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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCloskey v Madden [2007] NIIT 695_06 (15 January 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/695_06.html Cite as: [2007] NIIT 695_06, [2007] NIIT 695_6 |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 695/06
CLAIMANT: Ciaran McCloskey
RESPONDENT: 1. Tony Madden
2. Governing Body of North East Institute
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is:-
That the claimant does have a disability within the meaning of the Disability Discrimination Act 1995.
That the tribunal does not have jurisdiction to determine the claimant's complaint of unfair dismissal since the claimant was not an employee of the respondent.
Constitution of Tribunal:
Chairman (sitting alone): Ms J Turkington
Appearances:
The claimant appeared and represented himself.
The respondent appeared and was represented by Mr A Colmer, Barrister at Law, instructed by the Education and Library Board Solicitors.
THE ISSUES
The issues to be determined at this pre-hearing review were:-
Whether the claimant has a disability within the meaning of the Disability Discrimination Act 1995; and
Whether the tribunal has jurisdiction to determine the claimant's complaint of unfair dismissal in view of the provisions of Article 3 of the Employment Rights (NI) Order 1996 with regard to the definition of “employee” contained therein.
CONTENTIONS OF THE PARTIES
In relation to issue (i), the respondent's counsel indicated that the respondent had an open mind in relation to whether the claimant has a disability within the meaning of the Act. The claimant produced a letter from his general practitioner dated 21 November 2006. Having had the opportunity to consider the content of this correspondence, the respondent's counsel conceded that the claimant had a disability within the meaning of the Act.
Regarding issue (ii), the claimant stated in his claim form and at this pre-hearing review that he had undertaken voluntary teaching practice with the second respondent. The respondent contended in its response form and at this pre-hearing review that the claimant was not an employee of the respondent. At this pre-hearing review, the claimant confirmed that he accepted he was not an employee of the second respondent. The claimant therefore accepted that he could not pursue a claim of unfair dismissal against the second respondent. Furthermore, the claimant accepted that he did not have the required period of one years continuous employment with the second respondent.
FACTS OF THE CASE
Having heard the submissions of the parties and considered the letter from the claimant's general practitioner dated 21 November 2006, the tribunal found the following relevant facts:-
The claimant was born with a number of congenital abnormalities which affect his hands, his right arm and his spine. He also has knee pains which, together with his back trouble, mean that the claimant cannot stand for long periods of time. These conditions have a substantial adverse impact on the claimant's ability to carry out day-to-day activities.
5. The claimant undertook an unpaid teaching placement with the second respondent from 24 January 2006 to 21 March 2006.
STATEMENT OF LAW
6. A disability is defined in section 1 of the Disability Discrimination Act 1995 as a mental or physical impairment which has a long-term and substantial adverse impact upon the ability of the claimant to carry out normal day-to-day activities.
7. To bring a claim of unfair dismissal, the claimant must have been an employee of the respondent. By article 3 of the Employment Rights (Northern Ireland) Order 1996, an “employee” is defined as:-
“3. (1) In this Order "employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.
(2) In this Order "contract of employment " means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. “
CONCLUSIONS
8. Having applied the relevant law to the facts found as set out at para 4 above, the tribunal is satisfied that the claimant has a disability within the meaning of the Disability Discrimination Act 1995.
9. On the basis of the facts found as set out at para 5 above, the tribunal is
satisfied that the claimant was not employed by the second respondent under a contract of employment. The tribunal therefore does not have jurisdiction to hear the claimant's claim of unfair dismissal.
Chairman:
Date and place of hearing: 29 November 2006, Belfast
Date decision recorded in register and issued to parties:
