McGurnaghan,Irvine vs Chief Constable of the Police,The Police Service

CourtIndustrial Tribunal (NI)
Judgment Date13 Dec 2012
Docket Number01680/11IT
RespondentChief Constable of the Police,The Police Service
FAIR EMPLOYMENT TRIBUNAL

THE INDUSTRIAL TRIBUNALS

CASE REFS: 1683/11

1680/11

CLAIMANTS: Lisa McGurnaghan

Leslie Irvine

RESPONDENTS: 1. Chief Constable

of the Police Service of Northern Ireland

2. The Police Service of Northern Ireland

NOTICE PARTIES: 1. Office of the First and Deputy First Minister

2. Department of Employment and Learning

DECISION

The unanimous decision of the tribunal is that is has no jurisdiction to hear the complaints of unfair dismissal and those complaints are dismissed accordingly. The unanimous decision of the tribunal is also that it has no jurisdiction to determine the claims of age discrimination in this case and those claims are dismissed accordingly. In relation to the claims under the Fixed Term Employees (Prevention of Less Favourable Treatment Regulations (Northern Ireland) 2002, the parts of those claims which relate to the compulsory termination of the claimant’s appointment, per se, fall outside the jurisdiction of the tribunal and are dismissed accordingly. The only remaining part of the claims before the tribunal are those under the Fixed Term Regulations which relate to the severance arrangements offered to the claimants which are claims that those should be compared with the arrangements offered to regular police officers. Those claims are within the jurisdiction of the tribunal and will proceed to an evidential hearing.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr Ian Rosbotham

Mr Eddie Grant

Appearances:

The claimants were represented by Mr P Ferrity, Barrister-at-Law, instructed by Gus Campbell & Company, Solicitors.

The respondents were represented by Mr A Colmer, Barrister-at-Law, instructed by the PSNI Legal Office.

The notice parties were represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

Background

1. The claimants were designated lead cases in a wider group of claimants and had been full-time reserve constables on fixed term arrangements. Their service had been extended periodically but had eventually come to a compulsory end with payments being made to the claimants under the Police Service of Northern Ireland Reserve (Full time) Severance Regulations 2006 (‘the Severance Regulations’).

2. The claimants alleged:-

(i) that they had been unfairly dismissed by the first and second-named respondents and sought a remedy in this respect from the tribunal;

(ii) that the treatment which had been accorded, under the Severance Regulations, to different age groups within the group of full-time reserve constables was discriminatory on grounds of age and that the tribunal had jurisdiction under the Employment Equality (Age) Regulations (Northern Ireland) 2006 (the Age Discrimination Regulations) to determine this matter and to award a remedy accordingly;

(iii) that the compulsory termination of the claimants’ engagements and the financial and other severance arrangements relating to that termination were unlawfully discriminatory under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (‘the Fixed Term Regulations’). The claimants argued that the tribunal had jurisdiction to hear and determine these claims and to fix a remedy accordingly.

3. The respondents disputed, on the facts, that the claimants had been unfairly dismissed and further disputed, on the facts, that the respondents had unlawfully discriminated against the claimants as alleged.


In relation to the legal aspects, rather than the factual aspects of the claims, the respondents argued:-

(i) that the claimants had no right to claim unfair dismissal before this tribunal under the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) because:-

(a) they were office-holders and not employees; or

(b) they were in any event excluded from the jurisdiction of the tribunal and from the effects of the 1996 Order by Article 243 of that Order.

(ii) that the claims under the Age Discrimination Regulations were excluded by Regulation 28 of those Regulations; and

(iii) that the claims under the Fixed Term Regulations were excluded in so far as they related to a claim in respect of the fact of termination only, because, on the respondents’ argument, a termination of a fixed term arrangement could never be a detriment for the purposes of those regulations or of the underpinning Directive.

4. The hearing of these claims was originally set down to be a full hearing of all outstanding issues between the parties in the two lead cases. As matters progressed, and as the arguments developed, it became apparent to the tribunal and equally apparent to the parties that it would be preferable if the tribunal first determined what could properly proceed before the tribunal as part of that tribunal’s jurisdiction and then, in a separate and potentially much shorter hearing, to proceed to hear the relevant evidence in relation to any outstanding matter within the jurisdiction of the tribunal. In other words it was clear, as matters progressed, that the time of the tribunal was best used initially in determining what matters were properly within its jurisdiction and then, subsequently, to focus its attention solely on those extant matters (if any) which were properly within its statutory jurisdiction. It would have been a waste of time and resources and contrary to the overriding objective if a great deal of evidence had been heard from both sides in relation to matters which fell outside the proper jurisdiction of the tribunal and were, on that basis, doomed to failure.

5. The claims proceeded for hearing for three days on 26, 27 and 28 November 2012. The panel met on 29 November 2012 to consider the arguments. Further comments had been invited from the parties in relation to documents which had been produced late. Submissions on those documents were forwarded to the panel members for comment. The panel members did not feel that the submissions altered the discussions reached on 29 November 2012. This document sets out the reserved decision.


Unfair dismissal – Jurisdiction of the tribunal

6. When considering this question of jurisdiction, it is important for the tribunal to bear in mind that it is a statutory tribunal with, therefore, a limited statutory jurisdiction. The tribunal is emphatically not a court of inherent jurisdiction in the same way as the High Court.

7. The fact that a claimant is arguably denied a right to lodge his claim before a particular statutory tribunal or before a particular court or the fact that a claimant is denied the right to pursue a particular claim in a particular way, does not of itself mean that the tribunal can seize that jurisdiction simply because the jurisdiction specifically lies elsewhere or because the jurisdiction falls to be determined by a court of inherent jurisdiction.

In the case of Secretary of State for Employment v Mann [1996] IRLR 4, the Great Britain Court of Appeal was considering the jurisdiction of an employment tribunal. In that case the relevant subject matter was that of Francovich cases but the fundamental jurisdictional issue remains the same. The Court endorsed arguments which had been put forward on behalf of the Secretary of State:-

“On behalf of the Secretary of State on the other hand it was argued that the Appeal Tribunal had reached the correct conclusion in deciding that an industrial tribunal had no jurisdiction to entertain a Francovich claim for damages. Community law, it was submitted, permits Member States to specify the Courts and the procedures whereby claims under community law are to be enforced, provided that the conditions for their enforcement are not less favourable than those relating to similar claims under national law and do not render “virtually impossible” the exercise of rights conferred by community law – community law does not require that an industrial tribunal should be able to entertain Francovich claims. The only requirement is that such claims can be entertained before an appropriate court.

We were reminded that an industrial tribunal is a creature of statute (created under section 128(1) of the Act 1978) in that the jurisdiction of an industrial tribunal is conferred by statute. The appropriate Court for a Francovich action is the High Court or, perhaps, the County Court.”

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