Title: FAIR EMPLOYMENT TRIBUNAL
Author: irtusetup
Last saved by: URY/CRONIN
Company: DED

THE INDUSTRIAL TRIBUNALS

CASE REFS:   256/07
258/07
260/07

CLAIMANTS:		William John McConnell
				Glenn Larmour
				Andrew Stewart Gallagher

RESPONDENT:		Bombardier Aerospace/Shorts Brothers PLC

DECISION ON A PRE-HEARING REVIEW
The unanimous decision of the tribunal is that the tribunal does have jurisdiction to consider the claimants’ applications for interim relief.

Constitution of Tribunal:
Chairman:		Ms Turkington

Members:		Mr McAuley
Mr Crawford
Appearances:
The claimants were represented by Mr Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The respondent was represented by Mr Brangam, Queen’s Counsel, instructed by Elliott Duffy Garrett, Solicitors.

1.	Oral reasons were given at the hearing.  Written reasons were requested at the hearing by the respondent’s counsel.

Hearing
2.	These three cases have been listed for a hearing of the claimants’ applications for interim relief under Article 163 of the Employment Rights (Northern Ireland) Order 1996 (‘the Order’).

The issue

3.	The issue to be determined by the tribunal was a preliminary point as to whether the tribunal has jurisdiction to hear the claimants’ applications for interim relief.

Contentions of the parties

4.	Senior counsel for the respondent, Mr Brangam, submitted to the tribunal that it does have jurisdiction to hear these applications for interim relief.  Briefly, Mr Brangam argued that these are redundancy cases and as such fall out with the scope of Article 163 of the Order.  Mr Brangam contended that these cases fall within Article 137 which is not referred to in Article 163.  Mr Brangam also relied on the statement in Harvey on Industrial Relations and Employment at Paragraph N1(582) as follows:-

“An employee unfairly selected for redundancy on union grounds may not claim interim relief.”

5.	Mr Potter BL, for the claimants, contended that the wording of Article 163 focuses on the complaint presented by the claimants.  He contended that this is a subjective matter on the part of the claimants.  Mr Potter argued that the claimants have presented to the tribunal claims of unfair dismissal on grounds of respectively their activities as a Health & Safety representative (Article 132) and/or their trade union activities (Article 136).  That being the case, these claimants were entitled to apply for interim relief.

Facts of the case

6.	In determining this preliminary issue, the tribunal was not required to make any findings of fact.  The tribunal did not hear any evidence, but was referred by the Claimants’ Counsel to the Claim Forms lodged by each of the claimants.

Statement of law

7.	Article 163 (1) of the Order states as follows:-

“1.	An employee who presents a complaint to an industrial tribunal –

(a)	that he has been unfairly dismissed by his employer; and

(b)	that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in Article 132(1)(a) and (b), 132A, 133(1), 134, 134A or 136(1), or in Paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order];

may apply to the tribunal for interim relief”.

Article 132(1) relates to health and safety cases.  Articles 132A, 133, 134, 134A are not relevant nor is Paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order.  Article 136 relates to trade union membership or activities.  

	Article 137(1) of the Order is headed ‘redundancy’ and states as follows:-

“(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a)	the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant;

(b)	it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held a position similar to that held by the employee and who would not have been dismissed by the employer; and

(c)	it is shown that any of the paragraphs applies.”

8.	It is clear that there is no appellate authority which addresses the point at issue in this case.  There are, however, two tribunal decisions on similar points, namely the decision in the case of Patrick Kelly  v  Polarcup Limited [Case Reference No: 204748/99 IR] and the decision of the Vice President in the case of Terry Busteed  v  Short Brothers PLC [Case Reference No: 2639/02].

9.	Unfortunately for this tribunal, these decisions appear to be conflicting.  In the Kelly case, the tribunal concluded that it did not have jurisdiction to hear the claimant’s application for interim relief in a case where the claimant was alleging unfair selection for redundancy by reason of his trade union activities.  Briefly, the tribunal’s reasons for so concluding included the statement of law in Harvey referred to above, the absence of any reference to Article 137 in Article 163 of the Order and the absence of any appellate decision on the point.  On the other hand, in the Busteed case, the tribunal concluded that it did have jurisdiction to hear the claimant’s application for interim relief.  In reaching its conclusion, this tribunal noted that no reasons were given for this statement of law referred to in Harvey.  The tribunal was satisfied that the claimant had presented a complaint of unfair dismissal which may fall within the ground of trade union membership/activities, that is Article 136 of the Order.

Conclusions

10.	In the absence of appellate authority on this point and faced with apparently conflicting previous tribunal decisions, this tribunal has not found this an easy matter to decide.  However, the tribunal has ultimately concluded that, on balance, it does have jurisdiction to determine the claimants’ applications for interim relief.  The tribunal’s reasons for reaching this conclusion are as follows:-

(1)	There is no appellate authority on this point.

(2)	The statement in Harvey referred to above, whilst persuasive, is not binding on this tribunal.  The tribunal has also noted that the author’s reasoning is not set out.

(3)	Article 163 of the Order states that an employee who presents a claim to the tribunal which meets certain conditions may apply for interim relief.  We therefore accept Mr Potter’s submission that the critical point is the claim as presented.  In each of these claim forms, the claimants have stated at Paragraph 7(3) of the claim form:-

“I believe that in dismissing me by way of redundancy, the respondent took improper account of my trade union activities.”

Further, at Paragraph 7(12) each of the claimants state:-

“I wish to claim unfair dismissal and I wish to make an application for interim relief pending determination of my unfair dismissal complaint.”

(4)	The tribunal accepts that Paragraph 7 of each of the claim forms also refers to unfair selection for redundancy, but the tribunal does not consider that the claim as framed falls squarely within the scope of Article 137(1)(b), in particular, of the Order.  The tribunal therefore takes the view that the claims as presented falls arguably within Article 132 and/or Article 136 of the Order.  The tribunal has therefore concluded that it has jurisdiction under Article 163 to hear these claimants’ applications for interim relief.

Chairman:

Date and place of hearing:	21 March 2007, Belfast

Date decision recorded in register and issued to parties: