by the inclusion of the following wording:-

"In my application I made it clear that one of my research interests (including an existing publication) is the history of homosexuality in Ireland. I explained that I have a draft book on that topic almost ready for publication. I have no doubt that an act of discrimination has been perpetrated against me by the University of Ulster and I believe that my interests in the history of homosexuality may be the cause…. I believe the University's treatment of me amounts to discrimination on grounds of sexual orientation".

(c) The claimant contended, and the tribunal had no reason to doubt, that the claim form was completed by the claimant in a mood of anger and frustration. It was also completed by the claimant at a time when he had not had the benefit of comprehensive legal advice, although he had indeed received some information from the Commission. The claimant candidly conceded in the course of the hearing that, whilst he would have often taken great care with the drafting and redrafting of documents with a view to publication in his chosen field of professional expertise, he did not avail of that opportunity in his drafting of this claim form; the English usage left something to be desired in terms of the clarity which he had otherwise intended to impart, the claimant conceded.

(d) The tribunal's attention was drawn to the content of the letter of 16 June 2006 from the Commission to the claimant which had accompanied the documentation sent to him. Therein an invitation or suggestion was made to the claimant that he might wish to include a particular wording in his claim form. The Commission's suggestion was to include the following:-

"I believe that the Respondent's treatment of me amounts to direct and/or indirect discrimination [if appropriate: and/or victimisation] on grounds of my sexual orientation contrary to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, and/or relevant European Law."

The claimant's explanation provided to the tribunal for the omission of any of the foregoing suggested wording, save for the following, "I believe that the University's treatment of me amounts to discrimination on grounds of sexual orientation", was that he was angry and frustrated. He also had been informed by the Commission that he had in all probability fallen foul of the time limit for submitting his claim. Therefore he had to submit his claim with the utmost haste. It was for that reason, so the claimant contended, that the full draft wording as suggested by the Commission had not been included by him in the claim form.

(e) In the course of these proceedings the claimant was served by the respondents with a Notice for Further and Better Particulars. In answer to a question, "List each and every act of discrimination on the grounds of Sexual Orientation", the claimant included the following paragraph:-

"In the light of the above the stated reasons given by you for my not being short-listed for interview, despite my repeated attempts to obtain clarification, simply do not make sense. I have concluded, therefore, that I am a victim of an act of discrimination by the short-listing panel or by other unknown persons in the university. I believe that the fact that I clearly identified in my application that I am interested in the history of homosexuality in Ireland and that I have a draft book on the topic almost ready for publication (which one might think would be received positively in the institution that claims that it is "dedicated to understanding cultural diversity in Ireland") as well as a previous publication on that topic, may be the reason for that discrimination".

(f) In the slightly unusual circumstances that bear upon this case, the tribunal is now obliged, firstly, to refer to part of the content of the tribunal decision promulgated on 2 February 2006 in this case and also to the content of the evidence given to the tribunal by the respondents' representatives, Mr McCullough and Mr Mulqueen. Dealing firstly with the February 2006 decision, which as mentioned followed a hearing chaired by a Chairman sitting alone, Mr Palmer, at paragraph 5 of the February 2006 decision under the title or heading, "Facts found", are included the following sentences:-

"His reason for thinking so was that in his application for the post he had stated that one of his research interests was the history of homosexuality in Ireland and, whilst he did not know the reason for his rejection at this stage, he concluded that it might have been on the ground of his interest in the history of homosexuality. This might, in his view, have indicated his personal sexuality, namely homosexual."

(g) It was matter of fact, accepted by both sides in the matter and by the tribunal, that the claimant had a long-standing interest in the history of homosexuality in Ireland. The claimant had already published in the area and at the material time the claimant had in draft a proposed book which he was preparing for publication concerning the topic of the history of homosexuality in Ireland.

(h) As part of these proceedings, the claimant served a questionnaire form upon the University. The following material included by the claimant in that questionnaire is of note:-

1.(2) I believe that the fact that I clearly identified in my application that I am interested in the history of homosexuality in Ireland and that I have a draft book on that topic almost ready to be published, as well as previous publication on the topic, may be the reason for that discrimination.

3. Do you accept that your treatment of me was unlawful discrimination? If not:-

(a) why not,

(b) for what reason did I receive the treatment accorded to me, and

(c) how far did consideration of sexual orientation affect your treatment of me?

(I) In its reply to the questionnaire the University [responding to section 1. (2)] stated the following:

"Whilst it is noted that the Claimant has not to date stated his sexual orientation it is confirmed that the shortlisting members did not refer [sic.] the Claimant's sexuality from his application, the only criteria used in shortlisting was [sic.] that relating to the Shortlisting Criteria which do not refer directly or indirectly to sexual orientation"

It is not clear from the papers before the tribunal upon what date that reply was made.

(j) The University served upon the claimant a Notice for Particulars. The claimant responded to that. The following appears from the claimant's response to the second question posed:-

"2 Give precise details of the Sexual Orientation of

the Claimant.

I am a homosexual man and have been openly gay since the earliest days of my employment as a lecturer in the New University of Ulster. For many years I was active (in fact, a founding member) in organising a range of welfare, cultural and social organisations and provisions for gay people in Derry and the northwest of Ireland. These included positions at Magee College. Arising from the latter, I came into conflict on one of two occasions with the university authorities."

(k) Save for the foregoing express or implied references to the claimant's own sexuality, there appears to have been no other indication given in writing by the claimant in the course of these proceedings as to his own sexual orientation.

(l) The tribunal did not need to record any further material findings of fact in respect of its determination in this matter.

THE APPLICABLE LAW

6. This is a Preliminary Hearing upon the issue of whether the contentions put forward for the claimant have little reasonable prospect of success. The Industrial Tribunals Rules of Procedure (2005) are contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, and are hereinafter referred to as "the Rules". Rule 18 of the Rules governs the conduct of pre-hearing reviews. The following in rule 18 is material:-

"18 - (1) -

(2) At a pre-hearing review the chairman may carry out a preliminary consideration of the proceedings and he may -

(a) Determine any interim or preliminary matter relating to the proceedings;

(b) Issue any order in accordance with rule 10 or do anything else which may be done at a case management discussion;

(c) Order that a deposit be paid in accordance with rule 20 without hearing evidence;

(d) Consider any oral or written representations or evidence;

(e) -

Rule 20 of the Rules governs the requirement to pay a deposit in order to continue with proceedings. Insofar as material this rule states as follows:-

"20 - (1) At a pre-hearing review if a chairman considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little reasonable prospect of success, the chairman may make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to that matter."

This is a case brought in respect of the subject matter of the Employment Equality (Sexual Orientation) Regulations 2003 ("the 2003 Regulations") and insofar as material the following from the 2003 Regulations would be of note:-

2. - (1) In these Regulations "sexual orientation" means a sexual orientation towards -

(a) persons of the same sex;

(b) persons of the opposite sex; or

opposite sex.

3. - (1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if -

(a) On grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons; or

(b) A applies to B a provision, criterion or practise which he applies or would apply equally to persons not of the same sexual orientation as B, but

(i) Which puts or would put persons of the

same sexual orientation as B at a particular disadvantage when compared with other persons,

(ii) Which puts B at that disadvantage, and

(iii) Which A cannot show to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B's case with that of the other person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

6. - (1) It is unlawful for an employer, in relation to

employment by him at an establishment in

Great Britain, to discriminate against a person-

(a) -

(b) -

(c) - By refusing to offer, or deliberately not offering, him employment.

The statutory tests applicable to, for example, race discrimination, on the one hand, and, sex discrimination or disability discrimination, on the other, are different and those differences are material to the case. The tribunal shall further elaborate upon that distinction in the decision set out below.

THE TRIBUNAL'S DETERMINATION OF THE ISSUE

Having heard the oral evidence and having examined the documents adduced in evidence and heard the submissions, the tribunal now reaches its conclusions in respect of the case.

The respondents' contentions were to the effect that the claim had no reasonable prospect of success for the reason that the claimant had consistently made the case that the discrimination alleged to have been perpetrated against him was perpetrated not on grounds of his own sexual orientation but upon his perceived interests, as the claimant professed to be a person who was interested in the topic of homosexuality in Ireland, and the topic of homosexuality generally.

The respondents' Counsel drew to the tribunal's attention what was contended to be the significant and material distinction in the matter. That was the distinction between, on the one hand, the claimant arguing that his interests in a topic were the cause of alleged discrimination, in contrast to, on the other hand, the claimant arguing that his own personal sexual orientation was the cause of that alleged discrimination.

It was contended for the respondents that the claimant's conduct of these proceedings was entirely consistent in that at no stage had the claimant endeavoured to present the argument that the alleged discrimination was perpetrated against him on grounds of his own sexual orientation; rather that was alleged by him to have been entirely and exclusively connected with his interest in the topic.

Referring to the 2003 Regulations, the respondents' Counsel contended that these Regulations should properly be interpreted by the tribunal as requiring that the following words contained in Regulation 3 (1) (a) "…on grounds of sexual orientation…" ought to be interpreted as meaning or referable to the sexual orientation of the person (identified as "B" in the regulation) who was the victim of such unlawful discrimination. The respondents' Counsel submitted that, as the claimant was now endeavouring at this hearing (and for the first time) to argue that alleged discrimination referable to the claimant's own sexual orientation had been inherent in his case all along, the claimant was endeavouring to "move the goal posts" and to make out an entirely different case to that which had been put forward throughout the course of the proceedings up until now. The tribunal should not permit that to be done.

The respondents' representative argued that on the case as originally made, which ought to be the only case which the respondents were required to meet, the claimant had failed properly to make out any case such as would be necessary for the tribunal to make a finding of unlawful discrimination contrary to the 2003 Regulations. That being the case, the claim had no reasonable prospects of success. The evidence of that fact was submitted to be contained not just in the documentation initiating the claimant's claim but also in the content of the questionnaire served by the claimant and indeed in the claimant's own evidence at the earlier Preliminary Hearing on the time point.

Counsel for the respondents continued that if the tribunal were to read the two sentences from the February 2006 decision (cited in paragraph 5 (f) above), the second of those sentences should not be interpreted as a finding of fact confirming that the claimant had stated his own sexual orientation in evidence in the course of those proceedings. Rather, that sentence merely represented an endeavour on the part of the Chairman to interpret what case might possibly have been made by the claimant. However, that case had not been made by the claimant at the earlier hearing. No part of either Mr McCullough's note of the hearing, nor Counsel's own recollection of what had been said at the hearing, confirmed that any such case had been clearly stated without ambiguity on the part of the claimant at the February 2006 decision hearing. Counsel cited in support of the respondents' position the case of Paul Maidment -v- University of Ulster (Northern Ireland Industrial Tribunal case Reference Number 380/02), a tribunal ruling promulgated on 13 December 2005. In the ruling the reference had been to the Disability Discrimination Act 1995 ("DDA") and DDA clearly required the allegation of discrimination to relate to the disabled person's own disability; that approach ought properly to be applied in this case.

Accordingly, the tribunal was quite entitled to find that the claim had little reasonable prospect of success and to proceed accordingly.

For the claimant, the claimant's Counsel contended that the claimant's case had been entirely clear and unambiguous from the very outset. The claimant's case had not been confined to a narrow case but had rather encompassed the contention that there had been discrimination both on grounds of the claimant's own sexual orientation and also on grounds of the claimant's interest in the topic of homosexuality and his association with that interest over a considerable period of time. It would have been quite incorrect on the claimant's part to have confined himself to a narrow case until he had received detailed particulars and replies to the questionnaire from the University. In any event, the 2003 Regulations were not to be interpreted in a narrow sense but, rather, in the broad interpretation properly to be afforded to mainstream discrimination statutes.

Counsel for the respondents had cited in support of the respondents' position the case of Paul Maidment -v- University of Ulster. However the claimant's Counsel submitted that that case was distinguishable. In the ruling of the tribunal Chairman in the Maidment case the reference had been to the Disability Discrimination Act 1995 ("DDA") and DDA clearly required the allegation of discrimination to relate to the disabled person's own disability. That was not a requirement of the 2003 Regulations. When reading Regulation 3 of the 2003 Regulations is not a requirement of the statute to insert the word "my" before the words "sexual orientation" in Regulation 3 (1) (a). The 2003 Regulations are therefore to be seen in contrast to the DDA and accordingly the case of Maidment is quite distinguishable. Rather, in the case of In re Northern Ireland Electricity Service's Application [1987] NI 271, the High Court in Northern Ireland gave extensive guidance, in what was a Fair Employment case, as to the manner in which unlawful discrimination has to be proved; the tribunal ought properly to follow the guidance in that case.

The tribunal took full account of these submissions in reaching a determination. In this case it has been argued on behalf of the claimant that the claimant did indeed make clear the two aspects of his case from the outset. These two aspects were firstly, that the claimant was contending that there had been unlawful discrimination perpetrated against him on grounds of his interests in and affinity with the topic of homosexuality. For example, he currently had a book in preparation concerning the history of homosexuality in Ireland. Secondly, the claimant was contending that there had been unlawful discrimination perpetrated against him on grounds of his own sexual orientation.

There is no doubt that the first aspect of the claimant's case has been clearly set out throughout the course of these proceedings, being clearly stated and without any doubt in the originating claim form and furthermore in the subsequent documentation, for example the questionnaire form. Thus that issue is not in contention.

The second aspect of the claimant's argument is, however, very much in contention as far as the respondents are concerned. When the claimant did receive advisory material from the Commission, it was suggested to him that he might possibly wish to include a certain suggested wording in his claim form. The claimant has suggested to tribunal that he did not include this precise wording on account of the fact that he was frustrated and angry and was up against a very strict time limitation for submitting his claim. He has contended that he at all times had wished to convey in his claim the message that the discrimination perpetrated against him was on grounds of his own sexual orientation, in addition to the suggested grounds expressly set out in the documentation. The claimant has also made the case that the expression employed by him at the end of paragraph 12 of his claim form and containing the words, "...I believe that the university's treatment of me amounts to discrimination on the grounds of sexual orientation..." should be construed as being a clearly-understandable reference to his own sexual orientation and therefore sufficient to constitute the clearest evidence of the case which he wished to make from the outset of the matter.

The tribunal has, rather unusually it must be said, heard evidence both from Mr McCullough and from the respondents' Counsel, Mr Mulqueen, as to their recollection of what was said in the course of the February 2006 decision hearing. The tribunal has no doubt whatsoever that both Mr McCullough and Mr Mulqueen have given a fair and accurate account of their own individual recollections and interpretations of the case which they regard as having been made by the claimant at the earlier hearing. The tribunal has also had sight of the notes taken by Mr McCullough at that hearing. It is suggested, on the strength of this, that the case made by the claimant at the February 2006 decision hearing was confined only to alleged discrimination grounded on the claimant's interest in homosexuality. It is further suggested that the claimant did not therein expressly state that the alleged discrimination was on grounds of his own sexual orientation.

The claimant has argued, in contrast, that he quite clearly did state his sexual orientation at the February 2006 decision hearing and that this has always formed an intrinsic part of his case. His representative has cited the extract from the February 2006 decision and especially the sentence which states, "This might, in his view, have indicated his personal sexuality, namely homosexual". It has to be said that this tribunal would have considerable difficulty in disregarding these words as recorded on the part of the tribunal Chairman. In this tribunal's view these words do constitute what must be taken, in the absence of anything further, as representing an accurate recording of fact based upon the evidence actually heard and noted by the Chairman in the course of that hearing.

However, to some extent the debate which has very much exercised the parties in the course of this hearing is rendered, in this tribunal's view, somewhat redundant if one then turns to a proper interpretation of the 2003 Regulations.

It has been the respondents' case that the 2003 Regulations should be construed in a narrow sense so to confine any claimant to a case of discrimination based on that discrimination being perpetrated against him or her on the grounds of that person's own sexual orientation. The tribunal is invited to construe the 2003 Regulations as if they ran a course similar to those in relation to sex discrimination or disability discrimination. It is clearly the case, as the Maidment ruling bears out, that DDA requires the tribunal to have account of the claimant's own disability with reference to the discrimination alleged. That is not in any way controversial for that is precisely what the statute says expressly. It is a similar situation in regard to sex discrimination.

However looking at the statutory wording actually employed in the 2003 Regulations, regulation 3 (1) (a) uses the words "on grounds of sexual orientation" (notably not, "on grounds of B's sexual orientation", nor, "on grounds of that person's sexual orientation"). As has been submitted on behalf of the claimant, the words that are notably absent are of interest in the interpretation of the statute. In that regard, the drafting of the 2003 Regulations appears to follow the same course as that in respect of race discrimination. The Race Relations (Northern Ireland) Order 1997 at Article 3 states as follows:-

"3. (1) A person discriminates against another in any circumstances relevant for the purpose of any provision of this Order if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons …"

The expression "on racial grounds" (which follows the similar provision in the English legislation), has been the subject of considerable interpretation and debate in a number of leading cases on the topic. It is now well-settled law that is the expression "on racial grounds" is to be broadly interpreted. For instance, discrimination against an employee (of whatever race) for failing to carry out a racially discriminatory work instruction falls with the ambit of the statute. "On racial grounds" therefore does not have to be connected to the race or ethnicity of the person claiming unlawful discrimination [in this regard see Show Boat Entertainment Centre Limited -v- Owens [1984] ICR 65 in which a white manager of an entertainment centre was dismissed for refusing to obey an instruction to exclude all black customers or, Weathersfield Limited (t/a Van and Truck Rentals) -v- Sargent [1999] ICR 425, CA, where an employee resigned rather than complying with policy of not hiring vehicles to members of ethnic minorities. See also the recent English Court of Appeal case of Serco Limited -v- Arthur Redfearn [2006] EWCA Civ 659]. Although no cases on sexual orientation were cited before this tribunal, presumably for the reason that the 2003 Regulations are of fairly recent origin in terms of effect, the tribunal has had regard to a number of sources of textual commentary. For example, Butterworths Discrimination Law (Tottel) contains the following at Division 4 A [25] [A 4 a/106]

"The term "on grounds of sexual orientation" has been carefully chosen to mirror the RRA; s 1(1) (a), which outlaws discrimination "on racial grounds", as opposed to s 1 (1) (a) of the SDA which outlines [sic.] discrimination "on the grounds of her sex". The distinction is that in the case of sex discrimination the treatment afforded must be on the grounds of the applicant's gender; whereas the term "on racial grounds" is wider; including, for example, refusal to comply with discriminatory instructions. The SOR adopt a similar approach and cover a person discriminated against on grounds of his or her perceived sex orientation, whether this be true or false. A person who is subjected to homophobic abuse would be able to bring a claim even if he or she is not, in fact, gay or bisexual. Discrimination arising from the sexual orientation of others is also covered. Thus, an employee discriminated against because he has a lesbian friend will be protected. Discrimination for failing to follow a discriminatory instruction is also covered."

The tribunal is of the view that the construction of the 2003 Regulations is quite intentionally devised to follow, for example, the same structure as the Race Discrimination legislation. If this tribunal is correct in that interpretation, a claimant such as the claimant in this case is not disbarred from making a claim of unlawful discrimination on the grounds of his association with or interest in persons of a particular sexual orientation, including homosexual. The tribunal is strengthened in this view by a view taken by the Northern Ireland High Court in case of In re Northern Ireland Electricity Service's application, mentioned above. Although that case dealt with the topic of Fair Employment, the Northern Ireland High Court in that case found that it was not necessary under the Fair Employment legislation then applicable, which is expressed in broadly similar terms to the 2003 Regulations, that the religious belief or political opinion in question has to be that of the person discriminated against. Further, the Court expressed the view that there was no requirement that the claimant or the person acting on his behalf write out the complaint in its entirety; there was no need for a complaint to spell out what was implicit in it. In that regard, a broad and purposive approach was adopted by Court. This tribunal intends to follow such a broad and purposive approach in the determination of this matter.

That being the case, it cannot be said that this claimant's complaint has little reasonable prospect of success. Therefore it would be quite inappropriate for the tribunal to make an order on foot of rule 20 of the Rules.

The matter may now proceed to a full hearing on the merits, without further Order.

Chairman:

Date and place of hearing: 27 October 2006, Belfast.

Date decision recorded in register and issued to parties: