Worthingtons Commercial Solicitors in Belfast have agreed to write an email every two months exclusively for Legal-Island email subscribers. These emails cover what, in the opinion of the writers, are the recent Northern Ireland employment cases that will most interest employment law practitioners.

Highlights this time around are:

* the absence of agency worker rights is confirmed by the NI Court of Appeal;
* a second Peifer case proceeds to tribunal and is to be appealed;
* a tribunal dismisses a costs application case against a second-named respondent; and
* a tribunal awards costs against a respondent for wasting time

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1. John Kevin Bohill –v- PSNI (2011) NICA 2

No protection against unlawful discrimination on grounds of religion or perceived political opinion under FETO for Claimant seeking employment with PSNI through recruitment agency

The Claimant is a former police officer who had successfully been placed on Grafton Recruitment Services records as available for temporary employment in investigator or file preparation roles. Mr Bohill’s name was included in the list of potential temporary workers provided by Grafton to the PSNI on 13 occasions but was not selected for temporary work.

The Fair Employment Tribunal, applying the Muschett decision, determined that in the event of successful assignment, the Claimant would have had to enter into a contract for services for a temporary worker as a self-employed worker and as such the Tribunal had no jurisdiction to consider the claim against the Respondent and dismissed it accordingly.

Dismissing Mr Bohill’s appeal, the Court of Appeal confirmed that the Tribunal had no jurisdiction to consider the claim as in the circumstances Mr Bohill was unable to establish that he was seeking an employment relationship with PSNI or that he was in such a relationship with Grafton to bring himself within the definition of “employee” within FETO. In the absence of a contractual relationship with either Grafton or the PSNI, the Tribunal did not have jurisdiction.

The Court of Appeal noted with “some degree of anxiety” that the concern raised by Smith LJ in Muschett that “a gap may exist in the remedies available to workers” in this position, would appear to be confirmed.

The Court of Appeal also considered the Employment Equality Directive 2000/78/EC and whether it might be used as a basis for purposively construing FETO but did not view the legislation or the case law developments arising from it as assisting Mr Bohill who was seeking remunerated employment but at that time had no contractual status.

The Court referred to the Agency Workers Regulations in England and Wales which it noted are limited to ensuring that such workers enjoy some of the same specific working and employment conditions as if they had been recruited directly by the hirer, provided that the agency worker is employed in the same role for 12 weeks.

The Court further noted that this case does seem “to illustrate how an agency arrangement may deprive potential employees of important protections against discrimination” and further that “Northern Ireland enjoys a well deserved reputation for the early development and quality of its anti-discrimination laws and this is an area which might well benefit from the attention of the section of the office of OFM/DFM concerned with legislative reform”.
http://www.bailii.org/nie/cases/NICA/2011/2.html

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2. James Peifer –v- Limavady High School & Western Education & Library Board Case Ref 1503/05

Claimant indicated “Tribunal should do whatever it pleased, he would appeal the matter in any event” – Tribunal proceeded with hearing and dismissed the claim.

Practitioners may recall Mr Peifer from a previous Tribunal claim against Castlederg High School and the Second Named Respondent which concerned a claim of sex discrimination in respect of the Claimant not being short-listed for the post of classroom assistant with Castlederg High School. Following a hearing which lasted some 18 days, the Claimant’s case was dismissed. Mr Peifer’s appeal to the Court of Appeal was also unsuccessful and in the Judgment, Girvan LJ made his infamous observations in relation to the Tribunal’s overriding objective and specifically that “Tribunals should not be discouraged from exercising proper control of proceedings to secure those objectives through fear of being criticised by a higher court which must itself give proper respect to the tribunal’s margin of appreciation in the exercise of its powers in relation to the proper management of the proceedings to ensure justice, expedition and the saving of cost”.

The present case concerned a claim of sex discrimination in respect of the Claimant not being appointed to the post of classroom assistant with Limavady High School following his application in and around May/June 2005.

Mr Peifer informed the Tribunal at the outset of the hearing that he did not intend to participate in the hearing, he did not propose to give evidence or call any witness and inter alia, he had not had not had time to devote to the preparation of this case as in the last two years he had been preparing papers for a variety of appeals in this case and another case which had taken him through the Northern Ireland Court of Appeal, the Supreme Court, the European Court of Human Rights and the European Commission. When asked if he had any objection to the hearing continuing, the Claimant said that the Tribunal should do whatever it pleased; he would appeal the matter in any event. When offered a further opportunity to address the Respondent’s submissions to proceed with the hearing, Mr Peifer confirmed that he did not feel he would have a fair hearing as he had not had a chance to prepare a witness statement and confirmed that the decision of the Tribunal would be appealed as unjust.

The Tribunal decided to proceed with the hearing and dispose of it on the basis of the information made available by the parties including, the claim form, response forms, the Claimant’s written submissions in relation to the preliminary issues and any evidence tendered by either party. The Claimant took no active part in the hearing and the Tribunal heard evidence from one of the members of the interview panel confirming that the Claimant was not appointed on the strength of his answers to interview questions.

The Tribunal concluded that there was no evidence before it on which they could be satisfied that there had been sex discrimination, the burden of proof did not transfer to the Respondents and the Claimant’s case was dismissed accordingly. The hearing lasted one day and if Mr Peifer proceeds to appeal as indicated, “the tribunal’s margin of appreciation in the exercise of its powers in relation to the proper management of the proceedings to ensure justice, expedition and the saving of cost” is likely to receive further consideration.
https://employmenttribunalsni.co.uk/OITFET_IWS/DecisionSearch.aspx

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3. John Orr –v- Williams Industrial Services Ltd & Northern Ireland Water Limited Case Ref 1494/10

Application for costs by Second Named Respondent against First Named Respondent refused

This case concerned claims for redundancy pay and notice pay against the First Named Respondent. The Second Named Respondent was joined to proceedings on the basis of the content of the First Named Respondent’s Response. In essence the First Named Respondent asserted that the Second Named Respondent was the Claimant’s employer and relied upon a decision of the Industrial Tribunal in another case of Dickson (which was subsequently appealed and remitted to the Tribunal).

The Claimant did not attend the hearing, nor did the First Named Respondent and the claims were dismissed. The Second Named Respondent made an application for costs and by agreement, the costs application was determined on the basis of written submissions without an oral hearing.

The Second Named Respondent submitted that the content of the First Named Respondent’s Response was misleading and provided a selective summary of the progression of the Dickson case to its ultimate conclusion, namely that it did not draw attention to the fact that the decision of the Tribunal was the subject an appeal to the Court of Appeal who allowed the appeal and remitted the case to the Tribunal for re-consideration. It further contended that the First Named Respondent had failed to take any steps to see that the Second Named Respondent be removed from proceedings after its joinder and that it was unreasonable of the First Named Respondent not to attend the substantive hearing or advise the Second Named Respondent that it intended not to appear at hearing.

The Tribunal determined that the correct identity of the Claimant’s employer did appear to have been a live issue between the Respondents, that it did not consider that the First Named Respondent had behaved unreasonably or that it set out to mislead the Tribunal in the contents of its response. Accordingly the application for costs was refused.
https://employmenttribunalsni.co.uk/OITFET_IWS/DecisionSearch.aspx

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4. William Thomas Ritchie –v- Weir Decorators Ltd Case Refs 521/10 & 1304/10

Costs awarded against the Respondent in the sum of £2,112.00

The Tribunal held that Mr Ritchie was unfairly dismissed and awarded him the sum of £6,352.75 in additional to a number of other sums in relation to holiday pay, notice pay and failure to provide written reasons for dismissal.

An Order for Costs was made against the Respondent in the total sum of £2,112.00 in this case broken down as follows:

£1,112.00 was awarded against the Respondent in respect of the Claimant’s costs arising from an adjournment of a re-convened day’s hearing due to the Respondent’s failure to fully comply with an Order for Discovery and Inspection issued by the Tribunal. In addition, the day before the reconvened hearing, additional items of discoverable documentation were served on the Claimant’s Representative which had not previously been discovered and a specific issue arose which required the Claimant’s Representative to inspect the originals of those documents prior to the cross examination of any witnesses for the Respondent. The original documents had not been brought to the hearing by the Respondent or the representative of his accountant’s firm, who was also present at the hearing. The Respondent was unable to give a satisfactory explanation as to why the documents had not previously been discovered by the Respondent.

A further award of £1,000.00 was awarded against the Respondent in respect of the Claimant’s costs arising from the Respondent’s failure, without explanation, to attend the further re-convened hearing on 18th January 2011 and present the defence to the claim. The Respondent did not attend the re-convened hearing and as such it did not call any evidence by way of defence, although his legal Representative was present at the hearing. The Claimant’s Representative sought the award on the basis that the Respondent’s Representative had cross-examined the Claimant on the basis that the Respondent would attend the hearing and give evidence and, as the Respondent did not attend or give any reason for same, the third day of hearing was unnecessary and effectively wasted.

The Tribunal concluded that in failing to attend and give evidence, without explanation, the Respondent had conducted the proceedings unreasonably. The Tribunal further took into account the dicta of the Court of Appeal in Peifer v Castlederg High School and Western Education & Library Board & Another (2008) NICA 49 where “the Court emphasised that parties are bound to conduct themselves in a way which further the terms of the overriding objective and should strive to avoid, inter alia, time-wasting, unnecessary cross-examination and further encouraged tribunals, where appropriate , to make use of their increased costs powers.”.
https://employmenttribunalsni.co.uk/OITFET_IWS/DecisionSearch.aspx

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The main content of this email was provided by Louise McAloon of Worthingtons Commercial Solicitors in Belfast. Louise works exclusively in employment law and should anyone have any queries she may be contacted on 028 90 434015. Website:
http://bit.ly/9NE0Ia

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Legal-Island
15 March 2011

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