Brown v Department for Regional Development  (Unlawful Dismissal/Sex Discrimination/)  (23 September 2003)
THE INDUSTRIAL TRIBUNALS

CASE REFS:	2926/01
600/02
2302/02
1623/03

APPLICANT:		James Brown

RESPONDENT:		Department for Regional Development 

DECISION

The unanimous decision of the tribunal is that:-

(i)	the applicant’s claims contained in Case References 600/02 and 2302/02 are dismissed.  The tribunal is satisfied that these claims had been withdrawn by the applicant;

(ii)	the applicant, in seeking to reinstate the above claims, has acted frivolously or otherwise unreasonably in the conduct of the proceedings, and the tribunal therefore orders that the applicant pay to the respondent the whole of the respondent’s costs in defending the applicant’s application to reinstate these complaints, as taxed in pursuance of Rule 12(3)(c) of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996 ; and

(iii)	the applicant’s complaints (Case References 2926/01 and 1623/02) of unlawful discrimination on the ground that he was a part-time worker are dismissed.

Appearances:
The applicant, Mr James Brown, in person.
The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

1.	The tribunal considers that reasons given in summary form would not adequately explain the grounds for its decision.  Consequently, these reasons are given in extended form.

2.	(i)	The applicant, Mr Brown, originally brought four originating applications against the respondent department.

In each of these applications he alleged that he had been treated by the respondent less favourably than the employer treated a comparable full-time worker by being subjected to a detriment by the employer, contrary to Regulation 5(1)(b) of the   Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.	
			
	(ii)	Originating application 1623/03 had also contained an allegation that he had been discriminated against on the ground of his sex, but the applicant confirmed in open tribunal that he was withdrawing his claim insofar as it contained such an allegation.	
			
3.	(i)	At the outset of the hearing, before determining the substantive issues, it was necessary for the tribunal to determine whether the applicant had withdrawn the claims comprised in originating applications, Case References 600/02 and 2302/03, and if so, whether he should be allowed to reinstate them.	
			
	(ii)	In order to decide this, the tribunal heard evidence from the applicant, from Councillor Jim Wells, who had represented the applicant, but who had withdrawn as his representative at the commencement of the proceedings, and from Mr Percy Johnston, a Solicitor in The Departmental Solicitor’s Office, who acted for the respondent department.	
			
	(iii)	The applicant alleged before the tribunal that an intimation in correspondence to the Office of the Tribunals and the respondent’s Solicitors that he was withdrawing these two claims was the result of an improper professional relationship between his adviser, Mr Wells, and Mr Johnston.  This in turn had led to Mr Wells putting improper pressure on the applicant to withdraw these claims, and the end result had been that Mr Wells, in purporting to withdraw these claims on behalf of the applicant, had exceeded his authority, and taken this course of action without the applicant’s full consent.  In relation to this aspect of the matter the tribunal finds the following facts proved.	
			
4.	(i)	Applications, Case References 600/02 and 2302/02 were listed for hearing on       15 – 19, and 22 and 23 September 2003, along with the two other claims upon which the tribunal has adjudicated.	
			
	(ii)	On Thursday 11 September 2003, Mr Wells wrote to The Departmental Solicitor’s Office (DSO) and the Office of the Tribunals indicating that the applicant wished to withdraw these applications.	
			
	(iii)	That letter was received on that day by the DSO.  They wrote to the Office of the Tribunals stating that they did not object to the applicant withdrawing the cases, and that they would not be making an application for costs.  This was confirmed in a letter to Mr Wells.	
			
	(iv)	Mr Brown and Mr Wells had had a meeting on 9 September 2003 to discuss all the applicant’s cases.  They also had a meeting on 11 September 2003, around lunchtime, prior to Mr Wells sending the letter to the DSO. 

Mr Brown’s account of that meeting is that Mr Wells indicated he had had discussions with Mr Johnston of the DSO, that a settlement was possible, there was mention of a 5-figure sum, but before there could be any settlement the two claims now in dispute would have to be withdrawn.  Mr Brown formed the opinion that Mr Wells was being heavily influenced by Mr Johnston.  (Mr Wells had been a member of the Northern Ireland Assembly, and Mr Johnston had at one stage been seconded as a legal adviser to the Assembly.)

The upshot of the meeting was that Mr Wells faxed the letter of withdrawal.  Mr Brown, although not happy with that course of action, did not express any dissent at the time.	
			
	(v)	On the afternoon of 12 September 2003, he contacted the Office of the Tribunals, and informed them that he did not now wish to withdraw these claims.  However, at around lunchtime on that day, he had spoken to the DSO, and confirmed that he did not intend to pursue these claims.  In a subsequent conversation with the DSO later that afternoon, he did not inform them of any change of mind.  In neither of these conversations with the DSO did he enquire about the position in relation to any proposed settlement of the two remaining cases.	
			
	(vi)	The applicant did not inform Mr Wells of his change of attitude until an hour before the case was due to be heard on the morning of Monday 15 September 2003.  In these circumstances, Mr Wells felt unable to continue as the applicant’s representative.	
			
5.	(i)	The tribunal is satisfied, from the evidence of Mr Wells and Mr Johnston, that there was no impropriety in their dealings.  Both approached these claims in a professional, detached manner.  Mr Wells was at all time aware of, and conscious of, Mr Johnston’s status as Solicitor for the respondent, and dealt with him on that basis.  They had had no previous dealings with each other in their respective capacities as member of, and adviser to the Speaker of, the Northern Ireland Assembly.  They may have spoken to each other briefly at the Assembly, but neither had any recollection of doing so.

Mr Wells did not seek advice from Mr Johnston, or allow himself to be influenced by him.  In his dealings with the latter he was robust and assiduous in looking after the applicant’s interests.	
			
	(ii)	We are satisfied that Mr Wells at no time conveyed to the applicant that the withdrawal of Case References 600/02 and 2302/03 was a pre-requisite to settlement of the remaining cases.  Mr Wells had considered the papers in the former cases and had told the applicant that they had no chance of success and that he should concentrate on the other two.  We are satisfied that these two cases were withdrawn on their merits, and would have been so withdrawn irrespective of any discussion of settlement.

In any event we consider the scenario described by the applicant to be a somewhat unreal one in the context of negotiations and settlements.  If a settlement of two of the cases had been probable, it is likely that the remaining two would have been withdrawn as part of the overall settlement, not as a pre-condition to it.  Additionally, the letter of withdrawal made no reference to any overall settlement, as one might have expected.	
			
	(iii)	We find that Mr Wells did not exceed his authority in withdrawing Case References 600/02 and 2302/02.  This was done after a full discussion with the applicant, after all relevant factors had been weighed up.  Mr Wells did, no doubt, express his views on the merits of these cases in strong terms, but he would have been failing in his duty to the applicant if he did not do so.

While Mr Brown may have been unhappy about withdrawing them, we are satisfied that he freely consented to that withdrawal, having been made aware of all the relevant facts and circumstances, and that the letter of withdrawal was sent with his full authority.

Mr Brown is currently studying for an external law degree.  Having seen and heard Mr Brown, and noted the attention to detail with which he has prepared and conducted this case, and the tenacity with which he pursued it, we have no doubt that he is not someone whose will was overborne by Mr Wells.  We are further satisfied that he was not under any misapprehension as to what was being proposed.	
			
6.	(i)	Rule 13(2) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996 provides that “[a] tribunal may:-

(a)	if the applicant at any time gives notice of the withdrawal of the originating application, dismiss the proceedings”.

This power appears to be discretionary.  There appears to be a dearth of authority in situations like the present, where the applicant has changed his mind.

However, here the tribunal is satisfied that the applicant’s withdrawal was unequivocal, and that there was nothing to suggest that his withdrawal was brought about as a result of duress or a misapprehension.  The respondent had prepared the case on the basis that the applicant was withdrawing these claims and had stood down witnesses.

The application by the applicant to reinstate his complaints is tantamount to an abuse of process and would prejudice the respondent department’s position.  It is therefore refused.	
			
	(ii)	The tribunal is further satisfied in the circumstances of this case that the applicant by his conduct in seeking to reinstate these complaints has acted frivolously, vexatiously, or otherwise unreasonably.

The complaints had been withdrawn because of advice received by the applicant that they had no merit.  On his evidence he had decided on the Friday afternoon of 12 September 2003 that he wished to proceed with them.  He did not notify the respondent’s representative of this despite having ample opportunity to do so, but delayed making his application until the morning of 15 September 2003.  At this stage he based his application on grounds which the tribunal totally rejected.

The tribunal therefore orders that the applicant pay to the respondent the whole of the respondent’s costs in defending the applicant’s application to reinstate complaints covered by Case References 600/02 and 2302/02 as taxed, (if not otherwise agreed).	
			
7. 	(i)	The tribunal now turns to deal with the applicant’s substantive complaints in applications, Case References 2926/01 and 1623/03.

In the former the applicant alleged that he was deprived of the opportunity to apply for promotion from May 2001 onwards because, during his annual reporting cycle, he had received a ‘Not Fitted’ for promotion box marking which he claims was imposed upon him because of his part-time status.

In the latter, he claims that he was deprived of the opportunity to be considered for acting up to Senior Professional and Technology Officer (SPTO) during the maternity leave of the incumbent post holder, again because of his part-time status.	
			
	(ii)	In determining these claims the tribunal has heard evidence from the applicant, and on the respondent’s behalf it has heard evidence from Mr John Humpreys, Principal Engineer, Roads Service, Downpatrick, Ms Cindy Noble, Senior Engineer, and Senior Professional Technical Officer (SPTO), Roads Service Consultancy, Downpatrick, and Mr David Strain, the Equal Opportunities Officer of the Department for Regional Development.

The tribunal has also had regard to the documentary evidence submitted by the parties.	
			
	(iii)	The tribunal finds the facts set out in the following paragraphs proved to its satisfaction on the balance of probabilities.  As the background to both claims arises out of the same set of general circumstances, this is set out first.	
			
8.	(i)	The applicant, Mr Brown, was at the relevant time employed as a Higher Professional and Technology Officer (HPTO) with the Roads Service Consultancy and Business Development Section at Downpatrick.  He had worked for the Department for Regional Development and its predecessor as a civil engineer (with some gaps in service, eg a “sandwich” course leading to a degree, and a period of secondment) over a 30 year period, reaching the HPTO grade.	
			
	(ii)	In 1999, when his third child was born, he applied for part-time working.  This was granted to him on 18 February 2000, with effect from 7 February 2000.  At the time he was working in Hydebank, Belfast, and he was transferred to Downpatrick.  There was still work to be completed in Belfast, and as a result of a “local agreement” with management in Downpatrick, he did not actually start work there until early March 2000.

There is no dispute between the parties that the applicant, when  his status changed, was a part-time worker within the meaning of the 2000 Regulations.	
			
	(iii)	The nature of the applicant’s work changed when he moved to Downpatrick.  At Hydebank, he had been a supervisor on site.  When he moved to the Contracts and Business Development Section in Downpatrick, his job was office based.	
			
	(iv)	At Downpatrick the applicant’s part-time hours were 25 per week.  He agreed that his application to work part-time had been accepted by the respondent without any difficulty, and that in relation to time-off for study (an external law degree) he was treated no less favourably than full-time staff.  He encountered no hostility to the concept of part-time working from his managers, and no-one made references to his status as a part-time worker.  He accepted that part-time workers in the DRD had been promoted, and that the respondent’s policies with regard to part-time workers had been developed in advance of legislation on this issue.	
			
	(v)	His attitude at Hydebank was that he had been prepared to forego promotion to gain experience.  He had last gone in for a promotion board in 1996 and scored 45 where the pass mark was 50.  He had entered the board to gain interview experience etc, not to obtain promotion.	
			
	(vi)	Generally, over the years in the DRD or its predecessors, as far as the staff reporting cycle was concerned, the applicant had always achieved a satisfactory mark for performance (an overall Box 3 marking or above) and he had always been fitted for promotion.	
			
	(vii)	When transferred to Downpatrick the applicant did not have any Personal Development Plan or Forward Job Plan (these are common throughout the Civil Service) and he complains about that, and alleges that this absence of reporting procedures was evidence of less favourable treatment on account of his part-time status.  However, no full-time worker in Downpatrick had such documents.  Instead the Contracts Section had a Business Plan and associated objectives.  These documents set out the aims of the section, referred to its resources, and made staff aware of what their responsibilities were.  Copies of these documents were made available to the application.  Consequently, in this regard the applicant was treated no less favourably than a full-time worker.	
			
9.	(i)	We now deal more particularly with the applicant’s first complaint (Case Reference 2926/01) which relates to his alleged receipt of a ‘Not Fitted’ for promotion box marking because of his part-time status.	
			
	(ii)	It was the applicant’s view that because he had been marked fitted for promotion for the previous 10 years, the fact that he was marked ‘Not Fitted’ was due to his        part-time status.  While the applicant suggested this marking had pejorative connotations, this is not necessarily the case.  Indeed his overall performance had been marked satisfactory, and in the Civil Service it is not unusual for someone who had changed posts or roles to be marked ‘Not Fitted’ until they had spent some time in his or her new position.	
			
	(iii)	When the applicant moved to Downpatrick, he was tasked in particular in relation to three specific contracts.  The nature of his duties and what was expected of him was made clear to him, and the duties allocated to him took account of his part-time status.	
			
	(iv)	These contracts were the High Performance Surface Dressing Contract 2000, the Road Markings 2001 Contract, and the High Performance Surface Dressing Contract 2001.  These contracts were at an advanced stage, and should have been completed by deadlines which had been set down.  There was urgency about these contracts because of the seasonal nature of road maintenance work.	
			
	(v)	There is clear evidence that the applicant was missing these deadlines, that new deadlines which were set slipped, notwithstanding that the applicant had promised to meet them.  The applicant alleged that this slippage occurred because of matters outside his control, particularly the need to be satisfied as to insurance requirements.  However, we are satisfied from the evidence of Mr Humpreys and Ms Noble that this was not the case, and that there was no need to hold up the contracts.  In relation to insurance, for example, this was finalised when the “contract packs” were issued to the respective Divisional Roads Managers.	
			
	(vi)	We are also satisfied that management’s concerns about the applicant’s performance was brought to his attention.  He was spoken to on many occasions.  While not every concern about his employment was recorded, there are minutes of meetings and e-mails which set out these concerns.	
			
	(vii)	In the reporting cycle which corresponded to this period, which also involved the first annual report on the applicant as a part-time worker, the applicant was marked ‘Not Fitted’ for promotion to Senior Principal Technical Officer, which was the next grade up.  We are satisfied that this marking was because of the belief by Mr Humpreys and Ms Noble that there had been problems with the applicant’s performance during the year in question.  He had experienced difficulty meeting targets, had shown an inability to plan his work properly, and had become bogged down in detail which was not relevant to the task in hand.	
			
	(viii)	The applicant appealed the ‘Not Fitted’ marking, and on 3 March 2003, it was changed to ‘Fitted’ by the Monitoring Officer, Mr McCandless.  He, however, was satisfied that there was no evidence to support the applicant’s allegation that he had been discriminated against because he was a part-time worker.  Rather, he was not convinced the perceived weaknesses in the applicant’s performance had been adequately explained to him, and he was therefore unsure that the applicant had had sufficient opportunity to address the problems which had arisen and to improve his performance.	

10.	There is no evidence before us that the applicant received less favourable treatment on account of his part-time status.  We are satisfied that a comparable full-time worker in the applicant’s position would have been treated in exactly the same way.

The applicant’s case, as far as this complaint is concerned, rests largely on an assumption on his part.  He has also been dishonest in evidence he has given to the tribunal.  He had a Performance Appraisal Interview with Ms Noble on 19 May 2001 to discuss his appraisal.

He claimed that he did not receive a copy of his annual report before the meeting, and that at the meeting he signed it without reading it.

We reject this account and accept the evidence of Ms Noble that the Performance Appraisal Interview was properly conducted, and that he signed the document at the end of the meeting.  In our view, it would have been completely out of character for Mr Brown to have acted in the way he claims he did.  For his claim to have any validity, he would of course have to show that he was interested in promotion, whereas the fact is that in the preceding 10 years he had shown no such interest.

We therefore dismiss this claim (Case Reference 2926/01).

11.	(i)	The applicant’s second complaint is that in February/March 2003 he was deprived of the opportunity to be considered for acting up to the level of SPTO in Ms Noble’s absence on maternity leave.  Again, he alleges this was because of his part-time status (Case Reference 1623/03).  A less qualified, full-time worker, a Mr McMeekin, was appointed.

This claim was brought by the applicant on the assumption that Mr McMeekin was also someone who had been marked ‘Not Fitted’ for promotion.  (There was provision, in certain circumstances, whereby persons not currently fitted for promotion could nonetheless go forward to boards.)

However, the applicant, in the course of the proceedings, when confronted with evidence to the contrary, accepted that Mr McMeekin was in fact fitted for promotion.	
			
	(ii)	Mr Humphreys, who was responsible for making the appointment to act up for Ms Noble, drew up a list of criteria for the post.  The tribunal has heard evidence and seen documentary evidence in relation to this criteria, and is satisfied that they were fair and reasonable.

In his marking of the candidates, Mr McMeekin scored the highest with 32 points, another candidate scored 27, and the applicant scored 26.  He was rated third out of twelve candidates.

Mr McMeekin scored 3 for management ability and experience, whereas the applicant only scored 1 in this category, and scored 3 for knowledge of New Term Contract and Procedures whereas the applicant scored only 2.	
			
	(iii)	Mr McMeekin, like the applicant, was a comparative newcomer to the section.  In terms of management ability, he had, however, worked his way up through the Section Office, whereas the applicant, when given staff to manage, had refused to manage them, or discuss their work with them.

Mr McMeekin also had some knowledge of the way the office was going in terms of electronic tendering.

Mr Brown accepted during cross-examination that he could understand why Mr McMeekin got the job.	
			
	(iv)	A major criticism made of Mr Humpreys by the applicant is that the former, when writing comments on the marking sheet, recorded against the applicant that he was ‘part-time’.

Mr Humpreys’ explanation for this, which we accept, was that this was not, as alleged by the applicant, indicative of any desire to discriminate against the applicant on account of his status.  Rather, it was an aide-memoire which would only come into play after the running order of candidates had been established.  The post trawled was a full-time post, and if the applicant were the best fitted candidate, it would have to be ascertained if he would work full-time.	
			
	(v)	Mr Brown also complained that the post was not to be rotated among the top successful candidates, and that this was not included in the criteria.  The issue of rotation involving a part-time worker would, of course, only arise after the appointment had been made.

In any event we are satisfied that the post was one which could not have been split among two or more candidates.	

12.	We are therefore also satisfied that in relation to the acting up appointment the applicant did not suffer less favourable treatment because of his part-time status, and we dismiss that complaint also (Case Reference 1623/03).

13.	The respondent’s Counsel, Mr Wolfe BL, indicated to the tribunal that it was the respondent’s view that claims Case References 2926/02 and 1623/03 were without merit, but that it wished to reserve its position on costs until the decision of the tribunal had issued.

Chairman:

Date and place of hearing:		15 – 19 and 22 – 23 September 2003, Belfast

Date decision recorded in register and issued to parties: