Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/00293.html
Cite as: [2009] NIIT 293_7IT, [2009] NIIT 293_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 293/08

CLAIMANT: Mark Robert James Bell

RESPONDENTS: 1. Bemac Training Limited

The National Examination Board for Occupational Safety & Health
OSTAS

DECISION ON A PRE-HEARING REVIEW

The claim against the second-named respondent has been conciliated, and is dismissed by the tribunal upon its withdrawal by the claimant without objection of the first and third-named respondents.

The claimant did not have an employment relationship with either the first or third-named respondents. The first and third-named respondents were providers of a facility or service, pursuant to Part III of the Disability Discrimination Act 1995 (as amended). By Section 25 and paragraph 6 of Schedule 3 to the 1995 Act, a claim that Part III of the 1995 Act has been breached should be brought not to the Industrial tribunal but to the County Court in Northern Ireland.

The tribunal is not satisfied, on balance of probabilities, that there is sufficient evidence or findings of fact to come to the conclusion that either the first or third respondents have breached Sections 57 – 58 of the Act.

Accordingly, the tribunal determines that it does not have jurisdiction to hear the claimant’s claims against the first and third-named respondents, and thus dismisses the claims against the first and third-named respondents, without further Order.

Constitution of the tribunal:

Chairman (Sitting Alone): Mr M G O’Brien

Appearances:

The claimant appeared in person.

The first-named respondent was represented by Mr G Purvis, Barrister-at-Law, instructed by Conn & Fenton, Solicitors

The second-named respondent did not appear and was not represented.

The third-named respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The background to the pre-hearing review - the claim and the responses

The claim in this matter was presented on 21 February 2008. The claim was originally directed to the first-named respondent only. In this claim, at section 5.1, the claimant stated that he was not, and had not been, an employee of the first-named respondent. At section 5.2 of the claim, the claimant asserted he was not, and had not been, a worker providing services to the first-named respondent. Sections 6 – 7 of the claim are not completed by the claimant. At section 8.1 of the claim, the claimant asserted his complaint was in respect of disability discrimination. At section 8.2 of the claim, the claimant stated that this discrimination occurred on 22 January 2008 and that he first knew of the matter on 25 Janaury 2008. At section 8.4 of the claim, the claimant expanded on his claim, asserting that the disability discrimination had been ongoing since September 2006. Sections 9 -12 of the claim are left incomplete.

The first-named respondent presented a response on 3 April 2008. At section 3.1 of the response, the first-named respondent asserted that the claimant was not its employee. Section 3.2 of the response is left incomplete. Sections 4.1, 4.3, 4.5, 4.7, 4.9, and 5.1 of the response are marked ‘not applicable’. At section 6.1 of the response, the first-named respondent indicated it intended to resist the claim. An extensive statement of the first-named respondent’s position is set out in an attachment to section 6.2 of the form. Essentially, this passage asserts the first-named respondent is a company providing occupational training courses in health and safety to the standard of National Diploma authorised and accredited by the National Examination Board in Occupational Safety & Health (NEBOSH); that the claimant enrolled on a course on 28 September 2006; that the first-named respondent was assisted in the provision of course facilities by OSTAS (an occupational health and safety coursework provider throughout Great Britain), which provides administration facilities and accreditation to NEBOSH. This narrative then further set out the details of the parties’ involvement with one another. This response was accepted by letter from the Office of the Industrial Tribunals dated 28 April 2008.

A Case Management Discussion was held on 12 June 2008, whereat, by consent, it was directed that the second-named respondent be made a party to these proceedings, and that a further Case Management Discussion would be held when the second-named respondent had entered its response. Thus, the second-named respondent was formally joined as a party on 18 June 2008, and this decision was issued to the parties on 19 June 2008.

A second Case Management Discussion was held on 20 August 2008. The purpose of this CMD was twofold:-

(a) to consider an objection from the claimant that time should be extended to 14 September 2008 to allow the second-named respondent to present a response; and

(b) to consider an application by the claimant to join the third-named respondent, OSTAS, to these proceedings.

On hearing arguments in respect of the first point, the claimant withdrew his objection. In the light of submissions made by the parties on 20 August 2008, the tribunal directed that OSTAS be joined as a third-named respondent party to the proceedings. This joinder was formally made by a decision of the tribunal dated 27 August 2008, and issued to the parties on 2 September 2008.

By Notice of Hearing dated 9 September 2008, the parties were notified that a pre-hearing review would be held on 3 October 2008 to consider the following preliminary issue:-

“Whether the second-named respondent should be dismissed from these proceedings.”

On 24 October 2008, the tribunal was advised that the claimant had settled his claim against the second-named respondent, and the claimant sought to have this claim withdrawn from the tribunal’s attention. This application was not objected to by the first and third-named respondents.

On 3 October 2008, the tribunal had the benefit of seeing the third-named respondent’s response, which was presented on 23 September 2008. At section 3.1 of this response, it is asserted the claimant is not and was not an employee of the third-named respondent. At section 6.2 of the form, it is asserted that the claimant was not and is not a worker providing services to the third-named respondent. Sections 3.3 – 5.2 are left not completed. At section 6.1. the third-named respondent indicated it intends to resist the claim, and at section 6.2 the third-named respondent set out:-

that it is correctly referred to as OSTAS;

that it never discriminated against the claimant, or failed to make reasonable adjustments for him;

that it put the claimant on strict proof that he has a disability as defined by the Disability Discrimination Act 1995 [“the 1995 Act”];

(iv) that it is not a proper respondent to these proceedings and requested that the decision of 2 September 2008 should be set aside;

(v) that the claimant is not an employee or worker of the third-named respondent and there is/was no employment relationship between them;

that the industrial tribunal does not have jurisdiction to consider this complaint as the claimant’s allegations do not relate to his employment and appear to relate to the provision of a training course by the first-named respondent in respect of the second-named respondent’s National Diploma qualification.

Accordingly, the third-named respondent sought a pre-hearing review to determine the following issues, or that the following issues be considered at the hearing on 3 October 2008:-

whether this claim relates to the claimant’s employment and as such whether the tribunal has jurisdiction to determine it;

if the tribunal has jurisdiction to determine this claim, whether the third-named respondent should be dismissed from these proceedings and/ or whether the Order joining them as a respondent should be set aside.

The contentions of the parties before the industrial tribunal on 3 October 2008

The claimant stated that he had raised the issue of the tribunal’s jurisdiction with the Equality Commission and with the Labour Relations Agency. The claimant stated that he had made it clear from the beginning of this claim that he had never been employed by any of the respondent parties. The claimant volunteered that he had been advised by the Equality Commission to bring his claim to the industrial tribunal.

On 3 October 2008, the first-named respondent was represented by Mr N Jones, of Counsel. Mr Jones submitted that, since the claimant was never employed by the first-named respondent, his claim before the tribunal was misconceived, and should have been brought before the County Court. Mr Jones was unable to enlighten the tribunal as to why this fundamental jurisdictional issue had not been raised until 3 October 2008.

On 3 October 2008, the third-named respondent was represented by Ms L McAloon. Ms McAloon sought a title change and asserted that the party is correctly identified as OSTAS. Ms McAloon stated she had served the third-named respondent’s response on all the other parties on 23 September 2008, including the two jurisdictional issues set out in paragraph 7 above.

On 3 October 2008, the Chairman of the tribunal brought the parties’ attention to the provisions of sections 14A - B of the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 {SR 2004 No.55}. These amending provisions fall under Part II of the 1995 Act, which by virtue of Section 8(1) lie within the jurisdiction of the industrial tribunal. The Chairman provided copies of this amending legislation to the parties.

The proceedings were adjourned on 3 October 2008 to allow the parties time to consider the potential impact of sections 14A - B of the 1995 Act as amended. Moreover, with the consent of all the parties, the Chairman of the tribunal directed that the matter be re-listed on 24 October 2008 at 10.00 am for a pre-hearing review on the following issues.

The issues to be decided by the tribunal on 24 October 2004

(i) whether the second-named respondent should be dismissed from these proceedings;

(ii) whether this claim relates to the claimant’s employment and as such whether the tribunal has jurisdiction to determine it;

(iii) whether sections 14A - B of the Disability Discrimination Act 1995 (as amended) apply to the claimant’s claim;

(iv) if the tribunal has jurisdiction to determine this claim, whether the third-named respondent should be dismissed from these proceedings and/ or whether the Order joining them as a respondent should be set aside.

Sources of evidence on 24 October 2008

The claimant gave evidence.

Ms Anne Gibbs (Managing Director) gave evidence for the third-named respondent.

All parties made submissions to the tribunal.

The contentions of the parties

The contentions of the parties are set out in paragraphs 1 - 12 above.

The claimant claimed before the tribunal that he was asserting that the first and third-named respondents had failed to make an adjustment in the provisions it made for him to complete the course of study he had undertaken, contrary to Section 6 of the Disability Discrimination Act 1995.

The tribunal found the following facts

The claimant was never employed by either the first or third-named respondents. The claimant was never a worker for either the first or third-named respondents, and there was never any employment nexus between the claimant and either the first or third-named respondents.

The first-named respondent is a company that runs occupational training courses accredited to the second-named respondent. The third-named respondent is an organisation that assists the first-named respondent to run a course accredited by the National Examination Board for Occupational Safety & Health [“NEBOSH” – the second-named respondent]. This course can lead to the award of a relevant health and safety certificate, or in advanced form to a National Diploma. The second-named respondent is the organisation that makes the respective award of qualifications to those people who successfully complete either the Certificate or Diploma course. The first-named respondent is accredited to NEBOSH for the award of the Certificate, but is not accredited to NEBOSH for the award of the National Diploma.

The third-named respondent provides health and safety training courses and advice to a range of organisations in the public and private sector. Training is moderated through assignments and examination. On successful completion of a training course, the award of the applicable qualification is determined by the qualification body. The third-named respondent provides training on a range of courses, some run by the second-named respondent and others (for example) run by the City & Guilds institute. The third-named respondent is not a member of the second-named respondent. The third-named respondent is accredited to NEBOSH to run the Diploma course undertaken by the claimant. The third-named respondent has no influence on the syllabus to be covered by trainees, on the content of the examinations they sit, on the marking of examinations, or on the decision as to who should be awarded the National Diploma. The third-named respondent is not a trade organisation inasmuch as it was not necessary for the claimant to be a member of OSTAS in order to perform his work duties. Indeed, the third-named respondent does not operate a membership list.

The third-named respondent provided personnel to the first-named respondent in Belfast. These personnel provided training on the National Diploma course undertaken by the claimant. Neither the first or third-named respondents can set their own guidelines or syllabus leading to the award of the Certificate or the National Diploma, but must follow those laid down by NEBOSH. Completed examination scripts are forwarded to NEBOSH, and the second-named respondent informs examinees of the results of their examinations.

The claimant works with two companies, and his duties involve the preparation of health and safety matters and computer aided design techniques.

Prior to the events in question before the tribunal, the claimant had undertaken the Certificate course. On or about 28 September 2006, the claimant then commenced the National Diploma course with the first-named respondent. He considered it would assist him in his work with matters related to health and safety. However, at no time did the claimant seek membership of either the first or third-named respondent, and such membership of either the first or third-named respondents is not a requirement for the claimant to do his job. The claimant hoped he would be successful in attaining the award of the National Diploma in health and safety from the second-named respondent, and that this additional credential would be of benefit to him in the performance of his work duties.

The claimant claims that he has a range of health-related problems, viz:-

post traumatic stress disorder;

fibromyalgia;

anxiety;

(iv) depression;

(v) sacordosis;

problems with concentration and memory caused as a side-effect to medication for post traumatic stress disorder;

problems when sitting; and

a hearing deficit.

In enumerating these conditions, the tribunal is not making a finding of fact either way that the claimant actually suffers from these problems, is not making a finding as to their impact on his ability to carry out day-to-day activities, and is not making a finding that any or all of them (cumulatively) amount to a disability pursuant to Section 1 of the Disability Discrimination Act 1995.

At the commencement of the diploma course with the first-named respondent, the claimant informed the first-named respondent that he had a hearing impairment. The first-named respondent’s personnel sought further information on these problems, which the claimant provided. Moreover, on 26 April 2007, the claimant also sent a letter to the third-named respondent setting out his health problems.

Thereafter, and until the time the examinations were held in January and July 2007, no one from the first or third-named respondents’ organisations met with the claimant to discuss his progress on the National Diploma course, to ascertain if the claimant required additional assistance or learning notes presented in a different format, or to enquire generally about this health problems. In January and July 2007, Ms Linda Watts (Manager in the first-named respondent’s organisation) asked the claimant if he required additional time to complete the examinations.

Applicable law

The Disability Discrimination Act 1995 [“the 1995 Act”] has been extensively amended by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 {SR: No 55). Part II of the Act (sections 4 – 18) relates to discrimination on ground of disability in employment. Part III of the 1995 Act relates to discrimination on ground of discrimination in other fields.

Section 1 of the 1995 Act sets out a definition of disability.

Section 8 of the Act provides that claims of disability discrimination pursuant to Part II of the Act shall be brought in the industrial tribunal.

Section 13 of the 1995 Act as amended makes provision for trade and professional bodies. Sections 13 (1) - (4) of the Act provide:-

Trade organisations: discrimination and harassment

13(1) It is unlawful for a trade organisation to discriminate against a disabled person –

(a) in the arrangements which it makes for the purpose of determining who should be offered membership of the organisation;

(b) in the terms on which it is prepared to admit him to membership of the organisation; or

(2) It is unlawful for a trade organisation, in the case of a disabled person who is a member of the organisation, to discriminate against him –

(a) in the way it affords him access to any benefits or by refusing or deliberately omitting to afford him access to them;

(b) by depriving him of membership, or varying the terms on which he is a member; or

…

(4) In this section and section 14 “trade organisation” means –

(a) an organisation of workers;

(b) an organisation of employers; or

(c) any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.

31. Section 14 of the 1995 Act, as amended, provides for trade organisations and the duty of these organisations to make adjustments.

Trade organisations: duty to make adjustments

14(1) Where –

(a) a provision, criterion or practice applied by or on behalf of a trade organisation, or

(b) any physical feature of premises occupied by the organisation, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the organisation to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In this section “the disabled person concerned” means –

(a) in the case of a provision, criterion or practice for determining to whom membership should be offered, any disabled person who is, or has notified the organisation that he may be, an applicant for membership;

(b) in any other case, a disabled person who is –

(i) a member of the organisation; or

(ii) an applicant for membership of the organisation.

(3) Nothing in this section imposes any duty on an organisation in relation to a disabled person if the organisation does not know, and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for membership of the organisation; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

32. Sections 14A - 14B of the 1995 Act, as amended, makes provision for qualifications bodies.

Qualifications bodies: discrimination and harassment

14A.(1) It is unlawful for a qualifications body to discriminate against a disabled person –

(a) in the arrangements which it makes for the purpose of determining upon whom to confer a professional or trade qualification;

(b) in the terms on which it is prepared to confer a professional or trade qualification on him;

(d) by withdrawing such a qualification from him or varying the terms on which he holds it.

(2) It is also unlawful for a qualifications body, in relation to a professional or trade qualification conferred by it, to subject to harassment a disabled person who holds or applies for such a qualification.

(3) In determining for the purposes of subsection (1) whether the application by a qualifications body of a competence standard to a disabled person constitutes discrimination within the meaning of section 3A, the application of the standard is justified for the purposes of section 3A(1)(b) if, but only if, the qualifications body can show that -

(a) the standard is, or would be, applied equally to persons who do not have his particular disability; and

(b) its application is a proportionate means of achieving a legitimate aim.

(4) For the purposes of subsection (3) -

(a) section 3A (2) (and (6)) does not apply; and

(b) section 3A (4) has effect as if the reference to section 3A (3) were a reference to subsection (3) of this section.

(5) In this section and section 14B -

"qualifications body" means any authority or body which can confer a professional or trade qualification, but it does not include -

(a) a board;

(b) the Board of Governors of a grant-aided school;

(d) the Council for Catholic Maintained Schools;

(e) the governing body of a university;

(f) the governing body of an institution of further education;

(g) the managers of a college of education;

(h) the governing body of the College of Agriculture, Food and Rural Enterprise;

"confer" includes renew or extend;

"professional or trade qualification" means an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular profession or trade;

"competence standard" means an academic, medical or other standard applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability.

(6) Words and expressions used in the definition of "qualifications body" in subsection (5) to which a meaning is assigned by Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986 have the same meaning as in that Order.

Qualifications bodies: duty to make adjustments

14B.(1) Where -

(a) a provision, criterion or practice, other than a competence standard, applied by or on behalf of a qualifications body; or

(b) any physical feature of premises occupied by a qualifications body, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the qualifications body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In this section "the disabled person concerned" means –

(a) in the case of a provision, criterion or practice for determining on whom a professional or trade qualification is to be conferred, any disabled person who is, or has notified the qualifications body that he may be, an applicant for the conferment of that qualification;

(b) in any other case, a disabled person who -

(i) holds a professional or trade qualification conferred by the qualifications body, or

(ii) applies for a professional or trade qualification which it confers.

(3) Nothing in this section imposes a duty on a qualifications body in relation to a disabled person if the body does not know, and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the conferment of a professional or trade qualification; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

33. Part III of the 1995 Act, as amended, provides for discrimination owing to disability in other areas, viz: in the provision of goods, facilities and services. Section 21 of the Act provides that it is incumbent on such providers to make adjustments that reasonably accommodate persons availing of such provision who have an impairment tantamount to a disability. Section 21A of the 1995, as amended, provides;-

Employment services

21A.(1) In this Part, “employment services” means –

(a) vocational guidance;

(b) vocational training; or

Section 25 and paragraph 6 of Schedule 3 to the 1995 Act provide that claims that a person has been discriminated against pursuant to Part III of the Act (in the provision of goods, facilities and services) should be brought in the County Court in Northern Ireland.

Sections 53 - 54 of the Act, as amended, allow for an Industrial tribunal to consider appropriate Codes of Practice as they relate to disability discrimination.

Section 57 of the 1995 Act provides that it is unlawful to aid another person to commit an act which is deemed unlawful pursuant to the 1995 Act.

57. Aiding unlawful acts.

(1) A person who knowingly aids another person to do an unlawful act is to be treated for the purposes of this Act as himself doing the same kind of unlawful act.

(2) For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 58 (or would be so liable but for section 58(5)) shall be taken to have aided the employer or principal to do the act.

(3) For the purposes of this section, a person does not knowingly aid another to do an unlawful act if—

(a) he acts in reliance on a statement made to him by that other person that, because of any provision of this Act, the act would not be unlawful; and

(b) it is reasonable for him to rely on the statement.

(4) A person who knowingly or recklessly makes such a statement which is false or misleading in a material respect is guilty of an offence.

(5) Any person guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6) “Unlawful act” means an act made unlawful by any provision of this Act other than a provision contained in Chapter 1 of Part 4.

Sections 58(1)-(2) of the 1995 Act provides;

58(1) Anything done by a person in the course of his employment shall be treated for the purpose of this Act as also done by his employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Act as also done by that other person.

The decision of the tribunal

The claimant in this action was never employed by either of the remaining respondents, the first and third-named respondents. The claimant did not have any employment relationship with the first or third-named respondents. That is, he was not a worker, and did not provide services under a contract for service to either the first or third respondents. The claimant has brought his claim in the Industrial tribunal pursuant to section 8 of the 1995 Act. T he first consideration anterior to its deliberations is set out in paragraph 12(i) above.

The Equality Commission for Northern Ireland has published a Summary Guide on Trade Organisations & Qualifications Bodies. Page 13 of the Guide states:-

“The Act defines a trade organisation as an organisation of workers or employees, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists”.

On the findings made by the tribunal, it cannot determine that either the first or third respondents were trade organisations, pursuant to sections 13 - 14 of the Act. Accordingly, the tribunal determines that sections13 - 14 of the Act do not apply to the claimant’s claims.

Page 19 of the Guide defines a qualifications body as:-

“…an authority or body which can confer, renew or extend a professional or trade qualification. A professional or trade qualification is an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for or which facilitates engagement in a particular profession or trade”.

Given this guidance, the tribunal determines it is beyond peradventure that the second-named respondent was the qualifications body in respect of the National Diploma course undertaken by the claimant in or about September 2006. The conferment of the National Diploma would have facilitated engagement by the claimant in his occupation and enhanced his ability to do his job. Accordingly, if claimant were able to satisfy the provisions of section 1 of the 1995 Act, he would have satisfied the tribunal that it had jurisdiction to determine the claim against the second-named respondent. Accordingly, in respect of the second-named respondent, the tribunal answers the first issue to be determined in the affirmative. However, the second-named respondent is no longer a party before the tribunal. The tribunal’s findings are that the first and third-named respondents had no input into the setting of the National Diploma syllabus, the setting of examinations, the marking of examinations, or the conferment of the award of the National Diploma. There is no evidence that either the first or third-named respondents had any autonomy or input into the setting of assignments or assessment exercises. Therefore, the tribunal determines that neither the first or third-named respondents can be said to come within the provisions of sections 14A-B of the 1995 Act.

Accordingly, the tribunal determines that neither the first nor third-named respondents come within the provisions of sections 14A - B of the 1995 Act, as amended.

Having made these anterior determinations, the tribunal therefore has made no findings in respect of whether or not the claimant can satisfy the provisions of section 1 of the 1995 Act. Such a finding notwithstanding, it is clear to the tribunal that the first and third-named respondents were providers of a facility or service, pursuant to Part III of the 1995 Act, and in particular that they appear, par excellence, to come within the ambit of section 21A of the 1995 Act. By section 25 and paragraph 6 of Schedule 3 to the 1995 Act, a claim that Part III of the Act has been breached should be brought not to the Industrial tribunal but to the County Court in Northern Ireland.

The tribunal is not satisfied, on balance of probabilities, that there is sufficient evidence or findings of fact to come to the conclusion that either the first or third-named respondents have breached sections 57 – 58 of the Act. That is, there is no finding that anyone employed by either the first or third-named respondents knowingly aided another person to discriminate against the claimant on ground of any disability he may have, or – for that matter – that that person/s employer is thus liable for such discriminatory conduct.

Accordingly, having given these claims as they lie before it very extensive consideration, the tribunal determines that it does not have jurisdiction to hear the claimants claims against the first and third-named respondents.

The tribunal dismisses the claims against the first and third-named respondents, without further Order.

Chairman:

Date and place of hearing: 24 October 2008, Belfast

Date decision recorded in register and issued to parties: