Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Warmington v Ministry of Defence [2009] NIIT 2028_06IT (13 January 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/02028.html
Cite as: [2009] NIIT 2028_06IT, [2009] NIIT 2028_6IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2028/06

CLAIMANT: John Stephen Warmington

RESPONDENT: Ministry of Defence

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal has jurisdiction to determine the claimant’s complaints under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 and the Working Time Regulations (Northern Ireland) 1998, having made a complaint in respect of each of the said matters under the Service Redress Procedures, referred to in Section 180 of the Army Act 1955.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr M Wolfe, Barrister-at-Law, instructed by McCartan Turkington & Breen, Solicitors.

The respondent was represented by Ms S Bradley, Barrister-at-Law, instructed by The Treasury Solicitors.

1. This hearing was arranged to consider:-

“Whether the tribunal had jurisdiction to determine the claimant’s claims by reason of the failure of the claimant to make a complaint in respect of the said matters under the Service Redress Procedures referred to in Section 180 of the Army Act 1955.”

The claimant had made, in his claim form, a complaint under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (‘2000 Regulations’) and the Working Time Regulations (Northern Ireland) 1998 (‘1998 Regulations’).

2. It is provided under Regulation 13(3) of the 2000 Regulations as follows:-

“No complaint concerning the service of any person as a member of the armed forces may be presented to an industrial tribunal under Regulation 8 unless –

1. that person has made a complaint in respect of the same matter to an officer under the Service Redress Procedures; and

2. that complaint has not been withdrawn.

It is provided under Regulation 37(2) of the 1998 Regulations as follows:-

“No complaint concerning the service of any person as a member of the armed forces may be presented to an industrial tribunal under Regulation 30 unless –

1. that person has made a complaint in respect of the same matter to an officer under the Service Redress Procedures; and

2. that complaint has not been withdrawn.”

Section 180(1) of the Army Act 1955 refers to the said Service Redress Procedures referred in the above Regulations:-

“(i) If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Army Council.

2. On receiving any such complaint it shall be the duty of the Army Council to investigate the complaint and to grant any redress which appears to them to be necessary or, if the complainant so requires, the Army Council shall through the Secretary of State make their report on the complaint to Her Majesty in order to receive the directions of Her Majesty thereon.”

3. There was no dispute between the representatives of the parties that for the tribunal to have jurisdiction to hear the claimant’s complaints under the 2000 Regulations and/or the 1998 Regulations, the tribunal had to be satisfied that the claimant, as a member, at the relevant time, of 3 Royal Irish Regiment, had made a complaint in respect of each of the said matters, the aim of his complaints to the tribunal, under the said Service Redress Procedures.

4. The tribunal heard evidence from the claimant and also, on his behalf, from Major (now retired) David Clarke, CSM (now retired) David Baird; and it also heard evidence from Major (now retired) Paul Cousins, on behalf of the respondent.

5. Having heard the said evidence from the above witnesses, I reserved my decision on the said preliminary issue. However, before issuing my decision, I was informed, in writing, by letter dated 22 December 2008, by the representative of the respondent that the respondent now accepted the evidence, which had been given by the claimant and his witnesses, that the claimant had made a complaint in respect of his complaints under the 2000 Regulations and/or the 1998 Regulations under the said Service Redress Procedures referred to in Section 180 of the Army Act 1955.

In the circumstances, I was therefore satisfied that the claimant had made a complaint in respect of the said matters under the Service Redress Procedures and the tribunal therefore has jurisdiction to hear the claimant’s said complaints.

6. The claimant’s claim therefore will be re-listed for a substantive hearing in due course. In accordance with the Record of Proceedings, dated 10 November 2008, under the heading Richard Williams & Others v Ministry of Defence (Case Reference Nos: 2748/01 & Others) this claimant’s claim will be added to those to be considered at the next Case Management Discussion to be arranged, as set out in the said record, in early 2009.

Chairman:

Date and place of hearing: 8 December 2008, Belfast

Date decision recorded in register and issued to parties: