Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 114/16

64/16 FET

1646/16

 

 

 

CLAIMANT: Harry Graham McCourt

 

 

RESPONDENT: Antrim & Newtownabbey Borough Council

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

 

(i) the claim of unlawful political discrimination contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 was withdrawn and dismissed;

 

(ii) the claim of unlawful trade union detriment in relation to the claimant's non-appointment to the post of trade union co-ordinator contrary to the Employment Rights (Northern Ireland) Order 1996 was withdrawn and dismissed;

 

(iii) by agreement, the claimant's e-mail of 16 May 2016 and reference to the LRA conciliation process will be removed from the case papers;

 

(iv) the application for a Deposit Order was discontinued at this stage;

 

(v) the application to amend claim, Case Reference No: 114/16, set out in the claimant's document of 7 June 2016 is refused. That claim will proceed unamended; and

 

(vi) the second claim, Case Reference No: 1646/16, is out of time except for the allegations in relation to alleged disciplinary investigations on 10 May 2016 and 27 June 2016. The tribunal sees no grounds on which it could extend time in this case. Case Reference No: 1646/16 is therefore struck-out except for those allegations in relation to disciplinary investigations on 10 May 2016 and 27 June 2016.

 

Constitution of Tribunal:

Vice President (sitting alone): Mr N Kelly

 

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr N Philips, Barrister-at-Law, instructed by Worthingtons, Solicitors.

 

Background

 

1. These claims have an extensive history and present a classic case of tribunal litigation spiralling out of control.

 

2. The claimant has been employed as a refuse collector with the respondent Council and with its statutory predecessor. The claimant was a GMB trade union representative for approximately four years. Industrial relations in the Newtownabbey Cleansing Services Depot were difficult.

 

3. On 16 December 2015, the claimant lodged his first industrial tribunal claim. At that point he had been represented by Mr John Dawson, a full-time official of the GMB trade union. He has also been receiving legal advice from Mr Magill of O'Hare Solicitors, who acted for the trade union. In that tribunal application, the claimant raised four alleged issues of trade union activity detriment:-

 

(i) The removal, on 5 October 2015, of personal access outside working hours to a vehicle owned by the respondent.

 

(ii) Not being on daily worksheets on four occasions between 2 October 2015 and 9 October 2015.

 

(iii) Not being allowed to attend ICTU training on 2 October 2015.

 

(iv) Being refused permission to attend a meeting with a GMB member, during working hours, on 9 October 2015.

 

All those claims therefore related to a one week period between 2 October 2015 and 9 October 20115. No other claim was made at that point to the tribunal.

 

4. The first Case Management Discussion in this matter was listed for 1 March 2016. It was adjourned with the consent of the parties to facilitate conciliation. That conciliation was unsuccessful.

 

5. On 7 March 2016, the claimant wrote to the Office of the Tribunals and asked that his tribunal application should be amended to add three matters. Firstly, an allegation relating to the investigation of a complaint of road rage. Secondly, that a post of trade union co-ordinator had been promised to him and then withdrawn; and, thirdly, that he had been issued with a disciplinary sanction in relation to the organising of an unofficial protest.

 

6. On 11 March 2016, Mr Magill, who was the claimant's solicitor, stated:-

 

"I have consulted with my client and was unaware of his intention to amend the ET1. However, I have advised him that the application which he was making was not appropriate. I would request that this matter is held in abeyance."

 

Mr Magill had clearly been acting as the claimant's solicitor. He had been on record for the claimant since 23 February 2016. The claimant was told by the tribunal in an e-mail dated 11 March 2016 that his letters of 7 March 2016 had been forwarded to his representative. He did not object and he did not argue that Mr Magill was not his representative. Mr Magill took part in negotiations thereafter in relation to possible conciliation and Case Management Discussions. He came off record on 15 May 2016 when those conciliation efforts failed. It was only on 16 May 2016 that the claimant stated that he had not named Mr Magill as his representative in his claim form. He did not dispute that Mr Magill had come on record for him subsequently and that he had acted for him.

 

The tribunal therefore concludes that any application for an amendment on 7 March 2016 was stayed by the claimant and that it did not take effect on that date. It did not take effect until 7 June 2016 (see later).

 

7. A further Case Management Discussion took place on 2 June 2016. Employment Judge Greene stated in his Case Management Discussion Record of Proceedings:-

 

"2. Early on in the Case Management Discussion it became apparent that the claimant had additional information or other incidents relating to his allegations of detriment by reason of trade union activities not included in his claim form. Some of these incidents post-dated the date of the claim form on 16 December 2015 and others happened before that date and had been mentioned in at least two e-mails of 7 March 2016 which were not shared with the respondent, at the request of the claimant's then solicitor, as there were negotiations in progress at that time.

 

3. Accordingly it was agreed that the claimant would issue an additional set of proceedings for incidents of detriment by reason of his trade union activities which have occurred post-16 December 2015.

 

4. In relation to incidents of detriment by reason of his trade union activities prior to 16 December 2015 and which had not been set out in his claim form, the claimant will apply to amend his claim form in his existing claim and he will prepare the wording of his proposed amendment and will serve it on Ms McAloon by 10 June 2016."

 

8. On 7 June 2016 the claimant put forward a detailed seven page application to amend his existing industrial tribunal claim. This was almost six months after the lodgement of that claim. The respondent objected to those amendments.

 

9. On 11 July 2016, despite the clear directions of Employment Judge Greene, the claimant lodged a new set of industrial tribunal proceedings which replicated the existing claim and included the heads of claim then under consideration as part of his amendment application. The claimant knew that his amendment application had been listed for a pre-hearing review on 3 August 2016 and it would have been obvious to him that by replicating the contested amendments in a new set of tribunal proceedings he was rendering that pre-hearing review nugatory and a total waste of time.

 

10. On 3 August 2016, the respondent had not yet been served with the new claim and was not in a position to respond. After being allowed time to consider the terms of the new claim, the respondent indicated that the pre-hearing review would now be a total waste of time. The pre-hearing review was therefore adjourned and the issue of the costs of that pre-hearing review were reserved to the present hearing on 6 October 2016.

 

11. Following further correspondence, the issues for determination at the reconvened pre-hearing review on 6 October 2016 were:-

 

"(1) whether the tribunal should grant leave to the claimant to amend his claim form (CRN: 114/16) as set out in the attached proposed amendment;

 

(2) if leave is granted, what other consequential steps or orders are to be made;

 

(3) whether the tribunal should remove from the case papers the claimant's e-mail of 16 May 2016 to the Office of the Tribunals by reason of it containing details of and output of discussions and details relating to the confidential discussions undertaken through the LRA Conciliation Process;

 

(4) if the tribunal refuses to remove the said e-mail from the case papers should it be redacted to remove details that could potentially cause prejudice?

 

(5) whether the new claim, Case Reference Nos: 64/16 FET and 1646/16, or any part of it, is outside the statutory time-limit for a claim and, if so, whether time should be extended to allow that claim or part of claim, to be heard?

 

(6) whether the second tribunal claim had little reasonable prospect of success;

 

(7) whether the claimant should be ordered to pay the costs of the respondent in the Case Management Discussion on 2 June 2016 on the grounds of the claimant's unreasonable conduct?"

 

12. In the course of the pre-hearing review on 6 October 2016, the claim of unlawful political discrimination contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 was withdrawn and dismissed. The claim of trade union activity detriment contrary to the 1996 Order in relation to the claimant's non-appointment to the post of trade union co-ordinator was withdrawn and dismissed. The claimant expressly stated that he was not claiming that the withdrawal of the trade union co-ordinator post was an unlawful detriment on the ground of trade union activity. It was also agreed that the e-mail of 16 May 2016 and any reference to LRA conciliation attempts should be removed from the papers. The Deposit Order application in relation to the second claim was discontinued on the ground that it was better to first identify what parts of that claim were valid before considering such an Order.

 

13. The pre-hearing review, on 6 October 2016, therefore considered, firstly, whether the proposed amendments to the first tribunal claim should be allowed. Secondly, it considered whether any of those claims of unlawful trade union activity detriment and unlawful deduction of wages/breach of contract in relation to the non-payment of money in respect of the trade union co-ordinator post, in the second tribunal claim, were out of time. Thirdly, it considered whether costs should be awarded in respect of the earlier Case Management Discussion on 2 June 2016.

 

Relevant law

 

14. The claimant is still employed by the respondent and is therefore not entitled to bring a claim of breach of contract under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1998. His claim in relation to an alleged deduction is therefore brought under Article 45 of the Employment Rights (Northern Ireland) Order 1996 as an allegation of an unlawful deduction or deductions from wages. Article 55(2) of that Order requires that where the complaint is of an alleged series of deductions from wages, the complaint should be brought before the end of the period of three months beginning with the last such alleged deduction. The Order provides at Article 55(4) that:-

 

"Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable."

 

15. Article 73 of the 1996 Order provides that a worker has the right not to be subjected to any detriment by his employer if the sole or main purpose of that detriment is preventing or deterring him from taking part in the activities of an independent trade union or penalising him for doing so. Under Article 74 of that Order, the claimant may present a complaint to the industrial tribunal before the end of the period of three months beginning with the act to which the complaint relates, or the last such act, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

 

16. The claimant did not seek to argue that the matters of which he complains in relation to alleged trade union detriment were a series of continuing acts. However the tribunal will assume that he meant to argue that position.

 

17. In relation to an application for an extension of time under the ' not reasonably practicable test' the onus of proof is on the claimant to establish that it had not been reasonably practicable or ' reasonably feasible' for the complaint to have been presented before the end of the three month period or before the end of such further period as the tribunal considers reasonable.

 

18. The Employment Appeal Tribunal in Bodha v Hampshire Area Health Authority [1982] ICR 200 concluded that the ' reasonably practicable' test for an extension of time did not permit an employee to plead that it had not been ' reasonable' for him to present his claim for unfair dismissal before an internal appeal procedure had been completed. It concluded that the correct test was a strict test of practicability, namely where the act of presenting the complaint in time was reasonably capable of being done. It stated:-

 

"The statutory words still require the industrial tribunal to have regard to what could be done albeit approaching what is practicable in a common sense way. The statutory test is not satisfied just because it was reasonable not to do what could be done."

 

19. In Palmer v Southend-on-Sea Borough Council [1984] ICR 372, the Court of Appeal considered the ' reasonably practicable' test for an extension of time. The Court stated:-

 

"In the end, most of the decided cases have been decisions on their own particular facts and must be regarded as such. However we think that one can say that to construe the words 'reasonably practicable' as the equivalent of 'reasonable' is to take a view too favourable to the employee. On the other hand, 'reasonably practicable' means more than merely what is reasonably capable physically of being done - different for instance, from its construction in the context of the legislation relating to factories : compare Marshall  v  Gotham Company Ltd [1954] AC 360. In the context on which the words are used in the Employment Protection (Consolidation) Act 1978, however ineptly as we think, they mean something between these two. Perhaps to read the word practicable as the equivalent of 'feasible' as Sir John Brightman did in Singh's Case [1973] ICR 437 and to ask colloquially and untrammelled by too much legal logic - 'was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?' - is the best approach to the correct application of the relevant sub-section."

 

20. In John Lewis Partnership v Charman [UKEAT/0079/11], the EAT did not disturb a finding of an Employment Tribunal that it had not been reasonably practicable for a claimant to present an unfair dismissal claim because he had been waiting the outcome of an internal appeal. However, that case was distinguished from Bodha and from Palmer on the basis that Mr Charman had reasonably not been aware of the time-limits. In the present case, the claimant was an experienced trade union representative with access to advice from full-time trade union officials and from the trade union solicitor. He also accepted in cross-examination that he had been aware at all times that there had been a three month time-limit for lodging a tribunal claim.

 

21. The ' reasonably practicable' test which applies in relation to both the claim in respect of wages and the claim of alleged trade union detriment requires the claimant to establish, if it had not been reasonably practicable to present the claim within the statutory three months limit, that it had been reasonably practicable to present it within the further period before it had actually been presented. That requires the tribunal to consider all the facts of the case including the length of the delay, the nature of the amendment, the conduct of the parties and the potential prejudice to the parties.

 

Relevant findings of fact

 

22. The claimant was an experienced trade union representative. At all relevant times, he had had ready access to advice from full-time trade union officials and from the solicitor acting for the GMB. He had had ready access to employment law advice from the usual sources, including the internet and from agencies such as the Labour Relations Agency and the Belfast Law Centre. Furthermore the claimant in cross-examination accepted that he had always known that there had been a three month time limit for industrial tribunal claims. However, he had made a choice to await the outcome of various internal procedures before lodging a claim in this tribunal. The claimant seemed to regard this tribunal as simply another stage in his employer's internal grievance procedure. While had had clearly been aware of the statutory time-limit for lodging claims in this tribunal, he did not seem to have regarded the time-limit as important. He also seemed to feel that he should be allowed to add to his tribunal litigation indefinitely as he saw fit.

 

23. The first tribunal claim was quite discrete. It referred solely to alleged trade union activity detriment in one particular week from 2 October 2015 to 9 October 2015. That claim was lodged on 16 December 2015.

 

The proposed amendments to that first tribunal claim were provided on 7 June 2016. The amendments were diffuse and it is difficult to identify and extract from that document the proposed amendments to the original claim.

 

24. The first proposed amendment related to the complaint of alleged road rage. The claimant had been asked to attend an investigatory meeting on 9 September 2014. The claimant accepts that the investigatory interview had not resulted in disciplinary proceedings against him and states that his version of events had been believed in that interview. He accepts that he had been told that by the respondent on 9 September 2014 and that that had been confirmed in writing on 16 September 2014. His complaint appears to be that the complaint of road rage had been fabricated but he accepts he has no proof of that allegation. He had believed since 9 September 2014 that the complaint of road rage had been fabricated and had been an act of unlawful detriment. He did not lodge a tribunal claim. In an e-mail on 3 November 2015, he referred to the investigatory interview and said:-

 

"I was reassured that your department would 'get to the bottom of' what appeared to be a suspicious investigation file ... ."

 

He did not lodge a tribunal claim. Instead he asked, on 3 November 2015, for a further investigation. It was then included as part of the investigation conducted by Dr Ackah into a collective grievance. The results of that investigation were given in February 2016. The claimant still did not lodge a tribunal claim. Instead he lodged a further internal grievance on 8 March 2016. He received a response on 4 May 2016. The formal application for an amendment to his original tribunal claim was not made until 7 June 2016, one month later.

 

It had clearly been feasible for the claim to have been lodged in the tribunal within the three month limit running from 9 September 2014. It was not.

 

25. The second proposed amendment relates to a period between September 2014 and September 2015 when the claimant alleged that he had been promised a trade union co-ordinator post and that he had effectively worked on a temporary basis in such a post pending the advertisement of that post. It is clear that the claimant felt that such a trade union co-ordinator post was going to be created and that he had felt that he would be a suitable applicant. However, he had always accepted that the post would have to be advertised and would be subject to a competition. It is simply not credible that the claimant, as an experienced trade union representative, ever believed that the competition would simply be a formality to ' keep HR right' and that the new post had always been his. He also sought an amendment to allow a claim for additional wages of £2,652.00 allegedly due for the temporary performance of the trade union co-ordinator post up to 7 September 2015 when he states he had returned to his own post. No claim had been lodged within three months of that date. The claimant had alleged he had been told he would be ' paid appropriately for whatever days I spent in the post'. It seems highly improbable that an experienced trade union representative would have accepted such a vague and undocumented promise, particularly during a period of poor industrial relations, and that he would have worked unpaid for approximately six months on the basis of such a promise.

 

26. The third proposed amendment relates to a disciplinary sanction given to the claimant as a result of a conciliation agreement reached between the respondent and the GMB through the auspices of the Labour Relations Agency. That agreement related, inter alia, to an unofficial protest undertaken by the claimant at the Council headquarters. He alleged that he had only agreed to an ' unspecified' disciplinary sanction and that he had been given a ' final written warning'. It is unclear what an ' unspecified' disciplinary sanction would have been or how it could have been recorded. In any event, the warning was given on 3 December 2015. No formal claim to the tribunal of any sort in relation to this had been received before the proposed amendments on 7 June 2016 - over six months after the event.

 

Decision on the amendments

 

27. The statutory time-limit for a claim in these circumstances is three months from the alleged detriment complained of by the claimant, or three months from the last such detriment.

 

The proposed amendment relating to the complaint of road rage was clearly out of time. The investigatory meeting had taken place on 9 September 2014. The claimant had been told at that meeting that the complaint had not been believed. The respondent had confirmed its decision in a letter to the claimant dated 16 September 2014 and had apologised to the claimant. The claimant suspected at that stage that the complaint of road rage had been fabricated as an act of trade union detriment. He did not lodge a tribunal complaint. There had been nothing preventing such a complaint. He did not even lodge a tribunal complaint after either Dr Ackah's report into the collective grievance in February 2015 or after a further grievance in March 2016. The claimant alleges that he had decided to simply wait for that report and then for further investigation into his grievance. It had been practicable or feasible for a complaint to have been lodged within time and it was not.

 

The proposed amendments in relation to the trade union co-ordinator post were also out of time. The claimant knew from, at the latest, September 2015 that he had not been appointed to the post and that he had not been paid for any additional work allegedly done. The proposed amendment was at least eight months after that point. It had been practicable or feasible for a complaint to have been lodged within time and it was not.

 

The proposed amendment in relation to the disciplinary sanction was again out of time. The disciplinary sanction was part of a conciliation agreement between the GMB and the respondent. It had been imposed on 3 December 2015. The claimant's e-mail of 7 March 2016 were stayed on the instructions of the claimant's solicitor. He had implied authority to do so. The claimant did not query Mr Magill's status until after he had come off record on 15 May 2016. The application for amendment is therefore dated 7 June 2016. Even if the e-mail of 7 March 2016 had been the correct date of the proposed amendment (and it is not) it would still have been out of time. It had been practicable or feasible for a complaint to have been lodged within time and it was not.

 

28. Therefore, there is been no reason why these additional heads of claim could not have been included within three months from the relevant dates or at the very latest, within three months from the last relevant date, 3 December 2015. The claimant simply stated that he had chosen to await the outcome of Dr Carol Ackah's report into the collective grievance brought by GMB and then to further wait for the response to his internal grievance. However, that in itself is not a reason for the extension of a statutory time-limit in these circumstances. The claimant has not shown that it had not been at any stage reasonably feasible to have brought these additional heads of claim within the relevant three month time-limit. The claims are therefore out of time and no grounds have been satisfactorily put forward for an extension of that time-limit. Even if the acts were to be regarded as parts of a continuing pattern of discrimination, and that is doubtful, time ran from 3 December 2015 at the latest. The proposed amendments are grossly out of time and there is no basis for any extension of the time-limits. The proposed amendments are therefore rejected.

 

Relevant findings of fact (Costs Application)

29. The directions given by Employment Judge Greene at the Case Management Discussion on 3 June 2016 were clear and did not require any legal training or expertise on the part of the claimant. It had been specifically directed that the claimant would issue an additional set of proceedings for alleged incidents of detriment by reason of his trade union activities which had occurred ' post 16 December 2015'. The claimant chose to ignore that direction and chose instead to include everything from August 2014 onwards in the second claim form. That was a deliberate action on his part when he had ready access to advice and when he had the plain words of the direction before him. He knew or ought to have known that his conduct in simply replicating the proposed amendments in a separate set of proceedings would have rendered the amendment application to be heard at the PHR on 3 August 2016 nugatory. This conduct was unreasonable.

 

Decision (Costs)

 

30. The tribunal accepts that the respondent incurred additional legal costs amounting to £750.00 comprising £600.00 counsel fee and £150.00 solicitor's fee. They do not seek the recoupment of VAT. Those additional costs were due solely to the unreasonable conduct of the claimant in replicating his proposed amendments in separate proceedings. The claimant is therefore directed to pay £750.00 costs to the respondent by reason of unreasonable conduct.

 

Relevant findings of fact (new claim)

 

31. The second tribunal claim, Case Reference No: 1646/16, replicated the earlier claim and added those matters which have now been ruled out of time and where extensions of time have been refused in relation to the first claim. It raised the ' road rage' incident, the trade union co-ordinator post, and the pay allegedly due for the period up to 7 September 2015.

 

It also raised the new issues of disciplinary investigations commenced on 10 May 2016 and on 27 June 2016. It did not allege, in terms, that the disciplinary investigations had been acts of unlawful trade union detriment but the tribunal will assume, for the moment, that that was the allegation.

 

Decision ( Case Reference No: 1646/16)

 

32. The claim, including the replication of the earlier claim, is out of time and is dismissed with the exception of the allegations in respect of the disciplinary investigations on 10 May 2016 and 27 June 2016.

 

Summary

 

33. The original claim, Case Reference No: 114/16, will proceed unamended. The second claim, Case Reference No: 1646/16, will proceed only in relation to the disciplinary investigations on 10 May 2016 and 27 June 2016.

 

34. A Case Management Discussion will be listed shortly to issue final direction.

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 6 October 2016, at Belfast

 

 

Date decision recorded in register and issued to parties: