Industrial Tribunals Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 442/04 FET

56/05 FET

111/05 FET

CLAIMANT: Eamon Dermot McNally

RESPONDENTS: Limavady Borough Council & Others

(See : lists at Schedule to decision)

DECISION ON A PRE-HEARING REVIEW

The unanimous decision of the Tribunal on a pre-hearing review is as follows:-

(i) In Case Reference No: 442/04 FET, the respondents, Teddy Martin, Liam McCollum QC, Aidan Harkin, and Bruce Thompson are not properly respondents to these proceedings.

They are therefore dismissed from the proceedings.

(ii) In Case Reference No: 56/05 FET, the respondents, Teddy Martin, Liam McCollum QC, Aidan Harkin, and Bruce Thompson are not properly respondents to these proceedings.

They are therefore dismissed from the proceedings.

(iii) In Case Reference No: 111/05 FET, the respondents, J K Stevenson, E McCotter, Teddy Martin, Liam McCollum QC, Aidan Harkin and Bruce Thompson are not properly parties to these proceedings.

They are therefore dismissed from the proceedings.

Additionally, in relation to the respondents, J K Stevenson, E McCotter, and Teddy Martin, the complaints to the Fair Employment Tribunal were not presented within the specified time limit, and it is not just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider these complaints notwithstanding that they are out of time.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Miss M E Bailey

Mrs C Lewis

Appearances:

The claimant, Mr McNally, appeared in person in all cases.

In Case Reference Nos: 442/04 FET; 56/05 FET; and 111/05 FET the respondents, Liam McCollum QC and Aidan Harkin BL were represented by Mr M Horner, Queen's Counsel and Mr F O'Reilly, Barrister-at-Law, instructed by Alana Jones, Solicitor.

The respondent, Bruce Thompson, was represented by Mr F O'Donohue, Queen's Counsel, instructed by Elliott Duffy Garrett, Solicitors.

In Case Reference Nos: 56/05 FET and 111/05 FET the respondent, Teddy Martin, was represented by Mr C Hamill, Barrister-at-Law, instructed by Kennedys, Solicitors.

In Case Reference No: 111/05 the respondents, J K Stevenson and E McCotter, were represented by Mr F O'Reilly, Barrister-at-Law, instructed by W B Thompson & Company, Solicitors.

Issues

1. The issues for determination by the Tribunal in these cases are as follows:-

(i) Case Reference No: 442/04 FET

"Whether the second-named respondent (Teddy Martin), the third-named respondent (Liam G McCollum QC), the fourth-named respondent (Aidan Harkin) and the fifth-named respondent (Bruce Thompson) are properly respondents in these proceedings?

(ii) Case Reference No: 56/05 FET

"Whether the twelfth-named respondent (Teddy Martin), thirteenth-named respondent (Liam G McCollum QC), fourteenth-named respondent (Aidan Harkin) and the fifthteen-named respondent (Bruce Thompson) are properly respondents to these proceedings?"

(iii) Case Reference No: 111/05 FET

(a) "Whether the fourth-named respondent (J K Stevenson), the fifth-named respondent (E McCotter), the fifteenth-named respondent (Teddy Martin), the sixteenth-named respondent (Liam G McCollum QC), the seventeenth-named respondent (Aidan Harkin) and the eighteenth-named respondent (Bruce Thompson) are properly parties to these proceedings?"

In relation to the fourth-named respondent (J K Stevenson, the fifth-named respondent (E McCotter) and the fifteenth-named respondent (Teddy Martin):-

(b)(i) Was the application to the Fair Employment Tribunal presented within the

specified time limit?

(ii) If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this complaint despite the fact that it is out of time?

2. In order to determine these issues the Tribunal heard evidence from Mr McNally, the claimant, and from Ms Deborah Rogers, the Human Resources Manager with Limavady Borough Council since 2003.

It also had regard to documentary evidence adduced by the parties.

Post-hearing submissions dated 14 March 2007 were received from Mr McNally, and the representatives of the respondents were given the opportunity to reply to them.

The solicitor for the respondents, Liam McCollum QC and Aidan Harkin BL, wrote to the Office of the Tribunals stating that it was not proposed to make any comments on the claimant's further submissions.

The legal representatives of the other respondents did not respond.

3.

(i)

It is necessary to set out the background to these claims in some detail.

The claimant, Mr McNally, had previously made seven complaints to the Fair Employment Tribunal against Limavady Borough Council and others. These complaints, which alleged discrimination and victimisation between 2000 and 2002, were heard and determined by a Tribunal chaired by the Vice President of the Tribunals in April 2004. The decision of the Tribunal issued on 21 May 2004. In relation to one complaint of victimisation against Limavady Borough Council (Case Reference No: 377/01 FET) the claimant was successful. The other claims were dismissed, though the decision in 377/01 FET in the claimant's favour was ultimately overturned by the Court of Appeal.

	(ii)	That appeal was preceded by a review application of the decision in 377/01 FET by Limavady Borough Council. The application was made on 2 June 2004, and by a decision issued on 24 September 2004, the Tribunal refused to review its decision. At the review hearing the respondent Council sought costs from the claimant, and that application was also refused. The Tribunal was satisfied that the claimant's conduct did not come within Rule 12 in Schedule 1 of the Fair Employment (Rules of Procedure) Regulations (Northern Ireland) 2004 which were then in force. The Tribunal did not find that the claimant had made the claims which he made in bad faith.
4.	(i)	Further claims were subsequently presented by the claimant to the Tribunal. Case Reference No: 249/04 FET against Limavady Borough Council was presented to the Tribunal on 6 May 2004. It is common ground between the parties that no preliminary issue requiring a pre-hearing review arises in that case, and that it will proceed to a full hearing in due course. However, it is necessary to set out the allegations made by the claimant in that case by way of background.

In that application the claimant alleged that:-

(a) final submissions were made at the hearing of his original complaints (ie those in Case Reference No: 377/01 FET and related complaints) on 28 April 2004;

(b) that on 29 April 2004 the respondent suspended the claimant on full pay pending disciplinary investigations into alleged gross misconduct and inability to continue working with and reporting to his line manager.

The allegation of gross misconduct followed the claimant's allegations, during the earlier Fair Employment Tribunal hearing, of serious wrongdoing against the Town Clerk and Chief Executive of Limavady Borough Council in relation to the sale of the town's livestock market in 1998/1999.

The respondent Council, in its response to that claim, stated that the claimant's allegations, which were made during the hearing and which he had refused to retract when given the opportunity to do so, had 'caused a complete breakdown in the viability of the working relationship based on trust and confidence'.

The claimant was warned that any internal disciplinary proceedings could result in his dismissal.

(ii)

Case Reference No: 442/04 FET This claim was presented to the Fair Employment Tribunal on 8 November 2004. It alleges ongoing victimisation of the claimant by the respondent Council, which the claimant alleged "crystallised on 1 November 2004 and was notified to [him] on 2 November 2004".

These dates refer to a disciplinary decision issued by an outside consultant, the respondent, Teddy Martin. He had been retained by the Council to conduct a disciplinary investigation, and subsequently a disciplinary hearing, into allegations of gross misconduct against the claimant. His decision – that the claimant should receive a final written warning for major misconduct – was issued on 1 November 2004 and communicated to Mr McNally's trade union representative on 2 November 2004.

This claim also names the Council's legal advisers (Mr McCollum QC, Mr Harkin, Barrister-at-Law, and Mr Thompson, Solicitor) as respondents. In essence the allegation against them is that each went beyond providing advice and representation to the Council, and became personally involved in the Council's affairs, playing an active and deliberate role in the disciplinary action brought by it against the claimant.

(iii)

Case Reference Nos: 56/05 FET and 111/05 FET Claim 56/05 FET was presented to the Fair Employment Tribunal on 16 February 2005. It alleges 'ongoing and continuous victimisation' and states that further victimisation had continued since 15 November 2004, letter issued 16 November 2004'.

It, and claim 111/05 FET, (presented on 16 May 2005, and which includes further allegations of discrimination) also name Mr Martin, Mr McCollum QC, Mr Harkin BL, and Mr Thompson as respondents.

Case Reference No: 111/05 FET is related to claim 792/05, a claim of unfair dismissal. Again, that claim does not now raise any preliminary issues, and will be listed for a full hearing in due course.

5.

(i)

At the original hearing in April 2004, which was the catalyst for the events giving rise to these more recent claims, the claimant, Mr McNally, represented himself. The respondents in these claims included Limavady Borough Council, and it was represented by senior counsel, Mr Liam McCollum QC, and junior counsel, Mr Aidan Harkin BL instructed by Mr Bruce Thompson, Solicitor.

As indicated, in the course of these proceedings, the claimant made allegations about the conduct of the Council's Chief Executive, Mr Stevenson, in relation to the sale of Limavady Livestock Market. He accused Mr Stevenson of attempting to sell the market to a Catholic businessman at a knock-down price. The allegation was therefore one of financial impropriety, coupled with overtones of religious discrimination.

The claimant was offered the opportunity to withdraw the allegation by Mr McCollum QC, for the Council, but he refused to do so.

(ii)

On 29 April 2004, following the conclusion of the hearing before the Fair Employment Tribunal, Mr McCotter, who was the Chief Finance and Administration Officer with the respondent Council, wrote to the claimant, informing him that he was suspended with immediate effect, on full pay, while a disciplinary investigation was carried out into alleged gross misconduct and his inability to continue working with, and reporting to, his line manager. The letter continued:-

"Gross misconduct follows your allegations during the recent FET hearing against the Town Clerk concerning his handling of the proposed sale of the Livestock Market in 1998/99."

The claimant was informed that an independent external consultant would be appointed to investigate the case.

(iii) Mr Teddy Martin, who is an external consultant, was appointed to carry out a disciplinary investigation, and he produced his report on 23 July 2004, which recommended invoking the disciplinary procedure against Mr McNally. In his report he also stated:-

"It was pointed out to me that [Mr McCotter's] letter of 29^th April 2004 contains statements which go beyond allegations of gross misconduct and in doing so the employer has jeopardised any expectation the employee could have had that he would be treated on a fair and impartial manner. I have sympathy with this view. I have pointed this out to the employer's representative."

(iv) On 29 July 2004, the respondent Council wrote to the claimant, following Mr Martin's investigation, informing him that his suspension would be confirmed pending the outcome of a disciplinary hearing, to be arranged to consider the allegation of gross misconduct based on statements attributed to him during the hearing before the Fair Employment Tribunal.

(v) Mr Martin was requested to, and did, continue to act as the independent person conducting the disciplinary hearing. According to the claimant, Mr Martin, in accepting this situation, acted contrary to an undertaking he had given to the claimant and his trade union representative that his involvement in the matter would end when he presented his investigation report.

(vi) A disciplinary hearing was arranged for 21 September 2004. It was adjourned on that occasion and on a couple of further occasions but ultimately reconvened and concluded on 12 October 2004. It was presided over by the respondent, Mr Martin. The disciplinary charges, which were set out in the employer's letter of 23 September 2004, related mostly to remarks allegedly made by Mr McNally in the course of the Fair Employment Tribunal proceedings, including the remark made about the Chief Executive regarding the sale of the Livestock Market, and the fact that he refused to withdraw the allegations when asked to do so by Mr McCollum QC.

(vii) On 1 November 2004, Mr Martin made available to the parties a copy of his findings arising out of the disciplinary hearing. In his report he stated that it was not his role to determine the propriety of the arrangements for the sale of the Livestock Market and whether or not Mr McNally was entitled to criticise those arrangements.

He was, however, satisfied that the claimant, Mr McNally, had made the statements, as alleged in a letter from the Council on 23 September 2004 setting out the disciplinary charges, and that these statements amounted to serious criticism of the Town Clerk and Chief Executive and other senior council officers.

He further concluded that Mr McNally had been guilty of 'major misconduct', which warranted the issue of a final written warning, which should remain on his personal record for a period not exceeding one year's satisfactory service.

Significantly, in view of the claimant's allegation against him, Mr Martin did not recommend dismissal, but a sanction short of dismissal. At the disciplinary hearing the Council had contended that the claimant was guilty of gross misconduct, and that 'a breakdown of trust and confidence between an employer and employee is capable of being a substantial reason justifying dismissal'.

Mr Martin concluded his report as follows:-

"I am mindful of the reference made in the letter to Mr D McNally on 23 September 2004 regarding a breakdown of trust between an employer and an employee. Mr D McNally told us at the hearing that he is most willing to make every effort to build a co-operative and professional working relationship with all his colleagues, including the Chief Executive. This assertion by Mr D McNally clearly leaves the responsibility for initiating such a development with him and he should do so without any delay."

6.

(i)

Mr McNally lodged a Notice of Appeal on 8 November 2004 against Mr Martin's findings. This was heard by a panel of five Councillors on 20 December 2004. This appeal panel confirmed Mr Martin's findings and the penalty he recommended. Other members of staff lodged complaints against Mr McNally, but these could not be progressed until 21 December 2004, when the disciplinary proceedings against him had been completed.

(ii) Also, following on Mr Martin's report of 1 November 2004, and particularly in the light of the concluding paragraph, set out above, there was protracted correspondence between the claimant and the Council, in an attempt to formulate a Return to Work plan for the claimant. Ultimately, this came to nothing. The Council were insistent that the claimant should withdraw the remarks he had allegedly made, and that he should give an undertaking not to repeat those remarks either internally or externally in the future. The claimant was equally adamant that he would not do this, involving as it did for him the retraction of sworn testimony in Tribunal proceedings.

(iii) On 31 January 2005, the then Acting Town Clerk and Chief Executive of the Council, Mr S V Wallace, wrote to the claimant. In relation to the discussions about a proposed return to work, he stated that the main responses received from the claimant had been to question or query proposals put to him by the Council. He continued:-

"Following protracted discussions with you and your representative you have submitted two drafts of a joint statement relating to one aspect of the Return to Work plan neither of which address the fundamental issue for which you were disciplined and are therefore not acceptable to Council for the reasons provided to you both in discussion and correspondence."

The letter went on:-

"Unless I hear from you with constructive proposals to fulfil your obligations under the findings of the disciplinary hearing by Thursday February 3^rd, 2005 I will have no alternative but to regard this matter as frustration of contract and to terminate your employment with the Council."

(iv) Following the correspondence from the Council, Mr McNally sent a fax to Mr Martin, the independent consultant, on 1 February 2005. In it he stated:-

"Mr Wallace claims to be implementing your decision. If so then you are jointly responsible for my dismissal. If not it is incumbent upon you to say so immediately."

(v) Mr Martin replied on the same date. He set out briefly the disciplinary procedure which had been followed, and his part in it. He concluded by saying:-

"In all of these matters, Limavady Borough Council, as your employer, took ownership, and it is therefore responsible for taking actions concerning your contract of employment. I am not your employer and as such, I do not have authority to take any action concerning your contract of employment with Limavady Borough Council. I do not intend to make any further comment concerning these matters."

(vi) On the same day, Mr Martin wrote to Deborah McClean the respondent Council's Interim Human Resources Manager. He stated that the Return to Work plan for Mr McNally, "reflected in full measure the recommendation contained in [his] report arising from the disciplinary hearing. The guidance and monitoring arrangements should be particularly helpful to all parties".

A further letter to Mr Martin from the claimant on 5 February 2005 elicited no response.

Mr McNally compares Mr Martin's correspondence to the Council with his reply to him. He characterises Mr Martin's letters as contradictory and alleges that the latter was inciting the Council to dismiss him.

3. The complaint against Mr Martin

(i) The tone of Mr McNally's letter of 1 February 2005 would not have encouraged Mr Martin to reply. In that letter, Mr McNally was effectively threatening to join him in the proceedings, which he ultimately did. No doubt Mr Martin was well remunerated for the role he played, but he also no doubt made himself available to act as an independent consultant out of a sense of public duty and to be of service to the community. He was presumably wary of getting into detailed correspondence about his role with a party to the proceedings who appeared to be contemplating proceedings against him. His correspondence with the Council, on the other hand, appears merely to express his view that the proposed Return to Work plan was consistent with the recommendations of his disciplinary report.

(ii) The evidence in respect of Mr Martin shows that his role was confined to that of an independent consultant. Whether he was wise to agree to conduct the disciplinary hearing after conducting the disciplinary investigation is a matter that can be explored in Mr McNally's claim for unfair dismissal. However, it does not affect the conclusion just expressed as far as these claims are concerned.

Mr Martin played no role in the claimant's dismissal. As stated earlier, his recommendation was for a sanction short of dismissal.

In any event, his role finished when he handed over his report on November 2004. On this basis the claims against him are time-barred, and no reason has been advanced as to why the time limit should be extended.

The Tribunal is therefore satisfied that Mr Martin should be dismissed from the proceedings.

4. Mr McNally did not provide a Return to Work plan (which was to include the withdrawal of the allegations he had made against the Chief Executive at the Fair Employment Tribunal hearing in April 2004). This was then the subject of a complaint to the Council by the Acting Chief Executive. There was a further complaint that on 2 February 2005, the claimant had made untrue and disparaging comments about the then Acting Chief Executive.

A special committee of the Council, consisting of the Mayor and three other Councillors, heard these complaints on 15 February 2005. They contended that they were well-founded, and that the claimant was guilty of gross misconduct. He was dismissed from his post with the Council with effect from 16 February 2005.

The claimant appealed against this decision. Following a hearing on 14 March 2005 and 14 April 2005, the decision to dismiss the claimant was upheld.

5. , The complaints against Mr McCollum QC and Mr Harkin BL and Mr Thompson, Solicitor

(i) At the hearing in April 2004, Mr McCollum QC had applied to the Tribunal to exclude the claimant's evidence relating to the proposed sale of the Limavady Livestock Market in 1998/1999.

The Tribunal, however, had allowed this evidence in as background material. According to the claimant:-

"Mr McCollum [QC] then tried repeatedly and unsuccessfully to lead me into making allegations of fraud and corruption … This served no purpose in relation to the cases his clients had to answer. It is my belief that he was deliberately trying to create an opportunity for Mr Stevenson to take action subsequent to the hearing."

(ii) Following the original hearing, Mr Harkin BL, junior counsel, was asked to advise whether the allegation made by Mr McNally in respect of the Town Clerk's alleged conduct during the sale of the cattle market constituted gross misconduct.

In relation to that matter he stated:-

"It is my considered opinion that if this allegation is unfounded, it constitutes gross misconduct on the part of Mr McNally. The defence of qualified privilege would not extend to his position as an emplolyee of the respondent. Mr McNally was offered the opportunity to withdraw the allegation by Mr McCollum QC but emphatically refused to do so.

Furthermore, it is recognised that a breakdown of trust and confidence between an employer and employee is capable of being a 'substantial reason' justifying dismissal. Mr Stevenson confirmed to me during the hearing and after this allegation, that there was no way in which he felt he could continue to work with Mr McNally in the light of the allegations made. The logic of that assertion must be self-evident. It would be my view that some form of admonishment of Mr McNally, short of summary dismissal, including final written warning, would not be in any way appropriate given the seriousness of the allegation that Mr McNally made and given the nature of the duties that he and Mr Stevenson undertake which inevitably involves funding by the public purse."

(iii) Mr McNally's refusal to withdraw his evidence at the Fair Employment Tribunal became the basis of one of the disciplinary charges against him (see : letter of 23 September 2004). From this, Mr McNally alleges that there is a direct link between his statement to the Tribunal, the questions to which he was subjected by Mr McCollum QC at the hearing, Mr Harkin's opinion given through Mr Thompson, Solicitor, and the subsequent chain of events leading to his dismissal. According to the claimant, Mr Harkin's letter was not legal advice but "a determined attempt to secure [his] dismissal by directly influencing the disciplinary authority". He alleges that Mr Harkin, Mr McCollum QC, and Mr Thompson were all connected through a continuous sequence of events to the disciplinary action taken against him, and that "[i]t is beyond reasonable doubt that Mr McCollum and Mr Thompson were involved with Mr Harkin and the first-named respondent during the hearing in April 2004 in planning the subsequent victimisation which led to [his] dismissal".

10.

(i)

Mr Harkin BL was subsequently asked for further advice in November 2004. On 2 November 2004, Deborah McLean, of Human Resources, wrote to all Council members setting out the conclusions of Teddy Martin's report (ie that the claimant had been guilty of major misconduct, warranting a final written warning). (She copied this letter to Bruce Thompson, the Council's solicitor.) In her letter she indicated that she would attend the Council's Planning and Development Services Committee meeting on Thursday 4 November 2004 to present a verbal report on the issue.

(ii) On 3 November, Mr Stevenson, the Chief Executive, wrote to Ms McLean, headed 'Considerations re: Return of McNally'. He made reference to Council officers refusing to work with the claimant, the alleged breakdown of trust and confidence, the claimant's outstanding cases and his further potential claims, his grievances and the grievances against him, and the difficulty of managing the claimant against the background of the Fair Employment Tribunal decision where the Chief Executive had been found guilty of victimising the claimant. He concluded by saying:-

"Should we as a Council not consider what is in the best interests of our staff, Council and town people?"

(iii) Mr Thompson replied to Deborah McLean's e-mail, attaching a further legal opinion from Mr Harkin BL. In that opinion, Mr Harkin stated:-

"I fear Mr Martin's conclusion is completely faulty. He states 'it is not my role to determine the propriety of the arrangements for the sale of the Livestock Market'. That was entirely his role. If there was no impropriety then no disciplinary action against McNally is tenable. Yet Mr Martin has concluded that a Final Warning be issued. His ''judgment' does not state any grounds warranting the disciplinary measure proposed.

I note that a significant number of staff are up in arms, pressure from employees to dismiss is an automatically unfair dismissal … .

The only safe advice here is that the Council lives with Mr Martin's conclusion."

After canvassing other possibilities with regard to Mr McNally's dismissal, he concluded:-

"Whatever happens, standing over the dismissal of Mr McNally is clearly fraught with difficulties. If he succeeds in full in an unfair dismissal claim the Council is facing compensation of approximately £70,000 (including additional award) plus an argument for costs up to £10,000. Mr McNally will inevitably claim victimisation whoever makes the decision. Then there is no cap on compensation and the ultimate figure will depend on the award for future loss.

Trying to reach a reasonable figure on a compromise agreement seems the only viable potential solution to this dilemma."

The claimant, for his part, contends the purpose of Mr Harkin's advice was not to assist Limavady Borough Council in complying with employment legislation, but was to invite or procure his dismissal at any cost.

6. The relevant law to be applied by the Tribunal is set out in Article 3 and 35 of the 1998 Order.

Article 3 provides definitions of 'discrimination', 'unlawful discrimination' and 'discrimination by way of victimisation'.

Article 35, headed 'Accessories and Incitement' provides as follows:-

(1) Any person who –

(a) knowingly aids or incites; or

(b) directs, procures or induces;

another to do an act which is unlawful by virtue of any provision of Part III … shall be treated for the purposes of this Order as if he, as well as that other, had done the act.

(Part III of the 1998 Order outlaws discrimination in the field of employment.)

At this stage it is convenient to set out our view that, in order to be liable under Article 35, there must be a positive act on the part of the person it is sought to make liable. We reject the claimant's contention that a failure by the respondent Council's legal representatives to advise a client that a proposed course of action could amount to victimisation could constitute a breach of Article 35.

12.

(i)

The claimant alleges, in effect, that the Council's legal advisers, Mr McCollum QC, Mr Harkin BL, and Mr Thompson, their instructing solicitor, were part of a conspiracy to bring about his dismissal, and at every stage from and including the original hearing until his dismissal, they exceeded their proper role as legal advisers, and worked with this objective in mind.

Why they should have acted in such a way, or had this agenda, or should have desired to help others to bring about his dismissal is something which the claimant has not explained.

(ii) Mr McCollum QC, at the hearing before the Fair Employment Tribunal clearly did no more than put his lay client's case to the claimant. He did this on instructions, and there is no evidence to show that he exceeded those instructions in any way.

(iii) After the hearing before the Fair Employment Tribunal, Mr McCollum QC appears to have had little further involvement in the matter. There is no evidence that he played any role in the subsequent disciplinary hearings against the claimant.

(iv) In any event, no claim would appear to be against Mr McCollum QC on the authority of Heath v Commissioner of Police for the Metropolis [2005] IRLR 270 where it was held by the Court of Appeal in England and Wales that the doctrine of judicial or quasi-judicial privilege prohibited claims to an employment (ie industrial) tribunal for alleged acts of discrimination taking place in the course of a Police Disciplinary Board constituted under the Police (Discipline) Regulations 2005. This decision would apply equally to claims of aiding victimisation before an industrial tribunal.

In the case of Dr Rab Nawaz v John O'Hara BL and Others [Case Reference No: 02369/99 RR], a decision of an industrial tribunal in Northern Ireland issued on 18 June 1999 where the proceedings included claims of racial discrimination against counsel and solicitors, it was held that lawyers acting legitimately in the course of their instructions were immune from suit. Halsbury, 4^th Edition, Volume 3 pp 419/420 at Paragraph 516 sets out the rationale for such immunity in the context of a suit for defamation. It is 'to secure the freedom and independence of counsel and to protect persons who have acted innocently and bona fide from the vexation of defending unmeritorious claims' Subsequently it is stated that "[t]he privilege applies where the action is framed in defamation, or in some other cause of action such as malicious prosecution or conspiracy".

13.

(i)

As far as Mr Harkin BL is concerned, the advice which he gave is set out above. In his advice, he criticised Teddy Martin's report for its failure to address the issue of whether Mr Stevenson, the Town Clerk, had in fact, as part of the Council's political agenda sold the cattle market to a Catholic businessman at a knockdown price. He himself did not seek to determine the truth or otherwise of the allegation made by Mr McNally, but advised that if it were untrue, it could constitute gross misconduct.

(ii) In a subsequent opinion, while he set out the various options for dismissal, the overall gist of what he advised was to caution against dismissal, and to recommend that the Council attempt to negotiate a settlement by way of compromise agreement. This advice is hardly indicative of someone who was trying to do that claimant down.

14.

(i)

Mr Thompson, as solicitor to the Council, represented it in the proceedings brought by the claimant before the Fair Employment Tribunal. He instructed senior and junior counsel, attended upon them at the hearing, and took notes of the evidence given at the hearing.

(ii) He clearly gave advice to the Council at various times throughout this long and unhappy saga, but there is no evidence which shows that he was a party to any decisions made by the Council, albeit that the Council no doubt considered the legal advice available to them when making these decisions. These matters included the letter of 29 April 2004 suspending the claimant, the decision to appoint Mr Martin as an independent investigator, the decision to proceed with a disciplinary hearing and the conduct of that disciplinary itself, Mr McNally's appeal, and the Return to Work plan. The fact that notes taken by Mr Thompson at the Tribunal hearing were used at the internal disciplinary proceedings does not alter this position in any way, as the papers belonged to the Council, not its solicitor.

(iii) Mr Thompson, in the course of his dealings with the Council, did of course take advice from Mr Harkin BL, but as previously indicated, this advice focussed on the difficulties of dismissing Mr McNally.

7. As far as Mr McCollum QC, Mr Harkin BL, and Mr Thompson are concerned, there is nothing in the evidence to suggest that they acted in any way other than as conscientious and competent legal representatives should have done in advising and acting for a client. There is no evidence of any action on the part of any of them which constitutes impropriety or unprofessional conduct.

They are not proper respondents to any of Mr McNally's claims, and they are dismissed from the proceedings.

16.

(i)

The claims against Mr Stevenson and Mr McCotter Mr Stevenson and Mr McCotter are named respondents in Case Reference Nos: 111/05 FET. They are not named as respondents in Case Reference Nos; 442/04 FET and 56/05 FET.

(ii) Case Reference No: 111/05 FET was presented to the Fair Employment Tribunal on 16 May 2005. Mr McNally's employment with the Council terminated on 16 February 2005. It is his case that Mr Stevenson was instrumental in bringing about his dismissal. However, Mr Stevenson was absent from his duties with the Council, on sick leave, from 23 November 2004 until 18 March 2005.

(iii) Mr McCotter wrote the letter of 29 April 2004 which led to the suspension of Mr McNally following the original Fair Employment Tribunal hearing. He, too, subsequently had an extended period of sick leave, from the end of August 2004 until February 2005.

(iv) There is no evidence of any involvement of these parties in the business of the Council, or any record of communications between them during their respective periods of absence.

(v) Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 lays down the time limits within which proceedings must be brought. It provides for a three month time limit, the one applicable here, which may be extended where, in all the circumstances of the case, it is just and equitable to do so.

The Tribunal accepts that time limits exist for a purpose and should be observed unless there is good reason not to do so. The Tribunal also accepts that the 'just and equitable' rule, which applies principally in case of alleged discrimination, is wider than the 'reasonably practicable' rule which is found elsewhere in employment law (See : Mills and Another v Marshall [1998] IRLR 494 EAT].

(vi) The claimant is clearly someone who is aware of, and assiduous in asserting, his legal rights, as evidenced by the number of claims he has brought against Limavady Borough Council and other named respondents. It is clear from these claims that he also has an awareness of relevant time limits.

He regarded Mr Stevenson and Mr McCotter as prime movers in the action taken against him. It is therefore surprising that he delayed issuing proceedings against them.

No explanation has been provided for the delay. In these circumstances the Tribunal is not satisfied that it is just and equitable to extend the time limit for bringing complaints against Mr McCotter and Mr Stevenson.

8. Mr McNally's outstanding claims will now be listed for a Case Management Discussion, in order that they can be progressed to full hearing.

Chairman:

Date and place of hearing: 5 – 7 March 2007, Belfast

Date decision recorded in register and issued to parties:

Case Reference No: 442/04 FET

EAMON DERMOTT MCNALLY

V

9. LIMAVADY BOROUGH COUNCIL
10. TEDDY MARTIN
11. LIAM G McCOLLUM QC
12. AIDAN HARKIN
13. BRUCE THOMPSON

Case Reference No: 56/05 FET

EAMON DERMOTT McNALLY

V

14. LIMAVADY BOROUGH COUNCIL
15. VICTOR WALLACE
16. COUNCILLOR M COYLE
17. COUNCILLOR A BROLLY
18. COUNCILLOR B BROWN
19. COUNCILLOR J RANKIN
20. COUNCILLOR D LOWRY
21. COUNCILLOR E STEVENSON
22. COUNCILLOR M DONAGHY
23. COUNCILLOR G MULLAN
24. COUNCILLOR B CHIVERS
25. TEDDY MARTIN
26. LIAM G McCOLLUM QC
27. AIDAN HARKIN
28. BRUCE THOMPSON
29. LOCAL GOVERNMENT STAFF COMMISSION
30. ADRIAN KERR
31. LINDA LEAHY

Case Reference No: 111/05FET

EAMON DERMOTT MCNALLY

V

1. LIMAVADY BOROUGH COUNCIL

2. S V WALLACE

3. D McCLEAN

4. J K STEVENSON

5. E McCOTTER

6. COUNCILLOR M COYLE

7. COUNCILLOR A BROLLY

8. COUNCILLOR B BROWN

9. COUNCILLOR J RANKIN

10. COUNCILLOR D LOWRY

11. COUNCILLOR E STEVENSON

12. COUNCILLOR M DONAGHY

13. COUNCILLOR G MULLAN

14. COUNCILLOR B CHIVERS

15. TEDDY MARTIN

16. LIAM McCOLLUM QC

17. AIDAN HARKIN

18. BRUCE THOMPSON

19. LOCAL GOVERNMENT STAFF COMMISSION

20. AIDRIAN KERR

21. LINDA LEAHY