Industrial Tribunals Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 36/04 FET

218/04

286/04 FET

1830/04

CLAIMANT: Noel Samuel Spratt

RESPONDENT: Chief Constable of the Police Service For Northern Ireland

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that it is just and equitable for these claims to be considered by the appropriate Tribunal (with the exception of the claim of unlawful deduction from wages which was withdrawn).

Constitution of Tribunal:

Chairman (sitting alone): Mr P Cross

Appearances:

The claimant was represented by Mr McEvoy, Barrister-at-Law, instructed by Kelly & Corr, Solicitors.

The respondent was represented by Mr Ritchie, Barrister-at-Law, instructed by The Crown Solicitor's Office.

The issues

1. At the outset of the hearing the claimant stated that he was not proceeding with that part of his claim which concerned unlawful deduction from wages. He further conceded that all the remaining complaints had been submitted to the Tribunals outside the statutory time limits.
2. This left two issues to be considered, whether (in relation to the two fair employment cases) it was just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider the complaints despite the fact that they are out of time. Whether (in relation to the complaints of sex discrimination) it was just and equitable, in all the circumstances of the case, for an industrial tribunal to consider the complaints despite the fact that they are out of time.

Findings of fact

3. Cases 36/04 FET and 218/04 concerned claims that the claimant, a male police constable from the Protestant tradition, was treated differently than a Roman Catholic female constable (Constable Beirne). Both had committed similar offences in the PSNI disciplinary code, namely failing to pay road tax on a vehicle. The claimant became aware of his disciplinary penalty in February 2001. The Tribunal, at this pre-hearing review, does not need to consider whether or not the treatment of the two constables was different, but to consider at what date the claimant discovered that there was a possibility that the two cases had been dealt with in a dissimilar way. The Tribunal find as a fact, that the claimant was made aware of this possibility when he had a conversation with Sergeant McGaffin on or about 15 or 16 January 2004. Before that date the claimant was not aware of the possibility that he had been treated in an inconsistent way compared with Constable Beirne.
4. The Tribunal find that the claimant could not have been aware of this information, concerning the alleged treatment of Constable Beirne, earlier as it was information of a type that was only available to personnel of more senior ranks than he. The information should not have been divulged to him by Sergeant McGaffin and the fact that the Sergeant came to the Tribunal to give this evidence, which could place him in a difficult position with his employers, convinced the Tribunal of its veracity.
5. Cases 286/04 FET and 1830/04 were very similar to the previous two claims. The allegation, that the claimant was treated differently in a disciplinary context than Constable Beirne, was disclosed to the claimant many months after the claimant had been disciplined. This time the similar charges against the two Constables related to failure to investigate an assault. The claimant became aware of his disciplinary penalty in the Summer of 2000. Again Sergeant McGaffin was the source of the information to the claimant which he disclosed to him in mid-May 2004. The same comments can be made about this information coming to the claimant, as are made about the first disclosure by Sergeant McGaffin. The claimant could have had no information about the different treatment allegedly meted out to Constable Beirne unless Sergeant McGaffin had told him.

The law

6. Under Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998, a claim of discrimination must be brought within strict time limits therein set out and which have been exceeded in these cases. However Article 46(5) of the Order states that "the Tribunal may nevertheless 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"
7. Under Article 76 of the Sex Discrimination (Northern Ireland ) Order 1976 a claim of discrimination must likewise be brought within three months, "beginning when the act complained of was done". However under Article 76(5), the Tribunal is empowered to "consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers it just and equitable to do so."
8. In these cases the claimant concedes that the time limits for bringing the cases have been exceeded but claims that as he only became aware of the possibility of having claims when he became aware of the treatment of Constable Beirne, that it would be just and equitable for this Tribunal to allow the cases to proceed to hearing.

Decision of the Tribunal

9. The Tribunal finds that in connection with both pairs of claims, that the claimant commenced the Tribunal proceedings within a few days of being given the information of the allegedly different treatment accorded to Constable Beirne. In the first pair of claims the information of any difference in treatment came to him on 15 or 16 January 2004 and he commenced his Tribunal claims on 22 January 2004. In the second incident leading to the second pair of claims he heard the information of Sergeant McGaffin in mid-May 2004 and filed his Tribunal claims on 11 June 2004. Until the claimant obtained the information concerning Constable Beirne, he did not know that he had a comparator, whose alleged treatment in similar circumstances, could provide the basis of claims to the Tribunals. In these circumstances, the Tribunal hold that it is just and equitable, in all the circumstances of the cases, for the respective Tribunals to consider the complaints, despite the fact that the claims are out of time.

Chairman:

Date and place of hearing: 16 August 2007, Belfast

Date decision recorded in register and issued to parties: