McGuigan v Police Service of Northern Ireland & Ors [2004] NIIT 9521_03 (18 October 2004)

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URL: http://www.bailii.org/nie/cases/NIIT/2004/9521_03.html
Cite as: [2004] NIIT 9521_3, [2004] NIIT 9521_03

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 9521/03

    APPLICANT: Joanne McGuigan

    RESPONDENTS: 1. Chief Constable of the Police Service of Northern Ireland

    2. Mr Meaklim

    3. Joe Stewart

    DECISION ON A PRELIMINARY ISSUE

    The unanimous decision of the tribunal is that the applicant's claim of unfair dismissal is dismissed with costs of £250 awarded to the respondents. The claim of sex discrimination is not dismissed.

    APPEARANCES:

    APPLICANT: Ms E McManus, Solicitor of Bogue & McNulty, Solicitors.

    RESPONDENTS: Mr P Lewis, Barrister-at-Law, instructed by the

    Crown Solicitor's Office.

  1. The parties were notified on 4 August 2004 that there would be a preliminary hearing on the issue of "whether the tribunal has jurisdiction to hear the applicant's complaint of unfair dismissal having regard to the provisions of Article 243 of the Employment Rights (Northern Ireland) Order 1996". It was common case that the applicant was a serving police officer and she had presented an originating application on 4 December 2003 claiming unfair dismissal and sex discrimination. Her solicitors at that time were J McNally & Company. On Friday 15 October 2004, late in the afternoon, the applicant's solicitors asked for an adjournment of the preliminary hearing. This was not granted and Ms McManus stated that they still wished to have an adjournment to consider the applicant's position. She stated that it had taken a considerable length of time to have the applicant's file transferred from J McNally Solicitors to themselves. Whilst they received some of the papers in August 2004 they only received the whole file in October 2004. They also had the wrong address for the applicant but had spoken briefly to her last week.

  2. Counsel for the respondents stated that his instructing solicitors had written letters to James McNally Solicitors, Bogue & McNulty Solicitors and the applicant herself, putting them all on notice that if this application was to proceed they would be applying for costs. It had been pointed out clearly to the applicant's solicitors in January 2004 that there was a live jurisdictional issue in relation to this claim because the applicant was a serving police officer and as a result could not claim unfair dismissal under the provisions of Article 243 of the Employment Rights (Northern Ireland) 1996. Indeed the applicant's solicitor at today's hearing conceded that the tribunal did not have jurisdiction to consider unfair dismissal for a serving police officer. She also stated that they may wish to amend the originating application but was not in a position to say what that amendment was going to be.

  3. The tribunal considered the submissions carefully and the originating application and Notice of Appearance. It is obvious to the tribunal and indeed to both parties' representatives who appeared in the tribunal today, the tribunal does not have jurisdiction to hear a claim in relation to the dismissal of a serving police officer. Whilst the applicant's file may have been transferred from one solicitor to another, both solicitors were in a position to very quickly ascertain that the tribunal would not have jurisdiction to hear a claim of unfair dismissal. This was reinforced by the respondents' Notice of Appearance and the correspondence to both solicitors and the applicant herself and yet no steps were taken to withdraw the unfair dismissal claim and avoid the unnecessary expense of a preliminary hearing in Strabane.

  4. The tribunal has considered the Industrial Tribunals (Constitution and Rules of Procedure) Northern Ireland 2004 in relation to this matter. The respondents applied for costs of today's hearing. Counsel was not in a position to give a specified sum to the tribunal. However, we have considered the conduct of the applicant and consider that it falls within the provisions of Rule 14(1) of Schedule 1 of the 2004 Rules of Procedure in that the conduct of the applicant or her representative is unreasonable. The tribunal has decided that the sum of £250 is to be paid by the applicant to the respondents by way of costs. The applicant is to provide within fourteen days from the date of this decision a notice of any proposed amendment to the originating application already lodged. This notice is to be served on the respondents.

    5. _____________________________________

    M P PRICE

    Vice President:

    Date and place of hearing: 18 October 2004, Strabane

    Date decision recorded in register and issued to parties:

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