FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   00291/00 FET
01276/00

CLAIMANT:		Noelle Boyle

RESPONDENT:		MSF

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claimant’s claim does not disclose any cause of action against the respondent in respect of the complaint of unlawful discrimination on grounds of religious belief, political opinion, sex or race or action short of dismissal on the grounds of taking part in trade union activities.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Kinney

Appearances:
The claimant was represented by Mr J Bowers, of EIRS.
The respondent was represented by Mr G Daly, Solicitor, of Francis Hanna & Company, Solicitors.

Issues

1.	The Tribunal was asked to consider and determine the following issues:-

(1)	Whether the claimant’s claim form discloses any cause of action against the respondent, MSF, in respect of the complaints set out in the Record of Proceedings of a Case Management Discussion held on 17 May 2007.

(2)	If so, whether the claimant’s complaints of unlawful discrimination and unlawful discrimination by way of victimisation on the grounds of religious belief, political opinion, sex and race have been presented within the statutory time limit.

(3)	If not, whether it would be just and equitable for the Tribunal to consider those claims in all the circumstances of the case.

(4)	Whether the claimant’s complaint of action short of dismissal on grounds of taking part in trade union activities was presented within the statutory time limit.

(5)	If not, whether it was presented within such further period as the Tribunal considers reasonable if satisfied that it had not been reasonably practicable for the complaint to have been presented within the three month time limit.

Sources of evidence

2.	The Tribunal heard evidence from the claimant, and was referred to documents from a bundle handed in by the claimant.  The Tribunal was also assisted by submissions made on behalf of the claimant and the respondent.

The Tribunal’s findings

3.	The claimant lodged a claim with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 21 June 2000.  The respondents were named as Short Brothers PLC as the first-named respondent and MSF as the second-named respondent.  The claim forms for the FET case and IT case are in substantially the same terms.  In each case at Paragraph 9 on the FET form and Paragraph 13 of the IT form, the claimant was asked to describe her complaints.  The claimant has inserted the same details on both forms.  These comprise of some six pages of details broken down into paragraphs.  

4.	The claimant in both application forms at Paragraph ‘l’ claims as follows:-

“I believe I am being subjected to action short of dismissal on grounds of being part in trade union activities.  I also believe I am being discriminated against and victimised on grounds of sex, race, religious belief and/or political opinion.”

5.	The response of the respondent (then the second-named respondent) was lodged with the Office of Industrial Tribunals and the Fair Employment Tribunal on 4 August 2000.  The response in both cases is again worded similarly and at Paragraph 7 of the Industrial Tribunal response and Paragraph 4 of the Fair Employment Tribunal response, the respondent states:-

“The applicant is employed by the first-named respondent, Messrs Short Brothers PLC.  She is a member of this respondents trade union.  This respondent denies that it unlawfully discriminated against the applicant on the grounds of her sex and race.  Her application does not disclose any allegation of discrimination against this respondent.”

6.	The respondent issued a Notice for Further and Better Particulars to the claimant dated 27 October 2000 and this was the subject of an Order of the Tribunal made on 24 October 2002.  

7.	The claimant responded by way of letter from her then solicitors dated 27 January 2003.  That letter sets out the questions asked and the replies to same.  Question 1 and the answer are stated on the letter as follows:-

“No 1	State precisely each and every act of discrimination alleged to have been perpetrated by the second-named respondent arising out of the applicant’s application.

The applicant commenced employment with the            First-Named Respondent on 18 November 1991 as a Design Engineer.  The applicant was elected as an MSF Staff Representative in or around 1993 and held the position of Branch Secretary since 1999.  

The applicant alleges that she has been subjected to ongoing discrimination on the grounds of her religious belief and/or political opinion, race, gender and also victimised by the First-Named Respondent.  Details of the applicant’s allegations regarding this matter are already set out in detail in her Originating Application culminating in the circulation of the ‘contract renewal’ document.  In particular the applicant believes that these allegations show that the first-named respondent has been subjecting her to a detriment by monitoring her movements within the company and undermining her position as an MSF Staff Representative and employee.  

The applicant believes that the second-named respondent has acted, aided, invited, directed, procured or induced the First-Named Respondent in this regard and would refer to her allegations as detailed in Paragraphs 9(e) – (h) and (n) of her originating application.”

8.	The claimant’s claims against the first-named respondent were dismissed on 14 July 2004 following withdrawal of those claims by the claimant after settlement between the claimant and the first-named respondent.

The claimant’s submissions

9.	The claimant contends that the respondent unlawfully discriminated against her by aiding and abetting the alleged unlawful acts of the first-named respondent.  The claimant cited by way of example the provisions of Article 33 of the Race Relations (Northern Ireland) Order 1997 and Article 35 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

10.	In support of this claim the claimant pointed to documents and correspondence contained in the bundle she had presented.  The documents largely consisted of communications made between Shorts and the respondent.  The core of the claimant’s case was that these documents showed the existence of a relationship between Shorts and the respondent which went beyond the normal relationship of union and employer.  It demonstrated a level of co-operation and corroboration between the employer and the union and some of the documents also demonstrated a clear personal relationship between individuals in Shorts and in the respondent’s organisation.

11.	The claimant drew particular attention to a meeting convened between the respondent and named individuals on 16 November 1999.  These form the basis of Paragraphs 9 ‘e’ to ‘h’ of the claimant’s claim form and the claimant contended that the sequence of events described in these paragraphs was quite unusual and by implication a number of questions arose regarding the behaviour of the respondent.  

12.	The claimant confirmed that the allegations that she was now making against the second-named respondent were not made in precise language in either the claim form or the replies for further and better particulars but that anyone familiar with the workings of a union would have understood the abnormal nature of the relationship between employer and union in this case.  

13.	The claimant accepted that there was nothing in the individual paragraphs of her claim form, read in isolation, that made out the case that she was now making to the Tribunal but she asserted that the claim form must be read as a whole and also be informed by the letter of 27 January 2003 responding to the Notice for Further and Better Particulars and by the documents now referred to the Tribunal.  

14.	The claimant alleged that the assistance provided by the respondent to the employer which constituted the aiding and abetting of the employer’s unlawful acts was the respondent’s failure to protect her.  The actions of the employer in treating a trade union representative differently should have been pursued by the union.  In this case it was not.  The union gave a clear path to the employer to behave in such a manner.  The claimant did not allege any specific act on the part of the respondent.  

15.	The claimant further contended that the originating claim in this case was made in June 2000 at a time when less detail was expected in an originating claim form.  The form should not be judged or assessed on the Rules of Procedures which have been adopted after that date.  

16.	The claimant contended that the originating claim was in fact quite detailed and if not sufficient there were various ways for the respondents to establish more information through interlocutory applications.  The claimant contended that the nature of her case was identifiable from the claim form and the replies to particulars on 27 January 2003.

The respondent’s submissions

17.	The respondent submitted that the case being made out by the claimant at hearing had not been made out before today.  

18.	It was not for the respondent to make the claimant’s case and the respondent had been consistent from the outset in saying that the claimant had disclosed no case against the respondent.  

19.	The only documents in the claim were the originating claims, responses and the subsequent replies to further particulars.  The claim form is very detailed in the actions alleged of Shorts by the claimant and there are a number of instances of alleged discriminatory acts but nowhere is it set out that the respondent union was aiding and abetting a campaign of discrimination by the employers.

20.	The replies to further and better particulars specifically confirm that the case against this respondent is confined to the details of Paragraph 9(e) to (h) and (n).  There is no cause of action against the respondent disclosed in those paragraphs.

The Tribunal’s decision

21.	In reaching its decision the Tribunal gave consideration to the papers which were before it and to the respective oral submissions along with the evidence of the claimant.  

22.	It is clear from the evidence given by the claimant that the nature of the claim the claimant had intended to make was one of this respondent aiding the claimant’s employer to do unlawful acts of discrimination.  The claimant today has made the case that the aid was provided by the respondent in its failure to adequately protect the claimant from the actions of the employer.

23.	The Tribunal finds that Paragraphs 9(e) – (h) and (n) do not disclose any express claim against this respondent.  The claimant has asked that the claim form be looked at as a whole and specifically referred to Paragraph 9(d) and Paragraph 9(m).  Even when doing so the Tribunal cannot see the case that the claimant is now propounding.  Nor can the Tribunal infer the case now put forward by the claimant.  It may well be that the claimant intended to make detailed claims of aiding an unlawful act against this respondent but the facts are quite inadequate by themselves to constitute the raising of such a claim.  The tribunal also notes that the claimant was legally advised by a firm of solicitors with significant employment law experience and a very detailed pleading is supplied explicitly setting out the claims being made but which fails to specifically allege any facts against this respondent.

24.	The Tribunal determines therefore that the case which the claimant had intended to make, as borne out by her evidence in submissions today cannot be construed by a straightforward and common sense reading of the originating claim or the replies to further and better particulars.  The evidence brought to this hearing of the nature of the relationship between the employer and the respondent union are new factual allegations not contained within the claim.  The Tribunal therefore concludes that the answer to the first issue is that the claimant’s claim form does not disclose any cause of action against the respondent union in respect of the complaint set out.  This being the case, there is no need to further consider the time issues.

Chairman:

Date and place of hearing:	19 July 2007, Belfast

Date decision recorded in register and issued to parties: