Industrial Tribunals Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 448/02 FET

478/02 FET

CLAIMANTS: Kevin Doherty

Frank Cammock

RESPONDENT: Amicus – MSF Section

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claimants' complaints of discrimination on the basis of political opinion were made within the prescribed time limits.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimants were represented by Mr J Bowers.

The respondent was represented by Mr G Daly, Solicitor, of Francis Hanna & Company, Solicitors.

The issues

1. The issues to be determined are as follows:-

(1) Whether the claimants' claims of unlawful discrimination on the ground of political opinion with regard to:-

(i) the respondent's decision to suspend the claimants, on 16 November 1999, from their position as Senior Shop Stewards within Shorts;

(ii) the respondent's decision to suspend the claimants, on 28 April 2001 from all other positions they held within the trade union; and

(iii) the respondent's delay in complying with the Order made by the Certification Officer until 14 September 2002;

amount to a continuing act and, if so, whether that continuing act is in time.

(2) If not, whether it would be just and equitable to consider the claimants' complaints of unlawful discrimination on the ground of political opinion.

(3) If these matters do not amount to a continuing act, but are separate acts, whether any or all of them are in time and if not whether it would be just and equitable to consider the claims which are out of time.

Sources of evidence

2. The Tribunal was provided with a bundle of documents and considered those documents referred to it by the parties. The Tribunal also considered the originating claims, evidence from Mr Doherty (first-named claimant), and submissions from the representatives.

The Tribunal's findings

3. Both claimants are members of the MSF Union. The second-named claimant was in 1999 an MSF Senior Shop Steward and the first-named claimant at the relevant time was Deputy Shop Steward in Bombardier PLC Short Brothers Belfast.
4. At a meeting of the National Executive Council (NEC) of the respondent on 13 November 1999 consideration was given to what was described in the minutes of that meeting as 'an extremely serious situation' which had arisen at Bombardier Shorts in Belfast. Leaflets had been distributed inviting members of the respondent union to join the ATGWU.
5. The claimants were invited to and attended a meeting on 16 November 1999 with Mr John Wall, National Secretary of the respondent, Mr Tony Whiteley, Assistant General Secretary, and Mr J Shanahan, Acting National Secretary for Ireland.
6. At that meeting they were handed a letter which was previously prepared and signed by Mr Whiteley advising the claimants that the respondent believed they may be implicated in activities to encourage members of the respondent to resign from the respondent and join the ATGWU. On that basis the claimants were suspended from their positions as Senior Shop Stewards within Shorts.
7. A subsequent meeting of the NEC held on 11 December 1999 endorsed the action in respect of the suspension from office of the claimants and also warned the claimants they may face disciplinary action in accordance with Rule 16 of the respondent's disciplinary procedures.
8. On 11 January 2000 the claimants formally appealed against their suspensions by way of a jointly signed letter sent to Mr Lyons, the General Secretary of the respondent.
9. For reasons which were unclear the claimants' appeal was not brought to the attention of the NEC until April 2001. At the NEC meeting on 20 April 2001 it was agreed that the appeal submitted by the claimants against their suspension from office be held as soon as possible. It was also agreed to further suspend the claimants under Rule 16(b) of the Disciplinary Procedures from holding office or representing the union in any capacity.
10. On 24 January 2001 the claimants complained to the Northern Ireland Certification Officer under Article 19A(1) of the Trade Union and Labour Relations (Northern Ireland) Order 1995. The Certification Officer also considered the second suspension of the claimants by the respondent made on 28 April 2001.
11. The Certification Officer completed his investigation and made a number of declarations and orders which included declarations that the respondent did not have the power to authorise the suspension of the claimants on 16 November 1999 and on 28 April 2001.
12. At Paragraph 1.10 of the Certification Officer's decision he made the following Order to the respondent:-

"That the Manufacturing, Science and Finance union lift its suspensions dated 16 November 1999 and 28 April 2001, in respect of Mr F Cammock and Mr K Doherty from the date of this decision and that it reinstate them in the positions they held within the union, immediately prior to their suspensions."

The decision is dated 10 July 2002 and was received by the respondent on 17 July 2002.

13. On 2 August 2002, Mr Talbot, now the Assistant General Secretary of the respondent, wrote to the claimants. In his letter he stated:-

"The decision of the Northern Ireland Certification Officer was received too late for the NEC on 12/13 July. It will now go to the next NEC meeting on 14 September and I will write to you again after that date."

The letter also indicated to the claimants that the disciplinary proceedings against them remained outstanding.

14. The claimants wrote to Mr Talbot on 13 September 2002. In this letter they drew attention to the fact that there had been an NEC meeting on 27 July 2002, subsequent to receipt of the Certification Officer's decision and before Mr Talbot's letter of 2 August 2002.
15. The minutes of that meeting are not available and cannot be traced by any of the parties. However, it was accepted that the reference to the meeting in the claimants' letter of 13 September 2002 was accurate.
16. The relevant section of the letter of 13 September 2002 reads as follows:-

"The minute of that meeting records that you were present. It also states that the Certification Officer's decision was considered and the NEC 'agreed that the General Secretary, President and Chair of the General Purposes and Finance Committee would liaise in respect of any urgent action that was needed in responding to the report. A full report would be provided to the next NEC meeting'."

17. At the NEC meeting on 14 September 2002 the NEC accepted the Certification Officer's decision in respect of the suspension from office of the claimants and the NEC reinstated them.
18. Mr Talbot wrote to the claimants on 17 September 2002 and confirmed to the claimants that the decision of the Certification Officer in respect of Paragraph 1.10 of his report (referred to above) had been accepted.
19. Neither the letter of 17 September 2002 nor the minutes of the meeting of the NEC of 14 September 2002 dealt with the other aspects of the Certification Officer's declarations and decision.
20. The claimants had not been aware of the meeting of the NEC on 27 July 2002 until early September 2002, prompting their correspondence of 13 September 2002.
21. The claimants lodged their originating claims with the Tribunal claiming discrimination of the basis of political opinion on 29 November 2002.
22. The reason given by the claimants for not submitting their applications earlier was ignorance of their right to do so. They claimed they were entirely unaware of the legislation providing protection from unjustifiable discipline of trade union members until November 2002.
23. Neither of the claimants sought any advice or assistance regarding their legal rights until September 2002 when some guidance was given from the Office of the Certification Officer and when the first-named claimant took legal advice in relation to his rights which led to the lodging of the claims in November 2002.
24. The claimants believed that the effective date for the purposes of time limits was 14 September 2002 being the date the NEC met and partially applied the decision of the Certification Officer.
25. The claimants did not take action on foot of the Certification Officer's decision which they received in and around 17 July 2002 because they were waiting to see if the union would abide by the Certification Officer's decision. They did not take action on receipt of Mr Talbot's letter of 2 August 2002 as that letter informed them that the matter would be dealt with at the NEC meeting of 14 September 2002.
26. The claimants did not act on the failure of the NEC to deal with the Certification Officer's decision at its meeting of 27 July 2002 because it was not aware of that meeting until early September 2002.

The law

27. Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides as follows:-

46(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 complainant 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.

28. Article 46(5) provides:-

"A Court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

29. Article 46(6)(b) states:-

"any act extending over a period shall be treated as done at the end of that period; …"

Conclusions

30. The Tribunal was greatly assisted by the submissions of both parties.
31. It is clear that the suspension of the claimants on 16 November 1999 and the subsequent suspension of 28 April 2001 are both outside the statutory timescale allowed by the legislation. The first matter for the Tribunal to consider therefore is whether or not these matters constitute a continuing act.
32. The leading authority is the Court of Appeal decision of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96.

Mummery LJ had this to say:-

"51. In my judgment, the approach of both the Employment Tribunal and the Appeal Tribunal to the language of the authorities on 'continuing act' was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decision affecting the treatment of workers are taken, fitted the facts of this case: …

52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be sidetracked by focusing on whether 'a policy' could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when which each specific act was committed."

33. The Tribunal therefore should not focus on the question of whether a policy or some other rule, practice, scheme or regime can be determined but rather to look at the substance of the complaint and to ask whether the respondent was responsible for a continuing state of affairs where persons are treated less favourably.
34. Mr Daly in his submissions contended that from the receipt of the Certification Officer's decision in July until the NEC on 14 September 2002 there was no act which could possibly constitute unlawful discrimination contrary to the legislation. In his submission therefore the last act which could be referred to was the suspension of 28 April 2001 which was manifestly out of time.
35. Mr Daly also submitted the Tribunal must distinguish between a continuous discriminatory act and the consequences of a discriminatory act. It is not sufficient to show that the consequences of the discriminatory act continued, what matters is whether the act itself continued.
36. Mr Bowers contended that taken as a whole the two suspensions and subsequent delay in implementing the Certification Officer's decision suggested there was a pattern of behaviour by the respondent.
37. The claimants in this case must show a good arguable or prima facie case that the claims they have made do constitute an act extending over a period. They point to the fact that the decisions and determinations made involve senior members of the respondent union.
38. The Tribunal is satisfied that this is a continuing act for the purposes of the legislation and of the time limits. There is one allegation made against the claimants which resulted initially in a suspension on 16 November 1999. The claimants appealed that suspension which was not dealt with in substantive terms but a second suspension of a broader nature involving all union activities was imposed by the respondent on 28 April 2001. The claimants had by this stage embarked upon their complaint to the Certification Officer which continued until the decision of the Certification Officer was delivered on 10 July 2002. The respondent did consider the Certification Officer's report at its next NEC meeting of 27 July 2002 but did not implement either the Order or any of the other aspects of the decision. They instead agreed that the senior officers would liaise in respect of any urgent action that was needed in responding to the report. In the event, no such action was taken; but the suspensions were lifted at the next meeting of the NEC on 14 September 2002. Thus the claimants' suspensions continued from 10 July 2002 being the date of the Certification Officer's decision until 14 September 2002 being the date of the NEC meeting at which the suspensions were lifted.
39. The Tribunal finds that the decision not to implement the Order of the Certification Officer at the NEC meeting of 27 July 2002, the decision implicit in the senior officers taking no further action after that meeting until the next NEC meeting of 14 September 2002 and the continuing suspension of the claimants for that two month period are prima facie capable of being a discriminatory act and are part of a continuous act commencing on 16 November 1999.
40. As the earliest of these, the meeting of 27 July 2002, falls within the statutory time limits set out in Article 46 of FETO it follows that the claimants' claim for discrimination on the grounds of political opinion was made within time and should now continue for a full Tribunal hearing in due course.

Chairman:

Date and place of hearing: 16 – 17 July 2007, Belfast

Date decision recorded in register and issued to parties: