Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant was employed from 2nd October 2018 until 29th June 2018 as a maternity cover.
The substance of the claim was that from the second day of her posting as Assistant Director of HR the claimant experienced behaviours and decisions of Senior Managers which caused concern. This related to financial probity and governance within the respondent. The claimant stated she was not protected adequately through the whistleblowing policy or through the grievance process.
The Appeal to the Court of Appeal was based upon the Tribunal’s decision to dismiss the suggestion that the dismissal of the grievance was due to unlawful detriment or less favourable treatment. The Tribunal found that the procedure adopted by the respondent was far through the grievance.
Part of the appeal also centred upon the hearing at the Tribunal as the claimant suggested she was hindered from delivering her argument considering the number of individuals from the respondent and that she was refused a McKenzie Friend. This argument also related to a number of pupil barristers who were watching the proceedings as they were shadowing the presiding Judge.
Outcome:
The claimant’s claim of procedural unfairness succeeded. This related to the issue of the McKenzie Friend. The claimant ought to have been allowed the opportunity to elaborate upon the application. This was not facilitated and it was a curt message through a court clerk which outlined the decision to refuse.
The decision to allow pupil barristers in the court yet refuse those who were involved in the proceedings, through witnesses, was regarded as inappropriate. It did impinge upon a fair hearing and whilst the Tribunal was seeking to assist those through their legal training it should not have been to the disadvantage of the claimant.
The Court of Appeal rejected the respondent’s suggestion that it would not have altered the case. It cannot be said that the case would not have been put forward in a different manner or a more persuasive manner. The appeal was allowed on those procedural grounds with the Court of Appeal making no mention of the legal merits of the Tribunal’s decision. The case was remitted for a fresh hearing.
Practical Guidance for Employers:
This case demonstrates the procedural requirements placed upon the Tribunal in determining if a McKenzie Friend should be allowed to assist a personal litigant. The Tribunal will have to bear this in mind and allow for submissions to be made on why assistance should be given and that should be decided upon properly rather than through a message from the Court Clerk. Additionally, those able to stay in the Tribunal should also be considered to ensure that it does not disadvantage those within the case.
https://www.judiciaryni.uk/judicial-decisions/2023-nica-26
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