Neutral Citation No [2012] NICA 21	Ref:     	MOR8548	
			
Judgment: approved by the Court for handing down	Delivered:	27/06/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_______

IN THE MATTER OF AN APPLICATION BY JAMES ROBERT PEIFER
FOR AN ORDER COMPELLING THE INDUSTRIAL TRIBUNAL TO STATE A CASE FOR THE OPINION OF THE COURT OF APPEAL IN NORTHERN IRELAND IN ACCORDANCE WITH THE PROVISIONS OF ORDER 62 RULE 4 OF THE
RULES OF THE SUPREME COURT (NORTHERN IRELAND) 1980
_______

BETWEEN:

JAMES ROBERT PEIFER
Applicant;
-and-

CASTLEDERG HIGH SCHOOL, LIMAVADY HIGH SCHOOL, ST PATRICK’S AND ST BRIGID’S COLLEGE, CLAUDY
AND
WESTERN EDUCATION AND LIBRARY BOARD
Respondents.
_______

Before: Morgan LCJ, Higgins LJ and Sir John Sheil
________
MORGAN LCJ
[1] 	This is the fourth occasion on which the appellant has brought proceedings before this court arising out of claims for sex discrimination as a result of his applications for employment as a classroom assistant. We set out the history of the litigation until January 2011 in our latest decision given on 12 October 2011 and repeat it here for ease of reference at paragraphs two to eight.

[2]	On 18 August 2005 the appellant presented a complaint to the Office of the Industrial and Fair Employment Tribunal that he had been discriminated against in recruitment for the post of special needs classroom assistant by three Education and Library Boards and 10 schools to whom he had made application for some 35 posts. Article 8, contained in Part III, of the Sex Discrimination (Northern Ireland) Order 1976 (the 1976 Order) makes such discrimination unlawful and provides the basis for these claims.  All of the applications were made during 2005 and the letters advising him that he had been unsuccessful were received between 20 May 2005 and 17 August 2005.  His claim to the industrial tribunal alleges that the letters of rejection constituted the start of his claim.  He contended that he probably should have been appointed on every occasion but considered that he had been discriminated against because he had the impression that only females were allowed to take jobs as classroom assistants.  His claim form indicates that the respondents are guilty of direct discrimination but he suspects that there is probably also indirect discrimination.  

[3]	The appellant complained in particular that the schools, Education and Library Boards and the tribunals before which he has presented his claim were engaged in a conspiracy to prevent him making his claim on indirect discrimination.  It appears to be common case that approximately 98% of those employed within the state education system as classroom assistants are female.  Criteria for the appointment of classroom assistants had been considered by the Joint Negotiating Council (JNC) which consists of representatives of the Education and Library Boards in Northern Ireland and trade unions.  JNC Circular 34 advises that the first criterion is that classroom assistants should be required to hold a recognised qualification.  Such a qualification can be obtained through a period of service as a classroom assistant and among the qualifications recognised are a number in relation to early years schooling.  In relation to the posts with which this appeal is concerned the second criterion that was applied was the requirement for 12 months experience of work with special needs children as a classroom assistant.  The applicant has developed his argument to contend that these criteria together with other aspects of the appointment process demonstrate a mind-set which is designed to secure the appointment of females to these posts.  

[4]	The industrial tribunal decided to deal with these cases by managing each claim separately in relation to each school. The tribunal decided to deal with the claims affecting the Western Education and Library Board first.  The first claims, therefore, related to the failure of the applicant to obtain appointments as a classroom assistant at Castlederg High School.  That claim was dismissed by the tribunal on 28 March 2008.  The appellant applied to the Court of Appeal to require the tribunal to state a case.  One of the issues in that case concerned the fact that the appellant had not signed his application to the school for the post.  The school decided that it should not further consider his application and he was not, therefore, assessed for the post.  The respondent suggested that this approach was consistent with the approach that they had taken in a previous competition in 2002.  The appellant sought to persuade the tribunal that in that case the respondent had assessed the candidate.  The tribunal rejected that argument and the Court of Appeal took the view that it was a conclusion that the tribunal was entitled to reach on the evidence.  It is a continuing theme of the appellant’s representations to this court and to the tribunal hearing his subsequent cases that he is grossly dissatisfied with that outcome.  
[5]	The principal argument advanced by the appellant in his application for a case stated in respect of the first tribunal decision related to his claim for indirect discrimination.  He contended that the two criteria requiring at least a recognised qualification and 12 months experience as a classroom assistant were clearly to the detriment of a considerably larger proportion of men than women.  He further submitted that the requirement within Article 3(2)(b) of the 1976 Order that he had to show that the criteria had operated to his detriment was contrary to European law and in particular to the terms of Directive 2002/73/EC which did not require a detriment or disadvantage to be established.  The Court of Appeal rejected that submission and concluded that there was no question of law in respect of which the tribunal would have had jurisdiction that ought to be considered by that court.  The applicant subsequently sought leave to appeal to the House of Lords in respect of that decision and leave was refused by the House of Lords on 9 March 2009.

[6]	In respect of the second case against Limavady High School and the Western Education and Library Board 5 requisitions to state a case were lodged between 28 January 2009 and 29 April 2009 arising from Case Management Discussions.  These applications were refused by the Court of Appeal on 2 June 2009 and leave to appeal in respect of them was refused by the Supreme Court on 9 June 2010.  In large measure these applications retraced ground in relation to the question of indirect discrimination which had been the subject of the considered judgment of the Court of Appeal in the first case.

[7]	The third appeal was concerned with 5 further requisitions to state a case which were lodged on 7 August 2009, 25 August 2009, 17 September 2009, 7 October 2009 and 29 October 2010 all arising out of Case Management Discussions in preparation for the hearing of the Limavady case.  In his application lodged on 7 August 2009 the questions raised by the appellant arose from his contention that he has been the victim of indirect sex discrimination.  He raised an issue as to whether domestic law complied with Directive 2002/73/EC and whether the case should be referred to the European Court of Justice.  In his requisition lodged on 25 August 2009 he again returned to the question of indirect discrimination but in particular raised questions as to the adequacy of discovery by the respondent.  This related in particular to classroom assistants who had been appointed on a temporary basis without apparently any open competition.  The next requisition is dated 1 October 2009.  The appellant again returns to the question of his entitlement to pursue an indirect discrimination case and in particular highlights what he claims to be the practice of allowing females to be selected without verifying their qualifications.  A further requisition was lodged dated 7 October 2009 in which the appellant in particular claimed that the chairman dealing with his cases was biased because he had been a member of the General Teaching Council for Northern Ireland between 2002 and 2007.  The Council is the independent professional body for teachers in Northern Ireland.  It is dedicated to enhancing the status of teaching and promoting the highest standards of professional conduct and practice.  Those wishing to teach in a grant aided school in Northern Ireland must be registered with the Council.  There are 33 members of the Council and the chairman was appointed as one of four appointments by the Department of Education.  He resigned from the Council in 2007 when he was appointed a chairman of Industrial Tribunals.  The last requisition in connection with the Limavady appeal was dated 29 October 2010.  It repeated much of what had been included in previous requisitions and made the point that by restricting discovery in relation to indirect sex discrimination the Tribunal chairman offended the requirements of Rule 17 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 which prohibit the determination of a person’s civil rights or obligations by way of case management discussion.  In all the circumstances the applicant sought to prevent the full hearing of his second case proceeding on 10 January 2011.  

[8]	Since all of the applications to state a case arose from Case Management Discussions we declined to state a case on the basis that all of these issues could be revisited in the full hearing of the Limavady case. We rejected the allegation of bias for the reasons set out in our judgment dated 12 October 2011. The appellant sought leave to appeal to the Supreme Court in respect of our decision and this was refused on 23 February 2012.

[9] 	The hearing of the Limavady case took place on 10 January 2011. The appellant indicated at the outset that he did not intend to participate in the proceedings. He sought an adjournment. He explained that he was processing an appeal of our decision in December 2010 that the case should proceed and was also preparing appeals to the ECHR and the European Commission. He took the view that there had been inadequate discovery and that the Department of Education and the JNC should be joined as respondents as they had developed and promulgated the criteria which he sought to challenge. The adjournment application was opposed on the basis that the respondent’s witnesses had come to the hearing and the case was more than 5 years old. The Tribunal decided that the hearing should proceed. It noted that the burden of proving facts from which sex discrimination could be established lay on the appellant and that no such facts had been established. There was no basis for a referral to the ECJ and the application was dismissed.

[10] 	The Tribunal next set about dealing with the claims arising from applications to St Patrick’s and St Brigid’s College Claudy (the Claudy case). Between 23 March 2011 and 6 December 2011 the appellant lodged five appeals in relation to Case Management Discussions concerning these applications and one appeal in relation to the decision of a Pre Hearing Review held on 2 September 2011. The power to conduct Case Management Discussions (CMDs) is contained in paragraph 17 of Schedule 1 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the 2005 Regulations). 

“17. - (1) Case management discussions are interim hearings and may deal with matters of procedure and management of the proceedings and they may be held in private. Case management discussions shall be conducted by a chairman.

(2) Any determination of a person's civil rights or obligations shall not be dealt with in a case management discussion.”

It is evident, therefore, that the outcome of CMDs cannot be decisive for the rights of the parties in the litigation which must be determined in the final hearing. We have emphasised to the appellant that there is, therefore, no purpose to be served by appealing such decisions and we again encourage him to recognise that such appeals serve no purpose where the parties will have to litigate the relevant issues in any event.

[11] 	Pre Hearing Reviews are provided for in paragraph 18 of Schedule 1 to the 2005 Rules.

“18. - (1) Pre-hearing reviews are interim hearings and shall be conducted by a chairman unless the circumstances in paragraph (3) are applicable. Subject to rule 16, they shall take place in public.

(2) At a pre-hearing review the chairman may carry out a preliminary consideration of the proceedings and he may-

(a) determine any interim or preliminary matter relating to the proceedings…”

The Pre Hearing Review in the Claudy case was held on 2 September 2011 and determined whether or not that case should proceed as a case of indirect discrimination as well as direct discrimination. The applicant was not shortlisted for these posts. The essential criteria were qualified status and evidence of working with special needs children. The appellant was a qualified secondary school mathematics teacher and was judged to meet these criteria. The desirable criterion was experience of working with children who had emotional and behavioural difficulties. The appellant’s case was that he also satisfied that criterion but was not shortlisted. The Tribunal concluded in those circumstances that on the appellant’s case any detriment to him was caused by direct discrimination.

[12]	The Claudy case came on for hearing on 17 October 2011. The chairman records that the appellant gave disjointed evidence consisting of references to other claims, speculation and legal submissions. He was directed to deal with evidence in relation to his discrimination claim. He stated that he had concentrated on his various appeals and was not in a position to put a reasoned argument in respect of his current claim. The Tribunal rose to give the appellant some time to prepare himself but when it returned the appellant was still not in a position to proceed. In light of the fact that the case was now more than six years old the Tribunal considered that it should not further delay the case and the appellant indicated that there was no point in continuing. The case was dismissed.

The Present Appeals

[13]  	A search of the outstanding appeals generated by the appellant established that  there remained outstanding his application dated 21 June 2007 to state a case in respect of the CMD report in the Castlederg case dated 8 June 2007 which recorded the appellant’s failure to identify any provision, criterion or practice that was allegedly indirectly discriminatory. The proposed questions in this application included examination of whether there was evidence of indirect discrimination and whether the case should be referred to the ECJ. These issues are no longer live as a result of the final decision in this case and the refusal of a case stated in respect of that decision. Accordingly we decline to state any case on this application.

[14] 	The appellant appeals against the dismissal of the claim in respect of the Limavady case which was heard on 10 January 2011. The circumstances in which that case was dealt with are set out at paragraph 9 above. A tribunal is required by Regulation 3 of the 2005 Regulations to deal with cases justly. That includes so far as practicable ensuring that the parties are on an equal footing, dealing with the case in a manner proportionate to its complexity, ensuring that it is dealt with expeditiously and fairly and saving expense. The date for the hearing had been set by the tribunal on 21 September 2010. That gave the appellant more than 3 months to prepare. The appellant was not proposing any alternative date for hearing. The application to adjourn had come on the morning of the hearing. The case was more than five years old. The appellant had indicated his intention to persist with his indirect discrimination case despite the views expressed by the Court of Appeal at paragraph 15 of his Castlederg case that such an approach was misconceived. That is an issue to which we shall return. The decision to adjourn is a discretionary decision and the refusal of the adjournment in these circumstances was well within the area of discretionary judgment available to the tribunal even though the effect was to dispose of the appellant’s case.

[15] 	The appellant appeals five CMDs in relation to his third case as well as a Pre Hearing Review decision dated 2 September 2011 and the final decision given on 17 October 2011 which came about in the circumstances set out at paragraph 12 above. We have already set out the status of CMDs. Although they deal with issues such as discovery, identification of issues, witness availability and listing dates they are not decisive of any rights. The final hearing is the determination of those rights. Until that determination the tribunal may amend its view about all of these matters. In those circumstances we find it difficult to imagine that an appeal of a CMD could be consistent with the overriding objective set out in Rule 3 of the 2005 Rules. We see no reasons why such hearings should be the subject of appeal in this case and we dismiss those appeals on that basis.

[16] 	Pre Hearing Reviews are different. At the hearing on 2 September 2011 the tribunal chairman determined that the case made by the appellant did not include a claim for indirect discrimination. The appellant’s case was that he satisfied the essential criteria as published. There was no disagreement about this. The appellant further contended that he satisfied the desirable criterion of experience working with children with emotional and behavioural difficulties. It appeared before us that he claimed that he did so because his terms and conditions as a secondary school teacher would have required him to work with such children. It does not appear that he specifically referred to such experience in his application form.

[17] 	At the time that the appellant presented these complaints the jurisdiction to do so was contained in Article 63(1) of the Sex Discrimination (Northern Ireland) Order 1976 as amended (the 1976 Order) which provided:

“63-(1)	  A complaint by any person (‘the complainant’) that another person (“the respondent”) 

(a)	has committed an act of discrimination … against the complainant which is unlawful by virtue of Part III … may be presented to an Industrial Tribunal.”

Part III of the 1976 Order dealt with discrimination in employment. It must follow, therefore, that the only complaints with which the tribunals in these cases were concerned were those alleged acts of discrimination committed on or before 18 August 2005, which was the date on which the applications were lodged.

[18] 	The definition of discrimination in employment at the relevant time was contained in Article 3 of the 1976 Order.

“3 - (2)	  In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –

(a)	on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

(b)	he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –

(i)	which is such that it would be to the detriment of a considerably larger proportion of women than men,

(ii)	which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii)	which is to her detriment.

(3)	Paragraph (2) applies to –

(a)	Any provision of Part III …”

It is clear from the definition that for indirect discrimination under Article 3(2)(b) the application of the provision, criterion or practice must cause a detriment to the claimant. 

[19] 	The appellant disputes this. He relies on Directive 2002/73/EC which defines indirect discrimination as a situation where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The appellant argues, therefore, that although he satisfied the criteria that were used for the posts for which he applied the fact that less men than women would be likely to satisfy those criteria was sufficient. Since those criteria were applied to him he submits that he is a victim of indirect discrimination without having to demonstrate any particular disadvantage suffered by him.

[20] 	The date for transposition of Directive 2002/73/EC was 5 October 2005. On 1 October 2005 the 1976 Order was amended to replace the definition of indirect discrimination by substituting the following for Article 3(2)(b):

“(b)	he applies to her a provision criterion or practice which he applies or would apply equally to a man, but – 

(i)	which puts or would put women at a particular disadvantage when compared with men,

(ii) 	which puts her at that disadvantage, and

(iii)	which he cannot show to be a proportionate   means of achieving a legitimate aim.”

[21] 	That transposition became the subject of a Reasoned Opinion from the European Commission dated 23 November 2009. The Commission concluded that the requirement in the transposition for actual damage did not reflect the intent of the Directive that hypothetical damage should also be covered. The Commission relied on the decision in the Feryn Case C-54/07 for the conclusion that where candidates were dissuaded from the labour market they were potential victims covered by the Directive. The Commission noted that a requirement that an alleged victim of indirect discrimination was put or would be put at a disadvantage would normally bring UK law into line with the Directive. On foot of this determination the Sex Discrimination (Amendment) Regulations (Northern Ireland) 2011 were made on 31 March 2011 and amended Article 3(2)(b)(ii) of the 1976 Order by inserting the words “or would put” after the word “puts”.

[22] 	The effect of the 2011 amendment of the 1976 Order is to limit a claim for compensation under Part III of the 1976 Order to those who have been or would be disadvantaged by the application of the provision, criterion or practice. The appellant submits that in light of his submission set out at paragraph 19 above this transposition does not meet the requirements of the Directive. We do not agree. We consider that in the context of a claim for compensation the claimant must demonstrate that he has been or would have been put at a disadvantage. We consider that paragraph 24 of the Reasoned Opinion plainly supports this interpretation. For that reason we consider that the appellant’s reliance on Mangold v Helm Case-144/04 [2006] IRLR 143 is of no assistance to him. Our conclusion is also consistent with the decision of the EAT in Villalba v Merrill Lynch & Co [2006] IRLR 437.

[23] 	It follows, therefore, that we reject the appellant’s submission that he can maintain an indirect discrimination claim based on Directive 2002/73/EC in circumstances where he is not contending that the provision, criterion or practice is one which puts or would put him at a disadvantage since his case is that he satisfies each criterion. We, therefore, reject the appeal in relation to the Pre Hearing Review on 2 September 2011.

[24] 	In considering the appeal from the final decision in the Claudy case we have taken into account the issues raised in the CMDs which preceded it. The first complaint was concerned with the timing of the hearing. The first CMD was held on 9 March and proposed a hearing date which was less than 6 months later. It appears that this may have been extended because by 23 June 2011 the appellant was complaining about a hearing date on 17 October for one week. The case was at that stage more than 6 years old. There was an urgent need to deal with it. This was a discretionary decision for the tribunal and in our view the decision to give clear notice of an early hearing date was entirely appropriate taking into account the issues which we will address in the following paragraphs.

[25] 	The appellant maintained his attack in relation to indirect discrimination in the CMDs as a result of which the Pre Hearing Review was held. We have already given our view on that. The appellant sought to have the JNC and Department joined as respondents because he asserted that they had been responsible for the indirectly discriminatory criteria. For the reasons given we consider that the appellant’s reliance on the indirect discrimination case was misplaced. He complained that only the Equality Commission could maintain a complaint in relation to discriminatory practices under Part V of the 1976 Order. No such claim was before the tribunal. He maintained that discovery was inadequate. He wished to investigate the previous award of classroom assistant positions to unqualified people some years beforehand. Given that this was a direct discrimination case it was for the tribunal to ensure that the extent of discovery was proportionate and relevant to the case which the tribunal had to determine. We do not consider that the tribunal erred in law in its approach to this discovery. The earlier appointments were highly unlikely to be of assistance in a case of direct discrimination.

[26] 	The appellant maintained that there was bias and nepotism in appointments at this school. He was provided with documentation in application forms which he said supported this. This was a case which he was perfectly entitled to explore at the hearing if he had evidence to support it. We do not accept that he has shown any error of law in the provision of discovery on this issue.

[27] 	The tribunal ruled on the indirect discrimination case. The appellant knew that the hearing date had been fixed since at least 23 June 2011. We do not accept that the tribunal could have done more to assist the appellant at the final hearing of this case. Indeed the appellant does not argue that there is anything further the tribunal could have done at that stage. He concluded that the timescale was unfair and he did not adhere to it. He had determined in advance, as he has with each decision that he gets, to appeal it.

[28] 	We have taken into account the CMDs in our examination of the arguments raised on the final hearing. We do not accept that the appellant has shown any merit in any of these submissions and we reject his appeals on each of the Claudy cases.

[29] 	The final issue before us was the application for leave to appeal to the Supreme Court in respect of our decision on 4 October 2011 not to interfere with the hearing date of 17 October 2011 for the final hearing of the Claudy case. We have had extensive written and oral submissions from the appellant on the timing issue. We accept that there is jurisdiction to interfere with such a decision but in fixing dates for hearing a wide area of discretionary judgment must be allowed to the tribunal.  The appellant was given ample notice that this long outstanding case was to be heard. We can see no reason to take the exceptional decision to grant leave to appeal. The appellant can renew his application if he chooses before the Supreme Court.

Future litigation

[30] 	Despite our encouragement the appellant has not heeded our advice to concentrate his complaints on final or binding decisions. We have now dismissed his appeals and refused him leave to appeal in respect of an earlier decision. This litigation is now taking on an abusive character. In future if the appellant lodges any further appeal arising from his claim to the industrial tribunal he must submit proper grounds of appeal stated concisely which should identify precisely what new point of law is involved which has not already been decided in his earlier appeals.  The grounds of his appeal should be accompanied by any relevant written ruling. The court will then decide whether the appeal should proceed further. The appellant will have an opportunity to make oral submissions before any decision is made to dismiss any appeal.