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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> JR5 v 2606/02 [2009] NIIT 2606_02IT (11 December 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/2606_02IT.html
Cite as: [2009] NIIT 2606_2IT, [2009] NIIT 2606_02IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 02606/02

CLAIMANT: JR5

RESPONDENT: 2606/02

DECISION

The unanimous decision of the tribunal is that the claimant did not suffer unlawful discrimination on the ground of gender reassignment.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J McAuley

Ms J Macauley

Appearances:

The claimant appeared in person.

The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

1. The claimant, by a claim form presented to the tribunal on 21 November 2002, alleged that she had been discriminated against on the ground that she had undergone male to female gender reassignment, contrary to the Sex Discrimination (Northern Ireland) Order 1976, as amended by the Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999.

2. The claimant’s complaints fall under four headings, which can be summarised as follows:-

(i) On 23 February 2002 the claimant raised a grievance at work. This was dealt with by Professor Pearce, her Head of Division, on 23 August 2002. The allegation is that the Professor discriminated against the claimant in the way he handled that grievance. In particular, it is claimed that he disregarded homophobic comments

and what the claimant saw as her negative working environment because he did not want to deal with the wider issues of sex discrimination involved.

(ii) On 28 August 2002 the claimant made a complaint that another employee had directed homophobic remarks against her. He in turn made a complaint of harassment against her. Both complaints were investigated by Professor Pearce. The claimant alleges that Professor Pearce accorded her less favourable treatment compared to the other employee in the investigation of the respective complaints.

(iii) Issues arose about the claimant’s continued employment within the Division and Department where she worked because of her unwillingness to undertake tasks which involved animal testing. She believes that had she not undergone gender reassignment, greater efforts would have been made by her Department’s Establishment Branch to find alternative work for her.

(iv) The claimant also alleges that she was discriminated against in June 2002 or thereabouts when she received a negative appraisal for the relevant reporting period.

3.	(i)	In order to determine these issues the tribunal heard evidence from the claimant, and from the following witnesses on her behalf - Ms Joan Tollerton; and Ms Joyce Rutherford, who were fellow employees, and Ms Pauline Caves and Mr Philip Renshaw, who were her trade union representatives. It has to be said that the former two gave no evidence which advanced the claimant’s case. This was because they were generally unaware of any difficulties the claimant might have been experiencing, as she did not bring them to their attention.

	(ii)	It heard evidence from the following witnesses on behalf of the respondent Department – Ms Valerie Noble (an EOII in its Personnel Management Branch dealing with staffing issues); Dr Roger Smith (a principal Scientific Officer and Project Leader at the claimant’s place of work); Mr Philip Dinsmore (a Higher Scientific Officer and the claimant’s line manager); Mr Robert Campton (the Department’s Establishment Officer at the relevant time); Professor Jack Pearce (the Head of Division where the claimant worked); and Ms Sharon Fitchie (the Department’s Equal Opportunities Officer at the relevant time).

	(iii)	The tribunal also had regard to the documentary evidence to which it was referred by the parties.

	(iv)	A regrettable feature of this case is that the tribunal commenced hearing it on 12 November 2007. It then sat on eight days until 21 November 2007. It was reconvened on 22 January 2008. Unfortunately by that time the claimant had become ill, and it was not possible to conclude the case until 3 and 4 November 2009 when she had recovered sufficiently to enable her to take part in a substantive hearing. Medical evidence received in July 2008 indicated that the claimant was not fit to take part in tribunal proceedings, and that it would be a number of months before she was likely to be well enough to take part. A number of Case Management Discussions were held to keep the tribunal informed so that the matter could be progressed at the earliest opportunity. For convenience, Records of Proceedings relating to these Case Management Discussions are set out at an Annex to this decision.

	(v)	The tribunal finds the facts set out in the following paragraphs.

4.	(i)	The claimant started work with the respondent Department in August 1999 and in the course of employment worked in its various laboratories and divisions. She had undergone male to female gender reassignment, and on 25 June 1999, prior to her taking up work, a Ms McElroy, of Personnel, had met with Professor Pearce, the Head of the Division, to discuss, and plan for, the claimant’s imminent arrival. At that stage it was not clear what stage of the gender reassignment process the claimant had reached, and Professor Pearce asked Ms McElroy to ascertain this. Professor Pearce and Ms McElroy had a general discussion about the situation, which included arrangements for telling the claimant’s prospective colleagues about her status, the need to ensure that there was no harassment, and to minimise gossip, and the provision of toilet facilities.

	(ii)	This was an entirely appropriate meeting to have in advance of the claimant’s arrival. It was designed to see what steps needed to be taken, or if there were any special requirements needed, to ensure that the claimant settled into her new post. We have seen Ms McElroy’s minute of this meeting, and the whole tenor of that document is that the meeting was sympathetic to the claimant. Indeed, Ms McElroy specifically recorded that:-

“[Professor Pearce] sought to assure [her] that he is very sympathetic to needs/position of individual concerned.”

Against this general background, we now proceed to consider each of the claimant’s allegations in turn.

5. The allegation that Professor Pearce discriminated against the claimant in the way he handled her grievance of 23 February 2009

(i) In that grievance the claimant complained of foul and abusive language being used in the workplace, a failure on the part of managers (one of whom indulged in such conduct) to deal with her complaint, homophobic comments, her exclusion and isolation at work, a failure to provide adequate support and supervision, an informal warning being given where it was not justified, and being put under pressure to transfer to another section.

(ii) We are satisfied that this complaint was taken seriously by management. That this is so is clear from a minute Mr Campton wrote to Professor Pearce on 5 March 2002. It stated:-

“”I have had sight of [the claimant’s] letter of 23 February to you and I must say that the tone and content of the letter and the culture and

environment which it portrays gives me cause for concern … [If] true, even in part, it begs question of the oversight and management generally within that area.”

	(iii)	We are further satisfied that Professor Pearce carried out a full and thorough investigation of this matter. These investigations included meeting with the claimant who, notwithstanding that she had made serious allegations against fellow members of staff, did not provide information to the Professor which would have assisted in his investigations. At no stage did she identify anyone who had made ‘homophobic’ remarks. Her attitude then, and subsequently, was that she was ‘waiting to be asked’ for the names of the alleged offenders.

	(iv)	On 11 July 2002, Professor Pearce met with the claimant, verbally indicated the findings of his investigation, and gave her the opportunity of making any additional comments she wished. He also met informally with others who were the subject of the complaint.

	(v)	On 23 August 2002 he wrote to her stating that he considered “that the issues raised in your letter were largely the same as those which were made in relation to the appeal of your annual report made to me and that these do not add substantially to the issues raised before except in relation to the use of bad language in the laboratory.”
		(Professor Pearce had previously been informed, in December 2001, by Mr Renshaw, one of the claimant’s trade union representatives, that so far as her appeal against the annual report was concerned, it had come to a successful conclusion.) However, Professor Pearce did find the claimant’s allegation about the use of bad language should have been brought to the notice of the person concerned by the laboratory manager. Following his report, the issue of the use of bad language was brought to the attention of the line managers directly involved, and a memorandum on the subject was issued across the divisions for which he was responsible.

	(vi)	We are satisfied that Professor Pearce looked at the issues which had been raised by the claimant, and reached conclusions on them. The claimant was not happy with these conclusions (indeed she wrote to the Professor subsequently expressing her unhappiness, but delayed doing so until 28 October 2002, the day before his retirement), but there is no evidence before us from which we can infer that Professor Pearce, in carrying out his investigation, was in any way unfavourably disposed to her because she had undergone gender reassignment. Mr Renshaw, with whom Professor Pearce had met in the course of carrying out the investigation, had experienced no difficulty in dealing with Professor Pearce. There is also evidence that Professor Pearce, in previous dealings with the claimant, had treated her fairly. In relation to appraisals contained in her annual report for the period from 9 August 1999 – 30 April 2000, she had ultimately appealed to Professor Pearce in his capacity as monitoring officer, and he had changed her overall box marking from Box 4 (which is an adverse marking) to Box 3 which is satisfactory.

	(vii)	Furthermore, on 21 January 2000, the claimant had been given a warning by Personnel Branch following incidents, admitted by her, where she had accessed inappropriate internet sites. Professor Pearce’s initial response to the warning was that it was ‘largely a slap on the wrist’, and that the claimant should be transferred to another section. However, following discussion and correspondence with Personnel, he accepted the outcome and did not pursue the matter any further. Again, there is no evidence to show that he subsequently held this incident against the claimant in any way.

6. Allegations that the claimant received less favourable treatment than Francis Martin in the respective investigations into complaints which they had made against each other

(i) On 28 August 2002 the claimant made a complaint against a fellow worker, Francis Martin. She alleged that he had referred to her as ‘he’. Mr Martin denied this allegation.

Professor Pearce spoke to Personnel Branch who recommended that he should carry out an informal investigation into the matter. The Professor delegated the task of carrying out an investigation to Dr Mitchell. As part of that investigation, Dr Mitchell interviewed the claimant, Mr Martin, and a witness, Trevor Oliver.

On 12 September 2002, Dr Mitchell provided his notes of these interviews to Professor Pearce, who considered them. He decided that the matter came down to one person’s word against another and therefore was unable to reach any definitive conclusion.

(ii) On 20 September 2002, Francis Martin made a complaint against the claimant. He alleged that the claimant, who was clearly upset at the outcome of her complaint against him, behaved aggressively towards him and threatened to ‘get him’. He reported the incident to Professor Pearce, and also rang Ms Fitchie of Equal Opportunities. Mr Martin indicated that he was considering reporting the matter to the police. The claimant denied his allegations against her.

Professor Pearce advised Mr Martin to contact Equal Opportunities, and in an e-mail to Sharon Fitchie, the Equal Opportunities Officer, described Mr Martin as ‘clearly very upset’, stated that the incident was ‘very significant’ and solicited her advice on the way forward.

Dr Mitchell again carried out an investigation, and reported to Professor Pearce. In view of the claimant’s denials, Professor Pearce again reached the conclusion that this was another instance of one person’s word against another and took no further action. He reached this conclusion on 27 September 2002.

(iii) The claimant’s allegations of less favourable treatment in the investigation of these complaints are:-

(a) that her complaint was treated less seriously than Mr Martin’s;

(b) his complaint was resolved more quickly; and

(c) the resolution of Mr Martin’s complaint, unlike hers, had seen the involvement of the Equal Opportunities Officer, Mr Fitchie.

However, what is of significance here is that the outcome of the two complaints, which were essentially a mirror image of each other, was the same. In both instances, Professor Pearce considered the evidence, and because he was confronted with one person’s word against another’s, decided that it was inconclusive and took no further action. In this respect he accorded exactly the same treatment to the claimant and Mr Martin.

There was admittedly more involvement of Equal Opportunities in Mr Martin’s complaint, but the reason Professor Pearce contacted Sharon Fitchie was because it was the second incident involving the same members of staff, and he did not wish the situation to escalate.

Additionally, Mr Martin, initially at least, was talking of calling in the police.

Although Ms Fitchie was involved on the second occasion, it was a peripheral as opposed to direct involvement and in practice she stood back from the matter. She had not been directly involved in the claimant’s complaint against Mr Martin, and was conscious that if she became involved in his complaint “it would take away [her] neutrality if either person wished to come [to] talk to [her] at a later stage”.

Mr Martin’s complaint against the claimant was investigated more quickly than her complaint against him (seven days as opposed to fifteen).

Both complaints were investigated promptly, and we do not consider this disparity was so great that anything turns on it, particularly against the background of an escalating situation. Some complaint is made that Dr Mitchell was wrong to deny the claimant the right to have a trade union representative present when he investigated the complaint against her. However, there was a paucity of evidence on this point. Even if there were a breach of procedures here, it does not seem to us to be one from which, in all the circumstances, we could draw any inference of discrimination.

(iv) Overall, in relation to the handling of the complaints there is no evidence that the claimant suffered less favourable treatment on the ground of her gender reassignment.

7. The alleged failure by the respondent to make greater efforts to find the claimant alternative work

(i) The claimant’s request for a transfer arose out of her unwillingness to undertake work which involved animal testing. On 25 March 2002 she wrote to management setting out her objections to the work she had been asked to do, stating that she “[did] not find it acceptable to be asked to undertake testing on marine animals, shellfish and/or their tissues or tissue extracted products”. At the time of her recruitment in 1999 the claimant had indicated that she was “not prepared to carry out work involving animals”.

There is some confusion about when management, or who in management, became aware of this, but it is not necessary for our purposes to resolve that confusion. This initial declaration was regarded as being in the nature of an objection to vivisection. However, it was clear that the claimant’s objections were wider than vivisection, and that these extended to working with shellfish, and to the testing of marine animals generally. Work of the latter description would not necessarily have been seen as animal testing in the context of laboratory work.

(ii) The end result, however, was that the claimant’s continued employment in the Division where she worked became problematical.

In the period from May to July 2002 it is clear that attempts were being made to find an alternative post for the claimant but unfortunately all available posts within her Department involved animal testing (within the claimant’s extended definition).

On 10 July 2002 she had a meeting with Brendan Craig, of Establishment Branch, in an attempt to resolve the difficulties which had arisen, and to find a solution either within or outside the Department. However, a trawl of other departments employing scientific officers, include the Forensic Science Laboratory, the Water Service, and the Department of Enterprise, Trade and Industry proved negative.

A further trawl of the Department was made on the claimant’s behalf, and this too was unsuccessful. Additionally, following a meeting on 5 November 2002 Mr Compton wrote personally to his counterparts in other departments in an attempt to find suitable alternative work for the claimant. In doing this, he went further than he normally would have done in the discharge of his duties as Establishment Officer.

8.	(i)	In the course of evidence before the tribunal, much reliance was placed on the meeting of 5 November 2002, and the way it was conducted. It was attended by the claimant, her union representative, Mrs Caves, Mr Campton and Valerie Noble (as note taker). The events at the meeting do not form a distinct head of the claimant’s case, but she and her union representative allege that Mr Campton conducted it in a bullying and intimidatory way, that as far as he was concerned, Mr Campton’s main interest was in terminating the claimant’s employment, and that subsequent to the meeting, Mr Campton, in a reference to the claimant’s transsexual status, had spoken of ‘three of them’ in the Department and two in the division. According to Mrs Caves, the meeting was so bad that it was the worst she had attended in 20 years as a union representative, and led to her calling Mr Campton a ‘git’.

	(ii)	We are unable to accept Mrs Caves’ account of the meeting. Mrs Noble’s minutes, which were not subsequently challenged, do not support such an account. Nor did Mrs Caves, an experienced and longstanding trade union official, make a complaint about Mr Campton in the aftermath of the meeting. Having seen and heard Mr Campton in the witness box, we are satisfied that if Mrs Caves had called him a ‘git’, he would not have let the matter rest there, but would have taken action against her. We do not accept that Mr Campton’s preoccupation was with getting rid of the claimant. This is not consistent with his conduct after the meeting, to which we have made reference at Paragraph 7(ii) above, or with a further letter which he wrote to Dr Neill, a divisional head, on 16 December 2002, where he pointed out that Personnel Management Division would continue to search for a suitable post for the claimant. In that letter he also suggested that consideration should be given to transferring the claimant to the Soils Laboratory. He stated to Dr Neill: “I appreciate that in doing so you may be required to negotiate postings for other staff to accommodate any such transfer for [the claimant]”. Indeed, we accept Mr Campton’s evidence, which reflected the reality of civil service procedures, that termination of the claimant’s employment could only come about after a distinct set of procedures had been invoked.

	(iii)	Consequently, we are satisfied in relation to the efforts to secure a transfer for the claimant, that there is no evidence from which we can infer that she was discriminated against on the ground of gender reassignment.

9. The claimant’s performance appraisal in June 2002 or thereabouts

(i) In this appraisal the claimant obtained a Grade 3, which was indicative of a satisfactory performance on her part (in other words her performance was deemed fully to meet normal requirements). She had successfully appealed a previous negative appraisal, and had afterwards been told that her performance and output had improved.

(ii) In relation to the 2002 appraisal, some changes were made by the countersigning officer. These alterations were made to specific categories, and increased the markings for them, but it was not considered appropriate to increase the overall box marking.

The claimant indicated that she wished to appeal, but did not proceed with this.

She subsequently was promoted and moved to another government department. While her promotion came about following self-nomination there is nothing to indicate that the contents of any appraisal she received held her back or disadvantaged her in any way.

(iii) Again, there is no evidence from which we can infer less favourable treatment.

10. We now proceed to consider the relevant law:-

(i) Article 4A of the Sex Discrimination (Northern Ireland) Order 1976 (as inserted by Regulation 2(2) of the Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999) provides as follows:-

“(1) A person (‘A’) discriminates against another person (‘B’) in any circumstances relevant for the purposes of –

(a) any provision of Part III; (Employment Field) …

(b) … if he treats ‘B’ less favourably than he treats or would treat other persons, and does so on the ground that ‘B’ intends to undergo, is undergoing or has undergone gender reassignment.”

(ii) Article 63A of the 1976 Order deals with the burden of proof in sex discrimination cases. It provides:-

“(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III; or

(b) is by virtue of Articles 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant;

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

11.	(i)	In *Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination. This guidance is now set out at an Annex to the judgment in the Igen* case, op.cit 269,270. We therefore do not set it out again, but we have taken it fully into account.

	(ii)	In short, the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds. The Tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. By way of example, such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness. If the claimant does prove facts from which the Tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (in this case, gender reassignment). The Tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that gender reassignment was not the ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a Tribunal will expect cogent evidence to discharge that burden of proof.

	(iii)	Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the Tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer. (See: *Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International PLC [2007] IRLR 247; and Arthur v Northern Ireland Housing Executive and another [2007] NICA 25*.)

	(iv)	These cases were considered more recently by HM Court of Appeal in Northern Ireland in *Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8* and *Nelson v Newry and Mourne District Council [2009] NICA 24*. In the former Coughlin LJ, at Paragraph 16 of the judgment, emphasised the need for Tribunals hearing cases of this nature to keep firmly in mind the fact that such claims are founded upon an allegation of discrimination on a proscribed ground (in that case, religious belief). This was re-emphasised by Girvan LJ, at Paragraph 24 of the judgment in the latter case.

11. Having considered the evidence in this case, the facts found by the tribunal, as set out above, and having had regard to the submissions of the claimant and counsel for the respondent, we are satisfied that there is no evidence from which we can infer that the claimant suffered unlawful discrimination on the ground of her gender reassignment.

We therefore dismiss her claims.

Chairman:

Date and place of hearing: 12 – 16 and 19 – 21 November 2007;

22 January 2008; and

3 – 4 November 2009, Belfast

Date decision recorded in register and issued to parties:

THE INDUSTRIAL TRIBUNALS

CASE MANAGEMENT DISCUSSION

CASE REF: 2606/02

CLAIMANT: JR5

RESPONDENT: R2606/02

CONSTITUTION OF TRIBUNAL: Mr D Buchanan

Mr J McAuley

Ms J MacAuley

DATE OF HEARING: 3 September 2009

REPRESENTATIVES OF PARTIES:

CLAIMANT: In person.

RESPONDENT BY: Mr A Sands, Barrister-at-Law, instructed by

The Departmental Solicitor’s Office.

__________________________________________________________________

Case Management Discussion

Record of Proceedings

__________________________________________________________________

3. A previous Case Management Discussion had been held on 24 June 2009, at which directions were given to the claimant in respect of medical evidence required by the tribunal.

2.(i) A medical report dated 24 July 2009, was before the tribunal. In that report, her doctor stated that:

“If proceedings were guaranteed to only last half a day, then [the claimant]
could be considered medically fit to participate.”

2.(ii) As indicated in the Record of Proceedings issued on 26 June 2009 it is anticipated that it will take less than half a day to complete the evidence in this case. The tribunal also indicated that the claimant will be accommodated with breaks in the hearing, if she so desired.

3. Evidence-in-chief in this matter has previously been given orally. However, in ease of the claimant the evidence-in-chief of the outstanding witness, Ms Fitchie, will now

be adduced in a witness statement and served on the claimant by 25 September
2009.

A copy of that statement should be sent to the Office of the Tribunals by the same date.

4. The matter will be listed for hearing on:

4—6 November 2009

If necessary, to accommodate the claimant, the hearing will be staggered over those days, but should not, in total, exceed half a day.

1. We also indicated that while we considered it essential to hear all the evidence in the case, we regarded closing submissions by the parties as desirable, rather then essential, and that we were prepared to dispense with such submissions in this case.

We did not make a final ruling on this, but gave the parties the opportunity to reflect on our view of this aspect of the matter.

Chairman:

4 September 2009

THE INDUSTRIAL TRIBUNALS

CASE REF: 2606/02

Record of proceedings of an industrial tribunal sifting at Belfast on 24 June 2009.

CLAIMANT: JR5

RESPONDENT: R2606/02

Constitution of Tribunal: Chairman Mr D Buchanan

Members Mr J McAuley

Ms J MacAuley

Representation of Parties:

Name Capacity

Claimant: In person --

Respondent by: Mr P Butler The Departmental

Solicitor’s Office.

________________________________________________________________

Record of Proceedings

__________________________________________________________________

1. (i) A previous Case Management Discussion had been held on 8 June 2009. The matter had been re-listed to hear evidence from the claimant’s doctor on her medical condition and in particular, on her fitness to take part in these proceedings

(ii) This turned out not to be possible, as the doctor had written to the Office of the Tribunals stating that she had not seen the claimant for some months, had now moved to another hospital, and was therefore not in a position to express an opinion on her fitness to attend.

(i) On 11 June 2009, the claimant had seen a doctor, but only very briefly, and she has another appointment on 13 August 2009. However, this second appointment appears to be with a locum doctor, who will not be familiar with her history or condition.

However, the claimant was hopeful that her GP could provide the necessary medical evidence. In any event, we would emphasise that if it remains her case that she is medically unfit to proceed with the case, it is for her to provide up-to-date medical evidence to support that.

We now direct as follows:

(i) that the claimant provide an up-to-date medical report by 31 July 2009;

(ii) that she provide the doctor making the report with a copy of this Record of Proceedings (a copy is attached for her convenience);

(iii) that the doctor, in his report, expresses an opinion as to whether or not she is medically fit to continue with, and take part in, these proceedings, and if she is not, if he can specify a time frame within which she will be fit to do so;

(iv) in expressing his opinion, the doctor is asked to bear in mind the following matters:-
(a) that these proceedings have been substantially completed;

(b) that only one witness remains to give evidence;

(c) that that witness will make a witness statement, which will be provided to the claimant in good time before the hearing, so she can consider its contents, and any questions she wants to put to the witness;

(d) that it is anticipated that it will take less than half a day to complete the case and that the claimant will be accommodated with breaks in the proceedings, if she desires;

(e) that the claimant has already attended and taken part in two short case management hearings relating to this mailer on 8 and 24 June 2009, without any apparent difficulties in the admittedly non-medical opinion of the members of the tribunal.

3. A further Case Management Discussion will be held at 9.30 a.m. on Thursday 3 September 2009. It will hear any representations the parties wish to make in the light of the medical evidence obtained, and give such further directions as may be appropriate, which may include directions designed to bring this case to a conclusion.

Chairman:
Date: 26 June 2009

THE INDUSTRIAL TRIBUNALS

CASE REF: 2606/02

Record of proceedings of an industrial tribunal sitting at Belfast on 8 June 2009.

CLAIMANT: JR5

RESPONDENT: R2606/02

Constitution of Tribunal: Chairman Mr D Buchanan

Members Mr J MacAuley

Ms J MacAuley

Representation of Parties:

Name Capacity

Claimant: In person --

Respondent by: Mr A Sands Instructed by

Barrister-at-Law The Departmental

Solicitor’s Office.

__________________________________________________________________

Record of Proceedings

__________________________________________________________________

1. A Case Management Discussion had been held in this mailer on 27 May 2009. At the Case Management Discussion the case had been listed for hearing before a full panel in an attempt to conclude the case. Evidence had last been heard on 20 November 2007. Thereafter it had not been possible to continue with the case because of illness on the part of the claimant.

2. At the hearing the claimant asked to be allowed to address the tribunal in the absence of the respondents legal team and witnesses. Mr Sands BL, for the respondent, did not object to that. We did, however, make it clear to the claimant that notwithstanding that we were acceding to her request, it might be necessary, in the interests of justice, to convey the gist, as opposed to the detail of what she told us to the respondent’s counsel in order that he might have the opportunity of commenting on it. (In fact we did subsequently did adopt such a course.)

3. (i) The claimant informed us that she remained unfit to take part in the tribunal proceedings. She relied on a medical report from Dr Taggart, dated 12 February 2009. This medical report indicated that there had been little change in her medical condition since the provision of an earlier report in July 2008. The claimant indicated that she had a further medical appointment with Dr Taggart on Thursday 11 June 2009.

(ii) Mr Sands BL, for the respondent, pointed out that there remained only one comparatively short witness to be taken for the respondent, and indicated that if the case did not proceed, he would making an application to strike-out the claimant’s claim on the ground that it was not being actively pursued. While indicating that we are not disposed to adopt the latter course, it is not necessary to deal with it now.

(iii) As far as the medical evidence is concerned, we have before us some evidence, which while admittedly not satisfactory, does indicate that the claimant is unfit to attend the tribunal. In order to progress this matter, the case will be re-listed:

at 9.30 am on Wednesday 24 June 2009

A Witness Summons will be issued to Dr Taggart for that date. This will allow the tribunal to investigate the matter, and to determine if there is any impediment to the case going ahead. Mr Sands BL will have the opportunity to cross-examine the doctor. The claimant indicated that the medical reports of July 2008 and February 2009 can now be made available to the respondents solicitor, notwithstanding her earlier objection to this.

Mr Sands BL helpfully indicated that he has no objection to the doctor’s evidence being given by telephone conference facility, if this is more convenient.

4. At the hearing on 24 June 2009, the tribunal will determine, in the light of the medical evidence, if the case can be resumed with the claimant’s participation within a reasonable time. If not, the tribunal will then give such directions as are otherwise appropriate to bring it to a conclusion.

In order to facilitate this process, Mr Sands BL indicated that will make documents relating to the outstanding witness’ evidence available to the claimant, to see if they can be agreed with the result that the oral evidence required may be shorter.

Chairman:

Date: 8 June 2009

THE INDUSTRIAL TRIBUNALS

CASE MANAGEMENT DISCUSSION

CASE REF: 2606/02

CLAIMANT: JR5

RESPONDENT: R2606/02

DATE OF HEARING: 27 May 2009

REPRESENTATIVES OF PARTIES:

CLAIMANT BY: See: below.

RESPONDENT BY: Mr A Sands, Barrister-at-Law, instructed by

The Departmental Solicitor’s Office.

__________________________________________________________________

Case Management Discussion

Record of Proceedings

__________________________________________________________________

1. (i) The Case Management Discussion was scheduled for 11.00 am.

The claimant was present in the building, but left at 10.35 am before the scheduled start of the hearing.

She left three letters at reception, two of which related to these proceedings.

(ii) (a) In one of these letters she made reference to a document sent to her by Mr Butler, of The Departmental Solicitor’s Office, and stated that in the light of that document, she may wish to re-call some of the respondent’s witnesses.

(b) In the second letter, she raised objection to representatives in other cases in which she was involved having been given the opportunity to be present at the hearing. This objection, however, turned out to be academic and none of these persons actually attended.

2. (i) The matter will now be re-listed:
before the full panel at 10.00 am on Monday 8 June 2009

(iii) On that occasion:

(a) the respondent will call any further witness/es on whom they intend to rely. I understand there will probably• be only one such witness;

(b) the claimant will have the opportunity to make any application she wishes in relation to the recall of any witness.

(iv) I direct that within seven days of the date of this Record of Proceedings the claimant should specify in writing to the respondent’s solicitor the document to which she made reference in her letter of 26 May 2009 (referred to at Paragraph 1(ii)(a) above).

The resumed hearing will be a private hearing, and only those involved in this case will be permitted to be present.

Chairman:

Date: 29 May 2009

THE INDUSTRIAL TRIBUNALS

CASE REF: 2606/02

Record of proceedings of an industrial tribunal sitting at Belfast on 22 January 2008.

CLAIMANT: JR5

RESPONDENT: R2606/02

Constitution of Tribunal: Chairman Mr D Buchanan

Members Mr J McAuley

Ms .J Macauley

Representation of Parties:

Name Capacity

Claimant: In person. ---

Respondent by: Mr A Sands Instructed by

Barrister-at-Law The Departmental Solicitor’s

Office

____________________________________________________________________________
Record of Proceedings

1. The full hearing of the above case had been reconvened before the tribunal on
22 January 2008.

2. (i) In advance of that hearing, by letter dated 17 January 2008, the claimant sought a postponement on medical grounds.

(ii) That letter was copied to the respondent’s representative who, by letter of 21 January 2008, objected to the postponement.

3. At my direction the claimant was contacted by the clerk to the tribunal on 21 January 2008. It was explained to her that, in view of the respondent’s objection, I could not consider her request for a postponement in the absence of medical evidence. She was given the opportunity to obtain medical evidence, and informed that her application for a postponement could be renewed at the beginning of the hearing fixed for 22 January 2008.

4. (i) A medical certificate was produced by the claimant for the hearing on 22 January 2008;

In view of that medial evidence, Mr Sands BL, for the respondent, indicated that he neither consented to, nor objected to, a postponement.

(ii) The tribunal, in the light of the medical evidence, considered that it was in the interests of justice that the case should be postponed, and so directed.
(iii) It noted that the claimant had a further medical appointment on 24 January 2008. It directed that a further medical report be obtained setting out:

(a) the claimant’s condition;

(b) the prognosis, including the likely period of recovery; and indicating

(c) when the claimant will be fit to attend the tribunal and take a full part in the conduct of her cases.

5. When the tribunal reconvenes to hear this case, it is anticipated that it will conclude in one further day. On that day the evidence of the one remaining witness will be taken, and the parties will make their final submissions.

Chairman:

Date: 24 January 2008

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