Lacey vs University of Ulster,Paul Davidson
| Jurisdiction | Northern Ireland |
| Judgment Date | 05 January 2007 |
| Docket Number | 00970/05IT |
| Court | Industrial Tribunal (NI) |
| Respondent | University of Ulster,Paul Davidson |
THE INDUSTRIAL TRIBUNALS
CASE REF: 970/05
CLAIMANT: Brian Lacey
RESPONDENTS: University of Ulster
Paul Davidson
DECISION ON PRE-HEARING REVIEW
The decision of the tribunal it cannot be said that this claimant's complaint has little reasonable prospect of success. Therefore it would be quite inappropriate for the tribunal to make an order on foot of rule 20 of the Industrial Tribunal Rules of Procedure (2005) contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The matter may now proceed to a full hearing on the merits, without further Order.
Constitution of Tribunal:
Chairman: Mr J V Leonard (sitting alone)
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.
The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by the University of Ulster.
Reasons
1. Reasons are given in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter. The tribunal heard oral evidence from the claimant and from Mr Oliver McCullough and Mr Barry Mulqueen. In addition the tribunal had before it a bundle of documents prepared on behalf of the claimant and a bundle of documents prepared on behalf of the respondents. Furthermore, during the course of the hearing, by agreement, the tribunal was furnished with some additional documentation.
The Issue
2. The claimant presented a claim form dated 21 June 2005, received by the Office of Tribunals on 24 June 2005, in which the claimant claimed sexual orientation discrimination. In response to the claimant’s claim, the University of Ulster ("the University"), on behalf of the respondents, indicated an intention to resist the claim and contended that the claim had been lodged out of time and denied that the respondent was discriminated against in any way contrary to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, or contrary to any other equality legislation.
3. The matter had been earlier listed for a hearing on the issue of whether the claim had been presented within time. A decision on Pre-Hearing Review was promulgated on 2 February 2006 ("the February 2006 decision") in which a tribunal, Chaired by Mr Palmer sitting alone, found that, although the claim had been presented out of time, on balance it was just and equitable for an industrial tribunal to consider the complaint, notwithstanding that fact.
4. The matter was further listed for a Pre-Hearing Review before this tribunal upon the following issue:-
“whether the contentions put forward by the claimant have little reasonable prospect of success”.
Accordingly the tribunal had to determine that preliminary issue.
The Tribunal's Findings
5. On foot of the oral and documentary evidence adduced before it, the tribunal made the findings of fact set out below, material to the issue for determination, upon the balance of probabilities.
(a) The tribunal does not intend to recite in detail the findings of fact which are already recorded in the February 2006 decision. It should be sufficient to state that the claimant was aggrieved at his failure to be short-listed by the University for interview in respect of an academic post. On 15 June 2005 the claimant contacted the Equality Commission for Northern Ireland ("the Commission") in order to seek advice. The Commission responded by, on 16 June 2005, sending to the claimant some information and documentation including a claim form for the claimant to complete if he desired to pursue a claim. The claimant then duly completed the claim form, dated that claim form 21 June 2005, and submitted that to the Office of Tribunals.
(b) Insofar as material, the claim form contained the following:-
Paragraph 8.1 [which contains the invitation: “Please tick the box or boxes to indicate the type of discrimination (including victimisation) you are claiming about"] was completed by the claimant with the box entitled “Sexual Orientation Discrimination” being ticked by him.
Paragraph 12 (entitled “Other information”) was completed by the claimant by the inclusion of the following wording:-
“In my application I made it clear that one of my research interests (including an existing publication) is the history of homosexuality in Ireland. I explained that I have a draft book on that topic almost ready for publication. I have no doubt that an act of discrimination has been perpetrated against me by the University of Ulster and I believe that my interests in the history of homosexuality may be the cause…. I believe the University’s treatment of me amounts to discrimination on grounds of sexual orientation”.
(c) The claimant contended, and the tribunal had no reason to doubt, that the claim form was completed by the claimant in a mood of anger and frustration. It was also completed by the claimant at a time when he had not had the benefit of comprehensive legal advice, although he had indeed received some information from the Commission. The claimant candidly conceded in the course of the hearing that, whilst he would have often taken great care with the drafting and redrafting of documents with a view to publication in his chosen field of professional expertise, he did not avail of that opportunity in his drafting of this claim form; the English usage left something to be desired in terms of the clarity which he had otherwise intended to impart, the claimant conceded.
(d) The tribunal’s attention was drawn to the content of the letter of 16 June 2006 from the Commission to the claimant which had accompanied the documentation sent to him. Therein an invitation or suggestion was made to the claimant that he might wish to include a particular wording in his claim form. The Commission's suggestion was to include the following:-
“I believe that the Respondent’s treatment of me amounts to direct and/or indirect discrimination [if appropriate: and/or victimisation] on grounds of my sexual orientation contrary to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, and/or relevant European Law.”
The claimant’s explanation provided to the tribunal for the omission of any of the foregoing suggested wording, save for the following, “I believe that the University’s treatment of me amounts to discrimination on grounds of sexual orientation”, was that he was angry and frustrated. He also had been informed by the Commission that he had in all probability fallen foul of the time limit for submitting his claim. Therefore he had to submit his claim with the utmost haste. It was for that reason, so the claimant contended, that the full draft wording as suggested by the Commission had not been included by him in the claim form.
(e) In the course of these proceedings the claimant was served by the respondents with a Notice for Further and Better Particulars. In answer to a question, “List each and every act of discrimination on the grounds of Sexual Orientation”, the claimant included the following paragraph:-
“In the light of the above the stated reasons given by you for my not being short-listed for interview, despite my repeated attempts to obtain clarification, simply do not make sense. I have concluded, therefore, that I am a victim of an act of discrimination by the short-listing panel or by other unknown persons in the university. I believe that the fact that I clearly identified in my application that I am interested in the history of homosexuality in Ireland and that I have a draft book on the topic almost ready for publication (which one might think would be received positively in the institution that claims that it is “dedicated to understanding cultural diversity in Ireland”) as well as a previous publication on that topic, may be the reason for that discrimination”.
(f) In the slightly unusual circumstances that bear upon this case, the tribunal is now obliged, firstly, to refer...
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