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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Brown v Department for Regional Develo... [2016] NIIT 02844_10IT (07 April 2016)
URL: http://www.bailii.org/nie/cases/NIIT/2016/02844_10IT.html
Cite as: [2016] NIIT 2844_10IT, [2016] NIIT 02844_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2844/10
CLAIMANT: James Frederick Brown
RESPONDENT: Department for Regional Development
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is as follows:-
(1) The tribunal does have jurisdiction to hear and determine the claims of the claimant, and each of them, the subject matter of these proceedings.
(2) Further and in the alternative, the claims of the claimant, and each of them, are not misconceived and the tribunal refuses the application of the respondent to strike out the said claims of the claimant.
(3) A further Case Management Discussion will be arranged, in due course, with the date and time to be notified to the parties, to consider the way forward and to give such further and/or amended case-management directions/orders, as may be appropriate to enable this matter to be listed for a substantive hearing.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Drennan QC
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mrs N Murnaghan, Queen’s Counsel, instructed by The Departmental Solicitor’s Office.
Reasons
1.1 As set out in the record of proceedings, dated 20 October 2015, of the Case Management Discussion held on 16 October 2015, this pre-hearing review was arranged to consider, for the reasons set out therein, the following issue, as set out in the Notice of Hearing dated 30 November 2015, namely:-
“Whether the tribunal has jurisdiction to hear and determine the claimant’s claims of unfair dismissal in this tribunal, in light of the finding by the Civil Service Appeal Board that the claimant was unfairly dismissed”.
As set out later in the paragraph of the decision, it became necessary, for the reasons set out therein, to identify, for the purposes of this pre-hearing review, what was referred to by ‘the claims of unfair dismissal’.
1.2 I am very grateful to the claimant and the respondent’s representative for their helpful and detailed written skeleton arguments and the manner in which they presented their subsequent oral submissions, based on those skeleton arguments, before me at the hearing of this pre-hearing review.
1.3 At the outset of the hearing, it became apparent, from the said skeleton arguments of the claimant and the respondent’s representative, that there was some confusion between the parties about the precise nature of the claims of the claimant, which are still the subject-matter of these proceedings; and, in particular, what specific claims of unfair dismissal were referred to in the issue, as set out in the Notice of Hearing, the subject-matter of this pre hearing review, as set out above.
1.4 The claimant, having been dismissed by the respondent by letter dated 7 September 2010, had initially presented a claim to the tribunal on 7 December 2010 for unfair dismissal, pursuant to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) – “A claimant has the right not to be unfairly dismissed by his employer (‘ordinary unfair dismissal’).
1.5 By letter dated 26 January 2011, the claimant made an application to amend his said claim to include a claim, pursuant to Article 70B of the 1996 Order (protected disclosure) and a claim, pursuant to Article 7(1) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (‘Part Time Workers Regulations’), arising out of his said dismissal. The said amendments were consented to by the respondent and the respondent presented an amended response to the said claims, as amended, on 20 April 2011.
The claimant, at the outset of this hearing, confirmed that, when making his claim pursuant to Article 70B of the 1996 Order, he was in error and it should have been made pursuant to Article 134A of the 1996 Order, namely – “an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or, if more than one the principal reason) for the dismissal is that the claimant made a protected disclosure” (automatic unfair dismissal). This is often referred to as a ‘whistleblowing claim’. He confirmed he was still making the ‘whistleblowing claim’.
He further confirmed, at the outset of this hearing, that he was also continuing a claim, pursuant to Article 7(1) of the Part Time Workers Regulations, namely - “an employee who is dismissed shall be regarded as unfairly dismissed .... if the reasons (or if more than one the principal reason) for the dismissal is a reason specified in paragraph 3 ...”.
There was no objection by the respondent’s representative, at this hearing, for the substitution by the claimant of Article 134A of the 1996 Order for Article 70B of the 1996 Order, as referred to above.
It was not disputed by the claimant and the respondent’s representative that, in order for a claimant to be able to establish liability against the respondent on foot of any of these said claims, an essential element to be established by the claimant for any such claim made by the claimant, as stated above, was for the claimant to establish there was ‘a dismissal’ (see my emphasis above). It was agreed by the claimant and the respondent’s representative that, whether the claimant could establish such a dismissal on the basis of the events that occurred, as set out later in this decision, for the purposes of each said claim, was the focus of the issue to be determined at this pre-hearing review.
1.6 The claimant’s claims before this tribunal are now of some vintage, which has been a matter of some considerable concern to me, as set out in a series of records of proceedings of Case Management Discussions since the claims were first brought to the tribunal. In the circumstances, for the purposes of this pre-hearing review, it is not necessary to set out in detail all the reasons for the said delay. However, in essence, one of the major reasons that the claims have been unable to be listed for hearing to date, and have effectively been ‘stayed’, is because the claimant had brought various judicial review proceedings relating to the decisions made by the respondent in connection with the internal disciplinary and dismissal process carried out by the respondent. Those series of judicial review proceedings were finally concluded by the Court of Appeal in a decision delivered on 9 April 2013 ((2013) NICA 17). Following the conclusion of those judicial review proceedings, the claimant’s internal appeal, following his earlier dismissal by the respondent, which had had to await the outcome of the said judicial review proceedings, was able to proceed. It took place on 2 July 2013 and the claimant was subsequently notified by the respondent the said appeal had not been upheld.
1.7 The claimant thereafter exercised his right to appeal to the independent Civil Service Appeal Board (CSAB). Before the CSAB was able to conclude the said appeal, the claimant brought further judicial review proceedings, which were dismissed in a judgment by Mr Justice Treacy on 28 March 2014 ((2014) NIQB 84). In a letter, dated 3 December 2014, CSAB informed the claimant that, by a unanimous decision, it had upheld the said appeal of the claimant. In a letter, dated 19 March 2015, the claimant was informed that the CSAB had reconvened to consider the amount of compensation payable to him and had awarded him the sum of £35,022.10. It will be necessary to consider in greater detail, later in this decision, in so far as relevant to the issues to be determined at this pre-hearing review, the claimant’s appeal to the CSAB and the subsequent decisions made by the said Board. The claimant is dissatisfied with the amount that has been awarded by the CSAB, to be paid by the respondent to the claimant, as set out in the said decision. The claimant, as a consequence, has brought on or about 17 June 2015, further judicial review proceedings against the CSAB, which relate, in particular, to the method used by the said Board to calculate the said compensation, following the upholding by the said Board of the claimant’s appeal. Leave was subsequently given to the claimant to apply for judicial review; but, to date, the substantive hearing to determine the said application for a judicial review has not yet been listed for hearing.
1.8 In order to progress the tribunal proceedings, following a Case Management Discussion on 15 April 2015 (see Paragraph 3), as set out in the record of proceedings dated 20 April 2015, I made an Order/direction for the parties to identify the legal and main factual issues which each of the parties contended were the subject-matter of the tribunal proceedings. Subsequently, on foot of the said Order/direction, the parties liaised and prepared a statement of legal and main factual issues. Subsequently, a draft statement prepared by the parties was the subject of discussion and/or amendment between the parties. It is sufficient to state, for the purposes of this hearing, that the said issues, which were identified in the said amended draft statement prepared by the parties included, in particular, the following:-
“1. Did the respondent dismiss the claimant unfairly?
...
7. What is the scope of the tribunal’s jurisdiction to adjudicate on the complaint of unfair dismissal given that this matter has been determined by CSAB and the respondent has been ordered to pay compensation to the claimant?”
The said amended statement, although it clearly included the claimant’s claim of ‘ordinary’ unfair dismissal, pursuant to Article 126 of the 1996 Order, did not expressly address the claimant’s alternative claims, pursuant to Article 134A of the 1996 Order and/or his claim pursuant to Article 7(1) of the Part-time Workers Regulations, referred to above.
1.9 At the commencement of this pre-hearing review, it became apparent the respondent’s representative was of the opinion, in light of the said amended draft statement of issues, that the claimant’s claim of unfair dismissal was limited to his claim of ‘ordinary unfair dismissal’ pursuant to Article 126 of the 1996 Order and no longer included his alternative claims of unfair dismissal, pursuant to Article 134A of the 1996 Order and/or Article 7(1) of the Part-time Workers Regulations. I note that this remains the respondent’s position. However, for the purposes of determining the issues, the subject-matter of this pre-hearing review, it was agreed, without prejudice to the respondent’s position, as set out above, that the tribunal would determine the said issues, the subject-matter of this pre-hearing review, on the basis that the claims of the claimant, pursuant to Article 126 of the 1996 Order and/or 134A of the 1996 and/or Article 7(1) of the Part-time Workers Regulations, were still the subject-matter of these proceedings. The respondent’s representative properly recognised that the issues to be determined at this pre-hearing review would apply equally to each of these said claims; and it was therefore in accordance with terms of the overriding objective that, without prejudice to the respondent’s position, as outlined above, they were so determined at this pre-hearing review. In the circumstances, in light of the said agreement, it was therefore not necessary for me to resolve this issue before determining the issues, the subject-matter of this pre-hearing review. Given it may become necessary for a tribunal to resolve this issue arising from the contents of the said draft amended statement of issues, I consider it is not appropriate for me to say anything further.
1.10 Acknowledging that the issue, as set out above may not be strictly ‘an issue of jurisdiction’, for the purpose of the 1996 Order and, therefore, for the avoidance of any doubt, having regard to the terms of the overriding objective, it was also agreed that a further issue would be the subject matter of this pre-hearing review, namely:-
“2. Further and in the alternative, whether the claims of the claimant must be struck-out on the grounds that the said claims, and each of them, are misconceived (ie have no reasonable prospect of success).”
1.11 In the claimant’s written submissions, he made reference to his application for judicial review, dated 17 June 2015, referred to in Paragraph 1.7 above and, in particular, he included an affidavit of James Henry, the Chairman of the Civil Service Appeal Board (CSAB), dated 25 November 2015, which has been served by Mr Henry in response to the claimant’s said application for a judicial review, dated 17 June 2015. The Claimant also included, in his written submissions, an affidavit by Colin Lewis, Director of Human Resource in Corporate HR, Department of Finance and Personnel. It is of interest to note that both affidavits were served, on behalf of CSAB, by The Departmental Solicitor’s Office, who, as noted above, are also instructed in these proceedings on behalf of the respondent, the Department for Regional Development. It is my understanding that The Departmental Solicitor’s Office act on behalf of all of the Northern Ireland Executive Departments and other Bodies, sponsored by those Departments. Further, I understand there are various internal controls, practices and procedures to ensure, in so far as possible, any conflicts of interest arising in such circumstances.
1.12 During the course of oral submissions, Mrs Murnaghan QC, raised objections to the use by the claimant of matters set out in those affidavits by Mr Henry and/or Mr Lewis. It will be necessary, as set out later in this decision, to consider in more detail, in so far as relevant and necessary for the determination of the issues, the subject matter of this pre-hearing review, the specific matters contained in the said affidavits which were relied on by the claimant in the course of his oral submissions. In essence, Mrs Murnaghan submitted that the claimant could not rely on these affidavits and, in particular, certain specific statements contained therein in the present proceedings before this tribunal, unless the claimant had previously sought and obtained leave from the Judicial Review Court/Judicial Review Judge and/or the particular deponent. In light of this submission, I asked Mrs Murnaghan for a relevant rule or authority for this submission. Understandably, she was not immediately able to do so, since the claimant had only produced his written submissions, containing these affidavits, shortly before the commencement of the pre hearing review. I, therefore, gave the respondent’s representatives an opportunity to provide any such relevant rule or authority, after the conclusion of this hearing and before I made my decision, which I informed the parties at the conclusion of the hearing would be reserved. By e-mail, dated 4 February 2016, the respondent’s representative informed me, which e-mail was copied to the claimant:-
“.... I can confirm that I have carried out further research and can locate no particular rule or authority preventing the claimant’s use of the affidavit in his IT proceedings, although I understand that conventionally, and as a courtesy, parties would usually ask the Court (and/or a deponent), for his permission to use the affidavit. I do not understand the claimant at any time asked the Court and/or the particular deponents for permission to do so.”
1.13 In relation to the claimant’s application for a judicial review, dated 17 June 2015, referred to in paragraph 1.7 above, I think it is necessary to note that I was helpfully provided by the respondent’s representative, at my direction, with a copy of the claimant’s Order 53 Statement for the purposes of that application, in the course of my case management of these proceedings, including the direction given by me to list this pre-hearing review at the Case Management Discussion on 16 October 2015, as set out in the record of proceedings, dated 20 October 2015. At that time, the affidavit of Mr Henry had not been filed on behalf of the CSAB. It would appear the affidavit of Mr Lewis, which I had not previously seen before this hearing, was filed by Mr Lewis on behalf of the CSAB, in relation to the application for judicial review by the claimant, which was the subject of the decision by Mr Justice Treacy, delivered on 28 March 2014 ((2014) NIQB 84), as referred to previously. I assume this affidavit would have been part of the ‘pleadings’ considered in the course of that hearing, which resulted in the said decision of Treacy J, to which further reference will be made later in this decision, in so far as relevant and necessary for the determination of the issue, the subject matter of this pre-hearing review.
1.14 I understand that the solicitor from The Departmental Solicitor’s Office and counsel for the respondent in these proceedings were not the solicitor and counsel in either of the said applications for judicial review referred to above. In my judgement, no issue of conflict, potential or otherwise, arises in the circumstances; nor, indeed, was it ever suggested by the claimant, in the course of his submissions on this issue, in relation to his use of these affidavits in the present proceedings.
1.15 In the area of discovery, it has long been recognised that where documents are produced on discovery, pursuant to an order of the Court, there is an implied obligation to the Court that documents, so discovered or any information derived from them, will not be used for a collateral or ulterior purpose, without the leave of the Court or consent of the party providing discovery. The implied undertaking would normally mean that any documents so disclosed can only be used for the purpose of the proceedings in which they are disclosed. However, different issues can arise where there is, for example, agreement between the parties that a particular document can be disclosed in other proceedings or where, upon application, the Court gives permission. Similarly, different issues can arise where a document has been read to or by the Court, or referred to, at a hearing which is held in public.
What has occurred, as outlined above in the present proceedings, is not an issue of discovery per se. However the reason for the implied undertaking in discovery, in my judgement, would also seem to be of relevance to the issue of the use by the claimant in these proceedings of these particular affidavits.
The implied obligation is, of course, for reasons related to protection of a person’s right to privacy and it is a matter of public interest to safeguard that right. However, a general principle is that, “it is in general wrong that one who is compelled by law to produce documents for the purpose of particular proceedings should be in peril of having those documents used by the other party for some purpose other than the purpose of the particular proceedings, and, in particular, that they should be made available to third parties who might then use to the detriment of the party who has produced them on discovery. So, it has been said that the implied undertaking is more a matter of justice and fairness, to ensure a person’s privacy and confidentiality are not invaded more than is absolutely necessary for the purposes of justice [my emphasis] (see Disclosure 4th Edition Mathews & Malek 19.05).
1.16 These affidavits were filed on behalf of CSAB, who are not a party to these proceedings, and were made by each of the deponents for a particular purpose, related to those proceedings in which they were filed. I also note that, in judicial review proceedings, a deponent is rarely the subject of cross-examination. Therefore, in my judgement, even if the claimant is entitled to refer to these affidavits in these proceedings (see later), the tribunal has to be very careful what weight, if any, to give to the contents of any such affidavit and/or what reliance, if any, can be placed upon the contents of any such affidavit by the tribunal in such circumstances. Therefore, its seems to me that the respondent in these proceedings, as a matter of principle, is entitled to state the affidavit was filed on behalf of a different party, not a party to these proceedings, and in such circumstances, it is also entitled to state, the respondent does not share the opinion/disagrees with what has been stated on behalf of that other party. Indeed, in light of the authorities referred to above, I can fully understand how the convention/courtesy referred to by the respondent’s representative has grown up in court proceedings.
However, I consider the issue is more complex than that matter of principle, as outlined above, given these are tribunal proceedings. It has long been recognised that the Rules of Procedure in the Industrial Tribunals, in relation to issues of evidence, are much less formal and Industrial Tribunals enjoy much greater flexibility than might be the case in High Court/County Court proceedings. In particular, in Rule 14(2) of the Industrial Tribunals Rules of Procedure, it is provided:-
“So far as it appears appropriate to do so, the Chairman of the tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the Courts”.
In Rule 59(1) of the said Rules of Procedure, it is provided:-
“Subject to the provisions of these rules and any practice directions, a Tribunal or a Chairman may regulate its or his own procedure”.
1.17 In light of the foregoing, and in the absence of any relevant Rule or authority preventing me from considering the contents of these affidavits, as referred to by the claimant, together with the greater flexibility in relation to said issues, provided by the said Rules of Procedure, I conclude that the claimant is entitled to refer and rely on these affidavits as part of his written and/or oral submissions. However, for the reasons set out in the previous paragraphs, the weight and/or relevance, if any, to which the tribunal can attach to these affidavits, which were served in different proceedings, where the issues are different, and on behalf of a party who is not party to the present proceedings, is, in my judgement a different matter – which I shall have to return to later in this decision.
1.18 Since the affidavit of Mr Lewis was served on behalf of the CSAB, in connection with the proceedings which were concluded by the decision of Treacy J on 28 March 2014, as referred to previously, it seems to me, when considering the contents of this affidavit, the tribunal must also have regard to the said decision of Treacy J, in relation to anything of relevance stated therein. In relation to the affidavit of Mr Henry, I note that the proceedings to which this affidavit relates, have not been the subject of any decision by the Court and therefore any consideration, if any, by me, of the contents of that affidavit must be done with considerable caution in the circumstances.
1.19 It was not disputed that, under the 1996 Order, the following provisions are relevant in relation to the circumstances in which an employee is dismissed:-
“Article 127
(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) ... only if) –
(a) the contract under which he is employed is determined by the employer (whether with or without notice),
(b) the contract under which he is employed is determined by the employer (whether with or without notice),
... .”
1.20 In relation to the issues to be determined at this pre-hearing review, as set out at Paragraph 1.10 above, it is provided at rule 18 of the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure Regulations (NI) 2005, as follows:-
“(1) Pre-hearing reviews are interim hearings and shall be conducted by a Chairman .
(2) At a pre-hearing review, the Chairman may carry out a preliminary consideration of the proceedings and he may –
(a) determine any interim or preliminary matter relating to the proceedings.
... .”
1.21 In light of the amended issues to be determined at this pre-hearing review, namely ‘whether the claims of the claimant must be struck-out on the grounds that the said claims, and each of them are misconceived (ie have no reasonable prospect of success’), it was not disputed that any decision to do so would be pursuant to Rule 18(7)(b) of the Rules of Procedure – which refers to striking out all or part of any claim on the grounds that it is misconceived. In Regulation 2 of the said Regulations, misconceived is defined as ‘includes having no reasonable prospect of success’.
‘No reasonable prospect of success’ presents a lower threshold than ‘no prospect of success’. It has been held that it is not an issue of deciding whether a case is hopeless, but rather the question is whether an application has a realistic as opposed to a merely fanciful prospect of success (see Bala Moody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] IRLR 288 and Elias v North Glamorgan NHS Trust [2007] ICR 1126). In Elias, the Court of Appeal emphasised a claim should not be struck-out where the central facts are in dispute. In Blackstone’s Employment Law Practice 2014, it is suggested in Paragraph 7.18, such applications should only be made in the most obvious and plain cases in which there is no factual dispute and the applicant can clearly cross the threshold of showing there are no reasonable prospects of success – see further Odos Consulting Ltd and Others v Swansan [2011] UKEAT/0495, where the EAT said ‘such applications should rarely, if ever, involve oral evidence and should be measured in hours rather than days.
In light of the foregoing, in the context of the issues to be determined at this pre-hearing review I was satisfied, as set out later, there was no relevant factual dispute between the parties to prevent me determining any such application if applicable, pursuant to Rule 18(7)(b) of the Rules of Procedure.
2.1 In the Civil Service Appeal Board Report of the reconvened hearing of the said Board, dated 2 December 2014, the Board stated, in so far as relevant and material for the determination of the issues, the subject matter of this pre-hearing review, as follows:-
“3. ... [The Chairman] advised that in this, the remit was not to re-hear the case but to decide whether the Department’s decision to dismiss Mr B was fair and if the correct procedures had been followed. The Chairman then asked Mr B to state the desired outcome should the appeal be upheld. Mr B indicated that his desired outcome was compensation.
4. In reaching a decision on this case, the CSAB considered that there were two substantive issues; whether, on the balance of the evidence available, the Department’s decision to dismiss Mr B was fair and that proper procedures had been followed.
5. The Board’s decision
After carefully considering the written statements together with the oral submissions, the CSAB unanimously concluded that the decision to dismiss Mr B was unfair. CSAB therefore upheld the appeal.
.....
8. Procedures
While the panel was satisfied that the appropriate procedures had been followed by the Department they were not convinced that the investigation considered all the relevant issues including the role of the appellant’s line management in the approval of the works. The panel agreed that the appellant acted inappropriately in handling the contract but were not convinced that the actions attributed to him constitute gross misconduct.
9. Recommendations
The panel noted that the terms footpath and footway were used throughout the documents provided. The Department should ensure that where there are technical terms they use the correct definition on all occasions.
The panel noted that Mr B’s desired outcome, in the event of his appeal being upheld, was compensation. The panel recommends that compensation be paid and will determine the appropriate amount in due course.” [My emphasis]
2.2 By letter dated 3 December 2014, the Secretary of the CSAB wrote to the claimant stating:-
“I am writing to let you know that following consideration at the hearing on 2 December 2014, the Civil Service Appeal Board has, by unanimous decision, upheld your appeal. The Department has been notified of this outcome. A report of this case will be issued within 15 working days.”
2.3 By letter dated 19 March 2015 the Secretary of the Civil Service Appeal Board wrote to the claimant as follows:-
“The Board has reconvened to consider the amount of compensation payable to the above appellant.
In accordance with paragraphs 5.4.8 to 5.4.10 Chapter 2.09 of the NICS HR Handbook, the Board has decided that the appellant should be paid the sum of £35,022.10.
Please find enclosed a breakdown of the Board’s calculation.”
As set out previously, the claimant has brought judicial review proceedings, dated 17 June 2015, in relation to the calculation of compensation by the Civil Service Appeal Board. However, as indicated previously, these judicial review proceedings have not yet been the subject of any determination. In connection with those judicial review proceedings, Mr Henry, the Chairman of the Civil Service Appeal Board, has provided an affidavit on behalf of the Civil Service Appeal Board. In view of the fact that these judicial review proceedings have not yet been the subject of judicial determination, I think that this tribunal has to be very cautious about the weight to be attached to anything stated by Mr Henry in the said affidavit. It also has to be noted that this affidavit has not been made by Mr Henry for the purposes of these proceedings but was made by him in reply to the affidavit sworn by the claimant on 17 June 2015 in relation to the said judicial review proceedings and in particular his challenge to the calculation of compensation made by the Civil Service Appeal Board in its decision sent to the claimant on 19 March 2015. However, not surprisingly, much of what is contained in the affidavit of Mr Henry in relation to the history of the Civil Service Appeal Board and its procedures echoes the terms of the affidavit sworn by Mr Lewis in relation to the earlier judicial review proceedings brought by the claimant; and both accurately reflect the provisions contained in the relevant Handbooks, referred to later in this decision. .
2.4 As set out in section 2.07 of the Civil Service Handbook it is provided:-
“This policy allows eligible staff to appeal to the independent Civil Service Appeal Board.”
The following sub-paragraphs of the said Handbook provide, insofar as relevant and material to the issues to be determined at this pre-hearing review:-
“1.1 The Civil Service Appeal Board is an independent body that deals mainly with appeals from you if you have been dismissed .... . Evidence from you and from your employing Department is obtained before appeals are heard and decisions reached. The Appeal Board is a lay body and does not follow legal procedures.
....
3 Statutory Right of Appeal Against Unfair Dismissal
3.1 The entitlement to appeal to the Civil Service Appeal Board does not prejudice your statutory rights, under the provisions of the Employment Rights (NI) Order 1996, to complain against unfair dismissal to an Industrial Tribunal.
.....
5.4.5 The Appeal Board, having regard to all of the written and oral evidence provided, will decide whether the decision ... to dismiss is fair. If the Board decides that the decision is unfair, it may recommend to the Head of the Department either that you should be reinstated or re-employed or specify what compensation .... you should be paid [my emphasis]. If the Board considers that some other action is more appropriate, it will recommend accordingly. [My emphasis]
5.4.7 If the Board makes a recommendation to reinstate or re-employ you, the Head of the Department or an officer at a level determined by the Permanent Head of Department ... will decide whether to accept the Board’s recommendation and this decision will be final ... . If a recommendation to reinstate or re-employ you is rejected by the Department, the Appeal Board will consider whether to award compensation ... .
5.4.8 To assist the Appeal Board in determining the amount of compensation to be paid, you and the Department will be invited to make written representations to the Board concerning the extent to which you may have contributed to your dismissal. Any such representations should relate solely to this issue and not to any other aspects of the case. [My emphasis]
5.4.9 The Secretary to the Appeal Board will notify you of the Board’s recommendation or its decision to award compensation. The Department will notify you and the Appeal Board of its decision. [My emphasis]
5.4.10 The Department must pay any compensation awarded by the Appeal Board.”
2.5 Section 2.09 of the NICS HR Handbook provides in relation to the calculation of the issue of compensation, as follows:-
“5.4.8 To assist the Appeal Board in determining the amount of compensation to be paid, you and the Department will be invited to make written representations to the Board concerning the extent to which you may have contributed to your dismissal. Any such representations should relate solely to this issue and not to any other aspects of the case.
5.4.9 The Secretary to the Appeal Board will send a copy of the Appeal Board’s subsequent decision on compensation (if any) to the Department who will have up to 7 calendar days to confirm factual accuracy of the compensation calculation only, before the Secretary issues it to the Appellant.
5.4.10 The Department must pay any compensation awarded by the Appeal Board within 42 calendar days of the initial date of issue of the Appeal Board’s decision to the Department.”
There was no dispute that the provisions contained in the said Handbooks are applicable to all civil servants in Northern Ireland, which therefore included the claimant, and formed part of his contract of employment. And equally it was not disputed by the respondents’ representative that the respondent was required to pay the compensation determined by the Civil Service Appeal Board, as set out in the letter dated 19 March 2015.
2.6 In view of the judicial review proceedings, dated 17 June 2015, brought by the claimant in relation to the calculation of the compensation determined by the Civil Service Appeal Board, as set out in the letter dated 19 March 2015, I do not intend, for the purposes of this pre-hearing review, to consider the calculation of the compensation in any detail; and, in particular, the pension loss element of the calculation.
However, it is necessary to note that the CSAB have awarded the claimant both a basic award and a compensatory award, which latter award, includes a sum for loss of earnings from date of termination to hearing and a sum for future loss of earnings and also a sum for pension loss. The sum for pension loss, the subject-matter of the judicial review proceedings, is stated to have been calculated ‘in accordance with guidance from the Government Actuary’s Department and a Committee of IT Chairmen’. In relation to the calculation of the basic award and compensatory award, with reductions to the said awards for contributory fault, it is apparent the CSAB has had close regard to the sums that would be awarded by a tribunal by way of compensation, upon a finding of unfair dismissal, pursuant to Articles 153 – 157 of the 1996 Order. Indeed in Mr Henry’s affidavit at Paragraph 33 to 35 it is stated as follows:-
“33. The calculation of these awards is modelled on the methodology in the industrial tribunals but it is not a mirror image. Although it is very similar in many respects we do not consider there is any obligation on us to copy exactly how the tribunal calculates compensation.
34. The basic award is calculated in much the same way as the calculation of statutory redundancy pay. This is the same approach as the tribunal. We apply reductions for contributory fault. Unlike the tribunal, however, we do not apply any uplift in any circumstances for failing to follow statutory dismissal procedures ...
35. The compensatory award will compensate the dismissed civil servant for his or her loss between dismissal and the date of hearing, future loss (loss post-hearing) and pension loss.”
Relevant legal authorities
3.1 In McMaster v Antrim Borough Council [2010] NICA 45, the Court of Appeal considered the issue whether, in the absence of any relevant contractual provision providing for suspension of dismissal and/or temporary continuation of a contract, the effect of a successful resort by the claimant to a contractual appeal procedure can, of itself, revive the contract of employment so that the effective date of termination was not the date of the original dismissal, and the claims were within time.
On the particular facts of the case, Mr McMaster was summarily dismissed for gross misconduct. An internal appeal upheld that decision. Under his contract he was entitled to avail of a further right of appeal to an external agency, which was the Labour Relations Agency (the L.R.A.). The decision of the Court of Appeal states in relation to such an appeal to the LRA Independent Arbitration Panel:-
“Such an appeal is heard by an Independent Arbitration Panel appointed by the LRA and according to para 12(8) of the procedure:
‘The decision of the Arbitration Panel will be final and binding on both parties’.”
The Arbitration Panel decided, by a majority, that dismissal was not the only outcome and recommended a lesser penalty would have been appropriate in the circumstances. The employer was not prepared to implement the panel’s recommendation and it notified the claimant his dismissal still stood. The claimant then issued claims for unfair dismissal and the industrial tribunal held that the effective date of termination was the date of the original summary dismissal and therefore the claim was out of time.
The Court of Appeal allowed the appeal and held, on the facts of the case, if such a contractual disciplinary appeal succeeded:-
“... the employee is reinstated with retrospective effect. As the appeal decision has been taken within the terms of the relevant contract, it is not necessary to effect an express reinstatement to the position previously held by the employee, nor is it necessary to make an offer to him to enter into a new contract in order to continue the contract of employment. If the contractual appeal fails, the summary dismissal takes effect from the original appeal.”
The Court of Appeal therefore held that the unfair dismissal claims were in time.
Coghlin LJ, who gave the judgement of the Court said at Paragraph 11:-
“The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute including putting right, where necessary, any errors or shortcomings apparent in the initial hearing. As a matter of principle, it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing an employee the right to resort to such an agreed procedure or by rejecting an outcome considered to be adverse to his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy.”
In doing so, Coghlin LJ referred with approval, to a number of decisions of the Employment Appeal Tribunal and Court of Appeal in England and Wales:-
“[12] In London Probation Board v Kirkpatrick [2005] IRLR 453, when delivering the judgment of the EAT, the words of Lord Bridge relating to the analysis extracted from Sainsbury were quoted with approval by Judge McMullen when he said that:
‘It represents what the lay members on this tribunal consider to be absolutely standard employment relations practice since the whole point of internal appeals is to allow for bad or unfair decisions to be put right’."
In the course of delivering the judgment of the Court of Appeal in Roberts v West Coast Trains [2004] IRLR 788 Mummery LJ noted at Paragraph 24 that the appeal decision had been taken within the terms of the relevant contract and that it was not necessary to effect an express reinstatement to the position previously held by the employee nor was it necessary to make an offer to him to enter into a new contract in order to continue the contract of employment. At Paragraph 29 he referred with approval to the general principles enunciated by Lord Bridge in Tipton. Arden LJ delivered a concurring judgment in the course of which she said at paragraph 34:-
‘The applicant's demotion was not a dismissal and the decision of the appeal process of the employer, made pursuant to the applicant's contract with the employer, to demote the applicant, resulted in the continuation of the original contract of employment. That is the normal result of an internal appeal procedure unless the contract otherwise expressly provides: see per Lord Bridge in West Midlands Co-Operative Society v Tipton [1986] IRLR 112, 114.
[13] Finally, we refer to the useful review of the authorities by Silber J when giving judgment in the EAT in Ladbrooke Betting and Gaming Limited v Ally [2006] AER (D). After noting Tipton and Sainsbury Silber J then referred to Roberts and went on to say at Paragraph 18:-
‘Pausing at that stage, that case is, to my mind, clear authority for the proposition that – unless there was a contractual provision to a contrary effect as a result of an appeal process – the decision to dismiss is replaced by the decision which means that the employee is not to be regarded as having been dismissed.’
He then proceeded to deal with the argument in that case that there was a distinction in legal effect to be made between a decision that dismissal had been wrongful and a decision that, while dismissal may have been justified, an alternative sanction was appropriate and said at paragraph 23:-
‘I am unable to accept that reasoning, because in both cases, the effect of the appeal being allowed is to stop the original decision to dismiss from taking effect, but to replace it with a decision which continues the employment of the employee. I agree with the point made by Mr Sendell in his admirable written skeleton that it makes no difference at all whether the decision on the appeal is that the initial decision was wrongly made, or that – although dismissal might have been permissible – some other penalty is more appropriate. Once the decision to dismiss is overturned, the inevitable consequence is (in the absence of any contractual provisions to the contrary) that the employment continues’."
3.2 In the case of Flanagan v Belfast Metropolitan College [2015] NIIT 996/14, the industrial tribunal in Northern Ireland, applying McMaster, found that the fact of the claimant’s reinstatement after recommendation of the independent LRA Appeal Panel meant the tribunal had no jurisdiction to determine the claimant’s claim of unfair dismissal.
3.3 However, it is important to note, at this stage, both the McMaster and the Flanagan cases involved factual situations where the claimant was found to have been the subject of reinstatement. This is in contrast to the claimant’s factual situation in the present proceedings, where the claimant had asked to be awarded compensation by the CSAB and, in particular, declined reinstatement. It will be necessary to refer to this issue and its relevance to the preliminary issues later in this decision. Indeed, neither the claimant nor the respondent’s representative could point to any decision with a similar factual situation to that of the claimant.
3.4 In the recent decision of Langstaff P, as he then was, in the Employment Appeal Tribunal in the case of Salman v Castlebeck Care (Teesdale) Ltd (in administration) and Another [2013] IRLR 189, he expressly approved and followed the decision of the Northern Ireland Court of Appeal in McMaster and the other decisions referred to by Coghlin LJ in his decision, as referred to above.
The facts of Salman again were somewhat different to the facts in the present proceedings. In Salman the claimant was dismissed for gross misconduct prior to a TUPE transfer. She had a contractual right to appeal against that decision and the appeal was conducted by the employees who had transferred to the transferee. The appeal was successful. She was not informed of this and was not offered reinstatement by the transferee. She claimed that, as her appeal against dismissal succeeded, her contract was revived, as she was therefore employed before the transfer, her employment transferred, and the transferee had dismissed her. The employment tribunal held that the decision taken at the appeal hearing could not be effective unless and until there was both a decision to reinstate the employee, and this was communicated to the employee. Neither had occurred. Langstaff P allowed the appeal, concluding that there was every reason in principle why an outcome on appeal against dismissal which is favourable to an employee should ‘automatically revive the contract which, but for the success of appeal, would have terminated on the earlier dismissal’. In such circumstances, he held it was not necessary to communicate the outcome of the appeal.
He emphasised that the use of the word “reinstatement” in this context might mislead:-
“36 .... because it may be seen in the light of one of the remedies available should a claim for unfair dismissal succeed before a tribunal. The word reinstatement here, I emphasise, is used in the sense of reviving the contract, the expression used in Roberts which, in my view, is more appropriate. I see no reason in principle why in any event it would be necessary for there to be an express revival or reinstatement. It must be implicit in any system of appeal, unless otherwise stated, that the appeal panel has the right to reverse or vary the decision made below. Where a decision is to dismiss, being the most draconian of sanctions, any successful appeal means that the decision is one in which dismissal does not take effect, though some lesser sanction might ... .”
3.5 In G4S Justice Services (UK) Ltd v Anstey [2006] UKEAT/0698, HH Judge Peter Clark relied on the decisions in Roberts, Savage and Tipton, which have been followed with approval in McMaster and Salman, as referred to above, stated in Paragraph 21 of his judgement:-
In a later judgement, in the case of G4S Secure Solutions (UK) Ltd v Jones [2014] UKEAT/0533/13, HH Judge Clark, in a case where there had been a lesser sanction short of dismissal applied, following the claimant’s appeal against dismissal held, as set out in the headnote:-
“The original dismissal ‘vanished’ (see Roberts v Westcoast Trains). Accordingly, the claim ought to have been struck-out.”
3.6 In Harvey on Industrial Relations and Employment Law Volume 1, Section D1 Paragraphs 375 - 400, reference is made to the decision in Roberts, Savage and Tipton, referred to above.
However, the learned authors also state, at Paragraph 376:-
“Although Roberts represents the basic principle here and is likely to cover most cases in practice, it is premised on the employer’s power to conduct the appeal as it sees fit being contractual. Obviously, any substitute of penalty must itself have contractual authority, but there is one more fundamental aspect of this that can lead to an exception to the Roberts rule. This arises if the contractual disciplinary procedure itself contains a limitation on the employer’s powers in these circumstances, in particular by requiring some element of consent by the employers to the substituted penalty. ...”
Reference is then made to two decisions of the Employment Appeal Tribunal in the case of Saminaden v Barnet Enfield and Haringuy NHS Trust [UKEAT/0018/08] and Piper v Maidstone and Tumbridge Wells NHS Trust [UKEAT/0359/12]. These cases distinguish Roberts on the basis that, on the particular contractual disciplinary procedures which applied in both cases, there was a bilateral arrangement whereby any sanction short of dismissal which the employer wished to impose at the appeal stage required the consent of the claimant. In Saminaden the disciplinary procedure provided for the lesser penalty of downgrading but went on to state that ‘downgrading will require the written agreement of the employee concerned’. Interestingly, the EAT commented such a provision was unusual and unique in their combined experience.
In Piper the disciplinary procedure permitting the lesser penalty stated:-
“... If the employee does not agree with this course of action, dismissal is the only alternative ...”.
In the McMaster decision, referred to above, there is no reference in the report to a similar contractual consent provision, as seen in Piper and Saminaden.
Harvey, in Paragraph 376 concluded:–
“As stated above, in practice it is likely that most cases will fall on the Roberts side of the line (ie no contractual requirement of employee consent) but the exception in Saminaden is now established and arguably Piper shows that even relatively ambiguous contractual language pointing to a limitation on the employer’s power may in a case of doubt be construed in the employee’s favour ... .”
3.7 As referred to previously, the claimant has brought a series of judicial review proceedings in relation to the decisions made by the Department to dismiss him and subsequently the decision by the Civil Service Appeal Board in relation to the amount of compensation determined by the Board which should be paid by the respondent to the claimant, following his successful appeal to the Civil Service Appeal Board. These decisions were referred to by the claimant and the respondent’s representative in the course of their submissions.
3.8 In the decision by the Court of Appeal in Brown v Department for Regional Development [2013] NICA 17, the Lord Chief Justice, when refusing to grant leave to issue judicial review proceedings to the claimant, in relation to various decisions made by the respondent in the course of its internal disciplinary and dismissal procedures against the claimant said as follows:-
“(9) Apart from these internal procedures the appellant also has the right under Article 126 of the Employment Rights (Northern Ireland) Order 1996 not to be unfairly dismissed and the entitlement under Article 145 of that Order to present a complaint alleging unfair dismissal to an industrial tribunal which he has exercised.
(12) The issue, therefore, is whether in light of the entitlement of the appellant to pursue his complaint before the industrial tribunal, which constitutes the independent and impartial tribunal established by law, he is nevertheless entitled to the protection of Article 6 in relation to the procedures of the Department ... .
(13) Applying that test in this case, it is clear to us that the evidence upon which the internal decisions were made by the Department and the conclusions reached in relation to that evidence, the evidence of witnesses called by both parties and the submissions made by the parties will be the subject of scrutiny and analysis in the hearing before the industrial tribunal. The industrial tribunal will be required to exercise its independent judgement in determining any disputed facts and will make its own assessment as a specialist industrial jury of the reasonableness of any decision to dismiss. The internal [my emphasis] processes of the Department cannot influence or affect the independent judgement of the tribunal on those issues.”
It must be noted, however, this decision primarily related to the application of Article 6 rights in the respondent’s internal disciplinary procedures and did not relate to the issue of dismissal, the subject-matter of this pre-hearing review.
3.9 Following the decision by the respondent to dismiss the claimant, he appealed, as previously noted, to the Civil Service Appeal Board. The claimant made a further application, during the course of that appeal, for leave to apply for judicial review for an Order quashing the decision of the Civil Service Appeal Board.
Mr Justice Treacy in his decision (Brown Re: Judicial Review [2014] NIQB 84 dismissed the application. It would appear that it was in relation to that application that Mr Lewis, Director of Human Resources in Corporate HR, Department of Finance & Personnel, made his affidavit on 3 March 2014, to which I have referred earlier, and he no doubt considered and took into account, what was said by Mr Lewis before making his decision.
Insofar as relevant to the issues to be determined at this pre-hearing review, Treacy J held:-
“[7] The CSAB is a second stage appeal mechanism for all civil servants in Northern Ireland. It is entirely independent of the Civil Service but its policy is set by Corporate HR in DFP. Thus the policy is found in the Civil Service Handbook at Section 2.07.
[8] The CSAB is sponsored by DFP but acts independently in discharging its responsibilities. It is not open to the public in general; it is a right belonging to Civil Service employees only. The hearings are private. The appeal is a contractual right not a public law right.
[9] The applicant was dismissed by his employer, the DRD and the reason for the dismissal was the failure to disclose a conflict of interest. He appealed that decision and his appeal was not upheld. This then permitted a right of appeal to the CSAB .... .
Discussion
Article 6
[17] I agree with the respondent that Article 6 does not apply to proceedings before the CSAB. The Court of Appeal has already decided that the applicant is not entitled to the protection of Art 6 for the internal disciplinary proceedings - see [2013] NICA 17. In respect of his complaint of unfair dismissal he is entitled to a fair and public hearing before an Industrial Tribunal, which is Convention compliant.
[18] The CSAB hearing is simply another stage of the internal [my emphasis] disciplinary proceedings to which Art 6 does not apply for the same reasons given by the Court of Appeal upholding the refusal of leave in the earlier case.
... .”
Again, the primary focus of this decision related to the application of Article 6 rights before the CSAB and not the issue of dismissal, the subject-matter of his pre-hearing review.
4.1 Section 2.07 of the Civil Service Handbook, referred to previously, gives every eligible civil servant, which included the claimant, a right to appeal to the CSAB. It is clear there is no obligation on a civil servant to avail of his contractual right to appeal to the CSAB. If the civil servant invokes that contractual right, it is also clear the decision is binding on both parties.
4.2 In the respondent’s skeleton argument, the contents of which were relied upon during the course of oral submissions, after referring to the statutory right of appeal against unfair dismissal, contained in Section 3.1 of the Handbook – ‘the entitlement to appeal to the Appeal Board does not prejudice your statutory rights, under the provisions of the Employment Rights (Northern Ireland) Order 1996, to complain against unfair dismissal to an industrial tribunal’ stated:-
“8. ... This provision is undoubtedly correct, however, one’s right to complaint to an industrial tribunal is predicated on the existence of an actual dismissal. The issue therefore resolves to the question of whether there is still ‘a dismissal’ if the CSAB has upheld an appeal. If the remedy requested by the appellant is reinstatement, and this is awarded by the CSAB, then there clearly is no dismissal, and no scope for a complaint to be legitimately determined by the industrial tribunal. Prior to the CSAB hearing, the claimant indicated that compensation was his desired remedy and specifically did not seek either reinstatement or re-employment.
9. It is submitted that there is no rational or logical reason why the legal analysis of the claimant’s position should be approached differently, as the basis that the remedy requested was compensation, rather than reinstatement. It is submitted that the award made by the CSAB in affording the claimant compensation is actually an affirmation that the dismissal should never have taken place and that, in effect, the original decision to dismiss has been quashed.
...
11. As the claimant had indicated that he did not wish to be reinstated and wanted compensation, the respondent paid the compensation awarded by the CSAB ...
12. It is incontrovertible that the claimant has the right under Article 126 of the Employment Rights (Northern Ireland) Order 1996 not to be unfairly dismissed. However, his entitlement under Article 145 of that Order to present a complaint alleging unfair dismissal to an industrial tribunal, depends on his actually being dismissed at the time of the hearing.
13. The claimant and the respondent both appear to accept that the outcome of the CSAB hearing was contractually binding on both parties. As set out above, the respondent has agreed to the CSAB decision and has sent the claimant a cheque in discharge of the assessment of compensation made by the CSAB. Consequently the respondent assets that the decision of the CSAB quashes the claimant’s dismissal and in doing so, effectively deprives the tribunal of its jurisdiction.” [My emphasis]
4.3 The respondent, after referring to the decision of the Court of Appeal in Northern Ireland, in McMaster v Antrim Borough Council [2010] NICA 45, and the authorities referred to therein (see before) concluded the respondent’s skeleton argument:-
“25. In conclusion the respondent contends that, in accordance with the decision of the Northern Ireland Court of Appeal in McMaster v Antrim Borough Council, the decision to dismiss has been legally quashed. It is further submitted that the dismissal itself and its effects have been expunged by the decision of the CSAB, and consequently the tribunal had no jurisdiction to deal with the claimant’s unfair dismissal claim ... .”
4.4 The claimant, in his skeleton argument, and oral submissions, insofar as relevant to the determination of the particular issue, the subject-matter of this pre-hearing review, contended, in essence, that the decision of the CSAB on appeal, had not deprived him of his right to bring to the tribunal his claim of unfair dismissal, which claim the tribunal still had jurisdiction to hear and determine. He did not accept the decision of the CSAB, in granting his appeal that he had been unfairly dismissed and granting him the remedy of compensation, at his request, had not ‘quashed’ the decision to dismiss.
5.1 This submission of the respondent, presented by Mrs Murnaghan QC, appeared, initially, to be supported by legal authority and, if correct, it would have enabled these tribunal proceedings to be brought to a conclusion, without the necessity for any further hearings. However, on a close reading of the legal authorities relied upon by Mrs Murnaghan QC, I think those decisions have to be distinguished on their facts. Indeed, I think it may be of some significance that she was not able to refer me to any relevant decisions, where compensation was the relevant remedy, rather than reinstatement. If the CSAB had ordered reinstatement, on the basis of the legal authorities set out in Paragraph 3 of this decision, I would have had no hesitation in finding that the decision to dismiss had been quashed or as HH Judge Clark in Anstey and subsequently in Jones, relying on the decision in Roberts v Westcoast Trains (see Paragraph 3.5 of this decision), found the original decision had ‘vanished’, where reinstatement was granted as a result of the internal appeal initiated by the claimant.
5.2 In the present proceedings, it is correct the claimant initiated, as he was entitled to do, the internal appeal to the CSAB. As set out in Paragraph 2 of this decision, the CSAB upheld the appeal concluding the decision to dismiss was unfair [my emphasis]. It is apparent from the decision, which has not been challenged by the respondent, the CSAB were able to give the claimant a choice of remedy (‘desired outcome’) in the event of the appeal being upheld – reinstatement or re-engagement compensation. In Section 5.4.5 of the Handbook it is expressly stated:-
“If the Board decides the decision is unfair, it may recommend ... either that you should be reinstated or re-employed or specify what compensation you should be paid ... “
The CSAB in fact, without objection or challenge, gave the claimant the choice of remedy, rather than recommending itself one of the three options. This is very different to the situation in the McMaster decision. As stated above, if the claimant had chosen the remedy of reinstatement or, it had been recommended by the CSAB, I would have found the dismissal had ‘vanished’ and therefore the tribunal would not have had jurisdiction to hear and determine the claimant’s claims and they should be dismissed; or, they should be struck-out on the grounds that they were misconceived, ie had no reasonable prospect of success in such circumstances.
However, by choosing the remedy of compensation, as he was entitled (contractually) to do, the claimant did not alter the legal and/or factual situation relating to the issue of dismissal. The dismissal did not vanish; he remained dismissed, which was found to be unfair. The compensation recommended to be paid was for that dismissal. Indeed, as confirmed by Mr Henry in his affidavit, when the calculation, which is made by CSAB, in such a situation, it is modelled on the methodology used by the industrial tribunal, when awarding compensation following a finding of unfair dismissal; albeit it is not a mirror image. Indeed, although similar, the CSAB considers it is not under any obligation to copy exactly how the tribunal calculates compensation. However, what is clear, the calculation is based on there having been a dismissal, which has not ‘vanished’, nor has it been ‘quashed’, in my judgment. I therefore find the tribunal does have jurisdiction to hear and determine the claimant’s claims and they should not be dismissed and/or struck-out as misconceived.
5.3 Although, as stated previously, there were no legal authorities referred to me, similar to the legal and factual situation in the present proceedings, I find some support for the decision made by me in the cases of Piper and Saminaden (see Paragraph 3.6 of this decision). Although, again, the facts are different in those cases they confirm that, where there is a contractual provision requiring consent or pointing to a limitation on the employer’s power, such a provision will be construed in the employee’s favour. In the present proceedings, the CSAB had three possible remedies, one of which was compensation; and, further the claimant was able to ask that compensation be recommended by the CSAB rather than reinstatement. CSAB had power to grant his request.
6.1 The tribunal therefore does have jurisdiction to hear and determine the claims of the claimant, and each of them, the subject-matter of these proceedings. Further the tribunal refuses, in the circumstances, the application of the respondent to strike-out the said claims of the claimant as the tribunal is not satisfied they are misconceived (ie having no reasonable prospect of success).
6.2 A further Case Management Discussion will require to be arranged in due course, with the date and time to be notified to the parties, to consider the way forward and to give such further and/or amended case-management directions/orders, as may be appropriate to enable this matter to be listed for a substantive hearing, in light of this decision.
Employment Judge
Date and place of hearing: 29 January 2016, Belfast
Date decision recorded in register and issued to parties: