TF and N.I. Public Services Ombudsman
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 01 April 2022 |
| Neutral Citation | [2022] NICA 17 |
| Court | Court of Appeal (Northern Ireland) |
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Neutral Citation No: [2022] NICA 17
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McC11788
ICOS No: 21/008653
Delivered: 01/04/2022
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_________
ON APPEAL FROM THE INDUSTRIAL TRIBUNAL
_________
TF
Appellant:
-and-
NORTHERN IRELAND PUBLIC SERVICES OMBUDSMAN
Respondent:
________
The Appellant appeared as Litigant in Person, assisted by a “McKenzie” Friend
Rachel Best, (instructed by EDG Legal Solicitors) for the Respondent
________
Before: McCloskey LJ, Maguire LJ and Huddleston J
_________
ANONYMITY
By its order dated 15 February 2022 the court acceded to the appellant’s application
for anonymity. Hence the cypher in the title hereof. As a result, there must be no
publication by any person or agency of the identity of the appellant or of anything
which could result in her identification.
McCLOSKEY LJ (delivering the judgment of the court)
INDEX
Chapter Paragraph No
I. Introduction 1-3
II. The Protagonists 4
III. Material Dates and Events 5-15
IV. Appeal to this Court 16-19
V. The appellant’s First Tribunal Claim 20-21
VI. The appellant’s Second Tribunal Claim 22-23
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VII. Legal Framework 24-31
VIII. The Tribunal’s Findings and Conclusions 32-42
IX. Appeals from Tribunals to this Court: General Principles 43-44
X. The Parameters of this Appeal 45-50
XI. The Transcripts 51-55
XII. The appellant’s Dyslexia 56-63
XIII. Codes of Practice: The Employer’s Duties 64-66
XIV. Dyslexic Litigants: The Judicial Duty 67-75
XV. First Ground of Appeal: Unfair Hearing 76-116
XVI. Second Ground of Appeal: Legal Misdirection 117-124
XVII. Third Ground of Appeal: the Edwards v Bairstow Ground 125-126
XVIII. The Second Tribunal Claim 127-130
XIX. The New Psychology Report 131-132
XX. General Guidance 133
XXI. Our conclusions 134
Introduction
[1] In August 2018, TF (“the appellant”) brought proceedings in the Industrial
Tribunal (“the Tribunal”) against the Northern Ireland Public Services Ombudsman
(“the Ombudsman”) complaining of direct discrimination on the ground of
disability, and a failure to make reasonable adjustments, arising out of the conduct
of an interview pursuant to her application for the post of Senior Investigating
Officer (“SIO”), which she failed to secure, having been ranked the last of six
candidates. The appellant was at that stage employed by the Ombudsman as an
investigating officer (“IO”), albeit she had been on secondment with another public
sector employer from around March 2018, an arrangement which ultimately
terminated on 31 March 2019. In November 2019 the appellant initiated a second
tribunal claim against the Ombudsman, arising out of her resignation from her
employment on 15 July 2019, asserting unfair (constructive) dismissal and disability
discrimination by reason of victimisation.
[2] Following a hearing conducted between 16 and 19 November 2020 the
Tribunal, by its decision transmitted to the parties on 15 December 2020, determined
unanimously that the appellant’s claims would be dismissed. The appellant appeals
to this court in consequence.
[3] It is appropriate to record at the outset that the appellant suffers from a
The Protagonists
[4] It is convenient to identify the protagonists. They are:
(a) The appellant.
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(b) The presiding Tribunal judge.
(c) The Public Services Ombudsman (“the Ombudsman”).
(d) Andrew Gallagher, Cognitive Behavioural Psychotherapist.
(e) John Eakin, Chartered Educational Psychologist.
(f) John Dunlop BSc, BABCP Accredited Cognitive Behavioural
Psychotherapist.
(g) Michaela McAleer of NIPSO, Member of the Recruitment Panel.
(h) Paul McFadden of NIPSO, Chairman of the Recruitment Panel.
(i) Sean Martin of NIPSO, third member of the Recruitment Panel.
(j) Janice Wilson, NIPSO, Human Resources Advisor.
(k) Andrea Hegarty, NIPSO Data Protection Officer.
Material Dates and Events
[5] It is appropriate to preface what follows by noting that the events giving rise
to these proceedings can be divided into two basic phases, namely [a] the pre-job
interview period (to 8 May 2018) and [b] the period thereafter. The court, as is
customary, directed the preparation of a schedule of agreed material facts.
Unsurprisingly, two competing schedules materialised. The court would emphasise
that the material facts are those which have a bearing on its determination of the
issues raised by this appeal. Many of the material facts are objectively verifiable,
uncontested or incontestable.
[6] As regards the first of the two periods in question, the narrative begins with
the appellant’s successful application for the post of Investigating Officer (“IO”) in
the Ombudsman’s organisation, as a result of which her employment there began in
2016. Previously, having been admitted to the Roll of Solicitors in England and
Wales, she worked in that jurisdiction. Next, having transferred her residence to
Northern Ireland, she worked intermittently for an organisation which provides
legal advice and services during a period of some two to three years. She also
worked as a solicitor providing services to a high profile public inquiry for around
one year.
[7] In February 2016, in advance of her first job interview, the appellant described
her dyslexic condition in detail in an email to the Ombudsman’s organisation. She
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