Alcock vs Department of Justice
| Jurisdiction | Northern Ireland |
| Judgment Date | 30 August 2017 |
| Docket Number | 02600/15IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Department of Justice |
THE INDUSTRIAL TRIBUNALS
CASE REF: 2600/15
CLAIMANT: Gary Alcock
RESPONDENT: Department of Justice
DECISION
The unanimous decision of the tribunal is that the claimant’s claim is out of time and there are no grounds on which the statutory time limit can be extended. The tribunal does not therefore have jurisdiction to determine the claim and it is accordingly dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Bell
Members: Mr I Atcheson
Mr J Smyth
Appearances:
The claimant was represented by Mr Peter Hopkins, Barrister-at-Law, instructed by Edwards & Company, Solicitors.
The respondent was represented by Mr Aidan Sands, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.
1. The claimant presented his claim to the Office of the Tribunals on
11 November 2015. At a Pre Hearing Review on 6 May 2016 leave was granted to the claimant to amend the endorsement in the claim and for the respondent to present an amended response. In his amended claim the claimant complained that he had suffered unlawful detriment contrary to Regulation 73 of the Employment Rights (Northern Ireland) Order 1996 (‘ERO’) in respect of:
(1) A warning given on 11 December 2014 by Mr Paul Cawkwell as servant or agent of the Northern Ireland Prison Service (‘NIPS’).
(2) His removal from the post of Deputy Governor at Maghaberry Prison on or about 8 June 2015 by Mr Cawkwell as servant or agent of NIPS.
The claimant also set out that:
The Director General of NIPS in dealing with his appeal thereafter failed to identify the process that should have been followed or to explain the business justification for doing so and suggested justification that ‘some of the senior management team at Maghaberry were able to be moved within the service but that there wasn’t a job for Gary within the Service’ was erroneous as two posts were vacant at that time within NIPS both at the Claimant’s grade and experience.
And,
The role, at that time, being fulfilled by the claimant outside NIPS was embarrassing and humiliating for one of his level in senior management, he had been removed from the Senior Leadership Forum and the detriment he was suffering was continuing and he wished to be returned to an operational role within NIPS.
2. The respondent in its amended response resisted the claim, denied that a warning was given and contended that legitimate management concerns were raised on 11 December 2014 and that the claimant’s removal from his post was as a result of the recommendation of the Criminal Justice Inspection NI report following an inspection in May 2015 of HMP Maghaberry, that urgent and decisive action be taken to strengthen leadership through, inter alia, the provision of visible reassurance and authority to staff and prisoners. In consequence of which NIPS decided to refresh and strengthen the Senior Management Team requiring removal of the Governor, Deputy Governor (the claimant) as well as a number of functional managers. The claimant’s posting had been under review since September 2015, he had rejected two possible posts because they did not have a substantial operational role, was advised on 5 November 2015 there was no possibility of his returning to such a role in the near future and his decision was awaited upon other posts offered (amalgamation of NIPS records and information management systems with DOJ or physical closure of the Prison Service College, Millisle).
3. A hearing on the merits of the claimant’s detriment claim took place between 14 - 16 March 2017 in respect of which the parties had agreed a statement of main legal and factual issues to be determined as follows:-
Legal Issues
(i) Was the claimant subjected to any detriment as an individual by the respondent, contrary to Articles 73(a) and/or (b) of the Employment Rights (NI) Order 1996 (‘the ERO’), for the sole or main purpose of:
a) preventing or deterring the claimant from being a member of an independent trade union or penalising him for so being; or
b) preventing or deterring the claimant from taking part in the activities of an independent trade union at an appropriate time or penalising him for so doing, in respect of:
- the warning given on 11 December 2014 by Paul Cawkwell as servant or agent of the Respondent
- the claimant’s removal from his post of Deputy Governor at HMP Maghaberry
(ii) What remedies, if any, is the claimant entitled to pursuant to Article 76 of the ERO?
Factual Issues
(iii) What treatment was the claimant subjected to by the respondent, in particular Paul Cawkwell, in the period up to and including June 2015, in particular:
- What transpired at the meeting on 11 December 2014 between the claimant and Paul Cawkwell
- What transpired at the meeting in June 2015?
(iv) What was the sole or main purpose for which the respondent, acting by its servants or agents, acted in respect of:
a) The warning given on 11 December 2014 by Paul Cawkwell as servant or agent of the respondent;
b) The claimant’s removal from his post of Deputy Governor at HMP Maghaberry.
(v) What detriment, if any, has the claimant suffered by reason of any treatment to which he was subjected by the respondent, its servants or agents?
(vi) What impact/effect has any such treatment had on the claimant, including upon his health?
4. On conclusion of the hearing of evidence the parties sought to provide written submissions and these were subsequently presented to the Office of the Tribunals on 27 March 2017.
5. In written submissions presented for the respondent a time point was raised for the first time (arising out of the evidence given by the claimant under cross examination at hearing that he had no evidence that Mrs McAllister (the Director General of NIPS) had discriminated against him on the ground of his trade union activity during the appeal and as such his complaint was confined to mere unfairness) such that in circumstances where it is not alleged that the appeal process was an act of detriment on the ground of trade union activity, then the detriment itself concluded with the decision on 3 June 2015 and there was a live issue as to whether the claimant’s complaint was presented within the statutory time period of three months, no application for an extension of time ever having been made.
6. Rebuttal submissions were presented for the claimant to the Office of the Tribunals on or about 13 April 2017 in respect of the time point.
7. Parties were notified on 15 April 2017 on consideration of written submissions and rebuttal submissions in respect of the time point raised and in light of the Northern Ireland Court of Appeal decision of Knox (Lindsay) v Henderson Retail Ltd [2017] NICA 17 ref WEI10237 delivered 10 March 2017 that a reconvened hearing would take place on 30 May 2017 to allow parties the opportunity to present evidence, call or question witnesses and make submissions in relation to whether the complaint has been presented in compliance with Article 74 of the ERO, that is:-
a) before the end of the period of three months beginning with the date of the act or failure which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them, or
b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonable practicable for the complaint to be presented before the end of that period of three months.
8. On 24 May 2017 a joint application was made by the parties for the time point to be dealt with by written submissions rather than by reconvened hearing based on their confirmation that no further oral evidence was needed and evidence grounding the claimant’s primary argument (that the claim was in...
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