Industrial Tribunals Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 167/05 FET

1278/05

CLAIMANT: John Cushnahan

RESPONDENTS: 1. Northern Ireland Office

2. Secretary of State for Northern Ireland

DECISION ON A PRE-HEARING REVIEW

It is the decision of the Tribunal upon the pre-hearing review that:-

1. the claimant's claim in respect of unlawful discrimination in relation to the post of Chief Commissioner of the Human Rights Commission is within time; and
2. as the Tribunal has so found the issue of whether or not time should be extended does not arise.

Constitution of Tribunal:

Chairman (sitting alone): Ms Crooke

Appearances:

The claimant was represented by Mr A F W Devlin, Barrister-at-Law, instructed by Johns Elliott, Solicitors.

The respondents were represented by Mr F O'Reilly, Barrister-at-Law, instructed by the Crown Solicitor's Office.

SOURCES OF EVIDENCE

The Tribunal heard evidence from the claimant himself and also had before it an agreed booklet of documents.

THE LEGAL ISSUES

3. Whether the claim of unlawful discrimination in relation to the post of Chief Commissioner of the Human Rights Commission is within time; and
4. if not, whether time should be extended.

THE RELEVANT LAW

5. Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 which states as follows:-
6. -(1) Subject to paragraph 5, the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of –

(a) the end of the period of three months beginning with the day on which the claimant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

(b) the end of the period of six months beginning with the day on which the act was done.

7. Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 which states as follows:-

"76.-(1) An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done."

THE FINDINGS OF FACT

8. By way of a single application form the claimant applied for the positions of Chief Human Rights Commissioner for Northern Ireland and Human Rights Commissioner for Northern Ireland.
9. His interview took place on 3 November 2004.
10. He had heard rumours from three sources that Professor Monica McWilliams was to be appointed as Chief Commissioner.
11. He did not know who were the other candidates for the position of whether indeed Professor McWilliams had even applied. Professor McWilliams was a candidate in a later competition.
12. He accepted the offer of feedback which came by way of a telephone call from Sir Joseph Pilling a Permanent Secretary. Sir Joseph Pilling informed the claimant that he had been the strongest candidate but that no appointment was being made in respect of that competition. He asked the claimant to continue with his application for the post of Commissioner. The claimant agreed to do so.
13. The position was re-advertised and this time Professor McWilliams did apply and was interviewed for the position on 26 February 2005. She was interviewed before a panel of four, two of whom had previously served upon the interview panel for the competition entered into by the claimant. The candidates who applied for Commissioner posts were interviewed between 11 October 2004 and 2 February 2005.
14. There was a period of silence.
15. On 16 June 2005 the appointment of Professor McWilliams to the post of Chief Commissioner and the appointments of seven other Commissioners were made public. The claimant was not successful in his application to be appointed as a Commissioner for Northern Ireland.
16. The appointment of Professor McWilliams served as a trigger to make the claimant consider that given the earlier rumours, he should pursue a case for discrimination on the grounds of gender and political opinion. The claimant sent two e-mails to the Northern Ireland Office dated 21 June 2005 and 19 July 2005. There was no reply to either e-mail. The claimant sought legal advice during the month of August 2005 and lodged his claims with the Industrial Tribunals and the Fair Employment Tribunal in or around 8 September 2005.

CONCLUSIONS AFTER APPLYING THE RELEVANT LAW TO THE FACTS FOUND

17. The respondents contended that time for the purposes of Article 46 and Article 76 ran from 12 November 2005, being the date upon which the claimant was informed of his non-appointment to the Chief Commissioner position. The claimant contended that time should run from 16 June 2005, being the date upon which the appointment of the successful candidate was made known to the claimant and the world at large.
18. Giving the opposing contentions, the question before the Tribunal was what was the date upon which the act complained of was and when it took place? Was the act complained of the failure to appoint Mr Cushnahan of which he was notified on 12 November 2004 or was it in fact the appointment of Professor McWilliams which was the act of which the claimant might reasonably be expected first to have had knowledge on 16 June 2005? I do not consider that it can have been the failure to appoint of 12 November 2004. No one was appointed on foot of that competition. Theoretically of course the failure to appoint on the grounds of political opinion could have been raised at that point but I do not consider that it will be reasonable to expect the claimant to think that he would be likely to succeed in establishing his case without the evidence of a female comparator of a different political opinion being available to him and that evidence was not known to the claimant until 16 June 2005. I consider that it is only at the point at which the identity of the comparator becomes known to the claimant, that the cause of action theoretically contemplated at 12 November 2004, actually crystallises (on 16 June 2005). In reaching this decision I am supported by the view of the Employment Appeal Tribunal in the case of the Clarke -v- Hampshire Electro-plating Co. Ltd reported at 1992 ICR Page 312 and in particular the following portion of the judgement of Mr Justice Wood:-

"So the first question in this case is, did the employee have a cause of action on 25 April 1989? It was not, did he feel he had suffered discrimination on 25 April 1989? If the cause of action had not crystallised, then of course on the facts of this case, as it seems to have been conceded in front of the industrial tribunal, the date of 4 September, with the appointment of the white man would have crystallised the cause of action by providing the comparison. If however there was in this case a cause of action which it crystallised on 25 April then it seems to us that, in exercising the issue of discretion under Section 68(6), the approach of the industrial tribunal should be to consider whether in exercising its discretion it was reasonable for the employee not to realise that he had that cause of action or, although raising it, to think that it was unlikely that he would succeed in establishing a sufficient prima facia case without evidence of comparison."

19. This is clearly what took place in this case. The use of a hypothetical comparator would, although it was open to the claimant, on 12 November 2004, have resulted in a somewhat artificial exercise taking place. It was only with the emergence with the actual comparator (Professor McWilliams) that the cause of action actually crystallised and this is why I consider that the period of three months beginning with the day on which the complainant first had knowledge, or might reasonably been expected first to have had knowledge, of the act complained off commences on 16 June 2005. Mr O'Reilly sought to distinguish the case of Clarke on the basis that there were two separate free-standing recruitment exercises in the present case for the post of Chief Commissioner and in connection with which the claimant did not seek to participate in the second of these exercises, while there was only one such exercise in the Clarke case. I consider that this is an artificial distinction. There was only one post and the question of the number of recruitment exercises, particularly where they are proximate in time, does not assist the Tribunal in dealing with the preliminary issues.
20. For all the reasons above stated the Tribunal considers that the claim in respect of political opinion has been brought within the period of three months beginning with the day on which the claimant first had knowledge, or might reasonably be expected first to have knowledge, or the act complained of and in respect of the gender discrimination claim before the end of the period of three months beginning when the act complained of was done.

Chairman:

Date and place of hearing: 30 April 2007, Belfast.

Date decision recorded in register and issued to parties: