Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2600/15

 

 

 

CLAIMANT: Gary Alcock

 

 

RESPONDENT: Department of Justice

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant's claim is out of time and there are no grounds on which the statutory time limit can be extended. The tribunal does not therefore have jurisdiction to determine the claim and it is accordingly dismissed.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Bell

Members: Mr I Atcheson

Mr J Smyth

 

Appearances:

The claimant was represented by Mr Peter Hopkins, Barrister-at-Law, instructed by Edwards & Company, Solicitors.

The respondent was represented by Mr Aidan Sands, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

 

1. The claimant presented his claim to the Office of the Tribunals on
11 November 2015. At a Pre Hearing Review on 6 May 2016 leave was granted to the claimant to amend the endorsement in the claim and for the respondent to present an amended response. In his amended claim the claimant complained that he had suffered unlawful detriment contrary to Regulation 73 of the Employment Rights (Northern Ireland) Order 1996 ('ERO') in respect of:

(1) A warning given on 11 December 2014 by Mr Paul Cawkwell as servant or agent of the Northern Ireland Prison Service ('NIPS').

 

(2) His removal from the post of Deputy Governor at Maghaberry Prison on or about 8 June 2015 by Mr Cawkwell as servant or agent of NIPS.

 

The claimant also set out that:

 

The Director General of NIPS in dealing with his appeal thereafter failed to identify the process that should have been followed or to explain the business justification for doing so and suggested justification that ' some of the senior management team at Maghaberry were able to be moved within the service but that there wasn't a job for Gary within the Service' was erroneous as two posts were vacant at that time within NIPS both at the Claimant's grade and experience.

 

And,

 

The role, at that time, being fulfilled by the claimant outside NIPS was embarrassing and humiliating for one of his level in senior management, he had been removed from the Senior Leadership Forum and the detriment he was suffering was continuing and he wished to be returned to an operational role within NIPS.

 

2. The respondent in its amended response resisted the claim, denied that a warning was given and contended that legitimate management concerns were raised on 11 December 2014 and that the claimant's removal from his post was as a result of the recommendation of the Criminal Justice Inspection NI report following an inspection in May 2015 of HMP Maghaberry, that urgent and decisive action be taken to strengthen leadership through, inter alia, the provision of visible reassurance and authority to staff and prisoners. In consequence of which NIPS decided to refresh and strengthen the Senior Management Team requiring removal of the Governor, Deputy Governor (the claimant) as well as a number of functional managers. The claimant's posting had been under review since September 2015, he had rejected two possible posts because they did not have a substantial operational role, was advised on 5 November 2015 there was no possibility of his returning to such a role in the near future and his decision was awaited upon other posts offered (amalgamation of NIPS records and information management systems with DOJ or physical closure of the Prison Service College, Millisle).

 

3. A hearing on the merits of the claimant's detriment claim took place between 14 - 16 March 2017 in respect of which the parties had agreed a statement of main legal and factual issues to be determined as follows:-

 

Legal Issues

(i)            Was the claimant subjected to any detriment as an individual by the respondent, contrary to Articles 73(a) and/or (b) of the Employment Rights (NI) Order 1996 ('the ERO'), for the sole or main purpose of:

 

a)         preventing or deterring the claimant from being a member of an independent trade union or penalising him for so being; or

b)         preventing or deterring the claimant from taking part in the activities of an independent trade union at an appropriate time or penalising him for so doing, in respect of:

 

a.          the warning given on 11 December 2014 by Paul Cawkwell as servant or agent of the Respondent;

 

b.          the claimant's removal from his post of Deputy Governor at HMP Maghaberry?

 

(ii)           What remedies, if any, is the claimant entitled to pursuant to Article 76 of the ERO?

 

Factual Issues

 

(iii)          What treatment was the claimant subjected to by the respondent, in particular Paul Cawkwell, in the period up to and including June 2015, in particular:

 

a.     What transpired at the meeting on 11 December 2014 between the claimant and Paul Cawkwell?

 

b. What transpired at the meeting in June 2015?

 

(iv)          What was the sole or main purpose for which the respondent, acting by its servants or agents, acted in respect of:

 

a)     The warning given on 11 December 2014 by Paul Cawkwell as servant or agent of the respondent;

 

b)     The claimant's removal from his post of Deputy Governor at HMP Maghaberry.

 

(v)           What detriment, if any, has the claimant suffered by reason of any treatment to which he was subjected by the respondent, its servants or agents?

 

(vi)          What impact/effect has any such treatment had on the claimant, including upon his health?

 

4 . On conclusion of the hearing of evidence the parties sought to provide written submissions and these were subsequently presented to the Office of the Tribunals on 27 March 2017.

 

5. In written submissions presented for the respondent a time point was raised for the first time (arising out of the evidence given by the claimant under cross examination at hearing that he had no evidence that Mrs McAllister (the Director General of NIPS) had discriminated against him on the ground of his trade union activity during the appeal and as such his complaint was confined to mere unfairness) such that in circumstances where it is not alleged that the appeal process was an act of detriment on the ground of trade union activity, then the detriment itself concluded with the decision on 3 June 2015 and there was a live issue as to whether the claimant's complaint was presented within the statutory time period of three months, no application for an extension of time ever having been made.

 

6. Rebuttal submissions were presented for the claimant to the Office of the Tribunals on or about 13 April 2017 in respect of the time point.

 

7. Parties were notified on 15 April 2017 on consideration of written submissions and rebuttal submissions in respect of the time point raised and in light of the Northern Ireland Court of Appeal decision of Knox (Lindsay) v Henderson Retail Ltd [2017] NICA 17 ref WEI10237 delivered 10 March 2017 that a reconvened hearing would take place on 30 May 2017 to allow parties the opportunity to present evidence, call or question witnesses and make submissions in relation to whether the complaint has been presented in compliance with Article 74 of the ERO, that is:-

 

a)     before the end of the period of three months beginning with the date of the act or failure which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them, or

 

b)     within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonable practicable for the complaint to be presented before the end of that period of three months.

 

8. On 24 May 2017 a joint application was made by the parties for the time point to be dealt with by written submissions rather than by reconvened hearing based on their confirmation that no further oral evidence was needed and evidence grounding the claimant's primary argument (that the claim was in time) and an application in the alternative for an extension of time was already before the tribunal pursuant to the claimant's witness statement plus appendices and his oral testimony. The application was granted on 25 May 2017.

 

9. Written submissions on the time point were presented sequentially to the Office of the Tribunals for the claimant on the 2 June 2017 and respondent on 13 June 2017.

 

10. This decision was made at a panel meeting on 22 June 2017 following consideration of all submissions and evidence presented.

THE ISSUES

 

11. The relevant issues for the tribunal were:-

 

A.         Has the claimant presented a complaint in compliance with Article 74 ERO?

 

That is:

 

(i)             before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them, or

 

(ii)           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.

 

-      What is the substance of the claimant's complaint?

 

-      What is the relevant act?

 

-      Was the relevant act or failure a continuing act, a series of similar acts, or, a single act with continuing consequences?

 

-      Was the respondent responsible for a continuing state of discriminatory affairs?

 

-      Was the appeal the culmination of the acts complained of?

 

-      Was the appeal the last of a series of similar acts?

 

-      Did the relevant act occur or was it continuing within three months of presentation of the complaint?

 

If not,

 

-      Did the respondent misrepresent relevant matters to the claimant regarding the respondent's desires/ intentions as to potentially reinstating the claimant to his post / NIPS?

 

-      Did the respondent repeatedly encourage the claimant that he may be re-instated to his post/ NIPS?

 

-      Did the claimant delay presentation of his complaint at the specific request of the respondent?

 

-      Did the claimant not present his claim at the specific request of the respondent in reliance upon the respondent's express encouragement that his complaint would be satisfactorily dealt with by his return to NIPS?

 

-      Was it reasonably practicable for the claimant to present his complaint within the primary time limit?

 

If not,

 

-      Was it presented within such further period as was reasonable?

 

If so,

 

B.         Has the claimant been s ubjected to any detriment as an individual by the respondent, on grounds related to union membership or activities contrary to Articles 73(a) and/or (b) of the ERO?

 

That is,

 

Was the claimant as an individual subjected to a detriment which took place for the sole or main purpose of:-

 

(i)            Preventing or deterring the claimant from being a member of an independent trade union or penalising him for so being; or

(ii)           Preventing or deterring the claimant from taking part in the activities of an independent trade union at an appropriate time or penalising him for so doing,

 

In respect of:

 

(1)   The warning given on 11 December 2014 by Paul Cawkwell as servant or agent of the respondent;

 

(2)   The claimant's removal from his post of Deputy Governor at HMP Maghaberry?

 

That is,

 

-      What was the sole or main purpose for which the Respondent, acting by its servants or agents, acted in respect of the warning given on 11 December 2014 by Paul Cawkwell as servant or agent of the Respondent?

 

-      What was the sole or main purpose for which the Respondent, acting by its servants or agents, acted in respect of the claimant's removal from his post of Deputy Governor at HMP Maghaberry?

 

If so,

 

C.         W hat remedies, if any, is the claimant entitled to pursuant to Article 76 of the ERO?

 

EVIDENCE

 

12. The tribunal considered the claim, response, amended claim, amended response, agreed bundle of documentation, witness statements and appendices thereto of the claimant, John Attard a National Officer of the Prison Governors' Association (PGA), Dr Christopher Kelly Consultant Psychiatrist, Alan Longwell former Governor of HMP Maghaberry, Patrick Maguire former Governor of HMP Maghaberry and former Chairman of the Prison Governors' Association (Northern Ireland) (PGA(NI)) on behalf of the claimant, and from Paul Cawkwell former Northern Ireland Prison Service (NIPS) Director of Offender Policy and Operations, Sue McAllister former Director General of NIPS, and Mark Adam, former Change Manager with NIPS and HR Director, on behalf of the respondent, together with their oral testimony.

 

13. Agreed documentation included a typed transcript of the recording taken by the claimant of a meeting with Mr Cawkwell on 11 December 2014 and the tribunal accepted the claimant's contention that the recording itself, disclosed in discovery, was of relevant probative value as to the context and tone of what was said by Mr Cawkwell perceived by the claimant as a threat and determined it proportionate at the outset of the hearing to hear the last ten minutes thereof subject to Mr Cawkwell being allowed the opportunity to address any matters of context and tone not covered in his witness statement (albeit that this was not subsequently availed of).

 

RELEVANT FINDING OF FACTS AND CONCLUSIONS

 

14. The claimant joined NIPS as a Prison Officer in 1983.

 

15. In or around 2011 NIPS commenced a prison reform programme to be completed by March 2015 designed to re-shape how local prisons were managed and improve outcomes for prisoners.

 

16. In June 2013 Paul Cawkwell joined NIPS on a two-year secondment until 10 June 2015 as Director of Offender Policy and Operations. Mr Cawkwell is a member of the PGA.

 

17. Following on from the investigation and report into the death of a prisoner in 2012 at Hydebank Wood while the claimant was Governor in Charge and which resulted in considerable media interest, the claimant was moved from Hydebank Wood to NIPS Headquarters. The claimant was keen to return to a front line operational role and in September 2013 by agreement with Sue McAllister the Director General of NIPS (between July 2012 until October 2016) a secondment was arranged, subject to funding by NIPS, for the claimant to a post at Feltham Young Offenders' Institution in London for 12 months. Mrs McAllister is a member of the PGA.

 

18. Mrs McAllister was of the view that the claimant on his return from Feltham would have to be placed into a funded post but that it would not be possible to place him into an In Charge post, and so there would be few options given the relatively small size of NIPS. Mrs McAllister as part of NIPS ongoing Prison Reform Programme was also required to deliver financial savings. As the result of retirements and other senior moves within NIPS the Deputy Governor position in Maghaberry became vacant and consequently in Spring 2014 the claimant was asked by Mark Adam (NIPS Change Manager and HR Director between April 2012 and September 2015, but directly employed by the Strategic Investment Board) to return early from his post at Feltham to take up the post of Deputy Governor at Maghaberry Prison.

 

19. The claimant first met with Paul Cawkwell on 14 April 2014 after he had agreed to take up the post of Deputy Governor at Maghaberry. Their meeting was congenial. Mr Cawkwell advised the claimant in the course of their meeting that the claimant was Mr Cawkwell's first choice for the post, but also gave the claimant advice that he should not unduly involve himself in the running of Roe House, a block within HMP Maghaberry in which separated paramilitary prisoners were accommodated, given the particular sensitivities regarding its management and there being people better placed than the claimant to look after it. The claimant considered Mr Cawkwell to present as an amicable person. Whilst we accept Mr Maguire's evidence that he was not the source of any suggestion upon which Mr Cawkwell may have formed a perception that the claimant had a fixated view on how separated prisoners should be managed we accept that Mr Cawkwell held a concern as to the claimant's attitude to the management of separated prisoners given his past service in the Maze Prison and management practices used there many years previously, supported by the direction given by him at their first meeting that the claimant should not unduly involve himself in the running of Roe House.

 

20. On 31 May 2014 Patrick Maguire retired after four years as Governing Governor of Maghaberry Prison and was replaced from June 2014 by Alan Longwell. In and around the same time Mr Maguire also retired as Chairperson of the PGA (NI), a trade union representing Prison Governors in Northern Ireland.

 

21. The claimant commenced his appointment as Deputy Governor at Maghaberry on 2 June 2014.

 

22. On 9 June 2014, the claimant was elected as Chairperson of the PGA (NI).

 

23. On 24 June 2014, the claimant met Mr Cawkwell for a second time. At this meeting Mr Cawkwell criticised key performance indicators. The claimant in response pointed out these related to May 2014 when neither he nor the Governor had been in post and considered this to set Mr Cawkwell off on a 'rant'. The claimant found Mr Cawkwell in contrast to their first meeting abrasive and critical.

 

24. Throughout most of his time at Maghaberry Mr Longwell kept a journal to record what he considered significant interactions between him and others entitled ' Contemporaneous records of bullying, undermining and the calculated lack of support afforded to me in my position of Governor of Maghaberry Prison by Paul Cawkwell....and Sue McAllister.' It is clear from Mr Longwell's journal despite his evidence to the contrary that he bore considerable negative feelings toward Mrs McAllister arising from his view of past treatment afforded to him by her relating to his removal from a post in Maghaberry in 2009. It is furthermore clear that Mr Longwell found interactions with Mr Cawkwell stressful and considered him to be unsupportive, aggressive, intolerant and bullying not only toward the claimant but to him as well. Mr Longwell did not hold any role in the PGA (NI).

 

25. At a board meeting at Headquarters on 24 July 2014, the claimant enquired whether an issue raised by Mr Cawkwell was a shift in policy, in response to which Mr Cawkwell left the meeting to get the policy, he returned and placed the relevant sections of the policy on the table. The claimant considered Mr Cawkwell to have run out of the meeting and 'banged' documentation down on the table on his return in a way that caused him to feel embarrassed.

 

26. On 16 August 2014 Mr Cawkwell visited Maghaberry for his next monthly visit. The claimant considered that Mr Cawkwell was offensively abrupt to him on two occasions in the course of discussions and dismissive of him.

 

27. On 21 October 2014 Mr Cawkwell discussed with the claimant and Mr Longwell the issue of high overtime the preceding month it having increased by 50 percent taking it back to levels last seen in the Spring time. Mr Cawkwell was frustrated by responses given by the claimant as to the reason for the increases being bed watches. When the claimant left the meeting Mr Cawkwell discussed further with Mr Longwell his frustration regarding the management team's delivery and diligence. The claimant considered Mr Cawkwell to have become very angry, shouted, and been particularly aggressive and dismissive towards him. Mr Longwell recorded a journal note that Mr Cawkwell had been 'intolerant and bullying and I think that this is not something that either me or Gary should have to endure' and was ' particularly aggressive towards Gary- and very dismissive of what Gary was trying to explain'.

 

28. On 30 October 2014 while Mr Longwell was on annual leave the claimant contacted Mr Longwell to advise him that the stair grille in Roe House on Roe 3 & 4 had to be closed in response to threats coming from prisoners. Mr Cawkwell was also on leave at the time. The claimant following on from reports of threats being made to staff and concern over staff walking out had by that stage already chaired a meeting of senior governors at Headquarters and held a video link with Mrs McAllister at which a decision to lock the stair grille had been approved.

 

29. On 4 November 2014 Mr Cawkwell in a telephone call to Mr Longwell criticised the claimant in relation to the decision to lock the stair grille in Roe House and raised that he had previously told the claimant to stay out of such matters.

 

30. On 18 November 2014 the claimant wrote to Mr Longwell, his Line Manager, setting out incidents of bullying and confrontational behaviour which he considered had taken place arising from Mr Cawkwell's behaviour towards him at the above-mentioned meetings and which on analysis of what could have prompted such a behavioural change that he could only conclude that he had been elected the PGA (NI) Chairperson since, but acknowledged there was little Mr Longwell could do until the claimant resorted to the appropriate policies.

 

31. On 18 November 2014 Mr Cawkwell and Mrs McAllister gave evidence to the Northern Ireland Assembly, Committee for Justice in relation to the Maghaberry Prison Stocktake Report. Hansard records that the Chairperson raised that it had been drawn to his attention while in Roe House a number of weeks previously that the grille connecting the upper and lower landings was open and staff were concerned about this, a decision had been made to do that and had not been reversed, therefore not only had a pre-emptive move been made with the Report's recommendations in face of the ongoing threat but NIPS had already made a concession by opening the grille and he requested a response as to why it had been opened and what had been done to address staff concerns.

 

Mrs McAllister asked that Mr Cawkwell reply stating that he could ' shed some very helpful light on the grille, which I am fully aware did become an issue'.

 

Mr Cawkwell responded: ' Until very recently, the regime in Roe House was divided. Two regimes were in operation for separate groupings. At the start of the stocktake process, the prisoners made it known that they wished to act as one group to maximise opportunities to use the regimes. We welcomed that. In the immediate aftermath, in our haste to respond to it, a tactical decision was taken to leave a grille unlocked. I can place on the record that that tactical decision was reversed. The original decision was taken at a local level, and the decision to reverse it was taken at a local level. It was short-lived.'

 

The Chairperson asked ' Was it wrong to have made that response so quickly or, as you said, in 'haste'?'

 

Mr Cawkwell replied ' No. I think that it was the right decision to take at the time, bearing in mind the information that was available at that time. As with any decision, you should reflect on its impact and assess what follows. Having assessed that, the local decision, quite rightly, was to reverse the initial decision.'

 

32. Mr Cawkwell's evidence to this tribunal however very much differed from that given to the Justice Committee stating that the decision to close the grille at Roe House was not one that he would have taken and that he was aghast and shocked that the decision was taken when Mr Longwell the Governor was ' out of the way'. This clearly calls into question the credibility of Mr Cawkwell's evidence and the weight to be attached to it. Taking this into account on balance we accept that Mr Cawkwell was in fact very much displeased at the claimant's involvement in Roe House contrary to the direction he had previously given to the claimant, as supported by Mr Cawkwell's conversation with Mr Longwell on 4 November 2014. We consider that Mr Cawkwell's contrary response to the Justice Committee was naively made by him with the intention of protecting the reputation of Maghaberry.

 

33. Hansard records that the Committee for Justice member Mr Tom Elliott thereafter referred to outstanding issues as including the abuse of staff and threats to staff and put to Mrs McAllister that if the provision in the report that ' Any relaxation of the present restrictions would depend on the prisoners acting in good faith and refraining from actions that might prevent staff carrying out their work professionally and free from harm, intimidation or threat' was not met that he assumed that 'all other aspects are off the table.'

 

Mrs McAllister replied 'Yes. To go back to what we have just said, we have demonstrated, by making the first move toward a more normalised environment, that we are committed to achieving the aims set out in the stocktake. It is now important that the prisoners cease subjecting our staff to any threats or intimidation.'

 

Mr Elliott responded ' You made a positive move towards the prisoners while threats were ongoing.'

 

Mrs McAllister answered ' Having made that first move toward normalisation, we now have a clear statement from the prisoners that they are committed to moving towards the aims set out in the stocktake.'

 

Mr Elliott put ' You have gone beyond the recommendation of the report'.

 

Mrs McAllister disagreed and stated ' Sorry, Tom. Since we made that first move, there have been no further threats to or intimidation of our staff. It is very early days. I am not counting any chickens, but we have to make that first step. Should there subsequently be any threats or intimidation, we would then be in a different place.'

 

Mr Elliott stated ' The point is that you made the move while the threats were still in place.'

 

Mrs McAllister replied 'The threats and intimidation that we are talking about in Roe House are the day-to-day physical intimidation of our staff. There have been no threats and no intimidation since we made the first move.'

 

Following on from this the Chairperson indicated that in his questioning he was ' trying to understand how we will get public confidence that you are not moving ahead to appease the terrorists when one of the conditions is that the external threat also needs to be lifted. How will we know? If the public are to have confidence in the relaxation of the regime, we need to know the criteria that will be used to adjudicate on how conditions are being complied with by prisoners.'

 

Mrs McAllister stated 'Absolutely, and we have it set it out that, if we have any indication that threats to our staff, either from inside Maghaberry or externally, are continuing, we will review our position.'

 

Mr Elliott questioned ' How long ago did you take the initiative to relax some of the measures?'

 

Mrs McAllister stated that they ' would prefer not to talk about 'relaxing' the measures; we are moving towards a more normalised environment. That was yesterday or the day before'.

 

Mr Cawkwell confirmed his belief that it was two days before.

Mr Elliot queried ' Have there been no threats in the prison in those two days?'

 

Mr Cawkwell replied ' The feedback from the prison is that, so far, things are working well. It is early days, and we will be assessing it and staying very close to it. We needed to give this momentum. I think that is a very positive step towards normalised conditions, which offer our staff safety and assure me that security is not compromised.'

 

34. On 27 November 2014 following reports of death threats against PGA members the claimant wrote to Mrs McAllister in his role as Chair of the PGA (NI) on PGA headed paper, with copies sent to amongst others Mr Cawkwell and the Minister for Justice. The claimant set out:

 

" As you are aware the intimidation and threats to staff from prisoners on Roe 3 and 4 are significantly increasing in both intensity and viciousness. A number of our members have been specifically and intentionally singled out, over an extended period, and threatened both on the landings and named on dissident republican websites (with all the obvious implications).

 

Whilst I know that you consider these specific threats, against PGA members, to be unacceptable, what is increasing PGA member's concerns is that there appears to be an absence of tangible support outside of Maghaberry prison.

 

This minute is intended to bring focus to the issue, and advise that the PGA (NI) have commenced a consultation exercise with our membership reference a way forward. Options being discussed to date include a press release, lobbying of influential groups, including political representatives and/ or media interviews. Final decisions will not be taken lightly and will require balance, not least with regard to what is in the best interest of members. The PGA has remained silent for too many months, whilst members' lives have been threatened, and is neither sustainable nor does it contribute to improving our members' situation.

 

The PGA (NI) would welcome urgent discussions with yourself to explore how NIPS intend to fulfil the employer's duty of care to our members."

 

35. On 28 November 2014, the claimant received a telephone call from Mr Cawkwell's secretary seeking to arrange a meeting at headquarters on 1 December 2014. The claimant asked whether this was in his capacity as Chair of the PGA (in which role he would be entitled to be accompanied) or as Deputy Governor of Maghaberry, he received confirmation that it was as Deputy Governor. Mr Cawkwell disputed in his evidence at hearing that arrangements were made by his secretary or the meeting originally intended to be with him, we found Mr Cawkwell confused in his evidence over the chronology of events and more credible the evidence of Mrs McAllister that it would have been normal practice for her to have referred the claimant's letter to Mr Cawkwell and find that she did so. We found Mrs McAllister credible in her evidence and accept that she held concerns over the claimant's dealings as Deputy Governor with separated prisoners in Maghaberry and we consider in light of her recent evidence to the Justice Committee and its scrutiny of the respondent's implementation of the stocktake recommendations in relation to the opening of the grille in Roe House, which the claimant was then involved in a decision to close, and suggestion that the respondent had made a concession toward prisoners whilst threats and intimidation of staff were ongoing, which she had contested, that Mrs McAllister wished that the claimant be clearly reminded given the political sensitivities involved to leave the management of Roe House to those better placed to deal with it whilst the Respondent endeavoured to implement recommendations for change in order to move toward normalised conditions, supported by her disclosure subsequently made on 5 December 2014 to Mr Longwell and recorded by him as to that being the purpose of the meeting arranged by Mr Cawkwell.

 

36. In and around December 2014 the claimant was involved in conducting sensitive pay negotiations on behalf of the PGA.

37. On 1 December 2014 the claimant was informed that Mr Cawkwell would not be in work that week and following his return the meeting which had been due to take place on 1 December 2014 was rearranged to take place during Mr Cawkwell's monthly visit to Maghaberry on 11 December 2014.

 

38. In his journal entry on 5 December 2014 Mr Longwell recorded that he had met with the claimant and another staff member to let them know that Mrs McAllister 'had let it slip yesterday' that the reason for Mr Cawkwell's meeting with the claimant was to remind him he had been told to leave Dissident Republican issues to other staff. Mr Longwell also recorded ' The tactics employed by the DG and Mr Cawkwell were causing harm and distress to both Gary and me.'

 

39. On 8 December 2014 Mr Longwell responded to the claimant's correspondence of 18 November 2014 setting out that he as Governor had actually been present and witnessed much of what the claimant had described, expressed concern that escalating the complaint could make matters worse and suggested that the claimant continue to ' monitor the situation'.

 

40. On 11 December 2014 prior to his meeting arranged for later that morning with Mr Cawkwell, in the absence of a response from Mrs McAllister to his letter of 27 November 2014, the claimant sent a follow up letter to the same recipients in which he stated:

 

"It is with deep disappointment that the PGA (NI) along with the PGA President and National Executive Committee note that neither an acknowledgement nor response to our request for an urgent meeting has, (to date), been received. This is particularly disconcerting given the urgent meeting was requested in relation to ongoing and specific threats to kill, to a number of our members, by prisoners on Roe 3 and 4.

 

The PGA wish to advise you that the request of an urgent meeting is now rescinded, as the absence of any response eloquently exemplifies the regard in which our members and threats to their lives are held.

 

This is a missed opportunity, on so many levels, and only serves to support the view of 'an absence of tangible support outside of Maghaberry Prison."

 

The claimant concluded his letter advising that the PGA President, Stephen O'Connell was to visit Northern Ireland in the New Year to meet officials and members and that he had offered full support to Northern Ireland members, particularly those who were the subject of threats and abuse whilst carrying out their duties.

 

41. At 11.20 am on 11 December 2014 Mr Cawkwell met with the claimant. The claimant using his workplace Dictaphone covertly recorded his 45 minute long meeting with Mr Cawkwell. In the course of the meeting Mr Cawkwell:

 

(a) Criticised the claimant's decision to lock a stairway grille at Roe House during an absence of the Governor, Mr Longwell and with Mr Cawkwell also on leave, given the sensitivity around it and their prior discussion that there were others better placed to deal with the running of Roe House than the claimant. The claimant disagreed that the decision could have waited.

 

(b) Alleged on a number of occasions that the Governor denied the claimant's assertion that the claimant had spoken to the Governor by telephone informing him of the decision to lock the grille.

 

(c) Criticised the claimant for continually harping back to how it was 30 years ago and said, the claimant began every other sentence with 'In the Maze'.

 

(d) Told the claimant that he did not believe the claimant's decision to lock the stairway grille (in Roe House) was the right one, and that he, Mr Cawkwell, had told the Justice Committee of the Northern Ireland Assembly that it was correct, to protect the claimant from the Justice Committee.

 

(e) Put that the claimant was the only operational manager within NIPS that he had journalists constantly ' on the hunt for, trying to get you' and that he had ' almost prostituted' himself to the media and had to provide other story lines to avoid publication of stories about the claimant and that the claimant as a senior figure ' must have a self-awareness that this is how some people take to me and how some people perceive me' and questioned why the claimant ' would be thinking that you could become the public face' of the PGA given the stories that would be thrown up about him on taking a higher media profile.

 

(f) In response to the claimant's suggestion that Mr Cawkwell was obviously not happy with the claimant, Mr Cawkwell raised two issues: Firstly, that the claimant's suggestion in their previous conversations about overtime spending that he had misunderstood a prior clear direction given regarding overtime spend stating ' Oh I hadn't realised you meant this applied to bed watches', beggared belief. Secondly, the claimant's involvement in Roe House despite Mr Cawkwell's stated preference that he defer to others to manage it.

 

(g) Advised that the claimant must have self-awareness which would tell him that there are people who would look to do him down ' particularly in the media that I constantly have to push back to: journalists and do my best to stop them writing stories. That's not fiction. Both of them are constantly are at that. So there is a natural nervousness on my part when I talked to you at Whitley as we finished about if you put yourself in the parapet and say "It's me, this is what I have to say about this." Then it's inevitable that they will then say "All bets are off, here's my story on McDonnell, on? I'll remind the world about all of this." ' The claimant acknowledged his awareness of this, but put forward that it was PGA business, not Deputy Governor business.

 

(h) Put to the claimant that if he was intent on taking a higher media presence then people were waiting to write stories about him and would keep referring to his past. The claimant stated his awareness of this and queried whether Mr Cawkwell thought it was a position he wanted to be in. The agreed transcript sets out their conversation thereafter as follows:

 

' PC: Well why put yourself in it?

 

GA: That's association business Paul. How can I be Chair.....

 

PC: I never saw Pat standing before the media. I never saw him do that.

 

GA: Pat Maguire. Because we're different people.

 

PC: Ok. But it's your choice, that's the issue.

 

GA: And by the way I haven't said I'm standing. There are a whole raft of options being considered Paul.

 

PC: Let's not kid ourselves. If you're going to wear two hats; Pat was always having to walk a difficult line.

 

GA: Yes.

 

PC: And he often had to deal with reference of two hats and me asking which hat are you wearing today Pat? And he got the balance right. I'm not sure that letter you wrote got the balance right. That's something you can deal with Mark Adam but when the Deputy Governor of Maghaberry writes [publicly] over a matter which actually pertains to Maghaberry I sit there and think which hat are you wearing here?

 

GA: Well the Chair of the PGA.

 

PC: You might be able to make the differentiation but anyone looking in would say no this is the Deputy Governor of Maghaberry.

 

GA: And I'd say it's the lead of an association.

 

PC: You'd like to think they would but they won't Gary. They'll look at that and say this came from the Deputy Governor.

 

GA: I don't wish to talk PGA Paul. This should be more me. The issues you have with me. Issues that I need to try to work on and some issues I can do nothing about. But Paul given the very limited contact we've had......

 

PC: Gary you might not to want to talk PGA business but we can't separate the two when they affect your role in Maghaberry.

 

GA: And what do you mean by that?

 

PC: [What] I mean by that is when you're writing letters signed by yourself about what is ostensibly a Maghaberry related issue.....

 

GA: It wouldn't matter if I was in .....

 

PC: People will deem that to be the Deputy Governor is saying and I don't know that is something that is sustainable in the longer term for the Deputy Governor of Maghaberry if they cannot separate two issues.

 

GA: I hear what you're saying Paul and basically I take that as you saying if you continue to do your role as PGA Chairman I'm going to have to review your position.

 

PC: No I'm not. What I'm saying is if you can't separate your role as PGA Chair as well as the Deputy Governor here, then I will have to look to move you to a less high profile role. I'm not afraid of putting that on the record.

 

GA: There's only one loser here. You've all the decisions. I don't know what you want me to do or say here Paul. I feel threatened.

 

PC: I don't want you to feel threatened because no-one's going to take your job away but you have to gain a personal awareness that is currently lacking. You have to gain that awareness.....

 

GA: In your opinion.

 

PC: Well it's not my opinion.

 

GA: I've said I know everything about.....

 

PC: Gary how is it my opinion when Vincent Kearney is the one who wants to write the story. The BBC's NI correspondent. How is it my opinion when Noel McCracken.....

 

GA: Because you're saying my awareness is currently lacking. I'm saying I am aware of it Paul I really am. That's one thing I can look you in the eye and say trust me I don't think anyone is more aware of the most horrendous personal and professional position for me to find myself in. My awareness isn't lacking.

 

PC: Then I'm really surprised that somebody would have claim to that personal awareness and yet still want to put themselves in a place where they will bring about a probing, whether it's deserved or not you will get it from BBC and from the detail and the detail source are the media outlets. So that's how they will refer to it.

 

Now I'm surprised that someone who has a personal awareness and has a very difficult challenging job to do would put themselves in that place. That's a surprise.

 

GA: And I sum that up because I care about what I do. Whether it's Chair of Athletics, Deputy Governor, Chair of PGA- my personal life; I care about everything I do Paul. Maybe too much. Maybe I give too much.

 

PC: We're also in an organisation where nobody writes good stories about prisons and the good news day for the prison system is not have any stories so your employer doesn't like to generate unwanted bad publicity and what you're going to become if you're not careful is a magnet for that. You must have that self-awareness.

 

GA: I'm fully aware of that yes.

 

PC: And this particular role is a challenging role where I'm pretty certain you don't want that kind of baggage [being] brought to your desk when you have such a challenging role to deal with anyway.

 

GA: There's one thing we can both agree on.

 

PC: Good. The ball's in your court on the rest of it. I'm not saying you're going to be moved from here but I'm saying.....

 

GA: But that's what you're insinuating Paul.

 

PC: What I'm saying is if you can't separate Maghaberry business from PGA then yes you are. I will move you.

 

GA: How can you do that?

 

PC: Well if you can't separate Maghaberry's business from your PGA role you cannot stay at Maghaberry. End of.

 

GA: Right. But you're not threatening me?

 

PC: You have to be grown up about this. You can't write to me and pretend you're not the Deputy Governor of Maghaberry and pretend it's just union business when you are actually in more of an influential position to do something about the matter than I am because you are closer to it. You can't displace yourself from it. In the same way that I can't write to you as a member of the public and have me not recognise that I'm also the Director. You wear two hats. Pat did it skilfully. Yours isn't a very good fit at this moment in time. So by all means carry on doing the business for the PGA, but please separate your role as Deputy Governor. Do not conflate the two. You can't separate them if you bring Maghaberry business into discussion. Alright?

 

GA: I hear you yes.

 

PC: Anything you wanted to bring out today?

 

GA: No this has been broadcast and listen.

 

PC: Hopefully this is an opportunity to reboot and restart a relationship that hasn't gone well so far."

The claimant responded with incredulity 'Today hopefully is an opportunity to reboot and restart. OK.' The parties thanked each other and their meeting concluded.

 

We consider that the intended purpose of Mr Cawkwell's meeting with the claimant had been to remind the claimant to leave the running of Roe House to others but that Mr Cawkwell in pursuit of his own desire for a 'quiet life' and to protect the reputation of the prison given his personal dealings with journalists on the 'hunt' for stories about the claimant, recent evidence to the Justice Committee and annoyance at the claimant's suggestions in his letter to Mrs McAllister of a press release in respect of recent DR threats to staff spoke words to the claimant to discourage him from bringing up Maghaberry business in his role as PGA (NI) chairman so as to avoid adverse media attention being drawn to Maghaberry.

 

42. Following the meeting with the claimant Mr Cawkwell spoke with Mr Longwell about it. Mr Longwell recorded in his journal that Mr Cawkwell ' told me that he had made it clear again to Gary that he should not 'cross the road' to involve himself in DR [Dissident Republican] issues and that Pat Gray had this all well in hand. In addition, he told me that Gary did not 'balance' the PGA role well. However, there was 'no outcome' to the meeting. There was a hint, perhaps, that he would be prepared to move Gary, which, I think, is very unfair.'

43. On 11 December 2014 the claimant began to keep a contemporaneous log of events.

 

44. On 15 December 2014 the claimant met with Mr Longwell and Mr Gray and discussed what was said and happened on 11 December 2014, the claimant recorded in his log that both were shocked and angry and sympathised with him. Mr Longwell recorded in his journal that the claimant's and Mr Cawkwell's versions of their meeting did not tally and his understanding and belief was that the claimant was subjected to confrontational and bullying behaviour and left badly shaken afterwards.

 

45. On 15 December 2014 following a bi-monthly PGA meeting with Mr Adam the claimant told Mr Adam that he had been threatened by Mr Cawkwell and provided him with a 'gist' of the meeting, but advised him ' that conversation was 'off line' at moment as I wanted to reflect on my options - mindful that I could win, but lose!' Mr Adam thereafter spoke with Mr Longwell and enquired about the meeting between the claimant and Mr Cawkwell, Mr Longwell confirmed that he had not been present and could not really comment.

 

46. On 18 December 2014 the claimant wrote to Mr Longwell a minute, for information, describing his meeting with Mr Cawkwell on 11 December 2014 which he asked be read in conjunction with his previous report of 18 November 2014 detailing bullying and humiliation he considered he had been experiencing on an ongoing basis for the past six months by Mr Cawkwell. The claimant set out in particular therein that he was shocked when Mr Cawkwell had claimed four times that Mr Longwell had denied that the claimant had telephoned Mr Longwell and Director General was two or three steps too high to make the decision or be across the detail. The claimant also referred to Mr Cawkwell having made personal attacks on the claimant's character saying that every second sentence he talks about the Maze and questioned why the claimant's profile was so high.

 

47. Mr Cawkwell following on from his visit to Maghaberry Prison on 11 December 2014 sent out his Establishment Visit Report in which he set out:

 

•                 In relation to staffing, ' Overtime expenditure was well controlled in November. Commendable.'

 

•                 In relation to discussions on the subject of Dissident Republican prisoners, 'The discussion with Gary was necessary for me to check Gary's understanding of a conversation we had held in the past, and from the moment that you confirmed that he did not consult you before taking the decision to lock off the stair grille in Roe Separated, it has been a conversation that needed to be explored.

 

There were 2 specific misgivings that I raised with Gary.

 

The first was his inclination to adopt a high media profile (as set out in a PGA letter dated 27/11/14) in his guise as NI Branch Chairman PGA.

 

When Gary had first suggested this to me at NIPS HQ, I had alerted him to the fact that 2 prominent Northern Ireland journalists had shown an unhealthy interest in past failings associated with Gary and in one particular case I had worked very hard to prevent a copy being written.

 

My fear was always that adopting a higher media profile would invite a reaction from the aforementioned journalists who clearly have an axe to grind.

 

In the week that one of these past associated failings received fresh publicity, I shared my fear that the Deputy Governor at Maghaberry going public on a matter so inextricably linked to Maghaberry would be a clear conflict of interest that wouldn't be separated by the heading of notepaper carrying Maghaberry's address. I felt it risked a response from the afore-mentioned and this would damage the reputation of the Prison in which he holds high office.

 

I made clear to Gary that the PGA's choices were theirs to make and he would not suffer any personal detriment for carrying out his duties as a Trade Union representative, but my role and his as a Senior Prison Official must be to protect the reputation of his prison... a feat his predecessor had managed skilfully whilst wearing two hats.

 

The second misgiving related to Gary's recollection on the briefing he had received from me when appointing him to his new role in April 2014.

 

At that time I explained that I was appointing him to the role because I respected many of his qualities, however I had very real concerns about his attitude to the management of separated prisoners which I felt was rooted in the Maze 30 years ago. In our conversation I had implored Gary to defer to those within the management team who were better disposed to deal with the challenge of Roe House in 2014. The clear direction was to concentrate on the other 1000 prisoners, just as Owers had implored us to do.

 

Recent events suggested that Gary had forgotten that briefing and I had no intention of making any moves against Gary, but his personal awareness is poor and my perception of his attitude was not aided today by his constant references to the past, the Maze, and his willingness to be added to the Roll of Honour to fulfil his duty to the PGA. All quite disturbing.

 

Under his 'Overview' Mr Cawkwell set out, 'You and your team have my admiration for your work.'

 

48. Mr Longwell recorded a journal entry on 19 December 2014 that Mr Cawkwell's latest monthly report had arrived and unfairly and unhelpfully contained personal criticism of the claimant and ' The fact that there is a campaign against Gary is loud and clear.' Also on 19 December 2014 the claimant advised Stephen O'Connell of Mr Cawkwell's threat and they, as recorded by the claimant in his log, talked ' around the issues', agreed to ' continue reflection' and arrange a visit in early January 2015 when Mr O'Connell was coming to Northern Ireland.

 

49. Mr Longwell on 22 December 2014 replied to the claimant's letter and confirmed therein that the claimant had informed him about the decision in relation to the stairway grille at Roe House.

 

50. On 10 January 2015 Mrs McAllister visited Maghaberry. The claimant recorded in his log that Mrs McAllister told him that he ' should not be involved in Roe and P Cawkwell had spoken with me.' Before leaving Mrs McAllister discussed the claimant with Mr Longwell and admitted to him that the situation the claimant found himself in was less than ideal and disagreed with his suggestion that 'some' people had got it wrong about the claimant.

 

51. On 12 January 2015 the claimant wrote to Mr Longwell setting out after reflection his considered potential courses of action following Mr Cawkwell's meeting with him on 11 December 2014 which included under 'Offensive action' amongst other things the 'Equality Commission and discrimination...' and also to 'pursue legal action against Paul Cawkwell.'

 

52. On 14 January 2015, during his monthly visit Mr Cawkwell raised with Mr Longwell the eight fold drop in overtime spend between late Autumn and December 2014 and his concern given high sickness levels at the possible consequent regime interruptions and risk to control and order. Mr Cawkwell in his Visit report set out that he had felt it necessary to reassure himself that ' overtime wasn't being choked off unnecessarily' and referred to a response given to him by the Central Detail Office's Senior Officer which had indicated that it was indeed being withheld by the Authorising Officer (the claimant) on weekdays albeit that the Senior Officer had subsequently contacted Mr Longwell to express concern that he may have given Mr Cawkwell misleading information. Mr Cawkwell set out that he could not understand how or why he would have been given misleading information and that he trusted Mr Longwell would deal with it as a management issue.

 

53. When the PGA met with Mrs McAllister on 27 January 2015 during Mr McConnell's visit to Northern Ireland no mention or concern was raised as to the claimant being threatened or bullied by Mr Cawkwell.

 

54. On 16 February 2015 Mr Cawkwell wrote to Mr Longwell stating concern whether issues raised by him in respect overtime spend (which Mr Longwell had asked the claimant to take charge of) had received the management attention deserved including; whether extraordinarily high levels of overtime in November had been approved in advance, and appropriately authorised; how Mr Longwell was satisfied that their fiduciary responsibilities were being maintained relating to equality of access to bed watch overtime and whether he was satisfied that the claimant's original fact finding exercise had been conducted to an appropriate standard; whether overtime was now being choked off unnecessarily, reinforced by the subsequently retracted statement by the Central Detail Officer, which Mr Cawkwell questioned and sought satisfaction that the local management had conducted a satisfactory inquiry, stating otherwise he would have to commission one externally.

 

55. On 19 February 2015 when Mr Longwell was absent and the claimant was the Acting Governor in charge, Mrs McAllister and Mr Adam visited Maghaberry but did not call at the claimant's office. The claimant considered this unusual behaviour and that he was ' a persona non grata'.

 

56. Mr Cawkwell during his monthly visit on 24 February 2015 did not speak with the claimant. Mr Longwell recorded in his journal that Mr Cawkwell would not engage with the claimant and seemed to avoid contact all day and that it was ' difficult to watch a bully at work'. Mr Cawkwell questioned the effectiveness of Mr Longwell's senior management team and suggested he needed 'more completers' and should request changes to his Senior Management Team, Mr Longwell recorded in his log that Mr Cawkwell was trying to bully him into being a bully .

 

57. On investigation of the withdrawn assertion regarding overtime being choked off, the Central Detail Officer involved denied in writing on 27 February 2015 that he had mentioned the claimant's name.

 

58. On 13 March 2015 during Mr Cawkwell's monthly visit meeting Mr Cawkwell did not speak to the claimant. The claimant wrote a letter to Mr Longwell that day in which he described being depressed and irritable with mood swings at home.

 

59. Mr Longwell replied to the claimant's letter on 27 March 2015 and confirmed that he had witnessed much of the behaviour described by the claimant. Mr Longwell advised the claimant against a formal complaint because that was likely to bring the claimant's working relationship to an end and serve to damage Maghaberry, which neither he nor the claimant wanted to happen. Mr Longwell advised the claimant to continue on as best he could.

 

60. On 16 April 2015 during his visit to Maghaberry Mr Cawkwell did not speak at any stage with the claimant despite walking past the claimant's open office door on several occasions and sitting beside him during a meeting.

 

61. Following Mr Cawkwell's monthly visit in April 2015 Mr Longwell stated to the PGA committee that he could not face any more bullying and that he was seriously concerned for his health. In response the claimant and Mr Gray requested an urgent meeting with Mr Adam which subsequently took place on 23 April 2015 and at which they asked that the NIPS senior management team deal with concerns now put by them over Mr Cawkwell and his behaviour arising out of the effect it was having on Mr Longwell's health.

 

62. On 4 May 2015 Mr Cawkwell during his last monthly visit at Maghaberry stopped outside the claimant's office door and said ' Morning Gary'. The claimant considered Mr Cawkwell to have said this very loudly and his behaviour to be bizarre.

 

63. On 11 May 2015 the HM Prisons Inspectorate arrived to commence an unannounced inspection of Maghaberry.

 

64. On 20 May 2015 the claimant recorded in his log ' Phoned PGA legal advice line & Dictaphone ok!'

 

65. The unannounced inspection by HM Prisons Inspectorate concluded on 22 May 2015 and the inspection team gave an oral summary of their findings which included criticism of local management. Their findings were subsequently confirmed in their report (published in November 2015) which opened with an expression of disappointment to be publishing such a negative report in light of the significant time energy and resources invested in the prison reform programme; they were no longer encouraged as in March 2012 at the last inspection that the prison was making progress; 'Safety', 'Respect' and 'Purposeful Activity' had deteriorated; in their view the leadership of the prison had failed to ensure Maghaberry was safe and stable and they had real concerns that if the issues identified were not addressed as a matter of urgency, serious disorder or loss of life could occur; recommendation was made that the circumstances of a serious fire started by prisoners just prior to their inspection which had the potential to cause serious injury or death, and management response to this incident, should be subject to an independent review; high staff absenteeism was identified as a contributing factor; overall the inspectorate found it ' a concerning inspection of a prison which was as bad as we have seen in recent years. Inspectors met a number of good motivated managers and staff who gave us some hope that with the right kind of leadership and tangible support, Maghaberry could recover and again reach a point where progress could be made.

 

However, a significant failure in leadership was compounded by an ineffective relationship between Prison Service headquarters and local management which needed to be urgently addressed. A general malaise was evident at Maghaberry, which sought to attribute blame rather than find solutions to problems. There also was an unhealthy combination of high sickness absence and poor staff morale which served to exacerbate these issues .'

 

The Inspectorate confirmed that they would revisit in January 2016 by which stage they would expect to see significant progress made to address the areas of poor performance identified in this report and that changes had occurred to improve outcomes for prisoners.

 

Under Main concerns and recommendations the report set out ' the prison is not safe or stable and urgent action must be taken to strengthen leadership.'

 

66. Following discussions on 22 May 2015 with CJINI and their oral feedback as to the need for urgent changes in Maghaberry we accept that Mrs McAllister (in consultation with the Minister, Permanent Secretary and her senior management team) out of concern for the safety of staff and prisoners considered it necessary to make wholesale changes to the senior management team at Maghaberry. Mrs McAllister recognised that there had been insufficient investment in training and development for governors for many years and whilst no performance issues had been formally raised at any stage by the respondent with the claimant it was her wish in particular to replace both Mr Longwell and the claimant but no suitable replacement at the correct grade was available at that time for Mr Longwell. We accept that Mrs McAllister had formed a view of the claimant as inflexible toward embracing reforms in the move of focus from security toward rehabilitation in prisons.

 

67. On 26 May 2015 a meeting took place at headquarters between Mr Cawkwell, Mr Adam and Mr Longwell. Mr Cawkwell informed Mr Longwell that he remained the right person to lead the Prison, but that he was not well supported by his team and that someone would have to be moved at a senior level because it was a bad report. Mr Cawkwell invited Mr Longwell to make a suggestion and made it clear he would be dealing with the matter before his imminent departure from NIPS. Mr Longwell considered that they were talking about the claimant.

 

68. Mr Adam spoke with Mr Longwell on the telephone on 27 May 2015 and confirmed that Mr Cawkwell at their meeting had meant Mr Longwell would have to change part of his management team. Mr Longwell said that any attempt to move the claimant would be counterproductive.

 

69. On 28 May 2015 Mr Adam contacted Mr Longwell again to discuss matters, Mr Longwell felt that he needed the claimant and was not prepared to suggest that he be moved.

 

70. Ultimately a decision was made by the respondent to move the senior management team functional heads and claimant leaving Mr Gray, who was also at the time secretary of the PGA (NI), as the only Senior Governor to remain in place with Mr Longwell. A post was identified for the claimant in DOJ Information Systems Division as Sensitivity File Reviewer in ISD Management anticipated to last until 30 September 2015 to which the claimant could be transferred as a temporary holding role. We found Mr Adam a credible witness and consider that he was better placed than the claimant to know what positions were available at the time and prefer Mr Adam's evidence on balance over the claimant's that there was not at that time a clear vacancy for a post within NIPS in HQ which the claimant could have fulfilled.

 

71. On 3 June 2015 Mr Longwell met again with Mr Cawkwell and Mr Adam and was asked if he was going to seek the claimant's removal from post, when Mr Longwell said no, Mr Cawkwell stated that he would move him then.

 

72. On 3 June 2015 the claimant attended a meeting at headquarters with Mr Cawkwell and Mr Adam at which the claimant was informed by Mr Cawkwell that following the inspection he was being moved to 'the Department' with effect from Monday 8 June 2015 to lead a security review and that the claimant would retain his seniority and rank and salary would remain unchanged. Mr Cawkwell informed the claimant this was one of many moves to be announced and that the decision to remove the claimant from the Deputy Governor post at Maghaberry had been his decision. We accept Mr Cawkwell's evidence supported by that of Mr Adam that that the post to which the claimant was transferred was not in fact decided upon by Mr Cawkwell but was determined upon on the basis of what was available at that time at the claimant's grade and that a suitable position was not available within NIPS HQ at the claimant's grade at that time. Two other functional heads that were part of the senior management team at Maghaberry, Mr Ferguson and Mr Brown, were also notified at the same time as the claimant of their removal from post in Maghaberry to take effect on 8 June 2015 the reason for their move also given as the findings of the inspection. Only Mr Gray and Mr Longwell were left in place. We accept Mr Adam's evidence that NIPS was a small service within which it was normal to move people around, including to the wider Department of Justice and the claimant's move to the DOJ was not unprecedented, a number of governors having taken posts in the DOJ. Whilst as per Mr Attard's evidence it was unprecedented for the Deputy Governor to be moved without the Governor we accept that Mr Longwell would also have been moved immediately if a replacement for him had then been available, and note that he was moved shortly thereafter when one was. We find credible Mr Adam's evidence that the timing of the move was necessary as the respondent had to respond urgently to the CJINI feedback. We consider Mr Cawkwell acted to remove the claimant from his post in genuine response to the critical CJINI report so to address issues identified therein and so as to deflect further criticism before completion of his secondment rather than having used the critical report as a convenient pretext to carry out the previous perceived 'threat' of removal motivated consciously or subconsciously by reason of the claimant's trade union status.

 

73. On 5 June 2015 the claimant sent to Mr Adam notification of his intention to appeal the decision to remove him from the Deputy Governor post by way of a holding letter pending receipt of a notification letter as to his proposed removal.

 

74. On 5 June 2015 HR sent a letter to the claimant confirming that he would be seconded to the Department of Justice Information Systems Division with effect from Monday 8 June 2015.

 

75. On 9 June 2015 the claimant recorded in his log that ' I told Mark my future intentions re court/Justice Committee etc. He appears shaken.' Also 'Tells me I still have a future in NIPS?! Give him time to work something out but may still appeal! Something strange going on.

At 5.30 pm he phones Pat Gray & via him asks me not to press nuclear button'

 

76. On or around 10 June 2015 Mr Cawkwell's secondment ended.

 

77. On 11 June 2015 HR wrote to the claimant to correct the wording in their previous letter such that that he would 'transfer' rather than be 'seconded'. (NIPS had become an agency forming part of the Department of Justice).

 

78. On 19 June 2015 the claimant wrote to Mr Adam following receipt of his notification letter of secondment setting out the basis of his appeal, in summary that:-

 

•                 The secondment was in breach of his terms and conditions of employment.

 

•                 The process was in breach of transfer policy.

 

•                 The process was in breach of secondment policy and unprecedented having only returned from secondment.

 

•                 The decision was biased and unreasonable: It was irrational and unprecedented to remove a Deputy Governor following a poor inspection; His role was continually undermined and constrained by Mr Cawkwell; The Governor had no issues with his performance.

 

•                 The real reason for his removal was his role as Chair of the PGA, the claimant having been by Mr Cawkwell 'threatened with removal from my Deputy Governor role, to a lower profile post, if I continued to fulfil my role as chair of the PGA- his threat (ultimately now carried out is a breach of employment law and the protection of trade union officials.)' Since which the claimant had suffered an insidious campaign of bullying and isolation.

 

•                 The decision of Mr Cawkwell to remove him from post and 'second' him to the DOJ in effect removes him from the Prison Service generally and the PGA specifically leaving him isolated and unable to speak to members contrary to his TUS protections.

 

79. On 26 June 2015 the claimant had an informal chat with Mr Adam. The claimant recorded in his log ' He states still sees a future for me in NIPS but vague and states the appeal can go ahead whilst he works on something and needs to chat with Nick Perry. Meeting lasted approximately 30 min & no clear resolution'.

 

80. As per the claimant's evidence under cross examination at hearing, he was not sure in July 2015 if Mr Cawkwell was acting as a rogue or a maverick in what he considered to be a run against the PGA or whether he was acting with the support of Mrs McAllister, but that he kept faith in the process and decided to go through with an internal appeal in the hope the officer involved in his appeal would come down in his favour. The claimant's appeal was heard by Mrs McAllister on 6 July 2015. We accept that Mrs McAllister thereafter had numerous conversations with the NIPS Permanent Secretary and other senior NIPS colleagues to find a role for the claimant that would be acceptable to all. We find that Mrs McAllister did not consider it appropriate to place the claimant in an operational post in NIPS at that time whilst part way through the Prison Reform Programme because of her view of the claimant as unsupportive of the Prison Reform Programme nor as per Mr Adam's evidence given the gravitas of the CJINI report, the respondent's duty of care to the claimant and for the stability of other jails.

 

81. On 31 July 2015 Mr Longwell was advised of his removal from post as Governor of Maghaberry which took effect on 3 August 2015. As with the claimant, the respondent did not consider it appropriate to place Mr Longwell into a frontline operational post within NIPS given the gravitas of the CJINI report, its duty of care to the claimant and for the stability of other jails.

 

82. On 11 August 2015 the Director General wrote to the claimant and advised him of her decision to uphold his appeal in part and set out as follows:-

•                 The process was not adhered to but that there was a business justification for this;

 

•                 That the transfer was not a secondment;

 

•                 That the placement with a team elsewhere in the DOJ was reasonable.

 

•                 That his placement would be reviewed before the end of September 2015.

 

As per the claimant's evidence under cross examination, he could not say that Mrs McAllister had made the decision on his appeal on the grounds of his trade union status.

 

83. On 12 August 2015 the claimant recorded in his log ' M.A. phones Pat G re ask Gary not to press button yet!'

 

84. On 12 August 2015 Mr Adam met with the claimant and offered to the claimant a job as Chief Executive Officer of the RUC (George Cross) Foundation.

 

85. On 25 August 2015 the claimant submitted a subject access request under the Data Protection Act for copies of personal data relating to the 'evidence relied upon by the original decision officer' referred to as reviewed by Mrs McAllister as the decision officer considering his appeal and to the 'business justification' referred to for the process not being adhered to.

86. On 26 August 2015 the claimant met Mr Adam and refused the job of Chief Executive of the RUC (GC) Foundation, the claimant recorded in his log ' I met M.A. to discuss my decision re CEO job & reasons why. He agrees and understands.' The claimant, as per his evidence at hearing, turned the offer down because the job was outside his skill set, outside the prison service and was removing him by default from his role as Chairman of the PGA (NI).

 

87. On 9 September 2015 the claimant met with Mr Adam and presented proposals to him, Mr Adam said they appeared reasonable and he would come back to the claimant within days.

 

88. During September 2015 Mr Adam reduced his working time within NIPS and in Northern Ireland whilst his HR role moved into the Department and he was transitioning into a new role, but he continued to try to find a suitable alternative role for the claimant. As well as the RUC (George Cross) Foundation, a role as Director in the Legal Services Agency was also explored by Mr Adam with the claimant but was rejected by the claimant as unsuitable (also being outside of NIPS and a non-operational administrative job).

 

89. On 24 September 2015 Mr Adam met with the claimant at HQ, stated he still agreed with the claimant's proposals in principle but that the claimant should be, as recorded in the claimant's log, 'seen to consider the LSA post - " play the game"'.

 

90. On 1 October 2015 the claimant received a response to his DPA request to the effect that there was no such evidence; the form of wording used was from the Uniform Appeal Policy; and business justification as set out at paragraph 12 of his appeal minutes, in which Mrs McAllister had responded that the moves were made within two days of the poor inspection because it was a very critical inspection report and coming at the time it did, meant that senior moves had to be made, albeit some were not made as urgently as senior management would have liked. In response to reference to other senior management team members who received their letter at the same time as the claimant but were transferred within Northern Ireland Prison Service, Mrs McAllister stated what some were able to be moved within the Service but there wasn't a job for the claimant within the Service.

 

91. On 1 October 2015 Mr Adam phoned the claimant and told him that all bets were off and indicated that if the Director General was removed following the report into Maghaberry which had just been received by the Minister the claimant would be back in NIPS as they were short of Senior Governors.

 

92. On a phone call on 28 October 2015 Mr Adam told the claimant that the Director General kept moving position and he agreed with the claimant that he was in an impossible situation not of his making.

 

93. After a PGA meeting with Mr Adam on 29 October 2015 a further discussion of the claimant's situation took place. The claimant recorded in his log that Mr Adam confirmed ' Sue is only block to my NIPS return' and also his view that the claimant had got ' caught in crossfire' of a power struggle between Mr Cawkwell and Mr Longwell. Mr Adam offered the claimant a third and final post which he would return with more details of on Monday 2 November 2015, the claimant considered to be ' really another made up job sitting between NIPS & DOJ until she goes'.

 

94. On Monday 2 November 2015 Mr Adam informed the claimant that he was ' ready to press button' and had a job in NIPS & DOJ and would ring him on Tuesday.

 

95. On 3 November 2015 Mr Adam phoned and asked was it too late for a post offer. The claimant responded that he did not want a ' made up' job. Mr Adam confirmed again (as recorded by the claimant in his log) that there were only 5 Governor in charge posts, the claimant responded that he would remain in his current post until January. Mr Adam referred to Mrs McAllister being ' the blockage' but that he would make calls tomorrow and phone the claimant, also that the claimant could lodge court papers but did not need to carry through. Mr Adam said he would ring tomorrow hopefully with an offer to avoid ' hitting the button'.

 

96. On 5 November 2015 Mr Adam phoned the claimant and informed him that he had spoken to the Director General and it was his sense that it was going no-where and the claimant should not expect anything. Mr Adam later that day wrote to the claimant to confirm he had now discussed the possibility of him returning to an operational role within the Service with a substantial operational element, but that this was not a possibility at this time nor envisaged that a return to such a role a possibility in the near future. Accordingly Mr Adam asked that the claimant reconsider the third post offered to him working for the DOJ and NIPS and return to him by 9 November 2015. We found Mr Adam's evidence credible and accept between June and November 2015 he had a number of conversations with Mrs McAllister and the Permanent Secretary who were both committed to finding a suitable alternative role for the claimant but clear that the claimant could not take up a front line operational role. We accept that the proposals made by the claimant were not considered by the respondent as feasible based on affordability or because they were secondments whilst other roles needed to be filled, albeit the claimant felt they were inappropriate. We accept Mr Adam found that those that were aware of the CJINI report on Maghaberry were reluctant to consider the claimant for a role and a lot of attempts to broker roles were made by him, but the closer it came to publication of the report the less available options Mr Adam found there to be. Mr Adam tried to encourage the claimant to take a role because he considered it would be much harder when the report was published. Mr Adam put to the claimant that given the report and the decision to change management which had improved running of the jail, it made it impossible for Mrs McAllister to re-introduce the claimant into a front line role, or senior post, with NIPS. Mr Adam put to the claimant that, over time, he felt the claimant still had a contribution to make to the service if he chose to explore some of the roles offered, but the political dynamic and concerns expressed by the Inspectorate made his immediate reintegration impossible. We note as per the claimant's evidence that he believed Mr Adam was genuine in trying to resolve his situation, effectively regarding him as an honest broker. We find that Mr Adam genuinely endeavoured without delay to find the claimant an acceptable role and that he did not renew his request for the claimant to stall legal proceedings after he put the offer to the claimant of the job as CEO of the RUC George Cross on 12 August 2015, which the claimant refused on 26 August 2015. Mr Adam made mention on 3 November 2015 of hopefully ringing the next day to avoid ' hitting the button' after first asking the claimant if it was too late at that stage to make an offer of a post.

 

97. On 11 November 2015 the claimant presented his complaint to the Office of the Industrial Tribunals.

 

 

LEGISLATION

 

98. Article 73 of the ERO provides that a worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of -

 

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for so doing.

 

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so.

 

99. Under Article 74 of the ERO a worker or former worker may present a complaint to an Industrial Tribunal on the ground that he has been subjected to a detriment by his employer in contravention of Article 73. An Industrial Tribunal shall not consider a complaint under this Article unless it is presented -

 

(a) before the end of the period of three months, beginning with the date of the act or failure to which the complaint relates, or, where that act or failure is part of a series of similar acts or failures (or both), the last of them, or

 

(b) 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.

 

100. Where the Industrial Tribunal finds that a complaint under Article 74 is well-founded, the tribunal under Article 76 of the ERO shall make a declaration to that effect, and may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure complained of, of such amount as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and any loss sustained by the complainant which is attributable to the act or failure which infringed his right.

 

101. There are three common elements to any claim of unlawful detriment:-

 

(i) the employee suffered some detriment;

 

(ii) the detriment was caused by some act or deliberate failure to act on the part of the employer; and

 

(iii) the employer's act or omission was done on a ground castigated as impermissible by legislation.

 

102. The test for detriment as per Shamoon v Chief Constable of the RUC [2013 ] UKHL 11 is whether a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. The reason for the acts must have been done on the ground of the protected status. The question for the tribunal is what was the reason for the act, not, what was the reason for the detriment.

 

103. The correct approach for the tribunal is to ask:-

 

(i) Whether the employer has in fact treated the complainant differently?

 

(ii) Whether the reason for that differential treatment was the employee's protected status, and

 

(iii) Whether that different treatment did in fact result in a detriment to the employee, intended or unintended, foreseen or unforeseen.

 

An affirmative answer to all three questions is required for a complaint to be legitimate.

 

104. Article 75 of the ERO provides on a complaint under Article 74, it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act. The formal onus of proof is upon the employer to show on the balance of probabilities that the act complained of was not done on the ground of the employee's protected status. In determining the ground upon which an act was done it is necessary for the tribunal to consider mental processes, both conscious and unconscious of the employer. It is a question of fact for the tribunal to determine what was the true reason for victimisation.

 

105. In FW Farnsworth Limited v McCoid [1999] IRLR 626 the English Court of Appeal confirmed that the recognition of an employee as a shop steward could be action which subjected him to detriment as an individual.

 

106. Harvey on Industrial Relations and Employment Law, Division N1, Labour Relations sets out at:

 

[692]

 

'It is thought that the threat of a detrimental act is itself a detrimental act on the part of the employer.'

 

[720.01]

 

'In order for something to count as an employer's purpose it is not enough that an employer can foresee that an act or omission will have the effect of, for example, deterring the employee from taking part in union activities: deterrence must have been the 'object which the employer desires or seeks to achieve' ( Gallacher v Department of Transport [1994] IRLR 231, [1994] ICR 967, CA per Neill LJ). The EAT's judgement in North Essex Partnership NHS Foundation Trust v Bone UKEAT/0352/12 (10 July 2014, unreported) was overturned by the Court of Appeal in relation to the Appeal Tribunal's application of the law to the findings made by the employment tribunal, but this does not cast doubt on the EAT's approval of counsel's example of eating a large chocolate cake, knowing that it would have an effect on her figure and yet continuing to eat because it tasted good: she did not in eating it have the purpose of getting fat. Indeed, even in a case where the employer is in fact pleased with the foreseeable result of actions, that is not sufficient if the main purpose in acting as the employer did was something else, such as to punish misconduct ( Dahou v Serco Ltd [2015] IRLR 30, EAT at [63]).'

 

[720.02]

 

'Unlike in a case of discrimination under the Equality Act 2010, an employer is not required to show that the improper purpose plays no part whatever in his actions: the question is what the employer's main purpose was ( Dahou v Serco Ltd [2016] EWCA Civ 832, [2017] IRLR 81 at [39]). However, finding that the employer's motive was something different, such as to placate another union and achieve a quiet life, is not inconsistent with a finding that the employer's main purpose in subjecting the employee to a detriment was to deter him from taking part in trade union activities ( Bone v North Essex Partnership NHS Foundation Trust) No. 2 [2016] EWCA Civ 45, [2016] IRLR 295). In other words, if the end desired by the employer is one of the forbidden outcomes, the fact that the employer's motive for wanting that outcome is innocent, or even laudable, does not exculpate him.'

 

[721]

 

'To deter' means no more than to discourage or hinder. It means:

 

'...to restrain from acting or proceeding by any consideration of danger or trouble' ( McWilliams v William Collins Sons & Co. Ltd [1974] ICR 226).

 

[722]

 

'To penalise' does not imply great severity and just means to subject to a disadvantage ( Carlson v Post Office [1981] IRLR 158).

 

[725]

 

'In this sort of case an Employment Tribunal should take a 'robust' attitude to the evidence ( CF Speciality Care PLC v Pachela [1996] IRLR 248, [1996] ICR 633/EAT, para [465] above). Therefore, inflicting any form of detriment on a worker because he is a trade unionist is likely to give rise to an inference that the employer acted for the purpose of deterring or penalising membership etc but the inference is not inevitable. The onus of proof, however, is on the employer to prove that his purpose was not improper (per [732] below).'

 

[727.01]

 

'Bone v North Essex Partnership NHS Foundation Trust (No. 2) [2016] EWCA Civ 45, [2016] IRLR 295 : Bone was an active member of an independent trade union, the Workers of England Union, which was not recognised by the employer. Fellow employees who were members of one of the recognised unions subjected to him to highly offensive treatment with the object of ostracising and intimidating him. The employer failed to take any effective action to prevent this, because it wanted to placate the recognised union and to have a quiet life. The employer realised that the consequence of its inaction was to deter Bone from union activities, but argued that this foresight was not enough: its purpose was not to deter Bone from union activities since its motive was to avoid trouble and to have a quiet life. The Court of Appeal held that whilst this was the employer's motive, it was also the case that the employer's purpose in failing to take action was to deter Bone from union activities.'

 

Time Limit

 

107. A complaint must normally be presented before the end of three months from the date of the relevant act or failure on the part of the employer to which the complaint relates subject to the tribunal's discretion to extend the time limit where satisfied that it was not reasonably practicable to present in time and the complaint presented within a reasonable period thereafter.

Series of Similar Acts

108. The three month time-limit runs from the date of the last act where the alleged victimisation is by way of a series of similar acts or failures. The claimant must show that the several acts complained of may fairly be described as firstly, part of a series and secondly, similar. It is relevant to enquire whether the employer did what was alleged and necessary for the tribunal to find facts about the acts and failures in question from the evidence before it ( Arthur v London Eastern Railway Ltd [2006] EWCA Civ 1358). All the circumstances surrounding the acts should be looked at, including the connection, if any, between the perpetrators including whether their actions were organised or concerted in some way and their reasons for doing what was alleged. Similarity does not have to be of a generic likeness of the acts themselves but merely the reasons for which they were all committed.

 

109. A distinction may however be drawn between a series of acts and a series of consequences of a 'one-off' act. In Adlam v Salisbury and Wells Theological College [1985] ICR 788, EAT in which a union had negotiated a pay deal for members which left them worse off in some respects that non-union members , a year later the union members complained of detriment and argued that each pay day was a new subjection to detriment. The EAT held that there was not a series of detrimental acts but one single detrimental act which was implementing the differential pay rates 12 months earlier, each pay day was a merely continued manifestation of that one earlier act. The complaint was therefore out of time.

 

Continuing Act

110. A continuing act is one which extends over a period of time until it stops. It is deemed done on the last day of that period. It is important to distinguish between the continuance of the discriminatory act itself and the continuance of the consequences of the discriminatory act; only the former is treated as extending over a period ( Barclays Bank plc v Kapur [1991] IRLR 136, Sougrin v Haringey Health Authority [1992] IRLR 461, [1992] ICR 650, CA).

 

111. A continuing act is not confined to circumstances where an employer has in place a policy or regime which applies on a continuing basis but may include a state of affairs after an act which could be described not simply as a consequence of that act but is a continuation of it that is a continuing discriminatory state of affairs ( Hendricks v Metropolitan Police Comr .   [2003] IRLR 96,  [2003] ICR 530,  [2003] 1 All ER 653 ) . Whether allowing a situation capable of involving discrimination to continue amounts to a continuing act depends on the evidence and explanations for the refusal. It must be proven from direct evidence or inference from primary facts that the incidents are interlinking, discriminatory and that the employer is responsible for this continuing state of affairs.

 

112. In Tait v Redcar and Cleveland Borough Council UKEAT/0096/08, [2008] ALL ER(D) 17(APR) EAT, the principal authorities on the meaning of the phrase ' an act extending over a period' in various provisions in discrimination legislation were considered. The EAT concluded that a disciplinary suspension was an act continuing for the period of the suspension, the state of affairs thereafter could quite naturally be described not simply as a consequence of that act but as a continuation of it. The EAT said that the concept of an act extending over a period was not confined to cases where the employer has in place a policy or regime which applies on a continuous basis.

 

113. In Pennine Acute Hospitals NHS Trust v Power UKEAT 0019/11/DA, in which the victimisation of a trade unionist by the detrimental assigning of him to the wrong grade or pay scale and continued payment of a lower wage was held to be the continuing consequence of the 'one-off' act of victimisation in allocating him to the inferior grade or pay scale , the case was remitted by the EAT back to the tribunal because the tribunal had failed to address the problems before it and had drawn a conclusion that, which although might have been legitimately reached, failed to identify the act complained of in the claim itself. The EAT acknowledged (at [39]) the force to the claimants' argument that if the complaint was that the claimants were being paid less, then that failure to pay properly was a continuing act.

 

114. In Chaudhary v Royal College of Surgeons [2003] EWCA Civ 645 the continuing application of a discriminatory rule or policy was distinguished from the continuing existence of a discriminatory rule or policy and its single or occasional application to a complainant. Dr Chaudhary complained of race discrimination when he was refused entry to a specialist registrar grade of doctors, and maintained although his complaint was brought some ten months after his application had been rejected, that he was the victim of a continuing act of discrimination. Mummery LJ set out 66:

 

' I agree with the conclusion of the tribunal, which was upheld by the appeal tribunal, that Mr Chaudhary's complaint of race discrimination was not of an act extending over a period. His complaint of indirect discrimination was based on the application to his case of the requirement or condition that the registrar post, held by Mr Chaudhary at Manchester, should have been one that was approved by the specialist advisory committee. That requirement or condition was last applied to him when his appeal against the decision of the postgraduate dean, Dr Platt, was dismissed by the appeal committee... The dismissal of the appeal was formally notified to Mr Chaudhary on 7 February 1997. Although the requirement or condition may have continued in existence for the purpose of being applied to appeals by other registrars seeking entry into the new grade, there was no continuing application of the requirement or condition to Mr Chaudhary in the period of three months prior to the issue of his proceedings. The period during which the condition or requirement was applicable to Mr Chaudhary's application for transition to the specialist registrar grade had ceased to operate when his appeal against refusal was decided. That was well before the three-month period prior to the presentation of his originating application. '

 

Appeals

115. Harvey (supra) sets out at:

 

[740]

 

'Some difficulty may arise in connection with the internal disciplinary procedures. Suppose the alleged detrimental act takes the form of some act of discipline - say, noting a reprimand on the worker's record - against which the worker appeals under the employer's disciplinary procedures. What is the relevant act: the initial reprimand, or the dismissal of the appeal, or both?'

 

[742]

 

'There is a clear analogy between dismissal and other forms of discipline in these circumstances, and in both cases a worker would be well advised to make his complaint to an Employment Tribunal as soon as possible after the initial decision to dismiss or discipline. He can always request that the case be not listed pending the outcome of the internal appeal. However, the analogy between dismissal and other forms of discipline is not exact. In particular, in relation to a complaint of subjection to detriment, it is just about possible to argue that dismissing the appeal amounts to a failure to quash the original decision and restore the status quo ante, so subjecting the worker to a fresh detriment. The argument is not advanced with any great conviction, but something like it succeeded by the grace and generosity of the EAT in British Airways Board v Havill [1982] IRLR 238, EAT; Contrast Verdi v Commissioners of Police of the Metropolis [2007] IRLR 24, EAT.'

 

116. In British Airways Board v Clarke & Havill in determining the act complained of the EAT considered it necessary to look at all the disciplinary decisions the claimants wished to complain about which included the determination of the appeals.

 

117. In Verdi v Commissioners of Police of the Metropolis the EAT held an act is done when it is completed and the act is complete for the purpose of the time limitation when the decision is taken rather than when it is communicated.

Extension of Time

 

118. In determining whether to exercise the discretion to extend time, the first question for the tribunal is whether it was reasonably practicable for the claimant to present a claim within the primary time-limit. Guidance is given in Palmer v Southend-on-Sea Borough Council [1984] IRLR 119 in which May LJ at paragraph 125 set out factors which may be taken into account in deciding whether it was reasonably practicable/reasonably feasible for a complaint to be presented within time. This is a question of fact for the tribunal to determine. Additional factors for the tribunal to take into account may be where a claimant has delayed his application at the specific request of the employer ( Owen v Crown House Engineering Ltd [1973] IRLR 233).

 

119. In London Underground v Noel [1999] IRLR 621 the English Court of Appeal concluded that the respondents could not have rectified the alleged detriment and the cause had crystallised. Following her dismissal, the Claimant was offered re-employment at a lower rank, which she accepted. The offer was subsequently withdrawn. She then lodged unfair dismissal proceedings. The Tribunal found that the offer of a new job constituted 'special facts' that justified the Claimant not having lodged proceedings in time. The Court of Appeal overturned the decision of the Tribunal on the basis that such a finding on the facts was irrational. Peter Gibson LJ said:

 

" As we have seen, the tribunal has seized on the possibility there mentioned of the existence of special facts to hold that there were special facts in this case to justify the finding that it was not reasonably practicable to present the complaint in the three-month period. But an appellate tribunal or court is entitled to consider whether what are called 'special facts' justify the finding. Those facts can only do so if they are material to the test of reasonable practicability as explained in the authorities. Mr Hughes pointed to the chronology and in particular to the fact that the internal appeals procedure had concluded before the expiry of the three-month period with the offer of re-employment, and that it was only after the expiry that the offer was withdrawn. He submitted that these 'special facts' justified the tribunal's conclusion, which was consistent with good employment relations practice.

 

Where I have difficulty with those submissions and the tribunal's reasoning is in seeing how those facts are material to the question of reasonable practicability. The offer of re-employment did not make it reasonably impracticable to present a complaint for reinstatement. If it was unfair for the employee to have been dismissed, she had the right to present a complaint even if the offer had matured into another job with the employer. True it is that the employer might possibly have sought to rely on the re-employment to oppose reinstatement, but whether it would have succeeded if the dismissal was shown to be unfair is quite another matter. Despite the gloss which the tribunal sought to place in paragraph 10 of its decision on the facts of the offered re-employment, the truth of the matter was that the new job represented a significant demotion with a significant cut in salary. In my judgment, the tribunal was wrong to suggest that a defence that the new offer of employment rectified the unfairness of the dismissal was one that might realistically succeed. Further, if the tribunal decided not to reinstate but to award compensation, I cannot see how the basic award would be affected by the offer not of reinstatement but of re-employment, although the compensatory award arguably might be."

 

120. If the tribunal finds it was not reasonably practicable for the claimant to present his claim within the primary time-limit then the tribunal must next consider whether the claim was presented within a period thereafter which was reasonable.

SUBMISSIONS AND APPLICATION OF THE LAW TO THE FACTS FOUND

 

121. The claimant clearly alleged in his originating complaint two instances of Trade Union (TU) detriment by way of the meeting in December 2014 and his removal from post as Deputy Governor of Maghaberry in June 2015 but did not specify likewise in respect of his complaint as to the handling of his appeal or the continuing removal from the senior leadership forum. In the Statement of Agreed Issues the two aforementioned alleged incidents of discrimination only were specified. It was unclear and assumed until the claimant's evidence under cross examination at substantive hearing (that he had no evidence that the appeal process was tainted by TU detriment) that the claimant considered that his removal from office extended to the decision not to overturn his removal on appeal.

 

122. It is the substance of the complaint that is relevant ( Pennine Acute Hospitals NHS Trust v Power) rather than its precise formulation and we accept that in essence the substance of the originating complaint raised by the claimant was removal from his operational role within NIPS and continuing detriment of 'removal from the senior leadership forum', in effect, his continuing exclusion from the PGA membership.

 

123. It is necessary however for the tribunal to distinguish between acts and their consequences in identifying the relevant act from which the primary time limit for the presentation of a complaint runs.

 

124. On the face of the originating complaint, based on the claimant's continuing exclusion, if also alleging TU detriment, the complaint appeared to have been presented within the primary time limit so as to give the tribunal jurisdiction to consider it. The claimant's evidence however at hearing was that he had no evidence that the appeal process was tainted by TU detriment. We accept the respondent's submission that this gives rise to a live time issue and consider as per Knox v Henderson Retail Ltd [2017] NIC Ref: WEI 10237 that the tribunal is not confined to a consideration of a list of 'main factual issues' and nothing more, in particular (per Mummery LJ in Parekh v The London Borough of Brent [2012] EWCA Civ 1630) where to do so would impair the discharge of the tribunal's core duty to hear and determine the case in accordance with the law and the evidence. We consider the wording of Article 74 ERO that an Industrial Tribunal shall not consider a complaint unless presented in compliance with its requirements is a clear jurisdictional rather than procedural bar which might otherwise have been overcome by waiver or Estoppel.

 

125. It is for the tribunal on the evidence before it to determine the relevant act from which time runs. Overall we consider that the relevant act complained of from which time runs was the single act of the removal of the claimant from his operational post in NIPS in June 2015 and that the claimant's exclusion from NIPS and his PGA membership thereafter was in fact a continuing consequence of his removal rather than a continuing act or series of similar acts. We do not consider the events thereafter (appeal and continued 'refusals' of return to NIPS/an operational post) constitute a series of similar events, but find that the reason for which they were committed differed from the reason for the perceived threat to the claimant in December 2014 and did not relate to the claimant's trade union status /activities. We do not consider there to have been a connection between Mr Cawkwell, Mrs McAllister or indeed Mr Adam or purpose behind their acts such that they were organised or concerted in some way, or reasons they were done by reason of the claimant's trade union status or activities.

 

126. We consider that Mr Cawkwell and Mrs McAllister held concerns as to the claimant's approach to the management of separated prisoners and that Mrs McAllister's intention for the meeting in December 2014 was for Mr Cawkwell to remind the claimant to leave the management of Roe House as previously directed, to others, given the political sensitivities involved.

 

127. We consider overall Mr Cawkwell's treatment of the claimant was genuinely borne out of Mr Cawkwell's frustrations over Maghaberry's performance rather than consciously or unconsciously motivated by reason of the claimant's trade union status. It is clear that not only the claimant but also Mr Longwell considered that he was the victim of bullying by Mr Cawkwell and subjected to unpredictable and unacceptable behaviour although he did not share the claimant's trade union status. We consider that Mr Cawkwell prompted by the claimant's PGA letter to Mrs McAllister suggesting a press release used words to actively discourage the claimant from raising Maghaberry business in his role as PGA (NI) Chair driven by his own desire for a quiet life and wish to avoid adverse media attention being drawn by the claimant to the Prison.

 

128. We consider the true reason behind the claimant's removal from post was in response to the CJINI report so as to tackle issues identified therein and to avoid and deflect any further criticism. We found in particular the evidence of Mrs McAllister and Mr Adams credible. We are not of the opinion that Mrs McAllister in dealing with the claimant's appeal or 'blocking' the claimant's return to NIPS thereafter (and in respect of which freestanding detriment has not been alleged) was connected, organised or concerted with Mr Cawkwell or the perceived threat in December 2014, or that Mrs McAllister's reason for her treatment of the claimant was to discourage or penalise him in respect of his trade union activities or role/status. We note in particular:

 

•                 Mrs McAllister wished to remove Mr Longwell at the same time as the claimant and did so shortly thereafter when a replacement was available for him.

 

•                 Following the critical report it was not considered appropriate to place Mr Longwell in another frontline operational role.

 

•                 Mr Gray, the only other Governor in the senior management team retained was at the time Secretary of the PGA (NI).

 

•                 Two other functional heads of the senior management team were removed from post within the same timing as for the claimant.

 

•                 NIPS are a small service with a limited number of positions at the claimant's grade.

 

•                 No post at the claimant's grade was vacant in HQ or otherwise available within NIPS at the time of the claimant's removal and feasible posts within NIPS in general were limited and further so for the claimant given the critical CJINI report on Maghaberry, and circumstances of his former departure from Hydebank.

 

129. We reject the claimant's contention that the relevant act complained of is the claimant's removal from post and continued exclusion from his post (and the PGA membership) which is ongoing, which the appeal did not cure, and so time not yet sped and therefore complaint presented in time. We accept that the concept of an act extending over a period is not confined to where the employer has in place a policy or regime which applies on a continuous basis but reject the claimant's contention in this case, as per Tait v Redcar & Cleaveland Borough Council, that although there was no doubt an initial act, the state of affairs could quite naturally be described not simply as a consequence of that act but as a continuation of it (removing and excluding the Claimant from NIPS and his PGA membership). We prefer the respondent's contention that a suspension from work as in Tait v Redcar is wholly different in nature given suspension requires review whereas removal from post is more akin to a termination and a more appropriate comparison the case of Chaudhary v Royal College of Surgeons and in which Mummery LJ noted that 'there was no continuing application of the requirement or condition to Mr Chaudhary in the period of three months prior to the issue of his proceedings'.

 

130. We reject the claimant's contention that failure to return the claimant to his post within NIPS following each of Mr Adam's discussions with the claimant about his possible return to post within NIPS and/ or possible moves to other posts within the DOJ, in effect continued the act complained of (removal from post and exclusion from his PGA membership) and prefer the respondent's argument that the claimant's removal from office was not a continuing act, nor each failure to find him a new post a 'similar act or failure', that the claimant was removed from office only once and if detriment is not alleged in respect of the appeal decision then the last act of detriment was the removal from office on 3 June 2015. The offers of other posts have never been alleged to be acts of trade union detriment and cannot be relied on as a series of similar acts or failures. We accept that the purpose of Article 74(2), clear from the wording, is designed to allow time to run from the date of the last act or failure to act, which is alleged to have been a detriment.

 

131. We reject the claimant's contentions that the respondent was responsible for a continuing state of discriminatory affairs, that the appeal was the culmination of the acts complained of, or, that each failure to find the claimant a new post or appeal was the last of a series of similar acts. It was submitted for the claimant that whilst the claimant has not alleged freestanding and independent trade union detriment by the Director General herself in her appeal decision that the appeal is the culmination of the act complained of, or, the last of a series of similar acts by virtue of being on all fours with Clarke & Havill, and having failed to quash the original decision and restore the status quo ante. The complaint made by the claimant in respect of the appeal is one of unfairness rather than TU detriment. We accept the respondent's submission that there is a material difference with the case of Clarke & Havill in that the claimants therein complained not only about the original decision but also about the determination of the appeal whereas in this case the claimant makes no complaint about determination of the appeal being on the ground of TU detriment. We accept that no TU detriment was applied to the claimant during the course of the appeal or at any later stage and accordingly consider the relevant date for Article 74 purposes is 3 June 2015 and the complaint accordingly presented outside the primary 3 month statutory time limit.

 

132. We consider that the relevant act was the removal from post notified to the claimant on 3 June 2015 which took effect from 8 June 2015 and that time begins to run from then such that the complaint should have been presented if not by 4 September 2015, certainly no later than 9 September 2015, unless the tribunal is satisfied that it was not reasonably practicable for the claimant to present his claim within this time and that it has then been presented within a period thereafter which was reasonable.

 

133. The tribunal must next consider whether it is appropriate to exercise its discretion to extend time. In determining the first relevant question, whether it was reasonably practicable for the claimant to present his claim within the primary time-limit, we do not consider that the respondent by way of Mark Adam misrepresented relevant matters to the claimant as to the respondent's desires or intention as to potentially reinstating the claimant to NIPS but that Mr Adam was honest and genuine in his efforts to find a resolution for the claimant by way of a suitable post and that he did not misrepresent or mislead in any way.

 

134. Whilst we accept that Mr Adam on 9 June 2015 via Pat Gray asked that the claimant not press 'the nuclear button' and that on 26 June 2015 he told the claimant he still saw a future for him in NIPS, we note Mr Adam in the claimant's own recorded words was 'vague' and stated that an appeal could still go ahead whilst he worked on something and again on 12 August 2015 asked that the button not be pressed yet, culminating with Mr Adam offering the claimant the job as CEO of RUC(GC) Foundation on 12 August 2015 but that was refused by the claimant on 26 August 2015. Mr Adam did not ask the claimant to further desist from pushing the 'nuclear button' thereafter prior to expiry of the primary time-limit. The next and only other reference made by Mr Adam to legal proceedings was on 3 November 2015, at which time he advised that the claimant that he could lodge court papers but did not need to carry through and would ring him the next day, hopefully with an offer to avoid 'hitting the button'.

 

135. We do not consider beyond 26 August 2015 that the claimant delayed his application to tribunal at the specific request of the respondent (per Owen v Crown House Engineering Ltd). We do not consider that the respondent consistently and repeatedly held out to the claimant the carrot of a return to NIPS and asked in turn that the claimant not present his tribunal claim in the expectation that he would return to NIPS and the claimant did not present his claim in reliance upon misrepresentations. We find whilst Mr Adam initially encouraged the claimant not to lodge proceedings because he sought to find him a suitable alternative post, we do not consider that Mr Adam continued to do so after making him the offer of the alternative post on 12 August 2015 subsequently refused by the claimant on 26 August 2015, we find Mr Adam did not specifically request the claimant to further desist from proposed legal proceedings at that stage. We do not accept that this gave rise to an obstacle such that it was not reasonably feasible to present a complaint in time between 26 August 2015 and 9 September 2015.

 

136. We accept the respondent's comparison to the English Court of Appeal decision in London Underground v Noel and contention that even if true, any 'special facts' by way of representations by Mr Adam could not have rectified the alleged detriment. The claimant was fully aware of the facts at all times; his cause of action had crystallised. The claimant does not allege all wrongs against him were going to be put right but that he was being 'strung along' and that there was a prospect of returning to NIPS, through crucially not to his own job. He would still have been put to detriment in his eyes. The claimant was not ignorant of his rights as supported by his consideration of legal action as far back as January 2015.

 

137. It is clear that the claimant was an intelligent man, that he was well aware of his legal rights not to suffer a detriment and possibility of making a claim, the onus was upon him to investigate time limits applicable and in those circumstances we consider it was reasonably practicable for the claimant to have presented his claim within the primary time-limit. Whilst it is accordingly not necessary for the tribunal to consider whether the claim was presented within a period thereafter which was reasonable, were this not so, we accept that there was thereafter a substantial delay of two months without good reason for this delay.

 

138. The tribunal do not consider it appropriate in the circumstances to exercise the discretion to extend time.

 

CONCLUSION

 

139. The claimant's claim is out of time and there are no grounds on which the statutory time limit can be extended. The tribunal does not therefore have jurisdiction to determine the claim and it is accordingly dismissed.

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 14 - 16 March 2017, Belfast

 

 

Date decision recorded in register and issued to parties: