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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCreight v Royal Mail Group PLC [2008] NIIT 1431_07IT (09 June 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1431_07IT.html
Cite as: [2008] NIIT 1431_07IT, [2008] NIIT 1431_7IT
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- The claimant started these proceedings on 18 July 2007 by presenting a claim form on that date.
- In these proceedings, the claimant complains of unlawful age discrimination. He sets out his statement of claim at paragraph 11 of the claim form, in the following terms:-
- Those dates and outcomes were as follows:-
- In these proceedings, the claimant complains of a contravention of the Employment Equality (Age) Regulations (Northern Ireland) 2006 ('the Regulations'), which implement the requirements, in relation to age discrimination, of Council Directive No 2000/78/EC. That directive establishes a general framework for equal treatment in employment and occupation and I refer to it below simply as 'the Directive'.
- The claimant complains that, by reason of the circumstances outlined in his claim form (as already quoted above), Royal Mail unlawfully 'discriminated' against him (within the meaning of the Regulations) in the opportunities which the employer afforded him for receiving a benefit, or by refusing to afford him, or deliberately not affording him, any such opportunity.
- The definition in the Regulations of discrimination includes several types of discrimination. However, the parties are agreed that, in these proceedings, direct age discrimination is the only type of discrimination which is relevant.
- In the Regulations, at Regulation 3, age discrimination is defined in the following terms:-
- These proceedings were the subject of a Case Management Discussion ('CMD') which took place on 28 February 2008. At that CMD, the parties were agreed that it would be helpful to both sides of the case if there were to be a pre-hearing review ('PHR') on the following issues and I ordered accordingly:-
- As I noted in the record of proceedings in respect of the February CMD:-
- At the outset of this pre-hearing review, the claimant asked me to vary my original decision (in relation to the holding of the PHR in the first place), by directing that all issues should be resolved in the course of a single main hearing.
- However, I declined to do so. I am satisfied that, in the circumstances of this case, it continued to be appropriate to have a PHR in respect of the two relevant issues, even though, upon reflection, I considered that the first issue is not a truly "jurisdictional" issue.
- I was satisfied that, although the first preliminary issue may not be truly jurisdictional, it does involve a discrete issue which, if determined against the claimant, would terminate the proceedings.
- Against that background, and for those reasons, I was satisfied that it continued to be appropriate to determine the preliminary issues in the course of a PHR.
- In arriving at my conclusions in respect of the above question, I have had regard to the claimant's original statement of claim, to his replies (to a notice for additional information) which were given on 5 November 2007, and to the claimant's answers to questions which I raised with him in the course of this PHR.
- I am satisfied that, in essence, the claimant's complaint is as follows. He applied for Voluntary Redundancy in October 2005. Later that year, he was offered a severance arrangement, but on terms which were less favourable than those which had been offered, during the course of 2005, to persons who were older than the claimant. That was the single act complained of. That act occurred during the year 2005.
- The 2005 VR (Voluntary Redundancy) exercise was a distinctive exercise and had to be applied for prior to a stipulated closing date (which was a date in 2005). The claimant did apply under that stipulated timescale.
- The claimant contends that there is a continuing act of age discrimination. However, that contention is based upon the proposition that the relevant 2005 VR decision constituted "unfinished business" throughout the period when the correctness of the 2005 decision was being queried (by him) in the course of the internal grievance procedure.
- In my view, a failure to remedy a past act of injustice would not have the effect of making that unjust act a continuing act.
- According to the respondent, the United Kingdom had until 31 December 2006 to implement the Directive. There is no controversy between the parties on that point.
- The relevant provisions of the Regulations came into operation on 1 October 2006. (See Regulation 1).
- There is nothing in the structure or language of the Directive to indicate that it was designed to address historic as well as current and future age-related injustices ('Historic", in the present context, refers to alleged injustices which had already occurred by the time of the implementation of the Directive). Therefore, there is nothing in the Directive which would require the temporal scope of the Regulations to be construed more expansively than would have been appropriate if the Regulations were an enactment which had no connection with EU law.
- Accordingly, in the circumstances of this case, it is necessary to apply the rules of statutory interpretation which generally apply in construing legislation in the United Kingdom. Under those judge-made rules, an enactment is generally presumed to change the relevant law only from the time of that enactment's commencement. However, such an enactment may say, expressly or by implication, that its effect is retrospective.
- There is nothing in the structure or language of the Regulations to displace the general presumption against retrospectivity.
- If the draftsman had intended the Regulations to apply to historic injustices (as well as applying to relevant injustices which arise or continue after the date of commencement of Regulations), that could easily have been explicitly stated in the Regulations.
- The act complained of in these proceedings is an act which occurred in 2005. Therefore, that act is outside the temporal scope of the legislation. For that reason, these proceedings have to be dismissed.
- Because of my decision in relation to the first of the preliminary issues, I have not had to arrive any definitive conclusions in respect of the second preliminary issue.
- In the course of this PHR, the claimant drew my attention to Royal Mail and Post Office equal opportunities documents, which were published long before the commencement date of the Regulations, and which proclaimed Royal Mail's intention to provide and promote equality of opportunity for all, regardless of age.
- The claimant contends that those declarations are inconsistent with the respondent's contention, in this PHR, that any acts of age bias, if perpetrated prior to 31 October 2006, are outside the scope of the Regulations.
- Any such mismatch (between the respondent's policy declarations and their stance in these proceedings) may, possibly, be hypocritical. However, as I pointed out during the course of the hearing of this PHR, any such hypocrisy could not, and would not, expand the temporal scope of the Regulations.
CASE REF: 1431/07
CLAIMANT: James McCreight
RESPONDENT: Royal Mail Group PLC
The proceedings are dismissed because the act complained of occurred prior to the date on which the age discrimination legislation came into force.
Constitution of tribunal:
Chairman sitting alone: Mr P Buggy
Appearances:
The claimant appeared in person.
The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons Solicitors.
REASONS
"I applied for Voluntary Redundancy (VR) in September 2005 during a Royal Mail management head count reduction programme within the function that I was employed in … Having been involved in organising VR for the Northern Ireland Area for several years, I was aware of the Royal Mail Managing The Surplus Framework (MTSF) policy. Several managers had been released i.e. given VR a few months prior to my application, with full MTSF terms, all of whom were within my age bracket i.e. between 50 to [ ] years of age. I on the other hand was offered less favourable terms, the main point being a reduction in pension payable of 50% approx.
Due to this I initiated an internal grievance, within Royal Mail policy guidelines, on 7 March 2006, after having corresponded to the business Chairman Allan Leighton, on 1 and 19 December 2006, to no effect. [The claimant then went on to outline the dates of initiation, dates of determination, and the outcomes of the three stages of the internal grievance procedure]."
(1) Stage 1 of the grievance procedure was begun in March 2006, was decided in June 2006 and the grievance was not upheld.
(2) Stage 2 of the grievance procedure was begun in July 2006, was decided in August 2006, and was not upheld.
(3) Stage 3 of the grievance procedure was begun in September 2006, was decided in April 2007 and was not upheld.
The key legislative provisions
"3 (1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if –
(a) on the grounds of B's age, A treats B less favourably than he treats or would treat other persons, or
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but -
(i) Which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and
(ii) Which puts B at that disadvantage,
and A cannot show the treatment, or as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim".
The preliminary issues
"(1) Whether a tribunal has jurisdiction to entertain the claimant's claims in view of the operative date of the relevant legislation (the Equality Age) Regulations (Northern Ireland) 2006).
(2) Whether a tribunal has jurisdiction to entertain the claims in view of the time limits which are set out in Regulation 48 of the 2006 Regulations and in view, in particular, of the time-limits set out in Regulations 48(1) and 48(4) of the 2006 Regulations".
"2. I have decided to list the case for a pre-hearing review on the two issues set out above, having carefully considered the guidance of the Court of Appeal in Ryder v Northern Ireland Policing Board [2007] NICA 43, to which the attention of the parties has been drawn. In particular, I note that both of the questions posed in the pre-hearing review are jurisdictional questions and that, even in relation to the time-limits question, it seems likely that any duplication of evidence (between the PHR on the one hand and the main hearing on the other hand) will be not be extensive".
What act, or acts?
The law
Conclusions
General comments
Chairman:
Date and place of hearing: 23 May 2008, at Belfast.
Date decision recorded in register and issued to parties: