Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/1379_13IT.html
Cite as: [2013] NIIT 1379_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1379/13

CLAIMANT: Mark McCavanagh

RESPONDENTS: 1. W Stuart Marshall

2. Ministry of Defence

DECISION ON A PRE-HEARING REVIEW

Constitution of Tribunal:

Chairman (sitting alone): Miss E McCaffrey

Appearances:

The claimant appeared in person.

The respondent was represented by Ms Fiona Chamberlain of the Crown Solicitors Office.

1. This Pre-Hearing Review had been arranged to consider whether the tribunal had jurisdiction by virtue of Article 71(8) of the Race Relations (Northern Ireland) Order 1997 to hear the claimant’s complaint of unlawful discrimination.

2. The claimant is a serving soldier employed by the Ministry of Defence and has been employed in this capacity since March 2008.

3. The claimant brought a complaint of unlawful race discrimination against the first and second respondents which was received in the Office of the Industrial Tribunals on 29 July 2013.

4. The relevant legislation is to be found in the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”) and the relevant provisions provide as follows:-

Article 52 provides:

“(1) A complaint by any person (“the complainant”) that another person (“the respondent”)—

(a) has committed an act … against the claimant which is unlawful by virtue of Part (II) [Article 72 ZA or, (in relation to discrimination on grounds of race or ethnic or national origins, or harassment), Article 26]; or

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act … against the complainant;

may be presented to an industrial tribunal”.

Article 71 of the 1997 Order provides as follows:-

“Application to Crown etc.

71(1) – This Order applies –

(a) to an act done by or for purposes of the Ministry of the Crown or Government Department; or

(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,

as it applies to an act done by a private person.

(2) Parts II and IV apply to —

(a) service for purposes of Ministry of the Crown or Government Department, other than service of a person holding a statutory office; or

(b) service on behalf of the Crown for purposes of a person holding a statutory office or purpose of statutory body; or

(c) service in the armed forces,

as they apply to employment by a private person and shall so apply as if references to a contract of employment included references to the terms of service.

……

(7) This paragraph applies to any complaint by a person (“the complainant”) that another person –

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Article 6; or

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination against the complainant;

if at the time when act complained of was done, the complainant was serving the armed forces and the discrimination relates to his service in those forces.

(8) No complaint to which paragraph (7) applies shall be presented to an Industrial Tribunal under Article 52 unless –

(a) the complainant has made a service complaint in respect of the act complained of; and

(b) the Defence Council has made a determination with respect to the [service complaint]”.

5. Mrs Chamberlain referred me to the legislation and indicated that she understood regulations had been made in relation to the presentation of the service complaint. The regulations were not actually to hand at the date of this hearing.

6. Mrs Chamberlain referred me to the legislation and to the fact that the claimant had now lodged a service complaint on 8 November 2013 but indicated that the complaint had not yet been determined. She noted that Article 71(8)(b) required both the complaint to be made and a determination to be made in respect of it before a complaint could be presented to an Industrial Tribunal by a serving member of the armed forces, if the discrimination in question related to his service in those forces.

7. Mr McCavanagh indicated that the Ministry of Defence had been aware of the issues raised in his claim since July or August of 2013. He was concerned that there had been what he described as “heel dragging” and that there was ongoing harassment.

8. In relation to this last point, I indicated to him that he may wish to seek further advice, but that the legislation, although complex, was clear on this point. As he had not lodged his service complaint and had it determined prior to lodging his claim before the Industrial Tribunal, the Tribunal had no jurisdiction to deal with his complaint and I had no alternative but to strike it out. I must strike out this claim on the basis that the Tribunal has no jurisdiction to deal with it, and I so order.

Chairman:

Date and place of hearing: 16 December 2013, Belfast.

Date decision recorded in register and issued to parties:

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