McCombe v Ministry of Defence  (Sex Discrimination)  (6 December 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	1034/02

APPLICANT:		Elaine McCombe

RESPONDENT:		Ministry of Defence

DECISION

The unanimous decision of the Tribunal is that:-
1.	The applicant’s claim of unfair dismissal is dismissed having been withdrawn by the applicant in open tribunal without objection by the respondent.
2.	The issue ‘Whether the applicant has submitted a redress of complaint to the respondent’ should not be determined at a preliminary hearing but should be determined, as appropriate, at the full hearing of the applicant’s claim of sex discrimination.
Appearances:
The applicant was represented by Mr P O’Kane, Barrister-at-Law, instructed by John J McNally & Company, Solicitors.
The respondent was represented by Mr I Wimpress, Solicitor of the Crown Solicitor’s Office.

1.	The above application was listed to hear, by way of a preliminary hearing, the following issues, namely:-

‘1.

 2.	Whether the applicant as a serving solider can complain of unfair dismissal.

Whether the applicant has submitted a redress of complaint to the respondent”.	

2.	At the outset of the hearing, Mr O’Kane on behalf of the applicant withdrew the applicant’s complaint of unfair dismissal, without any objection by the respondent.  In these circumstances it was not necessary for the tribunal to determine the first of the said issues, set out above, and dismissed the applicant’s complaint of unfair dismissal.

3.	Both Mr O’Kane and Mr Wimpress indicated to the tribunal that they intended to deal with the determination of the said second issue by way of submission and not to call any oral evidence.

4.	It was submitted by both parties’ representatives that a member of the armed forces, such as the applicant, is able to make a complaint to an Industrial Tribunal under Article 63 of the Sex Discrimination (Northern Ireland) Order 1976 provided, inter alia, the provisions of the Sex Discrimination (Complaints to Industrial Tribunals) (Armed Forces) Regulations (Northern Ireland) 1998 have been complied with.

Under Regulation 2 it provides:-

(1)	A person may present a complaint to an Industrial Tribunal under Article 63 of the Sex Discrimination (Northern Ireland) Order 1976 notwithstanding that Article 89(9B) of that Order would otherwise preclude the presentation of such a complaint where:-

(a)	he has made a complaint in respect of the same matter to an officer under the service redress procedures; and

(b)	that complaint has not been withdrawn.

(2)	For the purposes of Paragraph (1)(b) a person shall be treated as having withdrawn his complaint, if, having made a complaint to an officer under the service redress procedures, he fails to submit that complaint to the Defence Council under those procedures.

5.	There was no dispute between the parties that on 9 November 2001 the applicant had made a valid Application for redress of complaints, which had been subsequently determined under the relevant procedures.  Mr Wimpress accepted that insofar as the Originating Application complained of those matters, the subject matter of the said redress complaint, the applicant was entitled to make a valid application in relation to same as these complied, inter alia, with the provisions of the said 1998 Regulations.  However, he maintained that the Originating Application presented on 26 August 2002 could not be a valid application for sex discrimination under the Regulations insofar as the said application purported to deal with matters; which had not been the subject of the said redress complaint.  He contended that in relation to those matters the applicant was not entitled to present a complaint under Article 63 of the Sex Discrimination (Northern Ireland) Order 1976 as the applicant had not in relation to those matters ‘made a complaint in respect of the same matter to an officer under the service redress procedures’ as she was required to do under Regulation 2(1)(a) of the said 1998 Regulations.

6.	There was no doubt from a consideration of the said redress complaint and the terms of the Originating Application that the applicant was making complaint about matters which were the subject of the said redress complaint but also about matters which purely from a time point of view occurred after the date of the redress complaint.  It was clear from the submissions of both Mr O’Kane and Mr Wimpress that a central issue for the tribunal to determine, in the above circumstances, would be the proper interpretation of the words ‘same matter’ as contained in Regulation 2(1)(a) of the 1998 Regulations.  The tribunal noted that to date there did not appear to have been any legal authority which had interpreted the said words, set out above, as used in the said Regulations.

7.	Despite the helpful submissions by both representatives the tribunal was of the view that in interpreting the said words it would be necessary to give detailed consideration to the matters the subject of the said redress complaint but also to all the matters the subject of the Originating Application to see whether they satisfied the said Regulations and in particular whether the matters that occurred after 9 November 2001 could be said to be the same matter as those the subject of the redress complaint.

The tribunal did not consider the issue could be resolved, as Mr Wimpress submitted, merely by consideration of when certain events occurred.  This could be a relevant factor but in the tribunal’s view not necessarily the only factor and before coming to any conclusion the tribunal believed it would be necessary to consider all the facts, including when something took place, relating to the matters alleged.  The tribunal was mindful that the matters which Mr Wimpress accepted were the subject of the redress complaint and therefore of a valid application to the tribunal were, if the application proceeded to hearing, going to have to be determined by the tribunal in any event.

In the circumstances the tribunal was satisfied it could not therefore properly determine the above issue by way of preliminary hearing and without giving the parties the opportunity to call evidence in relation to the said matters.  The tribunal was of the opinion that the said issue should determined, as appropriate, at the full hearing of the applicant’s claim of sex discrimination.  In so doing the tribunal makes clear that it has come to no final determination as to the said issue and in particular the proper interpretation of the said Regulations and of any issues of fact or law relevant to the said issue.

Chairman:

Date and place of hearing:		6 December 2002, Belfast

Date decision recorded in register and issued to parties: