Fahy v Northern Ireland Fire and Resc... [2010] NIIT 00632

THE INDUSTRIAL TRIBUNALS

CASE REFS: 1302/07

632/08

CLAIMANT: June Fahy

RESPONDENT: Northern Ireland Fire and Rescue Service

DECISION ON A REVIEW

The unanimous decision of the tribunal is that:-

(i) the Tribunal having reviewed the decision on the grounds that the interests of justice required the decision to be reviewed, the Tribunal confirmed its decision, having clarified it as set out in Paragraph 3.4 of this decision.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr J D Hampton

Ms T Madden

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Directorate of Legal Services, Belfast City Council.

1.1 The decision of the tribunal at the Stage 3 Equal Value Hearing in this matter was recorded in the Register and issued to the parties on 20 August 2010.

1.2 By letter dated 2 September 2010, the claimant’s representative made an application for a review of the said decision, pursuant to Rule 34(e) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that the interests of justice required a review.

In his letter the claimant’s representative stated such a review was necessary, “in order to clarify the tribunal’s finding of fact as regards the claimant’s duties (outside her core hours) …

… It is not immediately clear what, if any, finding the tribunal has reached in relation to the legal status of the claimant’s duties described above. We would refer the tribunal particularly to Paragraphs 1(i) – 1 (ix) at Pages 5 – 7 of the decision.

In particular it appears opposite to clarify and confirm, with certainty, that the decision relates solely to the question that the tribunal has to determine, ie whether the work of the claimant and the comparators are of equal value and that no decision has been made by the tribunal as to the status of the claimant’s duties (legal, contractual, voluntary and/or otherwise)

…”.”

1.3 Having made, pursuant to Rule 35 of the Industrial Tribunals Rules of Procedure a preliminary consideration of the said application for review, the Chairman decided that the application should not be refused and he directed that the decision be reviewed at a review hearing. The review hearing was held in this matter on 5 November 2010. The tribunal, after hearing oral submissions by the claimant and the representative of the claimant and the respondent, reserved its decision.

1.4 The decision, the subject-matter of the review, was a decision made by the tribunal following a Stage 2 Equal Value Hearing, pursuant to the Industrial Tribunals (Equal Value) Rules of Procedure contained in Schedule 2 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘Equal Value Rules of Procedure’). Pursuant to Rule 6(1) of the Equal Value Rules of Procedure, a tribunal is required to conduct a ‘Stage 2 Equal Value Hearing’ in accordance with the said rule but also the Rules applicable to pre-hearing reviews contained in the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the said Regulations and, in particular, Rule 18; subject to the requirement that ‘a Stage 2 Equal Value Hearing’ must be determined by a full tribunal and not by a Chairman Sitting Alone (see further Rule 6(2)). As set out in the tribunal’s decision, pursuant to Rule 6(3) of the Equal Value Rules of Procedure, the tribunal, at the Stage 2 Equal Value Hearing, made a determination of those facts on which the parties could not agree. It was not disputed by the representatives at this hearing there was a typographical error in Paragraph 1.5 of the decision and reference should have been made to ‘Stage 2 Equal Value Hearing’ and not ‘Stage 3 Equal Value Hearing’.

1.5 Given the reference in Rule 6(1) of the Equal Value Rules of Procedure, as set out above, ‘to the Rules applicable to pre-hearing reviews in Schedule 1’, it was also not disputed by the representatives at this hearing that the tribunal was correct to issue a decision, recorded in the Register, following a Stage 2 Equal Value Hearing, determining the said facts. It was acknowledged by the representatives a pre-hearing review, pursuant to Rule 18(2) of the Industrial Tribunals Rules of Procedure; may determine any interim or preliminary matter relating to the proceedings. Further, pursuant to Rule 18(5) of the Industrial Tribunals Rules of Procedure, notwithstanding the preliminary or interim nature of a pre-hearing review, a decision on any preliminary issue of substance relating to the proceeding may be made.

1.6 Under Rule 34(1) of the Industrial Tribunals Rules of Procedure it is provided:-

“(1) Parties may apply to have certain decisions made by a tribunal or a Chairman reviewed … Those decisions are:-

(a) …

(b) a decision which is … or a particular issue in those proceedings (other than a default judgment but including an Order for Costs, allowances, preparation time or wasted costs);

… .”

1.7 The tribunal was satisfied, and the respondent’s representative did not seek to suggest otherwise, that having regard to the said Industrial Tribunals Rules of Procedure and Equal Value Rules of Procedure referred to above, that the claimant was entitled to make an application for review of a decision made by a tribunal, following a Stage 2 Equal Value Hearing.

2.1 As stated above, the claimant sought a review, pursuant to Rule 34(e) of the Industrial Tribunals Rules of Procedure, on the grounds that the interests of justice require a review.

2.2 In relation to the ground that the interests of justice require a review, this ground of review, prior to the introduction in the said Regulations of the ‘overriding objective’, was narrowly interpreted and was, in essence, limited to circumstances where there had either been a procedural mishap or where the tribunal’s decision had been overtaken by subsequent events. Further it has also now been held that there is not any ‘exceptionality hurdle’ for the power to be invoked (see Williams v Ferrosan [2004] IRLR 607). Thus, this ground is not as circumscribed as previously held and a tribunal, in determining whether to exercise the power, must do so justly, balancing the respective interests of the parties. As stated in Sodexho Ltd v Gibbons [2005] IRLR 36 the Rules of Procedure are to be seen ‘not as a trap for the unwary but a procedure to do justice between the parties’.

As was held in Flint v Eastern Electricity Board [1975] IRLR 277, the ground of interests of justice is a residual category; which is intended to confer a wide discretion on the tribunals. However, in consideration of the exercise of the discretion, a significant and relevant factor is the finality of proceedings and to seek to re-open issues, which were fully and properly considered during the course of the hearing, because of merely dissatisfaction with the decision, can never be a proper reason to review a decision in the interests of justice. Phillips J, as he then was, in Flint when emphasising the importance of the finality of litigation made it clear it was unjust to give a losing party ‘a second bite of the cherry’.

In the case of Council of the City of Newcastle-upon-Tyne v Marsden [UKEAT/0393/09] Underhill J reviewed the relevant authorities in relation to the grounds for review of a decision, and, whilst recognising the importance of the terms of the overriding objective, stated:-

“Justice requires an equal regard to the interests and legitimate expectations of both parties and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject of course to appeal.”

However he said it was important not to throw the baby out with the bath water and approved the judgment of Rimer LJ in Jurkowska v Hilmad Ltd [2008] ICR 841, and, in particular, Paragraph 19 of his judgment when he stated it is ‘basic’ …

“ … that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adopted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a case. But they at least provide the structure on the basis of which a just decision can be made.”

Underhill J in Marsden, whilst confirming that the principles, underlying the decision of Flint, remained valid; concluded it should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case; but was however valuable in drawing attention to those underlying principles – referred to above.

Equally, in light of the terms of the overriding objective and that it is now established this ground of review is not as circumscribed as previously thought, it is of significance to note that, in the case of Dhedhí v United Lincolnshire Hospitals Trust [2003] UKEAT 1301/01, Hopper J, found, following a substantive hearing, on the particular facts of the case, where there was an error by both parties and the Chairman, it was better that the error be put right at review, on the grounds that the interests of justice required a review, rather than on appeal with its additional expense and time; and to do so was to deal with the case justly, saving expense and helping to ensure the matter was dealt with expeditiously.

Although a Stage 2 Equal Value Hearing, as seen above, is more in the nature of a pre-hearing review, determining a preliminary issue, and not a substantive hearing of this matter, it is in the nature of a substantive decision which required the tribunal under the Equal Value Rules of Procedure to determine the relevant facts relating to the question, which were not agreed by the parties and were required to be determined by the tribunal for the purposes of the preparation by the Independent Expert of his report. Therefore the above dicta remains relevant, in my judgment, to the determination of this review.

2.3 There are many examples of when a review has been granted on the grounds the interests of justice require such a review; but as seen above, they can only be examples and each case depends on its own facts and requires the tribunal to reach a decision, having regard to the well-established principles referred to above.

Mr Potter referred to the decision of the Employment Appeal Tribunal in Obonyo v Wandsworth Primary Care Trust [UKEAT/0237/07], where clarification was sought, on review, in the interests of justice, where a Consent Order failed to specify whether a payment to the claimant was gross or net of tax. On preliminary consideration the application to review was refused; but on appeal the Employment Tribunal’s decision was set aside and the Consent Order held, by way of clarification, to be a net payment. As Mr Ferrity submitted, the facts on the Obonyo case, which led to the necessity for the review, were very different to the facts in this case, as set out below. However, it does illustrate, in the tribunal’s judgment, the width of ‘the interests of justice’ ground for review and an acknowledgement, in an appropriate case, a review can be used to clarify the terms of a decision. It also has to be recalled that when applying the Rules of Procedure relating to the review of decisions the tribunal is required to give effect to the terms of the overriding objective.

3.1 For the purposes of this Review, the tribunal refers, in particular, to those parties of the tribunal’s decision, at Pages 6 and 7 of the Decision, which were the subject-matter of the claimant’s application for review and which were said by Mr Potter required to be the subject of some clarification:-

Page 6 of the decision

“ …

(vii) However, the tribunal is satisfied that a practice has grown up over the years which, historically, has its origins when Mr Raymond Moore (in the period 1994 – 1998) was Assistant Chief Fire Officer, with responsibility for the Regional Control Centre. He asked the claimant, on her appointment in 1994 as Principal Fire Officer (now called Group Commander (Controls)), to be contactable at home out of hours in relation to certain issues in the Regional Control Centre which he considered required some managerial input during such hours. She agreed to do so provided Mr Moore sought from the respondent a flexi duty allowance for her. Apparently, the claimant’s predecessor had not been prepared to do such work out of hours. Mr Moore was clearly not prepared to have such contacts made to him and, as a consequence, he had tried, unsuccessfully, to have it included as part of the claimant’s contractual duties before the claimant was appointed. This never happened, as he had left it too late to do so before the recruitment process was commenced. As a result, it was not included as part of her contractual duties and no such allowance was ever agreed to be paid to the claimant. To have happened this would have required the approval of the Chief Fire Officer and/or the Fire Authority. It was not disputed such approval was never given.

(viii) Although no such approval was given, the claimant continued to be contactable at home out of hours in relation to the list of issues drawn up by Mr Moore. The tribunal is satisfied that, over the years, that list of contactable issues has evolved/been amended by the claimant, in light of changed circumstances; but in essence it remains the same. The claimant has continued, voluntarily and not under any contractual obligation to do so, as part of her job as Group Commander (Controls), to follow this long established practice as part of her duties, which commenced under Mr Moore; with the consequence that she continues to be contactable out of hours in relation to such matters. Surprisingly, ACFO Wright seemed to be unaware of this ongoing practice. The tribunal was satisfied, on the evidence, that this practice, in particular, continued during the relevant period of comparison without any objection by the respondent. Thus, the relevant members of staff in the RCC can contact the claimant, as appropriate, both during her contractual hours and out of hours in relation to matters, as set out below, in accordance with the most recent list of contactable matters, drawn up by the claimant:-

(1) Any excessive increase in the number of calls being received.

(2) Incidents involving a large number of FRS resources.

(3) Personnel booking on/off sick.

(4) Personnel going home sick.

(5) Any requirement for O/T as soon as it becomes obvious.

(6) System crashes.

(7) Any complaints regarding control rooms mobilising procedures.

(8) Any mobilising errors by Control Room staff.

(9) Accident/injury to FRS Control personnel.

(10) Occasions when Command Room is used operationally.

(11) Occasions when Control Room personnel crew the Command Support vehicle.

… “.

3.2 It became clear during the course of Mr Potter’s submissions that his main focus, in seeking clarification of the tribunal’s decision were the sentences, as set out below, in Paragraph (viii) and, in particular, the use of the word ‘duties’:-

“The tribunal is satisfied that, over the years, that list of contactable issues has evolved/been amended by the claimant, in light of changed circumstances; but in essence it remains the same. The claimant has continued, voluntarily and not under any contractual obligation to do so, as part of her job as Group Commander (Controls), to follow this long established practice as part of her duties [tribunal’s emphasis], which commenced under Mr Moore; with the consequence that she continues to be contactable out of hours in relation to such matters. … .”

In particular, Mr Potter submitted that the use of the words ‘as part of her duties’ in this paragraph, gave rise to some uncertainty/ambiguity; and, in particular, its use suggested the claimant was doing such work on foot of her contract of employment and therefore as a contractual obligation; whereas the sentence had commenced by making reference to the claimant continuing the duties voluntarily and not under any contractual obligation to do so. Mr Ferrity, in contrast, submitted that no such clarification was necessary. He said it was perfectly plain what the tribunal was saying when the above paragraphs of the decision were read as a whole. He submitted that the tribunal had in Paragraph (vii) found the contacts at home out of hours had not been included as part of the claimant’s contractual duties before she was appointed and that Paragraph (viii) had made clear any continuing contacts at home out of hours were not contractual and were voluntarily done.

3.3 It has to be recalled that the essence of the dispute between the parties on the facts, which the tribunal was required to determine, as part of this Stage 2 Equal Value Hearing, related to the nature of the contacts at home out of hours and, secondly, whether any such contacts at home were part of her contractual duties or not. This had been unable to be agreed by the parties, prior to the hearing. The latter issue was the focus of the application for review. The tribunal has considerable sympathy for the submissions of Mr Ferrity. The tribunal considers, in its decision, it has already in the paragraphs of the decision, set out above, made it clear these contacts at home out of hours were voluntary and not part of any contractual obligations.

3.4 However, the tribunal considers that, in the circumstances of this case, and mindful of the terms of the overriding objective and the apparent uncertainty in the minds, at least of the claimant and her representative, the tribunal should, for the avoidance of doubt and to assist the independent expert, in preparing his report, grant the review in the interests of justice and clarify the decision by amending Paragraph (viii) to state:-

“ … The claimant has continued, voluntarily and not under any contractual obligation to do so, as part of her job as Group Commander (Controls), to follow this long established practice, relating to her being contactable at home out of hours, which commenced under Mr Moore … .”

4. The tribunal, having reviewed the decision, and after clarifying it by amending Paragraph (viii), has confirmed its decision.

Chairman:

Date and place of hearing: 5 November 2010, Belfast

Date decision recorded in register and issued to parties:

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Industrial Tribunals Northern Ireland Decisions