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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Curley v Chief Constable of the Police Service of Northern Ireland & Anor [2004] NIFET 56_98 (5 November 2004) URL: http://www.bailii.org/nie/cases/NIFET/2004/56_98.html Cite as: [2004] NIFET 56_98 |
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CASE REF: 00056/98FET
CLAIMANT: Kevin Curley
RESPONDENTS: 1. Chief Constable of the Police Service of Northern Ireland
2. Chief Superintendent Huston
3. Superintendent Lamont
4. Superintendent Allen
The unanimous decision of the Tribunal is that it only has jurisdiction to consider the claimant's complaint that he was unlawfully discriminated against by the respondents, on the ground of religious belief, by not being promoted to the position of Sergeant in 1997. The claimant is ordered to pay £500 towards the costs incurred by the respondent in respect of the hearing on the 15 March 2005.
Appearances:
The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Edwards & Co, Solicitors.
The respondents were represented by Mr N McCombe, Barrister-at-Law, instructed by the Crown Solicitor's Office.
"Whether the Tribunal has jurisdiction to consider all aspects of the claimant's claim or are matters pleaded, out of time."
The Facts
Case Reference Number 128/93FET
(1) his failure to be promoted to the position of Sergeant on the first four occasions from 1989 to 1992;
(2) his failure to pass the Inspector's examination on two occasions in 1992 and 1993;
(3) travelling expenses; and
(4) relocation expenses.
Case Reference Number 02805/96SD
Case Reference Number 00056/98FET
At paragraph 9, the claimant indicated that his complaint related to the eighth Sergeants' Promotion Board in 1997 and the previous seven Sergeants' Promotion Boards from 1989-1996. Those previous seven Sergeants' Promotion Boards were included in the claimant's complaint of unlawful discrimination on the ground of sex (case reference number 02805/96SD) which was dismissed following its withdrawal on 13 December 2000. The first four Sergeants' Promotion Boards were also included in the claimant's complaint of unlawful discrimination on the grounds of religious belief and political opinion (case reference number 128/93FET) which was dismissed following withdrawal on 26 April 1994.
The claimant also alleged that he had been subjected to sectarian harassment on a number of occasions throughout his eleven and a half years service, particularly during his first years.
(1) alleged sectarian harassment while he was stationed at Bessbrook. That was from 28 November 1986 to 17 December 1989 and from 27 February 1990 to 4 March 1990;
(2) the alleged treatment he received in relation to a road traffic accident in 1989;
(3) the alleged comments of colleagues in relation to the Masonic Order which took place while he was stationed in Antrim between 5 March 1990 and 6 December 1992;
(4) the alleged treatment he received in relation to a road traffic accident which took place while he was stationed in Antrim between 5 March 1990 and 6 December 1992; and
(5) the seven previous Sergeants' Promotion Boards which were all included in case reference number 02805/96SD and the first four of which were included in case reference number 128/93FET.
"Whether the Tribunal has jurisdiction to consider all aspects of the applicant's claim or are matters pleaded, out of time?
The Contentions of the Parties
(1) the first four Sergeants' Promotion Boards;
(2) efforts made to pass Inspectors examinations in January 1992 and 1993;
(3) travel expenses; and
(4) relocation expenses.
Mr Mulqueen submitted that for the purposes of the present proceedings the claimant was only relying on the alleged unlawful discrimination in relation to the first of those four matters (the first four Sergeants' Promotion Boards). Mr Mulqueen submitted that the claimant's complaints in respect of the first four Sergeants' Promotion Boards were not affected by issue estoppel. That was because they were out of time when the 1993 complaint was made (case reference number 128/93FET), and the claimant did not therefore seek to rely on them at that stage. The respondent produced the bundle of documents which was prepared by the respondent in relation to that earlier claim. It was clear from those documents that the claimant did in fact seek to rely on the first four Sergeants' Promotion Boards as part of that claim. That point was not then pursued on behalf of the claimant.
The Statutory Provisions
"Subject to paragraph (5), the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of –
(a) the end of the period of 3 months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or
(b) the end of the period of 6 months beginning with the day on which the act was done.
Article 46(5) provides:
"A Court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."
Article 46(6) provides -
"For the purposes of this Article –
(a) ….
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) …."
The Relevant Legal Principles
An act extending over a period
The Court of Appeal held that Ms Hendricks was entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of "an act extending over a period".
Issue Estoppel
"The underlying policy of cause of action estoppel and related doctrines, usually classified under the heading res judicata, is that of finality of litigation and the avoidance of multiplicity of proceedings on the same issue. Save in special circumstances, it is contrary to public policy and may be an abuse of the process of the Court to attempt to re-open in new proceedings a case which has already been litigated and finally determined by a Court or tribunal in proceedings between the same parties, or issues which could have been litigated properly between the parties in relation to the subject matter of the earlier litigation. This doctrine embodies a principle of justice, not just policy. In the absence of special circumstances, it is unjust for a party who has spent time and money in obtaining a final determination of a claim or an issue in a claim to be faced with fresh proceedings from the other party seeking to re-litigate the same cause of action or the same issue".
The facts in that case were that Mr Sajid had withdrawn a tribunal claim for damages for breach of contract in order to pursue the same claim in the High Court. His claim was for £75,000 and, in his application to the tribunal, he acknowledged that the tribunal only had power to award damages of £25,000, and expressly reserved the right to claim the balance in another Court. In those circumstances, the Court of Appeal concluded that the tribunal's order dismissing the claim 'was not, and could not have been, intended either by the parties or by the tribunal to constitute a final and binding determination dismissing his claim'.
The facts in that case were that Mrs Barber had abandoned her previous tribunal proceedings on the basis that she did not think that they could succeed, and did not at the time have any intention of bringing fresh proceedings in any form. She was thus barred from proceeding with her subsequent claim.
The facts in the Ako case were that Ms Ako, on advice from the CRE, withdrew a claim for unfair dismissal and race discrimination against Rothschild in order to re-issue the same proceedings citing another company as an additional respondent. The Court of Appeal held that there was no cause of action estoppel, since she had clearly not intended to abandon her claim.
Abuse of Process
"Where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time".
The Rule is thus in two parts. The first relates to those points which were actually decided by the Court; this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second is not a true case of res judicata but rather is founded upon the principle of public policy in preventing multiplicity of actions, it being in the public interest that there should be an end to litigation; the Court will stay or strike out the subsequent action as an abuse of process."
With regard to the existence of special circumstances, Stuart-Smith LJ stated at page 7 "the mere fact that a party is precluded by the Rule from advancing a claim will inevitably involve some injustice to him, if it is or may be a good claim; but that cannot of itself amount to a special circumstance, since otherwise the Rule would never have any application. The Court has to consider why the claim was not brought in the earlier proceedings. The plaintiff may not have known of the claim at that time; or there may have been some agreement between the parties that the claim should be held in abeyance to abide the outcome of the first proceedings; where some representation may have been made to the plaintiff upon which he has relied, so that he did not bring the claim earlier. These would be examples of special circumstances, though of course they are not intended to be an exhaustive list."
The facts in that case were that Mr Devine-Bortey was dismissed on grounds of redundancy following a reorganisation of the section in which he was employed. The reorganisation involved the abolition of twelve existing administrative posts and the creation of eight new positions in their place. Following interviews, Mr Devine-Bortey was not selected for one of the new posts. He complained of unfair dismissal, alleging that he should have been one of those appointed. In the course of the tribunal proceedings, the evidence of one of the employer's witnesses indicated that Mr Devine-Bortey's African accent had a bearing on the decision not to appoint him to one of the new posts. The union official representing Mr Devine-Bortey cross-examined the witness but no application was made to add a complaint under the Race Relations Act. The tribunal concluded that the selection process had been fairly and properly carried out and the dismissal was not unfair. The reasons for that decision did not indicate in terms whether the racial issue had been taken into account in reaching that conclusion. Mr Devine-Bortey then made a fresh complaint, alleging unlawful racial discrimination. A tribunal chairman dismissed the complaint on the ground that the matter was res judicata. The EAT allowed an appeal concluding that there were special circumstances for not applying the wider form of issue estoppel established in Henderson –v- Henderson that ordinarily a person is precluded from bringing fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings but was omitted through negligence, inadvertence or accident. The EAT held that the fact that the proceedings in question arose in an Employment Tribunal where it is encouraged that cases are conducted by parties without general knowledge of the law, constituted a special circumstance justifying departure from that rule. The Court of Appeal held that the EAT had erred in its approach to the proper application of the Henderson –v- Henderson rule in employment tribunals and stated:
"The wider form of issue estoppel established in Henderson –v- Henderson applies equally to employment tribunal proceedings. Accordingly, parties to litigation must bring forward their whole case and, except in special circumstance, will not be permitted to bring fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings but was omitted through negligence, inadvertence or accident. It is not a 'special circumstance' such as to displace that rule that parties in employment tribunal proceedings are encouraged not to be legally represented. The rule applies in full measure in ordinary courts irrespective of whether the person being estopped was or was not legally represented in the earlier proceedings. Moreover, the EAT's own jurisprudence clearly establishes that a point not taken by a party in an employment tribunal cannot be taken on appeal to the EAT, even though the failure to take it originally was due to the lack of skill or experience of the parties' advocate and even though the omission could have been rectified by the tribunal taking the point itself. In particular, this is so when the fresh point would require further facts to be investigated. The same considerations apply to the operation of the Henderson –v- Henderson rule in employment tribunals.
Nor, in the present case, were there any special circumstances sufficient to disapply the rule arising from the fact that the possibility that the applicant's selection for redundancy may have been racially motivated did not emerge until the tribunal hearing, when reference to his African accent was made by one of those who carried out the selection interviews. Any complaint of racial discrimination should then and there have been grafted on to the existing unfair dismissal proceedings, if necessary an adjournment being sought for that purpose."
Previous Conduct
"Very little direct discrimination today is overt or even deliberate. The guidance from case law tells tribunals to look for indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias."
The facts in the Anya case were that Dr Anya, a black Nigerian permanently resident in the UK, applied for a post as a post-doctoral research assistant. He was rejected following an interview, and the post went to the other shortlisted candidate, Dr Lawrence, who is white. Dr Anya complained that this decision was racially discriminatory. The interview was conducted by a panel of three, including Dr Roberts who was Dr Anya's supervisor. Dr Roberts had already formed a view that Dr Anya was not suitable for the post. He let one of the other panel members know about this prior to the interview. Dr Anya claimed that Dr Roberts had a preconceived hostility towards him which was racially motivated.
The Court of Appeal held that Dr Anya was entitled to adduce evidence in respect of previous conduct of Dr Roberts towards him to establish that the alleged hostility existed. The Court of Appeal also held that such hostility may justify an inference of racial bias on the part of Dr Roberts towards Dr Anya if there was nothing else to explain it.
CONCLUSIONS
(1) alleged sectarian harassment from 1986 to 1990;
(2) alleged treatment in relation to a road traffic accident in 1989;
(3) alleged comments of colleagues in relation to the Masonic Order from 1990 to 1992; and
(4) alleged treatment he received in relation to a road traffic accident which took place between 1990 and 1992:
either as individual complaints or as part of an act extending over a period. That is because those complaints had arisen before the claimant's complaint of unlawful discrimination on the grounds of religious belief and political opinion (case reverence number 128/93FET) had been brought. They could therefore have been and should have been brought forward at that time.
Costs
(1) At the hearing on 6 December 2004, Mr Mulqueen raised the issue of the existence of special circumstances on behalf of the claimant.
(2) The hearing was adjourned to enable the respondent to check documents before indicating whether it could agree that special circumstances existed, without the need for oral evidence.
(3) On 9 December 2004 the respondent provided a bundle of documents to the claimant and to the Tribunal and indicated that in the light of those documents it could not agree the existence of special circumstances.
(4) A further hearing was therefore arranged for 15 March 2005 to enable the claimant to adduce oral evidence in relation to the matter.
(5) On the morning of 15 March 2005, Mr Mulqueen indicated that the claimant was no longer relying on the existence of special circumstances.
The Tribunal is of the opinion that as the claimant's solicitor had the documents from on or about 9 December 2004, it was unreasonable not to notify the respondent prior to the hearing on 15 March that the claimant no longer wished to pursue the issue of the existence of special circumstances. If the claimant had notified the respondent in advance, the hearing on 15 March 2005 would not have been required. The Tribunal therefore orders the claimant to pay £500 towards the costs incurred by the respondent in respect of the hearing on 15 March 2005.
____________________________________
E McBRIDE
President
Date and place of hearing: 5 November 2004, 6 December 2004 and 15 March 2005,
Belfast
Date decision recorded in register and issued to parties: