FAIR EMPLOYMENT TRIBUNAL

CASE REF:	183/05 FET
						1375/05 

CLAIMANT:			Jonathan Vance Kane

RESPONDENT:		Waterways Ireland	

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is as follows:-

(1)	The claims of unlawful religious and political discrimination were not presented within the primary time-limit provided for in Article 46(1) of the Fair Employment & Treatment (Northern Ireland) Order 1998 (“the 1998 Order”). Nevertheless, it is just and equitable (within the meaning of Article 46(5) of the 1998 Order) for the Fair Employment Tribunal to consider the claims.
(2)	The claims of racial discrimination were not brought within the relevant primary time-limit provided for in Article 65(1) of the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”). Nevertheless, it is just and equitable (within the meaning of Article 65(7) of the 1997 Order) for an industrial tribunal to consider the claims.

Constitution of Tribunal:

Chairman:		Mr P. Buggy (Chairman sitting alone)

Appearances:

The claimant was represented by Ms Suzanne Bradley, Barrister-at-law instructed by the Equality Commission. 

The respondent was represented by Mr M. Wolfe, Barrister-at-law, instructed by Copeland McCaffrey, Solicitors.

REASONS

1.	Mr Martin Dennany was appointed as Director of Marketing and Communications of Waterways Ireland in April 2002.

The claims

2.	In these proceedings, the claimant makes two separate sets of claims.  First, he asserts that he has been subjected to unlawful direct and indirect religious and political discrimination in connection with the process which led to the appointment of Mr Dennany.  Secondly, he asserts that he has been subjected to unlawful direct and indirect racial discrimination in connection with that process.

The Preliminary Issues

3.	The purpose of this pre-hearing review was to consider two sets of preliminary issues.  In essence, those issues are as follows:

	(1)	Have the political and religious discrimination claims been presented within the relevant primary time-limit specified in Article 46 of the 1998 Order and, if not, is it just and equitable to extend that time-limit (pursuant to Article 46(5) of that Order)?

	(2)	Have the racial discrimination claims been presented within the relevant primary time-limit specified in Article 65(1) of the 1997 Order and, if not, should the Tribunal nevertheless consider that 	claim because it is just and equitable (within the meaning of Article 	65(7) of the 1997 Order) to do so?

The relevant statutory provisions

4.	Article 46(1) of the 1998 Order provides as follows:

“(1)	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 date 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”.

	Paragraph (5) of the same Article provides as follows:

“(5)	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.”

5.	Article 65(1) of the 1997 Order provides as follows:

“(1) 	An industrial tribunal shall not consider a complaint under Article 52 unless it is presented to the tribunal before the end of –

(a)	the period of 3 months beginning when the act complained of was done; 

	or 

(b)	in a case to which Article 71(7) applies, the period of 6 months so beginning”.

Paragraph (7) of Article 65 provides as follows:

“(7)	A court or 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.”

The key questions

6.	In relation to the claims brought under the 1998 Order, the two key questions are as follows: 

	(1)	Has the claimant complied with the primary time-limit?

	(2)	If not, is it just and equitable to consider the claims in any event?

7.	In relation to the race relations claims, Ms Bradley accepted that the primary time-limit had not been met.  Therefore, in relation to the race relations claims, the key question is whether it is just and equitable to consider the claims in any event.

Sources of evidence

8.	I received oral testimony from the claimant.  I also saw the following documents:

	(1)		An agreed bundle of documents, consisting of 65 pages.

	(2)	An extract from Hansard, showing answers to certain questions asked by Lord Laird of Artigarvin during June and July 2005.

	(3)	Newspaper reports dated 24 September 2004 and 30 September 2004 respectively.  

The submissions

9.		The submissions on behalf of claimant can be summarised as follows.  First, Ms Bradley argued that the primary time-limit had not expired until August 2005, because August 2005 was the date upon which the claimant could reasonably be expected first to have knowledge of the fact that the relevant post had been filled without open competition.  Secondly, she argued that, in any event, it was just and equitable (for the purposes both of the fair employment legislation and of the race relations legislation) for me to extend the time-limit.  There had been little or no prejudice suffered by the respondent on account of the delay in lodging the proceedings.  The claimant had acted promptly as soon as he became aware of the fact that the relevant post had been filled without competition.  The case of Johnston v Chief Constable, RUC [1998] NI 188 was not in point, because there were important differences between the factual context of the Johnston case and the factual context of the present case.  The decision of the Court of Appeal in England in London Borough of Southwark v Afolabi [2003] IRLR 220 showed that a tribunal had discretion to extend a time-limit even where the delay amounted to several years.  If the case under the fair employment legislation was allowed to proceed, that was an additional ground for extending the time-limit under the race relations legislation (because there would be no additional substantial cost to the respondent of meeting a claim brought under both the fair employment legislation and under the race relations legislation, as distinct from meeting a claim brought solely under the fair employment legislation).

10.	For the respondent, the arguments can be summarised as follows.  First, this case was not brought within the primary time-limit provided for in Article 46(1) of the 1998 Order.  Even if a claimant brought a claim within the period of three months beginning with the day on which the claimant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of, he or she would still not meet the primary time-limit specified in Article 46(1) unless the claim was made before the end of the period of six months beginning with the day on which the act was done.  Secondly, I should not extend the time-limit, under the fair employment legislation or under the race relations legislation.  Time-limits were deliberately kept short under the discrimination legislation.  A claimant was expected to act promptly.  This claimant had no good reason for being in a state of ignorance, until August 2005, in relation to the fact that the relevant post had been filled without open competition.  That matter had been on the public record for at least a year by the time the claimant commenced these proceedings.  Although the respondent would not suffer substantial prejudice, in terms of being enabled to present its defence, if the case was allowed to proceed after this lapse of time, the case should not be allowed to proceed, because of the importance of finality in litigation.  Mr Wolfe considered that the facts of this case were far removed from the facts of the Johnston case and accordingly, the Johnston decision is not one which should be relied upon as a basis for resolving the issues in this case.  The Afolabi case involved a situation in which the claimant had no means of knowledge, prior to the time when he began his proceedings, of the fact that he might have a claim.  The situation was different in this case.

The facts

11.	At paragraphs 12 to 20 below, I have set out findings of fact which are relevant to the issues which I have determined.  

12.	Waterways Ireland, the respondent to these proceedings, is tasked with developing the inland waters of the island of Ireland for recreational use.  It is one of the cross-border bodies set up pursuant to the terms of the Belfast/Good Friday Agreement.   It has its headquarters in Enniskillen.  Its funding comes from a Northern Ireland Government Department and from a Republic of Ireland Government Department.  In April 2002, Mr Martin Dennany was appointed as the Director of Marketing and Communications of the respondent.  He was appointed without open competition.  

13.	According to parliamentary answers to questions posed by Lord Laird, Mr Dennany was appointed following his designation and transfer from an Irish Government Department; he was one of hundreds of employees who were designated and transferred to the respondent, from the Republic of Ireland, since the year 2000, without open competition.  The position of the United Kingdom Government is that those employees were designated and transferred to the respondent under the legislation setting up that body, and therefore an open competition was not required.

14. 	On 10 September 2002, the Northern Ireland Minister of Culture, Arts and Leisure informed the Northern Ireland Assembly that the Director of Marketing and Communications of the respondent body had been appointed following open competition. That statement was incorrect.  In September 2004, a statement issued 

by the relevant Northern Ireland Department stated that the original statement had subsequently been found to be incorrect, in October 2002, after devolution had been suspended.   That September 2004 statement was reported in the Belfast Telegraph on 24 September 2004 and in the Impartial Reporter on 20 September 2004.  During the period from 12 October 2004 until 21 July 2005, Lord Laird asked many parliamentary questions in relation to the relevant appointment.  Some of those questions, and some of the answers to those questions, received some publicity in Northern Ireland newspapers.

15.	The claimant lives in Belfast.  He has never had any connection with the respondent.  

16.	Until August 2005, the claimant had no knowledge of the fact that any post in the respondent public body had been filled without open competition.  He became aware of some of the issues relating to the filling of posts in the respondent public body as a result of a conversation with friends during the “second last” week of August 2005.  He became aware of the issue in the following way.  He and his friends were talking about the possibility of jobs with cross-border bodies.  One of those friends, Sam Downey, then told him that he was aware of jobs being filled without competition at Waterways Ireland and of the fact that questions had been asked about it in the House of Lords.

17.	As a result of that conversation, the claimant looked up Hansard, on the internet, on several occasions during August and September 2005.  (He was on holiday for the last week of August 2005, so most of his internet research took place during September).  As a result of that research, he contacted the Equality Commission.  His proceedings, in respect of all his claims were presented on 6 October 2005.

18.	On 30 June 2005, Lord Laird asked a parliamentary question in relation to the vacancy which is relevant for present purposes.  In answer to that question, Lord Rooker, on behalf of the Government, made the following statement:

“I understand from the chief executive at Waterways Ireland that the criteria required for appointment at this level are that the person appointed must have a minimum of 10 years’ experience, including at least five years at senior level, in administration and management.  The current director of marketing and communications meets these criteria”. [My emphasis]

On 21 July 2005, Lord Laird posed a parliamentary question specifically in respect of the criteria applicable to the relevant post. That question asked:
 	
“… on the basis of what qualification the Chief Executive of Waterways Ireland considered the appointee for the post of director of marketing and communications to be the most appropriate, given there was no open competition”.

	On behalf of Government, Baroness Farrington of Ribbleton 	responded as follows:

“I understand from the Chief Executive at Waterways Ireland that the criteria required for appointment at this level are that the person must have a minimum of 10 years’ experience, including at least five years at a senior level in administrative management.  The current Director of Marketing and Communications meets these criteria.  The post of Director of Marketing and Communications does not require specific academic qualifications”.

Prior to the furnishing of the latter answer, there was no comprehensive statement of the eligibility criteria in respect of the relevant post which was easily accessible to the general public.

19.	The claimant considers that he meets the criteria for the post.  He has worked for a long time in his family’s business.  That business is concerned with time systems and with time-recording for employees.  He is responsible for marketing in that company.

20.	Prior to August 2005, the claimant took no proactive steps to inform himself as to the position regarding the availability of any post, or posts, within any cross-border body.

The claims and the responses

21.	In his Claim to the Fair Employment Tribunal, the claimant expressed his complaint in the following terms:

“I became aware in late August 2005 that a person has been appointed to the post of Director of Marketing and Communications in Waterways Ireland Enniskillen without open competition.  This information came from answers in the House of Lords in July 2005.  I meet the criteria for appointment to the post.  The person appointed is from the Republic of Ireland and is perceived to be a Nationalist and a Catholic.  The post was not advertised and I have been denied the opportunity to apply for it.  I am a Protestant and a Unionist from Northern Ireland.  I believe therefore that I have been discriminated against on the grounds of my religion/political opinion (direct and/or indirect)”.

In its response to that Claim, the respondent asserts out that the matter was the subject of various parliamentary questions from Lord Laird during the period from October 2004 to June 2005; that the matter had been the subject of a press release by two relevant sponsoring Government Departments in April 2005; that the matter was within the public domain well before August 2005; and that therefore the claim is statute barred. 

22.	In his Claim to an Industrial Tribunal, the claimant alleges that the respondent has subjected him to direct and/or indirect discrimination on the ground of his race, contrary to the Race Relations (Northern Ireland) Order 1997, as amended.  In that application, the claimant sets out his claim in the following terms:

“I became aware in late August 2005 that a person has been appointed to the post of Director of Marketing and Communications in Waterways Ireland, Enniskillen without open competition.  This information came from answers in the House of Lords in July 2005.  I meet the criteria for appointment to the post.  The person appointed is from the Republic of Ireland and is Irish. The post was not advertised and I have been denied the opportunity to apply for it.  I am British and I am from N. Ireland.  I believe that the respondent’s treatment of me amounts to direct and/or indirect discrimination on grounds of my race …”

In its response to the industrial Tribunal Claim, the respondent repeats the points which it made, in connection with the time-limit issues, in its response to the Fair Employment Tribunal Claim.  
23.	It is clear that, in each instance, in addition to taking the time-limit point, the respondent intends to oppose any relevant claim on the following basis.  First, it is alleged that there was no vacancy for the relevant post in April 2002 because the post was filled by a transfer “under the provisions of the Anglo-Irish Agreement Act 1999”; secondly, that, in any event, the respondent did not discriminate against the claimant on any relevant prohibited ground; thirdly, that (at all times which are relevant in the present context) the claimant was not a person who was seeking employment.

The law 

24.	The provisions of Article 46(1) of the 1998 Order have already been set out above (at paragraph 4).  In my view, it is clear that Article 46(1) provides for a primary time-limit which will end no later than the end of the period of six months beginning with the day on which the act was done, regardless of the state of the claimant’s knowledge, or lack of knowledge, at the end of that period, and regardless also of any reasonable grounds for any lack of knowledge (on the claimant’s part) at that time. 

25.	The provisions for the disapplication of the primary time-limits, both in the 1998 Order and in the 1997 Order, have already been set out above (at paragraphs 4 and 5).  Those provisions are contained, respectively, at paragraph (5) of Article 46 of the 1998 Order and paragraph (7) of Article 65 of the 1997 Order.  In my view, there is no material difference between the two paragraphs, which are also in line with time-limit provisions in the principal discrimination enactments which are in force in England and Wales.  Under both Article 46(5) of the 1998 Order and under Article 65(7) of the 1997 Order, I have a broad discretion in deciding whether or not to extend the relevant primary time-limit.  

26.	In deciding whether or not to extend each relevant time-limit, the central question is whether or not there can still be a fair hearing.  However, other issues are of relevance as well.  In particular, I have to bear in mind the fact that the legislator has chosen to impose short primary time-limits.  That indicates a legislative policy that discrimination claims should be brought promptly.  In deciding whether or not to extend the time-limit, I am entitled and obliged to take account of the length of time which has elapsed from the date of the alleged discriminatory act to the date of presentation of the relevant claim.  It is also appropriate that I should take careful note of the length of the period which elapsed between the date on which the claimant first became aware, or could reasonably have become aware, of the fact that he had an arguable case, and the date on which the claim was presented: see Afolabi (already mentioned at paragraph 9 above) at, 230, 74.  In considering whether to extend the time-limit, it is also appropriate to have regard to the matters listed in section 33(3) of the Limitation Act 1980 (which is operative in England and Wales): See British Coal Corporation v Keeble [1997] IRLR 336.  

27.	In deciding whether or not to extend the time-limit in each instance, it is also important that I should ensure that my decision is not inconsistent with relevant comments made by Carswell LCJ in Johnston (already referred to above at paragraph 9), at pages 198-199.

Conclusions

28.	I am satisfied that the claims under the 1998 Order were not presented within the time-limit provided for in Article 46(1) of that Order, because the claims were not 

presented within six months of the date of the appointment of Mr Dennany to the relevant post.

29.	However, I am satisfied, on balance, that it is nevertheless just and equitable for a tribunal to consider the claim under the 1998 Order, in the light of the circumstances, and because of the reasons, outlined in the following paragraphs.

30.	I am also satisfied, again on balance, that it is just and equitable for the 1997 Order claims to be considered, although the relevant primary time-limit (as set out in the 1997 Order) has not been met.  I am so satisfied, in the light of the circumstances, and because of the reasons, outlined in the following paragraphs.

31.	In the light of the nature of the main arguments which the respondent intends to make in defence of these claims, and in view of the lengthy history of the controversy in relation to the relevant post, I am satisfied that it is likely that the cogency of the evidence will not be substantially affected by the delay in presenting these claims.   In view of the same considerations, I am also satisfied that the delay will not affect the ability of the respondent to receive a fair hearing. 

32. 	I have taken full account of the length of the period of delay between April 2002 and October 2005 (when the claims were presented). I note that the fact that the post had been filled without competition was a fact which came into the public domain in the autumn of 2004.  

33.	I also note that, until 21 July 2005, there was no comprehensive record of the relevant eligibility criteria which was easily accessible to the general public. Until then, the claimant therefore would have had no potential means of knowing whether or not he would have been eligible to apply for the post. Without that knowledge (or means of knowledge), the claimant could not have come to any sensible view on the question of whether he had an arguable case in respect of the relevant claims. His lack of knowledge on those matters, during the period up to 21 July 2005, cannot be attributed to any blameworthy omission on the part of the respondent. However, it cannot properly be attributed to any blameworthy omission on the part of the claimant either. 

34.	During the period from the latter part of August 2005 onwards, the claimant acted promptly. 

Chairman:

Date and place of hearing:	1 June 2006, at Belfast.

Date decision recorded in register and issued to parties: