Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 722/06

CLAIMANT: Andrea Elizabeth Bower

RESPONDENTS: 1. Chief Constable of Police Service for Northern Ireland

2. D/C Supt Margaret Hunter

3. D/Supt Derek Douglas

4. D/C Insp Richard Cloake

5. Mary McSparron

6. D/Insp Michael Wilson

7. D/Sgt Louise McIlmail

DECISION ON A PRE-HEARING REVIEW

The Tribunal does not have jurisdiction to entertain the claimant's claim of unfair dismissal, in view of Article 243 of the Employment Rights (Northern Ireland) Order 1996 as the claimant, at all material times, was in employment under a contract of employment with the Police Service and/or engaged in such employment. The claimant's claim of unfair dismissal is therefore dismissed.

Constitution of the Tribunal

Chairman (Sitting alone): Mr N Drennan QC

Appearances:

The claimant did not appear and was not represented

The respondents were represented by D Dunlop, Barrister-at-Law, instructed by Ms A Bell, Solicitor, Crown Solicitor's Office

1. 1 This hearing was arranged to consider the following issues:-

Whether the Tribunal has jurisdiction to entertain the Claimant's claim in view of Article 243 of the Employment Rights (Northern Ireland) Order 1996 as the Claimant was a serving police officer.

Was the application presented within the specified time limit? If not, it is just and equitable, in all the circumstances of the case, for an Industrial Tribunal to consider this complaint despite the fact that it was out of time.

2. .2 A Notice of hearing was issued in this matter on 9 November 2006. The Claimant did not appear at this hearing and was not represented. The Notice of Hearing has not been returned to the Tribunal. Mr Dunlop confirmed that there had been no contact by the Claimant with the respondents in relation to this hearing.
3. Mr Dunlop accepted that the second issue related to the Claimant's claim of sex discrimination. In relation to the Claimant's claim of unfair (constructive) dismissal he stated that no issue of time arose, as the Claimant resigned on 31 May 2006 and presented her claim to the Tribunal on 17 June 2006. However, he contended that the Tribunal did not have jurisdiction to entertain the Claimant's claim of unfair dismissal in view of the provisions of Article 243 of the Employment Rights (Northern Ireland) Order 1996, as the Claimant at all material times was in employment under a contract of employment in the Police Service and/or engaged in such employment. Article 243 of the 1996 Order provides, in so far as relevant material, as follows:-

"(1) ….part xi (except Articles 132 and 169A and the other provisions of that part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of Article 132)….do not apply to employment under a contract of employment in Police Service or to persons engaged in such employment.

(3) In this Article "Police Service" means – (a) service as a police officer (b)…

4. In the absence of the Claimant, I then considered the terms of the Claimant's claim form. It was apparent from the said claim form that, at all material times in relation to her claim of unfair dismissal, that the Claimant was a serving police officer in the Police Service of Northern Ireland. In the circumstances, I was therefore satisfied that the Tribunal did not have jurisdiction to entertain the Claimant's claim of unfair (constructive) dismissal in view of the provisions of Article 243 of the Employment Rights (Northern Ireland) 1996. I therefore decided that the Claimant's claim of unfair dismissal must be dismissed.
5. In relation to the second preliminary issue, as set out above, in relation to the issue of time in relation to the Claimant's claim of sex discrimination, I again considered the terms of the Claimant's claim form. It was apparent to me that, in relation to her said claim of sex discrimination, the Claimant was making a claim of continuous discrimination. After consideration of the Claimant's claim form, and after hearing submissions from Mr Dunlop, I was not satisfied that it would be appropriate, in the absence of the Claimant, to proceed to determine the said preliminary issue in relation to time, where the complaint was one of continuous discrimination. In addition, I also had concern, whether in view of the fact that the complaint was one of continuous discrimination, that it would be appropriate to determine such an issue at a Pre-hearing Review; and that it might be necessary for such an issue to be determined in the course of the substantive hearing.
6. I therefore decided, in the absence of the Claimant, without explanation, from this hearing, not to determine the said preliminary issue in relation to the issue of time. However, in view of the failure of the Claimant to attend this hearing, I decided before proceeding to arrange the Case Management Discussion, as set out above, that a Notice should be sent to the Claimant, pursuant to Rule 19 of the Industrial Tribunal Rules of Procedure 2005. This Notice would inform the Claimant the Chairman was proposing to make a decision to strike out the Claimant's claim of sex discrimination against the respondent, pursuant to Rule 18(7)(d) of the said Rules of Procedure, on the grounds that the claim has not been actively pursued. The said Notice will be issued in due course; and, subject to and in light of any response to the said Notice, a Case Management Discussion will be arranged to progress the Claimant's claim of sex discrimination to hearing.
7. Mr Dunlop indicted that he wished to make an application for an Order for Costs, arising out of the Claimant's failure to attend this hearing. In light of the foregoing, I made it clear that I was not prepared to consider such an application at this time; but gave him liberty to renew his application if he considered it appropriate.

Chairman:

Date and place of hearing: 14 June 2007, Belfast

Date decision recorded in register and issued to parties: