IN HER MAJESTY'S COURT OF APPEAL IN
NORTHERN IRELAND
ARTICLE 38(1)(b) FAIR EMPLOYMENT AND TREATMENT (NORTHERN IRELAND) ORDER 1998
ARTICLE 22 OF THE INDUSTRIAL TRIBUNALS
(NORTHERN IRELAND) ORDER 1996
ORDER 61 OF THE RULE OF THE SUPREME COURT (NORTHERN IRELAND) 1980
CASE REF: 00414/96FET
00052/97FET
03517/96UD
03518/96TUA
APPELLANT: Michael Maguire
RESPONDENTS: 1. Northern Ireland Railways Company Limited
2. Brian Delaney
3. Alan Mercer
4. Ted Hesketh
5. Members of the Board of NIR
CASE STATED BY THE FAIR EMPLOYMENT TRIBUNAL IN ACCORDANCE WITH ARTICLE 61 OF THE RULES OF THE SUPREME COURT
- By a decision issued to the parties on 1 May 2002 the tribunal ordered the appellant to pay to the respondents the sum of £10,600 towards part of the costs incurred by the respondents in defending case reference numbers 00414/96FET, 00052/97FET and 03517/96UD in so far as those complaints related to alleged discrimination on grounds of religious belief and alleged unfair dismissal by way of unfair selection for redundancy. (Decision attached hereto and marked 'A').
- This award of costs arose from hearings which took place over the period 19-23, 26-29 June 2000, 20 September 2000, 12-14 March 2001 and 9-11 April 2001 and arose from the appellant's complaints that he had been unlawfully discriminated against and victimised on the grounds of his religious belief and unfairly dismissed and had action short of dismissal taken against him because of his trade union activities all of which related to his dismissal in September 1996 and the events surrounding that dismissal.
- After the first ten days of the substantive hearing which were all taken up by evidence for the appellant, the tribunal took the exceptional step of finding that the appellant had not established a prima facie case in relation to some aspects of his complaints. (Decision issued on 26 September 2000 attached hereto and marked 'B').
- The tribunal then heard the outstanding matters for a further six days in March and April 2001. The tribunal dismissed all the appellant's remaining complaints having unanimously found that:-
(i) the appellant was not unlawfully discriminated against on the grounds of religious belief by the respondents by way of victimisation by the imposition of garden leave upon him on 25 June 1996;
(ii) the appellant was not subjected to a detriment by the respondents in the imposition of garden leave upon him for the purpose of preventing or deterring him from taking part in the activities of an independent union or penalising him for doing so;
(iii) the appellant was not unfairly dismissed by the first named respondent.
(Decision issued on 19 June 2001 attached hereto and marked 'C').
- By letter dated 29 June 2001 the appellant sought a review of the Tribunal's decision. By a decision issued on 19 July 2001 the Chairman refused the application for a review on the grounds that it had no reasonable prospect of success (attached hereto and marked 'D').
- By letter dated 5 July 2001 the respondents' solicitors requested that the Tribunal reconvene to consider the outstanding issue of costs which counsel had indicated would be sought at the end of the previous hearing. That hearing for costs took place on 17 October 2001. At that hearing the appellant was represented by J M Tunney of J M Tunney & Co, Solicitors and the respondents continued to be represented by Ms J Simpson, Barrister-at-Law, instructed by Macauley & Ritchie Solicitors. Following that hearing the tribunal asked the respondent to provide figures showing the type of costs being sought against the appellant. By letter dated 5 November 2001 the respondents' solicitors provided copies of the bills sent to the respondents which indicated that the respondents' costs in relation to the matters before this tribunal amounted to £42,520 (attached hereto and marked 'E'). This letter and the bills of costs were copied to the appellant for comment.
- By letter dated 6 December 2001 (attached hereto and marked 'F') the appellant commented on the bills of cost supplied.
- By letter dated 16 December 2001 (attached hereto and marked 'G') the appellant commented further on the application for costs.
- By letter dated 3 January 2002 (attached hereto and marked 'H') the respondent's solicitor commented on the appellant's letter of 16 December 2001.
- By letter dated 9 January 2002 (attached hereto and marked 'I') the respondents' solicitor commented further on the appellant's letter of 6 December 2001.
- By the decision referred to in paragraph 1 above and issued to the parties on 1 May 2002 the Tribunal, having considered the submissions made at the hearing in relation to costs and the additional comments in writing received from both parties, ordered the appellant to pay the sum of £10,600 towards part of the costs incurred in defending these cases.
- By letter dated 13 May 2002 (attached hereto and marked 'J') the appellant sought a review of the Tribunal's decision on costs.
- In a decision dated 29 May 2002 (attached hereto and marked 'K') the Chairman refused the application for a review under Rule 10(3) of Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 1989 and Rule 11(5) of Schedule 1 of the Industrial Tribunals (Rules of Procedure) Regulations (Northern Ireland) Order 1996 on the grounds that it had no reasonable prospect of success.
- By notice dated 11 June 2002 (attached hereto and marked 'L') the appellant requested the Tribunal to state a case for the opinion of the Court of Appeal in Northern Ireland.
- The basis of the appellant's request for a case stated is set out in paragraph 7 of his notice dated 11 June 2002. The tribunal does not consider that this is an appropriate way to set out points of law for a case stated and has therefore adapted the appellant's questions to the questions posed at the end of this case.
- With regard to the matters set out in paragraph 7 of the appellant's requisition to state a case the Tribunal comment as follows:-
- .1 Para 7.1(a) – The tribunal would only consider arranging a pre-hearing assessment if it was clear on the face of the papers that a party had no reasonable prospect of success. The fact that pre-hearing assessments/reviews were not arranged in these cases is immaterial to the tribunal's ultimate decision to award costs against the appellant.
- .2 Para 7.1(b) – While the tribunal would accept that it can be good practice to name individuals as respondents as well as an actual employer it is not usual to find fellow employees named even in discrimination cases unless there are direct allegations against them such as harassment. In this case the tribunal formed the view over the extended period of the hearing that the appellant in keeping the individuals named as respondents was doing so for vindictive reasons.
- 3 Para 7.1(c) - Having concluded that there was not a prima facie case in relation to some of the complaints made by the appellant the tribunal was conscious of -
(a) the requirement on the respondent to show the purpose for which he acted or failed to act in the complaint of action short of dismissal on grounds related to trade union activities (Article 75(1) Employment Rights (NI) Order 1996);
(b) that it could not decide the unfair dismissal complaint without hearing the respondents' reasons for the appellant's dismissal (Article 130 Employment Rights (NI) Order 1996); and
(c) that there appeared to be a case to answer in relation to the imposition of garden leave.
However, the tribunal having heard the respondents' evidence in relation to these matters concluded that none of the appellant's complaints had been established.
- 4 Para 7.1(c)(i) and (ii) - The tribunal had originally consolidated and ordered to be heard together the cases given the case numbers set out above together with three additional complaints lodged by the appellant which related to positions which he had not obtained with the first respondent and events which had occurred prior to the termination of his employment. However at the outset of the initial hearing and with the agreement of all parties it was decided to deal solely with the events in May to September of 1996 relating to the appellant's dismissal and his complaint of action short of dismissal.
- 5 Para 7.1(c)(iii) - The tribunal accepts that all the case reference numbers decided at this hearing were linked either to the appellant's dismissal or the circumstances surrounding his dismissal. However, the matters relating to the action short of dismissal in relation to the trade union activities although presented by the appellant as part of his unfair dismissal complaint was a separate and different matter from the allegations of unfair dismissal and discrimination. In any event the tribunal would point out that it did not make an award of costs in the action short of dismissal complaint given case reference number 03518/96TUA.
- 6 Para 7.1(c)(iii) sic and (iv) - The tribunal for the reasons set out in its comments on paragraph 7.1(c) does not accept that the appellant was justified in pursuing a number of his complaints - the law required the tribunal to deal with the matter in the way it did and the tribunal because of the respondents' failure to be open with the appellant about the reasons for the imposition of garden leave did not award any costs in respect of this aspect of the appellant's complaints.
- 7 Para 7.1(c)(v) - The tribunal does not consider the chairman's recommendation to one of the respondents' witnesses that it was unnecessary to make a pejorative remark about the appellant to be relevant to the award of costs.
- 8 Para 7.1(c)(vi) - These were matters which the tribunal in coming to its original decision weighed in deciding whether to draw an inference of unlawful discrimination and which it declined to do for the reasons set out in that decision. It is not relevant to the matter of the award of costs which the appellant is seeking to appeal and appears to be an attempt to re-open the original decision that the appellant was not unlawfully discriminated against on the grounds of his religious belief.
- 9 Para 7.1(d) - It would have been entirely inappropriate and would have most probably led to allegations by the appellant of bias on the part of the tribunal had the tribunal warned the appellant about costs during the hearing. However the appellant was well aware from the warnings given to him by the respondents' counsel and solicitors both verbally and in writing both before and during the course of the hearing that if he persisted the respondents would seek costs against him. (Letters dated 4 March 1997 and 28 June 2000 attached hereto and marked 'M' and 'N').
- .10 Para 7.1(e) and 7.2(a) (b) and (c) – These paragraphs relate to the tribunal's method of calculating the amount of costs awarded. The tribunal would again comment that it did not find the appellant's pursuit of his complaints justified (see paras 16.3 and 16.6 above).
- .11 Para 7.2(b) – The tribunal refers to the reasoning set out in its decision on costs and the difference in the amount of costs sought to the amount ultimately awarded to show the basis on which it came to the conclusion which it did on the amount of costs awarded.
- .12 Para 7.2 (c) – The tribunal took all the oral and written submissions into account in making its decision on costs and did not consider a further hearing to be either required or appropriate. In relation to the comments that in awarding costs the tribunal had acted unfairly, unreasonably, excessively and oppressively penalised the appellant it is well established that while costs are not the norm in these tribunals it is not the case that a party can pursue what he is well aware are unjustified complaints over a protracted hearing and to expect to escape without penalty for so doing.
- .13 Para 7.3 is an attempt to re-open matters which occurred in the course of the substantive hearing and except as an allegation of general bias are not material to the tribunal's decision on costs. They are in any event covered by question 1 posed below. However, in the interest of fairness the tribunal would comment that the matter of the chairman's disclosure that she knew one of the respondents' witnesses was made at the outset of the hearing and the appellant was given the opportunity to object to her continuing to hear the case. He did not do so. It is therefore inappropriate to raise this matter at this stage particularly as at the end of the substantive hearing in April 2001 the appellant indicated that he would be happy for the Chairman and panel members to deal with his outstanding cases.
- .14 Para 7.3(b) – The tribunal made every allowance for the appellant because he was unrepresented as is evident by the length of time the hearing of these matters took. However, the appellant's request for an adjournment to allow him to call the witness O'Callaghan was refused because the appellant had ample time to arrange for the attendance of this witness and had failed to do so.
- .15 Para 7.3(c) – The flawed statistics referred to in the decision were produced by the appellant. They were not produced by the respondent. The respondent did produce statistics but the appellant produced his own statistics to countermand the respondents' statistics. The tribunal considered that the appellant's statistics did not compare like with like and for that reason the tribunal concluded that they were flawed.
- .16 Para 7.3(d) – The appellant was given the opportunity to elaborate on his perception of the term "garden leave" and did so at great length including referring to a newsheet about the respondents' Chairman. The tribunal having considered the appellant's evidence in this respect concluded that his alleged lack of understanding of the term "garden leave" was deliberate.
- .17 Para 7.3(e) – The tribunal accepted that the reason the appellant was placed on "garden leave" was because he had found sensitive and confidential documents in the photocopying room and had improperly informed other employees either of the nature of the information contained therein or where those confidential documents could be viewed thereby giving rise to considerable anxiety on the part of his fellow workers.
- .18 Para 7.4 – While this is more properly a question for judicial review the tribunal consider that it would not be appropriate to require the appellant to pursue that avenue in addition to this request for a case stated. This question is therefore posed below as whether the chairman was correct in law in refusing the appellant's request for a review of the tribunal's decision on costs on the grounds that it had no reasonable prospect of success.
- .19 Para 7.5 – This again appears to be an attempt to re-open the findings of the original decision in so far as it relates to the respondents' conduct which was taken into account by the tribunal when it did not award costs in relation to the imposition of "garden leave" and the action short of dismissal in relation to trade union activities. In so far as the appellant's conduct is concerned this is already covered by question 1 posed below.
- .20 Para 7.6 – This is already covered in question 1 below. The majority of the tribunal considered that the fact that a party was unrepresented was not a sufficient reason to prevent them from considering that party's behaviour in pursuing these complaints to be both unreasonable and vexatious. The majority came to this conclusion having taken into account that the appellant is an educated person who persisted in his complaints in order in the majority view to cause disruption and embarrassment to the respondents when he knew his complaints had little prospect of success.
- In his response to the provision of the draft case stated for comment the appellant requested that his documents marked MAM 1-16 and 17-23 which he believed were the originating applications and Notices of Appearance should be attached to the case stated. The documents so marked and numbered were not the Originating Applications nor the Notices of Appearance but were documents provided at the outset of the original hearings by the appellant for use at that hearing. The tribunal does not accept that they are relevant in any way to the subject matter of this case stated and they have therefore not been exhibited.
- The appellant requested additional time to seek legal advice on the draft case stated. He finally indicated by letter dated 24 October 2002 that he was content with the questions as posed below.
- The questions for the opinion of the Court of Appeal are:-
- Whether the tribunal was correct in law in finding that the appellant in bringing or conducting these proceedings acted vexatiously or otherwise unreasonably so as to justify the award of costs made against him in favour of the respondents?
- Whether the tribunal was correct in law in the amount of costs it awarded against the appellant and in the method used for calculating the costs?
- Whether the Chairman was correct in law in refusing the appellant's request for a review of the decision on costs on the grounds that it had no reasonable prospect of success?
Chairman:
Date:
