Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1412/15

 

 

 

CLAIMANT: Andrew George

 

 

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that respondent's application to strike out paragraphs 1-10 of the claimant's witness statement is refused.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Greene

 

Appearances:

 

The claimant was represented by Mr R Smyth, of counsel, instructed by Edwards & Co Solicitors.

 

The respondent was represented by Mr M McEvoy, of counsel, instructed by the Crown Solicitors Office.

 

 

 

REASONS

 

1.             Following a Case Management Discussion on 15 March 2016 I ordered that a pre-hearing review be arranged to consider the following preliminary issue:-

 

"Whether paragraphs 1-10 of the claimant's witness statements should be struck out."

 

2.             The tribunal heard oral submissions from Mr McEvoy and Mr Smyth. Mr Smyth submitted a short written submission setting out the leading legal authorities and some factual matters pertaining to the claimant's claim.

 

3.             The claimant lodged a claim for race discrimination on 23 July 2015. It contained allegations of discrimination going back to 2008.

 

4.             The respondent lodged its response on 22 September 2015 in which it denied all the claimant's allegations.

 

5.             At a Case Management Discussion on 12 November 2015 the timetable for bringing the claim on for hearing was established, including the use of witness statements and the dates by which they were to be provided to the other party.

 

6.             At a Case Management Discussion on 20 January 2016 the claimant successfully applied to have the word limit for his witness statements extended. At that time Mr McEvoy indicated to the tribunal that the respondent had reservations about some of the content of the claimant's witness statement. However, as the claimant had indicated he was about to engage solicitors it was hoped that that matter could have been resolved to the mutual satisfaction of both parties.

 

7.             At a further Case Management Discussion on 16 February 2016, to consider an application on behalf of the claimant to compel the respondent to provide proper and adequate replies to a number of his requests for Additional Information and Discovery, Mr McEvoy reiterated the respondent's reservations about some of the contents of the claimant's witness statement.

 

8.             The parties were unable to resolve their differences in relation to the contents of the claimant's witness statement and following an application by the respondent a further Case Management Discussion was convened for 15 March 2016 to consider how that matter would be addressed.

 

9.             At that Case Management Discussion I directed that a pre-hearing review would convene on 4 April 2016 at 10.00 am to consider the preliminary issue:-

 

"Whether paragraphs 1-10 of the claimant's witness statements should be struck out."

 

10.          At the Case Management Discussion on 4 April 2016, following a discussion between the tribunal and the parties, the respondent indicated that it withdrew its objection to a number of the paragraphs or parts thereof which are as follows. In relation to paragraph 1 the respondent does not object to the first two and a half lines beginning, "I joined the Police Service" and ending, "from an ethnic minority". The claimant's counsel indicated that he would abandon the remainder of that paragraph.

 

11.          In relation to paragraph 2 the respondent withdrew its objection.

 

12.          In relation to paragraph 3 the respondent accepts the first four lines beginning, "From 2008" and ending with, "during my initial training course". The remaining three and a half lines were in dispute.

13.          In relation to paragraphs 4, 5 and 8 the respondent withdrew its objections.

 

14.          The dispute then relates to part of paragraph 3 and the entirety of paragraphs 6, 7, 9 and 10.

 

15.          Mr McEvoy objected to the inclusion of this information on the basis that; it is not mentioned specifically in the claimant's claim form; nor does it figure specifically in the agreed issues for determination. He suggested that the discrimination, of which the claimant complains, began in or about May 2012 and therefore matters prior to that were not relevant. He further added that some of the matters of which the claimant complains as manifesting racial discrimination, did not concern issues in relation to promotion or acting up. He added if the claimant was permitted to retain these allegations within his witness statement then the likelihood is the respondent will need further witness statements and the hearing would be delayed and lengthened.

 

16.          The claimant very helpfully set out his submissions in writing. In his submission Mr Smyth set out the pertinent legal authorities and drew the tribunal's attention to a number of factual matters, which included that the claimant was a member of the ARU Unit. He further contended that all the alleged discrimination, both from May 2012 and earlier, took place or occurred within the ARU Unit by persons who were part of that Unit, some of whom continued to be members of the Unit from May 2012 onwards. Mr Smyth sought to rely on the pre 2012 information as being background information indicative of discriminatory circumstances in which the claimant was working. He suggested that the background information was relevant for that reason to the allegations for which he seeks compensation from May 2012 onwards.

 

17.          At the end of the hearing on 4 April 2016 having considered the respective submissions, I announced to the parties that I was rejecting the application on behalf of the respondent. At the request of the respondent I have committed my reasons to writing. I did not announce my reasons at the hearing on 4 April 2016.

 

18.          In arriving at my decision I had regard to the overriding objective as set out at the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 Regulation 3. I also had regard to a number of authorities that were drawn to my attention. These include King v Great Britain China Centre [1991] IRLR 513 ; Qureshi v Victoria University of Manchester [2001] ICR 863 ; Anya v University of Oxford [2001] IRLR 3 ; Rihal v London Borough of Ealing [2004] IRLR 642 ; McNally v Northern Ireland Fire and Rescue Service and Others case reference 46/07FET ; Crockett v Police Federation of Northern Ireland and Harp and Crown Credit Union, case references numbers 57/13 and 1279/13 ; and McCaughey v Board of Governors at St Mary's Primary School, Ballygalley, Council for Catholic Maintained Schools and The Principle of St Mary's Primary School, case reference number 1707/13 .

 

19.          In deciding to refuse the application of the respondent to strike out part of the claimant's witness statement I had regard to the following matters:-

 

(1)           This application, by the respondent, began as an application to strike out paragraphs 1-10 of the claimant's witness statement in their entirety.

 

(2)           At the hearing on 4 April Mr McEvoy accepted that some paragraphs or portions of them could remain in the witness statement.

 

(3)           Both parties agreed that paragraph 1 would be retained in part and both parties agreed that the remainder of it should be removed as set out above.

 

(4)           As set out above, in relation to paragraphs 2, 4, 5 and 8, it was agreed that they could go in their entirety and, in relation to paragraph 3, lines 1 to 4 beginning, "From 2008 ..." and ending with, "... my initial training course" were also agreed to remain within the written statement.

 

(5)           Paragraphs 6, 7, 9 and 10 are in dispute as well as part of paragraph 3.

 

(6)           The claimant's claim is for direct racial discrimination and victimisation on the grounds of race, specifically in relation to being promoted or acting up or the allocation of holidays.

 

(7)           Apart from paragraph 7, the other incidents referred to were specific events with precise allegations against specific individuals. While the respondent may well wish to contest these matters investigations of discrete incidents with specific people is easier and less costly to undertake.

 

(8)           Paragraph 7 contains matters about which it appears an investigation and report has already been done by the respondent and therefore the cost and effort of addressing these allegations should be considerably reduced.

 

(9)           The alleged offenders to the allegations made within the paragraphs 1-10 all come from within the ARU Unit of the police. It is a unit comprising, one chief inspector, three inspectors, nine sergeants and constables. They all work together and know each other. Many of them were still within the Unit when the specific allegations, the subject of the claimant's race discrimination claim, are alleged to have occurred.

 

(10)        I accept that there is some merit in the argument that the acts complained of, if true, are not connected with the promotion or acting up about which the claimant complains. However I am not saying that they are not relevant and therefore should not be admitted. Without hearing the evidence, it is difficult to know how homogeneous the ARU Unit was and the extent of interaction between the officers at different grades. Clearly, depending on the interaction, there is the potential of a racist culture permeating a number of grades, including those higher up, if the allegations made by the claimant are true.

 

(11)        Part of the claimant's claim is about victimisation by reason of a previous claim of race discrimination. It seems to me that evidence of the culture within the Unit could be very relevant to a victimisation claim.

 

20.          In arriving at my conclusion I also bear in mind, as the authorities have warned, that discrimination is frequently about the drawing of inferences and that I have not heard any evidence in relation to these allegations and therefore must act cautiously in forming a definitive conclusion that portions of evidence should be excluded. I recognise further that what I am saying will not bind a future tribunal hearing this claim as it hears the evidence.

 

21.          As indicated to the parties on 4 April 2016 a further Case Management Discussion will take place on 27 April 2016 at 10.00 am in order make such orders and give such directions as are necessary to bring this claim on for hearing, in the light of this decision, unless of course the parties are engaged on a judicial review or appeal of this decision.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 4 April 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: