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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGourty v Belfast Metropolitan College Barbara Tame [2011] NIIT 00369_11IT (16 November 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00369_11IT.html
Cite as: [2011] NIIT 369_11IT, [2011] NIIT 00369_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 369/11 IT
CLAIMANT: Thomas Aidan McGourty
RESPONDENTS: 1. Belfast Metropolitan College
2. Barbara Tame
DECISION ON COSTS
The Tribunal refused to make an order for costs.
Constitution of Tribunal:
Chairman (sitting alone): Mrs A Wilson
Appearances:
The claimant was represented by Mr P Moore of PM Associates.
The respondents were represented by Mr Sean Doherty, Barrister-at-Law, instructed by J Blair Solicitors.
The Issues
1. Is the respondent entitled to an award of costs against the claimant pursuant to Rules 38 and 40 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedures) Regulations (Northern Ireland) 2005?
2. If the respondent is entitled to an award of costs against the claimant, what amount if any should be awarded?
The Hearing
3. I was furnished with an agreed bundle of documents and considered those documents within that bundle as referred to by the parties during the course of the hearing. I heard evidence from the claimant and I considered oral submissions from both parties. I carefully considered the claimant’s testimony and his demeanour in Tribunal and I am satisfied that he is a credible witness and consistent and straightforward in his evidence.
The Facts
4. The claimant lodged a claim of sex discrimination, religious discrimination and political discrimination to an Industrial and Fair Employment Tribunal arising out of treatment he received from the respondents following an incident which occurred on 14 September 2009. The claimant alleges ongoing unlawful discrimination by both respondents. I am concerned only with the proceedings in so far as they relate to allegations of unlawful sex discrimination.
5. For the purpose of these proceedings it is agreed that that claim was forwarded to the Tribunal on 13 October 2010. Due to an administrative error on the part of the Tribunal, the claim form was not recorded as having been received until 24 January 2011. It is however accepted for the purposes of these proceedings that the claim was presented on 13 October 2010.
6. The respondents presented individual responses to the proceedings, both dated 2 March 2011, both denying unlawful discrimination in its entirety and both submitting that the claim was out of time.
7. A notice for additional information was forwarded by the respondents to the claimant on 11 May 2011 together with a notice for discovery.
8. A case management discussion was held on 19 May 2011 and a record of those proceedings issued on 23 May 2011 identifying the following issues and recording the following orders:-
• ongoing direct sex discrimination was an issue between the parties and a time point was raised as an issue to be determined at a substantive hearing;
• replies were to be furnished to the respondents’ interlocutory notices by 2 June 2011;
• a witness statement was to be lodged by the claimant accompanied by witness statements of any witness he sought to call by 17 June 2011;
• witness statements were to be lodged by the respondents’ witnesses by 11 June 2011 and any witness statements of the claimant in response were to be lodged by 18 August 2011;
• a schedule of loss was to be lodged by the claimant by 17 June 2011 and the case was to be listed for hearing from 12-16 September 2011.
9. The claimant lodged 2 witness statements in or around July 2011, one in respect of his own evidence and one in respect of evidence to be given by Suzanne Ni Mhaolmhuaid.
10. On 7 July 2011 the respondents wrote to the claimant informing him that a view had been taken that his claim was “pointless and without merit” and giving him 7 days to withdraw his case failing which an application for costs of the entire proceedings would be made should the claimant’s claim proceed to a hearing and be dismissed.
11. The claimant withdrew his claim on 31 August 2011.
The Allegations
12. The claimant is a chemistry teacher and has been employed by the first named respondent for a period of 26 years. In the school term beginning September 2009, he had responsibility for an A Level revision night class. The school term commenced on 14 September 2009 and the first class was scheduled for that evening.
13 Following an incident which occurred during the claimant’s class on that evening, a complaint was made by a student relating to the conduct of the claimant.
14. A preliminary investigation was conducted by the first named respondent following that complaint and a decision was taken that the claimant was to be invited to attend a disciplinary interview to answer 4 allegations of misconduct. The second named respondent was charged with the conduct of that interview and Mr Brian Johnston, the claimant's line manager was on the interview panel.
15. Following that interview the claimant was notified by the second named respondent that 3 of the 4 allegations of misconduct were upheld and he was issued with a written warning to remain on his record for a period of 38 weeks. A written warning is a serious penalty in circumstances where a second such warning warrants dismissal.
16. The claimant was distressed by the conduct of the disciplinary process and by the outcome of the disciplinary hearing. He considered the process as a whole to be flawed and to amount to unlawful sex discrimination. It is his case that the investigation was flawed and biased and that conclusions reached were inconsistent with facts and evidence presented which were favourable to him. He believed the outcome of the disciplinary interview amounted to an attempt on the part of the second named respondent to intimidate and bully him in a manner that she would not have adopted had he been a female staff member.
17. The claimant believes that his line manager Brian Johnston was put under pressure by the second named respondent in relation to the decisions to uphold 3 of the 4 charges and in relation to the penalty imposed. The claimant believed the penalty to be disproportionate, unnecessary, unwarranted and discriminatory.
18. The claimant appealed the outcome of the disciplinary interview to Ms Sharon Reid, the Employee Relations Advisor. His appeal was heard by Ms Bernie McCann and was successful in so far as 2 of the 3 allegations were not upheld and the sanction was reduced from a written to an oral warning. A decision in these terms was forwarded to the claimant on 16 December 2009.
19. The claimant was dissatisfied with the outcome of the appeal. It remained his belief that the investigation into the complaint in the first instance was deliberately flawed, that the instigation of disciplinary procedures against him represented a deliberate attempt by the second named respondent to bully and intimidate him. He believed that the sanction imposed following the disciplinary interview was disproportionate and potentially ruinous to his career. He was very concerned for his career and for his reputation. As a direct result he suffered stress related sleepless nights, nightmares and poor concentration at work for which he was prescribed medication.
20. In or around April 2010, the claimant lodged a grievance with his line manager Mr Brian Johnston. A meeting was held on 14 April 2010 to consider the grievance. The second named respondent played no part in the grievance procedure.
21. By letter dated 16 April 2010 the claimant was informed by Mr Harry McCarry, Head of Human Resources, that a resolution had been achieved in that he (the claimant) was given reassurance regarding any impact the disciplinary process would have should disciplinary matters arise in the future.
22. The claimant remained dissatisfied with the process overall and with the outcome of the grievance. He lodged an appeal against the outcome of the grievance procedure on 22 April 2010. It remained his case that the instigation of disciplinary action against him in the first instance was inappropriate and that the conduct of disciplinary procedures was flawed in a manner which amounted to unlawful sex discrimination.
23. Following an appeal hearing with Ms Maura Lavery, the Deputy Director of the first named respondent organisation, the claimant was informed by letter dated 9 June 2010 that his appeal was unsuccessful on all counts and that the outcome of the initial disciplinary hearing was confirmed. The claimant was informed in conclusion that the case was considered to be closed.
24. This outcome was a source of deep distress to the claimant. Rather than overturning the remaining finding of misconduct against him, the decision was taken to reinstate all findings of misconduct. The claimant remained of the firm view that the whole disciplinary process was tainted by unlawful sex discrimination.
25. The second named respondent left the employment of the first named respondent in or around June 2011. Despite the respondents contentions to the contrary, I am satisfied that the claimant was unaware of this fact until in or around the end of August 2011 when it came up in conversation between the claimant and Brian Johnston. In reaching this conclusion, I am mindful that contrary to an initial view taken by the respondent, it transpired that the claimant was not copied into an e mail making reference to the departure of the second named respondent from her employment and secondly although the claimant attended a party in the Errigal Bar at which Ms Tame’s leaving was recognised, it was not a party primarily held for that purpose and the venue was very crowded. It was in fact an end of year party during which the claimant did not come into contact with Ms Tame. I accept that it is somewhat surprising that the claimant was not aware of Ms Tame’s departure prior to his conversation with Brian Johnston. However for reasons given above and having found the claimant to be a credible witness I accept that on the balance of probabilities that this was the case and that it was mentioned to him for the first time in the context of a general discussion relating to his case.
The Law
26. The general power to make an order for costs is contained within Rule 38 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules”) and the following provisions are relevant for the purposes of these proceedings:-
“General powers to make costs orders
38.— (1) Subject to paragraph (2) and in the circumstances listed in rules 39, 40 and 41 a tribunal or chairman may make an order (“a costs order”) that –
(a) a party (“the paying party”) make a payment in respect of the costs incurred by another party (“the receiving party”);
(b) …………
(2) A costs order may be made under rules 39, 40 and 41 only where the receiving party has been legally represented at the hearing under rule 26 or, in proceedings which are determined without such hearing, if the receiving party is legally represented when the proceedings are determined ……….
(3) For the purposes of these Rules “costs” shall mean fees, charges or disbursements incurred by or on behalf of a party in relation to the proceedings.
(2) A costs order made under paragraph (1) shall relate to any costs incurred as a result of the postponement or adjournment of the hearing under rule 26.
When a costs order may be made
40.— (1) ………..
(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.
(4) …………..
The amount of a costs order
41.— (1) The amount of a costs order against the paying party shall be determined in any of the following ways –
(a) the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000;
(b) ……………
(c) ………..
(2) The tribunal or chairman may have regard to the paying party’s ability to pay when considering whether it or he shall make a costs order or how much that order should be.”
Case Law
27. I considered the relevant case law and in particular the cases of McPherson –v- Paribas [2004] IRLR 558, Suresh Deman -v- Association of University Teachers and Officers at Queen’s University [2009] NICA 29 and E T Marler Ltd –v- Robertson [1974] ICR 76. I considered Harvey on Industrial Relations and Employment Law Division P1 Practice and Procedure paragraphs 1026 to 1080.
28. It is the respondents’ case that the claimant in his conduct of the proceedings acted vexatiously, abusively, disruptively and otherwise unreasonably in his bringing of the proceedings and in his conduct of those proceedings. In particular it is their case that the claimant instituted proceedings and conducted those proceedings in an attempt to secure compensation in financial terms from the respondents in circumstances where he was aware that his complaint was out of time and furthermore had no reasonable prospect of success. It is their case that he never intended to progress his case to a hearing and that that his withdrawal of proceedings on 31 August 2011, some 12 days prior to the hearing, was indicative of this position. They submit that withdrawal was not motivated by any development relating to the case; rather it was based upon the realisation that no settlement was likely and the chance of success at hearing was remote.
29. The respondents further submit the claimant was misconceived in his bringing of the proceedings in that he was aware that his claim was substantially out of time in the first instance and in the second instance that it had no reasonable prospect of success or of even getting over the first hurdle of establishing a prima facie case from which inferences of unlawful sex discrimination could be drawn.
30. It is the claimant’s case that his complaint was one of continuing unlawful sex discrimination and was in time. It is his case that his complaint was entirely meritorious. It is accepted that his complaint was withdrawn in circumstances where there had been no development in the case to inform his decision to withdraw. Rather it was withdrawn for a number of legitimate reasons unrelated to merit.
31. The claimant submits that he withdrew proceedings because (a) he became aware that the second named respondent had left her employment with the first named respondent and was unlikely to trouble him in the future, (b) he had suffered from stress related symptoms as a result of his treatment at the hands of the respondents and feared for his mental health as he felt his stress levels rise as the hearing date approached and (c) he became aware of the impact his case would have on colleagues who would be required to give evidence on his behalf, thereby missing classes in circumstances where the commencement of the school term was already delayed due to the move to Titanic Quarter and staff were under considerable additional pressure as a result.
32. I accept that in or around the time of the initial complaint against the claimant and the resultant disciplinary proceedings, the claimant suffered from stress to the extent that he was prescribed medication by his GP. I accept that as the hearing date approached he found it difficult once again to cope with the associated stress and that he feared a further decline in his mental condition. It is accepted that he did not consult his doctor at this time but I am nonetheless satisfied that the claimant suffered from stress to the extent that he genuinely feared for his mental health. I am satisfied that this was the overriding consideration in his decision to withdraw proceedings. I am also satisfied that knowledge of the departure of Ms Tame from the employment of the first named respondent and realisation that the hearing of his case would result in additional pressure on colleagues in circumstances where they were already under pressure, informed his decision to withdraw.
Conclusions
33. The question I have to decide is whether the claimant in all the circumstances of this case conducted his case unreasonably within the meaning of rule 40(3) and whether the bringing or conducting of his case was misconceived within the meaning of that rule.
34. This case involves the withdrawal of proceedings at a relatively late stage. However the question is not whether that withdrawal itself was unreasonable. It is well recognised that there are many genuine issues and matters which might lead a claimant to withdraw. The focus is on the claimant’s conduct in bringing the case and conducting the proceedings.
35. The respondents submit that the claimant behaved unreasonably within the meaning of rule 40(2) in bringing and in conducting the proceedings and particularly in withdrawing them at a late stage despite a costs warning having issued on 7 July 2011. I am not satisfied on this point. I accept that there was some slippage in compliance with interlocutory orders and I accept that a costs warning was given. However I am not satisfied that this or the claimant’s conduct overall was unreasonable so as to justify an order as to costs.
36. Having considered the evidence (including the manner in which it was presented), and having evaluated that evidence as informed by relevant legislation, case law and legal commentary, I am satisfied that this was not a speculative claim. I find that the claimant was genuinely (and continues to be) aggrieved by the treatment he received from the respondents and I am satisfied that he genuinely believes that that treatment amounted to unlawful discrimination on the grounds of his sex. I am satisfied that the claimant was not motivated by compensation in financial terms. It is my finding that he was motivated by a desire to restore his reputation and was influenced in his decision making at all material times by the adverse impact, of what he believed to have been discriminatory treatment, was having on his reputation and on his employment record. I am of course mindful that a claimant may be (and sometimes is) aggrieved in circumstances where there has been no unlawful treatment, despite a strongly held belief to the contrary and I am acutely aware of the need not to connect, a sense of grievance, however strong, with any associated entitlement to pursue an obviously unmeritorious claim. However, after careful consideration I am satisfied that that is not the case here.
37. It is the respondents’ case that the claimant was misconceived in pursuing litigation from the outset for reasons set out above. I have not had the benefit of assessing the evidence pertaining to the substantial issues in this case and it is not for me to make findings relating to those issues, none of which are straightforward. I am required to concentrate on the claimant’s conduct of proceedings in the context of the relevant law.
38. I am not satisfied on the evidence that the claimant was misconceived in bringing or in conducting these proceedings. I have not had the benefit of evaluating evidence pertaining to the substantial issues in this case which is somewhat of a disadvantage. I must reach a decision on the basis of the facts as presented in evidence as they relate to the claimant’s conduct and on the submissions of the parties.
39. On the time point it is the claimant’s case that the act complained of was of a continuous nature such as to extend time. The respondents submit to the contrary and submit that the claimant knew his case was out of time. I do not accept this to be the case. The law relating to time limits in the context of a continuing act is complex and I am grateful to Mr Doherty for furnishing me with relevant case law. However it is not for me to decide whether this case was presented in time. I am concerned with whether the claimant was misconceived in bringing or conducting the proceedings. In circumstances where the law on this point is complex and in any event there exists discretion on the part of a Tribunal to extend time in circumstances where it is just and equitable to do so, I am not satisfied that the claimant was misconceived in bringing or in conducting the proceedings on this point. My finding is that he believed (and continues to believe) that his case to have been presented on time.
40. The respondents submit that the claimant was misconceived in bringing and in conducting proceedings seeking to establish unlawful sex discrimination. It is not within my jurisdiction to find in relation to the substantive issues of unlawful discrimination. I must focus on misconception on the part of the claimant in bringing or in conducting the proceedings. Given the complexities of the law governing sex discrimination, including the law governing the burden of proof, appropriate comparators and less favourable treatment, I am not satisfied that the claimant was misconceived in bringing or in conducting the proceedings on this point. My finding is that he believed (and continues to believe) in the merits of his case.
41. For all of the above reasons and in circumstances where it is well established that an award of costs in Industrial Tribunal proceedings is the exception rather than the rule I make no award of costs in this case.
Chairman:
Date and place of hearing: 6 October 2011, Belfast.
Date decision recorded in register and issued to parties: