FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   93/06 FET
			956/06

CLAIMANT:		Patricia C K Leong-Prevett

RESPONDENT:		Northern Ireland Council for Ethnic Minorities

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the Tribunal considers that the contentions put forward by the claimant in the matter required to be determined by the Tribunal have little reasonable prospect of success. Accordingly, on foot of Rule 19(1) of the Fair Employment Tribunal Rules of Procedure which are contained in Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, the Tribunal Orders that the claimant shall pay a deposit of an amount of £200.00 as a condition of being permitted to continue to take part in the proceedings in relation to this matter.

Constitution of Tribunal:
Chairman (sitting alone):		Mr J V Leonard

Appearances:
The claimant did not appear, nor was she represented at hearing, but the claimant presented a written submission to the Tribunal.
The respondent was represented by Ms F Cassidy, Solicitor, of Jones & Cassidy, Solicitors.

REASONS

1.	The claimant presented a claim to the Industrial Tribunal by claim form received on 7 August 2006 and to the Fair Employment Tribunal by claim form also received on 7 August 2006.  In these respective claims, the claimant claimed to have been employed by the respondent and to have suffered unlawful discrimination on the grounds of race and, furthermore, on the grounds of religion, political opinion, or belief.  

2.	By responses both received by the Office of the Tribunals on 11 September 2006, the respondent confirmed that the claimant had been employed by the respondent but denied the allegations of unlawful discrimination in their entirety.  The respondent sought a pre-hearing review to consider the respondent’s contentions on the grounds that these were vexatious or misconceived and/or had little reasonable prospect of success.  

3.	By Order made on 25 October 2006 the Vice President of the Tribunals made a direction under Article 85 of the Fair Employment and Treatment (Northern Ireland) Order 1998 that the respective claims should be heard and considered together by the Fair Employment Tribunal, insofar as appropriate.

4.	The matter was listed for a pre-hearing review to be conducted under Rules 17 and 19 of the Fair Employment Tribunal Rules of Procedure (‘the Rules’) which are contained in Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

5.	A Notice of Hearing in respect of the pre-hearing review dated 16 January 2007 having been dispatched to the respective parties, the matter was listed for hearing on today’s date and the hearing proceeded on foot of the written submissions received from the claimant by the Office of the Tribunals on 21 February 2007 (which were prior to the hearing copied to the respondent’s representative) and on foot of the oral representations made to the Tribunal on the part of the respondent’s representative.

THE ISSUE

6.	In consequence of the  pre-hearing review to be conducted under Rules 17 and 19 of the Rules the Tribunal had to determine whether the contentions put forward by the claimant in relation to the matter required to be determined had little reasonable prospect of success. If so, the Tribunal had to determine the matter of a possible Order against the claimant requiring the claimant to pay a deposit as a condition of being permitted to continue to take part in the proceedings relating to the matter.

THE SUBMISSIONS

7.	In the claimant’s written submission, the claimant submitted that her complaint was that she had not been informed of a higher grade vacancy within the respondent’s organisation; she had not been given the chance to apply for this vacancy; she had not been appointed to the vacancy.  The respondent had admitted to the making of an appointment on the basis of no advertising, and with no recruitment and no selection procedures.  The person who had been appointed was from a country of European origin. That person might reasonably be seen to be a Muslim.  The claimant was of Singaporean origin and was fully multi-cultural in outlook. She had grown up with and had gone to school with Muslims; she had a Muslim sister-in-law as well as Muslim friends.  The claimant made clear that she had no complaint against the person (perceived by her to be a Muslim) who had been appointed to the higher grade vacancy. The claimant’s complaint was against the respondent in the way in which that appointment had been conducted.  The claimant further contended that the claimant had indeed trained the appointee and another colleague.  The claimant had not received any promotion, nor any remuneration increase, nor any equivalent recognition.  Further, a named ex-colleague had trained the claimant and that person had not received any similar pay increase, recognition, or promotion.

8.	The claimant’s submissions then proceeded to deal with the issue of the claimant’s apparent disciplinary suspension from work and suggested that an examination needed to be made as to the reasonableness of the suspension.  The claimant presented a detailed chronology that was contended by the claimant to be relevant to the issues in the case and with particular reference to that disciplinary suspension.  The claimant’s submission dealt with the issue of the claimant apparently undertaking freelance interpretation work independently of the respondent.  Annexed to the claimant’s written submission (which submission ran to some five pages in total including an index of the annexed documents) there were 20 numbered documents.  These documents included copies of certain correspondence between the claimant and the respondent and between the claimant’s trade union (Unison) and the respondent. 

9.	The respondent’s representative, having been afforded prior to the commencement of the hearing an opportunity to read through the claimant’s written submission, made the initial observation that a large part of the written submission as presented to the Tribunal was irrelevant to the issues for determination by the Tribunal.  The respondent’s representative submitted that this was a case alleging discrimination which case was grounded upon two types of unlawful discrimination. These were, firstly, unlawful discrimination alleged to be on grounds of race and, secondly, unlawful discrimination alleged to be on grounds of religion, political opinion, or belief.  If one examined the claimant’s written submission, one noted that a large part of that submission was in relation to the issue of the claimant’s disciplinary suspension and the issue of whether that was fair or unfair.  There was no express or even implied connection made out in that submission between the matter of the suspension of the claimant and these specific allegations of unlawful discrimination. The allegations of discrimination were set out quite clearly and unambiguously on the first page of the written submission. Further examining the detail of the alleged discrimination as set out in the written submission, and as also set out in the claimant’s respective claim forms, clearly the case that was being made by the claimant was that she had not been appointed to a higher grade vacancy nor had she been given the chance to apply for the vacancy; therein lay the discrimination alleged.  None of the material whatsoever in the submission in respect of the claimant’s disciplinary suspension had any bearing upon that discrimination complaint.  

10.	It would have been quite open to the claimant, so the respondent’s representative submitted, to have made a claim under any one or more of the many heads of the law (whether in relation to unlawful discrimination or otherwise) which might have dealt with the issue of the disciplinary suspension and the alleged unfairness or otherwise of that suspension, either as a freestanding claim or linking that to the alleged unlawful discrimination.  However, the claimant has clearly chosen quite consciously not to do that. Thereby she had confined her case to a rather narrow case, as mentioned.  It would therefore be quite wrong for the Tribunal to regard as relevant any part of the submission that dealt with the reasonableness or otherwise of the disciplinary suspension in the context of the specific case actually made.  Factually, the temporary appointment to which the claim had referred had been made in the context of the claimant being absent from work during a lengthy period of disciplinary suspension and on account of the needs and the requirements of the respondent as an organisation.  It would be quite absurd to suggest that someone who was undergoing a disciplinary suspension might be informed of a higher grade vacancy, might be given the chance to apply for it, and might expect to be appointed to this vacancy, if the very reason for the need to create that temporary post was directly connected with the claimant’s suspension.  That was the cause and was the only cause of the post having to be created on a temporary basis. The very existence of the post was connected with that fact. Indeed, once the claimant had returned from her period of suspension, the temporary post ceased to exist.  

THE TRIBUNAL’S DETERMINATION

11.	Having carefully read through the claimant’s written submission and the documents annexed thereto, and having heard the oral submission made on behalf of the respondent, the Tribunal notes the case that has been made out by the claimant in alleging unlawful discrimination on grounds of race and also on grounds of religion, political opinion, or belief.  The claimant’s case, on the Tribunal’s reading of the claim forms and perusal of the written submission, appears to relate to the respondent’s failure to inform the claimant, whilst the claimant was absent from work during a period of suspension on disciplinary grounds, of a temporary post. The claimant was denied by the respondent the opportunity, she says, of applying for that post. A work colleague of the claimant’s was appointed to that temporary post. This was done apparently in order to deal with a perceived pressing need within the organisation, as contended on behalf of the respondent.  The Tribunal has considerable difficulty in establishing a linkage between the information provided to it in the claimant’s written submission concerning the validity or otherwise of the claimant’s suspension from work and the specific and indeed quite narrow allegation of unlawful discrimination.  In that regard, the Tribunal is confined to the paperwork before it, not having had the benefit of any supplemental explanation or additional information provided to it at an oral hearing by or on behalf of the claimant.  The Tribunal must therefore engage in a straightforward common sense reading of the claim forms and of the written submission.

12.	A large part of what has been contained in the claimant’s written submission appears to relate to the matter of apparent grievances on the claimant’s part concerning the disciplinary suspension and the issue of the cause of that suspension. However, the Tribunal cannot easily connect this to the claimant’s unlawful discrimination complaints. Here there is a matter which concerns a temporary appointment made by the respondent to a temporary post. That post it seems was only created on account of the claimant being absent from work.  If correct, the inevitable conclusion must be that the claimant could never have stood to be appointed to such a post; if she had been at work and had not been under suspension the very need for the existence of such a temporary post would have ceased, as indeed it apparently did upon the claimant’s return to work from suspension.

13.	The foregoing being the case, and the Tribunal being unable to discern anything further in the written submission which might usefully be added to the foregoing, the Tribunal has certainly considerable difficulty in observing how the claimant might have suffered unlawful discrimination on any of the grounds claimed without considerably more being provided to the Tribunal by the claimant in amplification of her complaint.  However, the Tribunal must determine the matter on the case that is before it. Therefore, on the basis of what is before the Tribunal, the Tribunal cannot see how the contentions put forward by the claimant in relation to the matter requiring to be determined by the Tribunal have anything other than little reasonable prospect of success.  

14.	Rule 19 of the Rules provides that at a pre-hearing review if a Chairman considers that the contentions put forward by any party in relation to a matter required to be determined by a Tribunal have little reasonable prospect of success, the Chairman may make an Order against that party requiring the party to pay a deposit of an amount not exceeding £500.00 as a condition of being permitted to continue to take part in the proceedings relating to the matter.  As this is a case where the Tribunal takes the view that the contentions have little reasonable prospect of success, the Tribunal is of the view that the making of a Deposit Order in the case is appropriate.

15.	Rule 19(2) of the Rules states that no Order shall be made under that Rule unless the Chairman has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the Order to comply with such an Order, and has taken account of any information so ascertained in determining the deposit.  In the absence of the claimant to assist in such enquiries, the Tribunal directed appropriate enquiries to the respondent’s representative and to the Director of the respondent who was in attendance.  These parties were not able to provide any assistance by way of further information to the Tribunal.  The Tribunal noted that the claimant had been notified in paragraph 6 of the Notice of Hearing sent out to the claimant in respect of the foregoing issue. However the claimant had, presumably by conscious decision, chosen not to provide any further information in writing to the Tribunal and was not present and in attendance in order to clarify matters orally. Accordingly, the Tribunal believes that it has done what it reasonably can under these circumstances, and has thus taken such steps as are required by Rule 19(2).

16.	Accordingly, on foot of Rule 19(1) of the Rules the Tribunal Orders that the claimant shall pay a deposit of an amount of £200.00 as a condition of being permitted to continue to take part in the proceedings in relation to this matter.

Chairman:

Date and place of hearing:	22 February 2007, Belfast

Date decision recorded in register and issued to parties: