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Fair Employment Tribunal Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McNally v Northern Ireland Fire [2008] NIFET 46_07FET (10 December 2008) URL: http://www.bailii.org/nie/cases/NIFET/2008/00046.html Cite as: [2008] NIFET 46_7FET, [2008] NIFET 46_07FET |
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The decision of the Tribunal is that the respondents’ application to strike out certain paragraphs of the claimant’s witness statement is granted in respect of paragraphs 1 - 56 of that witness statement. The claimant is not entitled to call any other evidence including witness statements from supporting witnesses in relation to the matters contained in paragraphs 1 - 56 of his witness statement.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
Following a Case Management Discussion on 11 November 2008 it was ordered that a pre-hearing review be arranged to consider the following issues.
whether the respondents’ application to strike out and not admit in evidence, at the substantive hearing of this matter, certain parts of the claimant’s witness statement, to which the respondents object, should be determined at the pre-hearing review and not by the Tribunal conducting the substantive hearing; and
if the answer to the first issue is that the said application of the respondent should be determined at the pre-hearing review, whether the said application should be granted or refused.
The Tribunal heard submissions from the claimant and Mr McEvoy. Mr McEvoy submitted a bundle of documents to the Tribunal together with a skeleton argument.
The claimant presented a claim to the Fair Employment Tribunal on 2 March 2007. His claim was for discrimination on the grounds of religious belief/political opinion. It contained allegations of discrimination going back to 1982. The claimant alleged that he discovered information on his personal file in September 2006 relating to an earlier alleged incident at McGearey’s for compost in Armagh in April 2000. The claimant denied that this incident had taken place and he concluded that the previous episodes of alleged discriminatory treatment were linked.
The respondents presented their response in April 2007 denying the claimant’s allegations.
The claimant has subsequently presented two further claims, Case Reference Nos 139/07 FET and 150/08 FET alleging victimisation and discrimination on the grounds of religious belief.
The claims have been the subject of case management, and at a Case Management Discussion, a timetable for the provision of witness statements was agreed. A Statement of Issues was also provided setting out 18 issues over six pages.
The claimant has now provided his witness statements to the respondents. There are nine in total, including the claimant’s witness statement which itself runs to some 28 pages.
The respondents have objected to the content of certain paragraphs of the claimant’s witness statement, and also to the admissibility of some of the evidence of the claimant’s witnesses. In this application, the respondents rely on Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 which provides:-
“(1) The overriding objective of these regulations and the rules in Schedules 1, 2 and 3 is to enable Tribunals and Chairmen to deal with cases justly.
(2) Dealing with the case justly includes, so far as practicable -
ensuring that the parties are on an equal footing;
dealing with the case in ways which are proportionate to the complexity or importance of the issues;
ensuring that it is dealt with expeditiously and fairly; and
…
saving expense.
(3) A Tribunal or Chairman may seek to give effect to the overriding objective when it or he -
(a) exercises any power given to it or him by these regulations or the rules in Schedule 1…; or
Interprets these regulations or any rule in Schedule 1 …
(4) The parties shall assist the Tribunal or the Chairman to further the overriding objective”.
The respondents referred the Tribunal to a number of authorities including the recent Northern Ireland Court of Appeal judgement in Peifer v Castlederg High School and Western Education and Library Board [2008] NICA 49.
In that case, Lord Justice Girvan gave some guidance to the Tribunal in implementing the overriding objective:-
“These overriding objectives should inform the Court and the Tribunals in the proper conduct of proceedings. Dealing with cases justly involves dealing with cases in ways which are proportionate to the complexity and importance of the issues ensuring that the case is dealt with expeditiously and fairly and the saving of expense. Parties and practitioners are bound to conduct themselves in a way which furthers these overriding objectives. Having regard to the imperative nature of the overriding objectives Tribunals should strive to avoid time wasting and repetition. Parties should be required to concentrate on relevant issues and the pursuit of irrelevant issues and questions should be strongly discouraged”.
He then went on to say:-
“While Tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased costs and be exposed to unstructured and at times irrelevant cross-examination. While one must have sympathy faced with such a situation, the Tribunal remains under the same duty to ensure that the overriding objectives in regulation 3 are pursued”.
The respondents in this case contend that the Tribunal should not admit paragraphs 1 - 75 of the claimant’s witness statement or the entirety of the witness statements of eight other witnesses from the claimant as they are either irrelevant or lack any real probative weight and value. The respondents contend that it is appropriate to consider this application at a pre-hearing review. If the respondents are to make a response to all of the allegations made, they will require statements from 22 witnesses. The respondents have already actively engaged on this exercise, but it is proving very difficult as some of the witnesses have retired, some are difficult to trace, and one at least is now deceased. The respondents contend that consideration of admissibility of the evidence should not be left to the substantive hearing, as it will create many of the problems Lord Justice Girvan identified in Peifer.
In the case of O’Prey v National Australia Group Ltd, Case Reference No: 77/04 FET, heard in this Tribunal, the Chairman, Mr Drennan QC considered the power of the Tribunal to determine issues of admissibility before the substantive hearing. He concluded, and the parties in this case have accepted, that the Tribunal has the power to make such a determination. The question then is whether I should exercise my discretion to consider the respondents’ application to have part of the claimant’s evidence ruled inadmissible.
The claimant contends I should not. He contends the evidence he seeks to bring is relevant. He submitted that any consideration of the admissibility of evidence should be conducted by the full Tribunal at the substantive hearing.
The evidence the respondents seek to exclude involves alleged incidents of discrimination on the grounds of religious belief or political opinion, stretching over a period from 1982 to 2006, a period of some 24 years. They include claims that:-
the second-named respondent made sectarian comments at an incident in 1983, 84 or 85 at Smyth’s Hill Banbridge;
an incident in 1988 where the claimant was treated less favourably than a Protestant colleague;
in 1989 the claimant was subjected to harassment at the Brigade training school;
in 1989 and 1990 the claimant was the subject of discriminatory assessments and probation reports;
the claimant was passed over for temporary promotions;
in 1996 the claimant was the subject of a fabricated complaint;
the claimant did not receive results of an assessment centre in 2000;
the claimant was not offered the post of substantive sub-officer in 2000; and
a conduct investigation against the claimant in April 2000 relating to an incident at McGearey’s compost in Armagh was fabricated.
The claimant does not contend that he raised any complaints or allegations of treatment on the grounds of his perceived or actual religious belief or political opinion at the time of the various incidents, or indeed at any time until after the discovery of his personal file details in July 2006 and the subsequent events leading to the current proceedings.
In essence the claimant submits that all matters he complains of should go to the substantive hearing for determination. It is his view that unless more recent events are seen in the context of the earlier incidents, the interests of justice would not be served nor would a fair trial be possible.
He confirmed that he calculates his perceived loss in the sum of approximately £8,000 and also seeks an award for injury to feelings. He is familiar with the guidelines for calculation of injury to feelings contained in the case of Vento v Chief Constable of West Yorkshire Police (No 2) [2002] EWCA CIV 1871. There are three bands in which, in the vast majority of cases, compensation will fall. The upper band is £15-25,000. Mr McNally also submitted that the greatest injury to feelings and actions which have caused him most distress were the respondent’s alleged failure to properly investigate his grievances and complaints post 2006. His main concern in bringing his claim is the principle of the case rather than its financial value.
The claimant accepts that in all likelihood the only evidence the Tribunal will hear on some of the earlier incidents is his own oral testimony.
The claimant remains in the employment of the first-named respondent.
I have carefully considered the nature of my discretion and the submissions of the parties. I have considered the authorities referred to me by both parties. Mr McEvoy has referred me to the Peifer decision referred to above. Mr McNally has referred me to the decision of the English Court of Appeal in Beazer Homes Ltd v Stroude [2005] EWCA CIV 265. In that case, Lord Justice Mummery said:-
“10. In general, disputes about the admissibility of evidence in civil proceedings are best left to be resolved by the Judge at the substantive hearing of the application or at the trial of the action, rather than at a separate preliminary hearing. The Judge at a preliminary hearing on admissibility will usually be less well informed about the case. Preliminary hearings can also cause unnecessary costs and delays.
11. In the present case no good reason is apparent, nor has one been advanced for departing from the usual practice. It has not been suggested that this is one of those cases in which the ruling on admissibility would dispose of or abbreviate the substantive application. The practical effect of a split proceeding seeking a pre-emptive ruling has been to hold up the hearing of the summary Judgement application. It may have increased the costs of proceedings. I cannot see what advantage there was in it for anyone.”
If this application is acceded to however, there will be a considerable reduction in the number of witnesses required and the length of hearing. The case is currently listed for 8 weeks, which may not in fact be sufficient time to complete the case. There are 22 witnesses for the respondents and 9 for the claimant. If the respondents’ application was considered and granted before the substantive hearing, then the number of witnesses required would reduce to 6 witnesses for the respondents and one for the claimant.
The respondents contend that if the issue were to be left to the substantive hearing, they would be faced with considerable costs, difficulty in preparing witness statements, expense and possible delay.
I refer to the judgement of Lord Justice Mummery in Hendricks v Commissioner of Police for the Metropolis [2002] EWCA CIV 1686 which has already been brought to the attention of the parties.
At paragraphs 53 and 54 Lord Justice Mummery comments:-
“53. I would add a few words on the Case Management aspect of a case like this, where the complaints involve numerous instances of acts by many different people over a long period. As appears from the directions already given, the Tribunal Chairman is well aware of the importance of directions hearings to ensure that the case is ready for hearing and to explore ways of saving time and costs.
54. Before the applications proceed to a substantive hearing, the parties should attempt to agree a list of issues and to formulate proposals about ways and means of reducing the area of dispute, the number of witnesses and the volume of documents. Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations. The parties representatives should consult with one another about their proposals before requesting another directions hearing before the Chairman. It will be for him to decide how the matter should proceed, if it is impossible to reach a sensible agreement”.
The parties inform me that they have been unable to reach any agreement on the way forward hence the application before the Tribunal today.
Rule 17(5) of the Fair Employment Tribunal Rules of Procedure states:-
“Notwithstanding the preliminary or interim nature of a pre-hearing review, at a pre-hearing review the chairman may make a decision on any preliminary issue of substance relating to the proceedings. Orders made at a pre hearing review may result in the proceedings being struck out or dismissed or otherwise determined with the result that a hearing under rule 22 is no longer necessary in those proceedings.”
The Tribunal has also considered the guidance from the Court of Appeal culminating in Ryder v Northern Ireland Policing Board [2007] NICA 43 on the appropriate circumstances in which matters should be disposed of at a preliminary hearing. The Court of Appeal warned that the power to determine preliminary points should be sparingly exercised and approached with caution and care. It can prove to be a false saving leading to further costs and delay.
The issues for determination by the Tribunal at this pre-hearing review demonstrate the tension that can exist between:-
(a) the public interest in the determination of facts-sensitive discrimination cases only after hearing all the available evidence; and
(b) the competing public interest in effective case management by the Tribunal, in a case where allegations of discrimination involve many different acts by different people over many years, so as to keep the proceedings within reasonable bounds, to ensure that Tribunal time is taken up only by those matters over which there is jurisdiction, and to enable the case to be tried fairly and determined within a reasonable and proportionate timeframe.
I conclude that this is a case in which it is appropriate for the Tribunal to exercise its discretion to consider the exclusion of evidence prior to the hearing. I do so for the following reasons:-
The incidents date back to 1982 and cover a period of 26 years.
The evidence will involve the calling of some 31 witnesses including the claimant.
The respondents would be obliged to carry out extensive investigations at the cost of considerable time and expense, which would prove to be unnecessary if the matters are found to be inadmissible.
The substantive hearing will be unduly protracted if the matters are found to be inadmissible.
I consider that this approach is consistent with the Court of Appeal’s guidance in both Ryder and Peifer.
Having decided it is appropriate to do so, I now consider whether paragraphs 1 - 75 of the claimant’s witness statement and the witness statements provided in support of those allegations are admissible.
In Anya v University of Oxford [2001] IRLR 3, Lord Justice Sedley observed:-
“Very little direct discrimination is today overt or even deliberate. What King [1991] IRLR 513 and Qureshi tell Tribunals and courts to look for, in order to give effect to the legislation, are indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair minded decision was, or equally was not, affected by racial bias”.
Lord Justice Sedley quoted Mummery J. in Qureshi V Victoria University of Manchester (EAT 21 June 1996):-
“The temptation for the complainant and his advisors, in these circumstances, is to introduce into the case as many items as possible as material from which the Industrial Tribunal might make an inference that racial grounds “are established”. The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inference of racial grounds, eg, non racial explanations for his acts and decision. The result of this exercise is that the parties and their advisors may confuse each other (and the Tribunal) as to what the Tribunal really has to decide; as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background. It is a legitimate comment that in some cases of race discrimination so much background material of marginal relevance is introduced that focus on the foreground is obscured, even eclipsed. In practical terms this may lead the case to run on and on for many days or weeks. In the experience of this Tribunal, the longest cases heard in the industrial tribunals are cases of race discrimination”.
In exercising its case management powers, the Tribunal may exclude evidence, in the interests of justice and a fair hearing, to keep evidence within reasonable bounds. The guiding principle is to ensure justice between the parties.
In O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 the House of Lords considered the admissibility of similar fact evidence in civil proceedings. Lord Bingham of Cornhill acknowledged that evidence which is probative is legally admissible. He went on to say:-
“While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision maker by focusing attention on issues collateral to the issues to be decided. … Secondly … it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections. It is, I think, recognition of these problems which has prompted courts in the past to resist the admission of such evidence, sometimes (as, perhaps, in R v Boardman [1975] AC 421) propounding somewhat unprincipled tests for its admission. But the present case vividly illustrates how real these burdens may be. In deciding whether evidence in a given case should be admitted the judge’s overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.”
As Lord Justice Girvan said in Peifer in relation to the overriding objective:-
“The problems caused by delay and unnecessary length of proceedings in the Tribunals are self-evident. Unnecessary length substantially increases the overall costs of proceedings; ties up Tribunal Chairmen and members unduly; delays other cases coming on for hearing; and often requires the attendance of witnesses for undue length of time thus affecting their capacity to do their own jobs or run their own businesses”.
He went on to say:-
“The overriding objectives, which are, of course, always intended to ensure that justice is done, impel a Tribunal to exercise its control over the litigation before it robustly but fairly”.
I have carefully considered the submissions made by the parties and the authorities referred to. I have considered the extent of my discretion and the competing interests referred to at Paragraph 29 above. Whilst I accept the matters in question are potentially probative and so admissible, I am not satisfied they have sufficient probative weight or value that their inclusion at the substantive hearing is in the interests of justice and a fair hearing, or in accordance with the overriding objective.
I do not however accede in full to the respondents’ application. I consider that the evidence the claimant wishes to call in relation to the alleged incident at McGearey’s compost in Armagh in April 2000 is relevant and probative. It was the discovery of these matters in his personal file in September 2006 that led the claimant to make his claim. I therefore strike out paragraphs 1-56 inclusive of the claimant’s witness statement and any evidence in support of those matters which the claimant intended to bring. I am satisfied that this is appropriate for the following reasons:
The allegations are made for a period going back approximately 25 years from the date the claimant’s claim was made. Much of the evidence, as the claimant fairly accepts, will be oral evidence from the claimant unsupported by corroborating information. In many instances the respondent neither has documentation or witnesses to deal with the allegations. By way of example, the respondents have no knowledge or record of the incident referred to in the claimant’s witness statement at paragraph 4, being a firecall at Smyth’s Hill, Banbridge, on 13 July 1983, 1984 or 1985.
The claimant did not make any complaint based on religious/political opinion discrimination until at the earliest 2006.
If the claimant were to adduce evidence of these allegations, extensive investigations are required by the respondents and over 30 witnesses will be required to give evidence, some of whom are retired and some of whom have proved difficult to contact. The respondents have no record of some of the matters the subject of claim and at least one potential witness for the respondents is deceased. The respondents would thus potentially be denied a fair hearing in relation to these allegations.
This case is currently listed for hearing for 8 weeks and is unlikely to be concluded in that time. If the application in its amended form is granted, the number of witnesses required will reduce to approximately 11, including the claimant, and the hearing time will be proportionately reduced.
I am not satisfied that allowing a very lengthy hearing on the earlier allegations is proportionate to the complexity or importance of the issues in the case.
The lengthy hearing of this case is likely to tie up witnesses for a very considerable time.
The length of hearing to allow the substantive hearing to determine admissibility would be a huge cost to the respondents and the public purse, would tie up a Tribunal Chairman and members unduly, and is not proportionate to the likely quantum of compensation in the claim should the claimant be successful.
There are further issues in this case to be determined by the Tribunal at the hearing. The respondents contend that the claimant has not complied with the statutory grievance procedure ( if applicable) and also that he has not brought all or part of his claims within the statutory time limits. In particular they contest that the allegations amount to a continuing act of discrimination. These matters remain for determination by the Tribunal at the substantive hearing.
A Case Management Discussion will be arranged to consider the current listing arrangements and any necessary amendments required to the timetabling of witness statements.
Chairman:
Date and place of hearing: 26 November 2008, at Belfast
Date decision recorded in register and issued to parties:
