McGurnaghan v Chief Constable of the Police ... The Police Service of Northern... [2012] NIIT 01680

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.”

Later in the decision, Mummery J stated:-

“These arguments, although lucidly and attractively presented have not ultimately persuaded us to uphold the industrial tribunal’s decision. The arguments do not answer the fundamental point that, under community law, questions of jurisdiction, procedure and remedy are, in general, for the Member State to determine, subject only to the principles that the domestic law procedures and remedies should provide an effective remedy and not be discriminatory as between similar claims under domestic law and community law. In our view, the statutory provisions which define and limit the jurisdiction and powers of industrial tribunals are not in themselves contrary or incompatible with community law and do not violate these principles. An industrial tribunal has no jurisdiction to determine a claim against the State or an officer of the State for failing to perform a public legal duty. That is usually a matter for the High Court in judicial review proceedings. The same applies to a claim under community law. The effectiveness of such a claim is not impaired by allocation of the power to determine such claims to the High Court.”

8. The claimants in these cases invite the tribunal, in several respects, to disapply the provisions of domestic law on the grounds that such law is incompatible with EU or ECHR law.

In relation to EU law, Marleasing SA v La Comercial Internacional de Alimentacíon SA, [1992] 1 CMLR 305 provides that tribunals are obliged, insofar as possible [tribunal’s emphasis] to interpret domestic legislation to conform with any relevant EC Directive. A statutory tribunal, in particular, can only go so far. The scope of this doctrine is severely limited. It can only be used where the meaning of the domestic legislation is not distorted. Any use of Marleasing to assume a new statutory jurisdiction or to alter completely the scope of domestic regulations would be an example of excessive distortion.

When considering the jurisdiction of statutory tribunals where domestic legislation allegedly conflicts with directly effective EU provisions, it is important to note that the Great Britain Court of Appeal has already stressed the limitations of statutory tribunals. In Biggs v Somerset County Council [1996] IRLR 203 and Barber v Staffordshire County Council [1996] IRLR 209 the court concluded that industrial tribunals did not have the jurisdiction to determine direct Article 141 claims which were not already potentially within their specified jurisdiction. In the former, Mummery J stated at a lower level and was upheld by the Court of Appeal:-

“(a) The industrial tribunal has no inherent jurisdiction. Its statutory jurisdiction is confined to complaints that they be made to it under specific statutes, such as the Employment Protection (Consolidation) Act 1978, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Equal Pay Act 1970 and any other relevant statute. We are not able to identify the legal source of any jurisdiction in the tribunal to hear and determine disputes about Community Law generally.

(b) In the exercise of its jurisdiction, the tribunal may apply Community Law. The application of Community Law may have the effect of displacing provisions in domestic law statutes which preclude a remedy claimed by the applicant. In the present case, the remedy claimed by the applicant is unfair dismissal. That is a right conferred on an employee by the Act of 1978 and earlier legislation. If a particular applicant finds that the Act contains a barrier that prevents the claim form succeeding but that the barrier is incompatible with Community Law, it is displaced in consequences of superior and directly effective Community Rights.

(c) In applying Community Law the tribunal is not assuming or exercising jurisdiction in relation to a ‘free-standing’ Community Law right separate from rights under Community Law. In our view, some confusion is inherent in, or caused by the mesmeric metaphor ‘free-standing’. ‘Free-standing’ means not supported by a structural framework, not attached or connected to another structure. … ”

9. Statutory tribunals, such as the industrial tribunal, without any inherent, general, or residual jurisdiction, must be very cautious about entertaining arguments that they should, without clear statutory authority, extend their jurisdiction and entertain claims which should properly be determined elsewhere.

10. Industrial tribunals in Northern Ireland are set up under the Industrial Tribunals (Northern Ireland) Order 1996. Article 4 of that Order under the heading ‘Jurisdiction of industrial tribunals’ provides:-

“Industrial tribunals shall exercise the jurisdiction conferred on them by or by virtue of this Order or any other statutory provision.”

It therefore seems beyond any rational argument that this tribunal has a strictly limited and statutory jurisdiction.

11. Turning to the facts of these particular cases, Article 126(1) of the 1996 Order provides the statutory basis of the jurisdiction which is to be exercised by this tribunal in relation to a potential unfair dismissal claim:-

“An employee has the right not to be unfairly dismissed by his employer.”

Article 3(1) of the 1996 Order defines an employee in the following way:-

“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.”

The word ‘employer’ has to be defined accordingly and is specified by Article 3(4) as:-

“In this Order ’“employer’ in relation to an employee or worker, means a person by whom the employee or worker is (or, where the employment has ceased, was) employed.”

Article 145 of the 1996 Order accords the jurisdiction to determine claims of unfair dismissal, under that Order, to the industrial tribunal. It also provides specifically for remedies. Those remedies, in the main, comprise reinstatement, re-engagement or compensation.

12. The case law and the statutory provisions which relate to the status of constables and to which we have been referred in the extremely interesting and complex legal arguments put before us are of long-standing and are consistent. It seems clear to this tribunal that a constable, whether a regular constable or a reserve constable, is not an employee and is, in fact, an office-holder appointed under the relevant statutory provisions by the Chief Constable.

13. The two lead claimants and indeed all the claimants in this multiple case were at the relevant times full-time reserve constables. Those claimants were appointed as full-time reserve constables under the Royal Ulster Constabulary Reserve (Full-Time) (Appointment and Conditions of Service) Regulations 1996. Those Regulations provided in detail for the appointment and the terms for such constables. It does not seem to be in dispute in this case that the full-time reserve constables were appointed in the same way, generally speaking, as the regular full-time constables and that they took an appropriate oath on appointment. There appears to be nothing in these regulations which specifically sets out the legal status of full-time reserve constables but those regulations appear to proceed on the assumption that full-time reserve constables are not employees but are office-holders. For example, under the heading ‘Duty to carry out the lawful orders’, Regulation 17 provides:-

“Every member shall carry out all lawful orders and shall at all times, punctually and promptly, perform all appointed duties and attend to all matters within the scope of his office [tribunal’s emphasis] as a reserve constable.”

It has not, in any event, been argued in the present cases that full-time reserve constables have a different legal status, in terms of either employment or office-holding, than that of regular constables.

14. The case law which provides, without any contradiction, that a constable is an office-holder rather than an employee is varied and of long-standing. For the purposes of this reserved decision it is sufficient to quote briefly from a small selection of those cases.

For example, the Employment Appeal Tribunal in Commissioner for the Metropolis v Lowrey-Nesbitt [1999] ICR 401 stated:-

“It seems to us that a fair reading of these cases leaves no room for doubt as to what the position is. Whether as a matter of public policy, or because of the nature of his duties as a constable who has taken an oath, or because a police officer is an officeholder, there is no room for any further argument short of the House of Lords for the proposition that a police officer is in an employment relationship with anyone.”

Closer to home, the Northern Ireland High Court in Re Aitken [1995] NI 49, considered whether a failure to offer a three year fixed term contract to a member of the Royal Ulster Constabulary Reserve was a decision which was open to judicial review by that court. Kerr J concluded:-

“- In renewing or refusing to renew a contract for a member of the Royal Ulster Constabulary Reserve, the Chief Constable exercises or declines to exercise his statutory power of appointment to the force. Furthermore the applicant has no private law rights which he might pursue by way of civil proceedings nor may he take proceedings for unfair dismissal [tribunal’s emphasis].”

Finally, in Re Chambers [2005] NIQB 27 Girvan J held:-

“In essence a police force is a number of individual constables whose status arises from the common law, organised together in the interests of efficiency. Historically the parish constable was a holder of an office and as the holder of such office was responsible by virtue of that office, firstly, for the preservation of the peace within his bailiwick and, secondly, for the execution of orders and warrants of the justices of the peace. A member of the police force, of whatever rank, in carrying out his duties as a constable acts as an officer of the Crown and a public servant. His powers are exercisable by him by virtue of his office. He is not in law an employee [tribunal’s emphasis].”

15. The claimants argue against the proposition that a constable holds an office and argue instead that a constable is an employee. They state, firstly, that this is an ancient proposition and that is no longer current. The fact that a proposition is ancient or of long-standing and that it appears that this proposition has been universally accepted does not, in and of itself, mean that the proposition is misconceived or outdated; quite the reverse. It is clear, and it is significant, that no police constable has been able to successfully dispute the general proposition that he is an office-holder and not an employee. Furthermore, the judgement last referred to above dates only from 2005 and can hardly be described as ancient. The tribunal has also been referred to various documents, including documents produced by the Police Federation, which make it plain that the proposition that constables are office-holders, and not employees, is absolutely current. The tribunal therefore rejects the claimants’ argument on this point.

16. Secondly, the claimants argue that in every or almost every case where rights are accorded to individuals, at least after the Human Rights Act 1995, in relation to acts of discrimination which might arise in the course of their ‘employment’, those rights have been accorded similarly to police constables. Mr Ferrity argues on behalf of the claimant that this demonstrates that the ground has shifted and that these provisions indicate that the correct position in law is that a constable now holds his post as an employee. He argues that this necessarily means that a constable is an employee of the first or second named respondent in these cases.

The tribunal concludes that this argument cannot be sustained. It is clear that there are provisions of the type to which the claimants refer. For example, in the Age Discrimination Regulations, Regulation 14 provides:-

“For the purposes of this Part, the holding of the office of constable as police officers shall be treated as employment by [either the Chief Constable or the Policing Board].”

Another example can be found in the Fixed Term Regulations where Regulation 15 provides:-

“For the purposes of these Regulations, the holding, otherwise than under a contract of employment of the office of constable – shall be treated as employment, under a contract of employment by the relevant officer.”

Both these examples of statutory provisions post-date the introduction of the Human Rights Act 1998. However, neither statutory provision or indeed any other relevant statutory provision, attempts to alter the fundamental and underlying nature of the office of constable. The statutory provisions are what is generally termed as ‘deeming provisions’ which are limited to the narrow scope of the relevant statutory provisions. They do not provide that a constable shall for all purposes be treated as an employee or that the ‘office’ of constable is abolished. They do not purport to alter the underlying basis of the relationship between a constable and the public or the relationship between a constable and the police body which appoints him. Any such fundamental change in the status of constable would have had to be contained within primary legislation relating to the relevant subject-matter, ie a Police Act. It would not have been introduced as a by-product of anti-discrimination legislation. The ‘deeming provisions’ solely provide that for the purposes of the relevant legislation, the rights accorded to employees shall be extended to police constables in certain specified instances. Such ‘deeming provisions’ would be absolutely unnecessary if the claimants were in fact, as they allege before this tribunal, employees and not office-holders. These discrimination statutes or regulations would have applied automatically to police constables if they had been employees, rather than office-holders.

17. Since the tribunal is a statutory tribunal with its jurisdiction limited by statute and since the 1996 Order limits the jurisdiction of the statutory tribunal in relation to unfair dismissal to employees, the tribunal has no jurisdiction under that Order, or under domestic legislation generally, to hear any claim of unfair dismissal brought by the claimants in this matter.

18. The tribunal heard a great deal of arguments on the purpose and effect of Article 243 of the 1996 Order. Article 243 of the 1996 Order provides, in relevant part:-

“(1) Articles 124 and 125, Part XI (except Articles 132, 134A and 169A and other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of Article 132 or 134A) and Part XIII do not apply to employment under contract of employment in police service or to persons engaged in such employment.”

In Article 243(3) ‘police service’ is defined as including ‘service as a police officer’.

19. The claimants argue, firstly, (which argument is rejected) that police constables are employees and therefore within the jurisdiction of the tribunal. He then argues that this jurisdiction is subject to Article 243 and that that Article should be set aside as being incompatible with EU provisions and ECHR provisions to which I will shortly turn.

20. The respondents and the notice parties argue that Article 243 is either superfluous in that it simply restates the obvious, ie that police constables are office-holders and are to be treated outside the scope of the 1996 Order or they argue that Article 243 can be properly understood as having a potential relevance to contracted individuals who are employed by either the Harbour Authority or the Belfast International Airport or by the Belfast City Airport to work as police officers with limited jurisdiction within those separate police forces. That latter argument is supported by the decision of the EAT in Commissioner of Police of the Metropolis v Lowrey-Nesbitt [1999] ICR 401 where it held that the parallel provision of Section 200 of the Employment Rights Act 1996 were in place to cover contracted police officers in the British Transport Police, the Ministry of Defence Police, the Royal Parks Constabulary and the United Kingdom Energy Authority Police.

21. Under Article 243(3)(b)(ii), airport constables are excluded in any event from the definition of ‘service as a police officer’. Article 243 has limited potential scope in Northern Ireland; perhaps solely in relation to the Harbour Police. The claimants have suggested that there does not appear to have been a predecessor to Article 243 in the 1976 Order which mirrors the 1996 Order in so far as it states quite plainly that unfair dismissal rights are restricted to ‘employees’. The potentially limited scope of Article 243, and the fact that it first appears in 1996, does not assist the claimants. Even if it were only an automatic copy of Section 200 of the 1996 Act, their arguments are not advanced.

22. The tribunal was not referred to any Hansard reports or any other aids to interpretation in this respect. Therefore the tribunal does not fully understand the existence of Article 243 on the arguments put before in this instance. Nevertheless it is clear that, as previously found, police constables are excluded from the right to claim unfair dismissal before this statutory tribunal because they are not employees. At worst, Article 243 seems to be merely superfluous and to have little discernable and real application within Northern Ireland.

23. The reference to health and safety detriments in Article 132 and Article 169A are argued to assist the claimants in their argument. Article 169A repeats the long accepted proposition that a constable is an office-holder and states:-

“For the purposes of Article 132 [tribunal’s emphasis], and of the other provisions of this Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of Article 132, the holding, otherwise than under a contract of employment, of the office of constable shall be treated [tribunal’s emphasis] as employment by the relevant officer under a contract of employment.”

It seems odd that there is no provision equivalent to Article 169A in relation to public interest disclosure dismissals under Article 134A but that, again, does not assist the claimants in these cases.

The reference in Article 243 to both Articles 132 and 134A seems to the tribunal to be consistent with the general inclusion of constables in anti-discrimination legislation and does not assist the claimants’ argument in relation to unfair dismissal.

24. In any event, the claimants argue that Article 243 should be set aside and that, if it is so set aside, the tribunal will have jurisdiction because police constables are employees. As indicated above that argument is incorrect. Even if Article 243 were to be set aside or disapplied, the underlying position under the 1996 Order does not alter. The claimants are not employees and they do not have the right to claim unfair dismissal before this statutory tribunal.

25. For the claimants’ argument to succeed, not only should Article 243 be set aside by the tribunal but the tribunal would have to read into Article 126 of the Order a fundamentally separate right for office-holders to claim the right of unfair dismissal before that statutory tribunal against their appointing authorities. It is not possible (see Biggs above) for a statutory tribunal to assume jurisdiction under a new and freestanding right to claim in respect of the termination of public offices. Simply disapplying Article 243 as suggested by the claimants would achieve nothing for them in practical terms. The tribunal, even if the claimants were correct, could still not have jurisdiction in relation to the termination of public offices.

26. In any event the claimants argue that the provisions in Article 243 (and by logical extension the provisions in Article 126) are incompatible with Articles 6 and 14 of the European Convention on Human Rights in that they fail to offer a fair trial in relation to a civil right and are discriminatory against an identifiable group.

27. Police constables, including full-time reserve constables, have the benefit of a detailed disciplinary and dismissal procedure governed by regulations leading ultimately to the Police Appeals Tribunal which is chaired by a lawyer. Whether or not those internal provisions satisfy the requirements of Article 6 is nothing to the point. There remains a further right which has been exercised, in other cases, of application for judicial review. By way of example in Arkins Application [2008] NIQB 154, a reserve constable sought judicial review of the dismissal by the Police Appeals Tribunal of his appeal against dismissal. The High Court set out the appropriate process in a misconduct case. That commenced with a misconduct panel, went to a Chief Constable’s review and then went to a Police Appeals Tribunal. None of that appears to be directly relevant to the present case where there is no misconduct or disciplinary issue. However that decision, and others like it, affirms the clear existence of a right to seek judicial review where an appointment to a public office, such as that of constable, is withdrawn.

28. Parking for one moment the obvious point that it is not within the tribunal’s power to simply create out of thin air a separate and freestanding right to claim in relation to the termination of public appointments, it is far outside this tribunal’s remit to properly conclude that the judicial review process in the High Court fails to comply with Article 6. There is no requirement in HR or EU law to require proceedings in broadly analogous circumstances to be conducted in exactly the same way, in exactly the same place and before exactly the same statutory tribunal. All that is necessary is that such proceedings are fair, not less favourable, capable of reaching a just result and do not render pursuing a claim unnecessarily difficult. The role of the statutory industrial tribunal in relation to the dismissal of employees is analogous to that of the High Court in relation to the ending of public appointments. Both deal, however it is expressed, with irrationality, impropriety or procedural unfairness. The tribunal cannot, on the evidence before it, conclude that a judicial review process with evidence on affidavit rather than evidence in the form of written statements, with discovery, with the power of cross-examination and with a public hearing before an experienced judge contravenes the provisions of Article 6. Since Article 14 is not a freestanding right it falls with Article 6.

29. Furthermore, even if a statutory tribunal were to be sufficiently ambitious to arrogate to itself the power to determine whether an appointment to public office had been withdrawn unfairly or had not been renewed unfairly, the statutory tribunal would then have to arrogate itself the power to determine an appropriate remedy. The analogous situation relating to employees provides, as indicated above, for three separate remedies, ie reinstatement, re-engagement and compensation. It would be unthinkable for a statutory tribunal to decide that it had the power to order the reinstatement of any appointee to a public office against the wishes of the public appointing authority. Some credence has to be given to the idea of legislative and executive authority. If, to turn to the circumstances of the present case, it is determined by the Executive and by the legislature, following the Patten Report, that the full time reserve force is to be terminated, a statutory tribunal cannot assume the role of telling those authorities to reverse its decision and to reverse it in a particular way. Even if it were to do so and even if the respondents in this case were for some reason to accede to any such order, where would these individuals be either reinstated or re-engaged? Reinstatement and re-engagement are, in practical terms, utterly impossible. Compensation, given the already generous terms of the severance procedure seems equally utterly misconceived.

30. Turning from the ECHR to the EU, the claimants also seek to rely on the Charter of Fundamental Rights of the European Union (‘the Charter’). They argue that Article 30 of that Charter provides for protection in the case of unjustified dismissal and that Article 47 provides for a right to an effective remedy and a fair trial.

The tribunal does not intend, at this point, to rehearse again the reasons for its conclusions that the industrial tribunal does not have jurisdiction in relation to unfair dismissal claims by public appointees or for its conclusion that a fair and adequate trial has elsewhere in the High Court.

31. However, for completeness sake, the tribunal conclude that the Charter does not provide any relevant justiciable right in the United Kingdom. If it did provide for a separate justiciable right, and if that right related to public appointments, the proper court to determine any such right would be a different matter.

The claimants sought to rely on a position adopted by the Secretary of State in The Queen on the application of NS v Secretary of State for the Home Department [2010] EWCA Civ 990. The respondents and the notice parties argued that that stance of the Secretary of State was one adopted pending the determination of the ECJ and had no wider significance. In the event, the ECJ has reached its conclusion in ‘NS’ and other joined cases at [2012]All ER (EC) 2011.

32. The ECJ stated, albeit apparently obiter, that:-

“However, Article 1(2) of Protocol No 30 also appears to rule out new EU rights and entitlements being derived from Articles 27 – 38 of the Charter of Fundamental Rights, on which those entitled could rely against the United Kingdom or against Poland.”

The tribunal declines the invitation of the claimants to disagree with the remarks of the ECJ. Even if obiter, and even if the doctrine of obiter dicta survives the Channel crossing, it would be a step too far. If the ECJ feels that it is necessary to define the scope of the Charter, it would be an ambitious statutory tribunal which chose to depart from its conclusions, without any clear basis upon which to do so.

33. The claimants, at a late stage in the proceedings, produced various documents which could be read as being contracts of employment. The tribunal does not believe that these altered the clear position that the claimant were office-holders and not employees. Individuals within HR Departments cannot by the use of certain formats, or the use of certain terms, alter the clear statutory and common law position of constables.

34. In order to deal with all of the arguments which had been expertly put on behalf of the claimants, the respondents and the notice parties, this reserved decision has wandered a little far from the point. However, to bring this part of the decision back to the core point, the decision simply reiterates that the claimants are not employees but office-holders. The statutory industrial tribunal does not have any jurisdiction in relation to the allegedly unfair termination of public appointees and cannot assume any jurisdiction to hear such claims. Those claims are therefore dismissed.

Age Discrimination – Jurisdiction of tribunal

35. The substance of this issue is that the claimants argue that the severance package which each claimant received was discriminatory on grounds of age and that it had a particular effect on claimants aged under 45 and under 50 years of age compared to their older colleagues.

36. Mr Ferrity points out that Regulation 14 of the Age Discrimination Regulations provides that the holding of the office of constable as a police officer shall be treated, for the purposes of those Regulations, as employment by the Chief Constable. He further points out that the implementation of the Severance Regulations has a particular effect on the two age groups compared to older colleagues. His argument of unlawful discrimination is predicated on the proposition that the Severance Regulations and therefore the severance packages were not made to comply with any statutory provision and were therefore not excluded from the provisions of the Age Discrimination Regulations by Regulation 28.

Regulation 28 provides:-

“Nothing in Part 2 or 3 shall render unlawful any act done in order to comply with the requirement of any statutory provision.”

37. Regulation 2 of the Age Discrimination Regulations defines a statutory provision as having:-

“The meaning assigned to it by Section 1(f) of the Interpretation Act (Northern Ireland) 1954.

Section 1 of the 1954 Act provides that a ‘statutory provision’ means any provision of a statute or instrument made under a statute (by which whatsoever Parliament or Assembly passed or by whomsoever made) for the time being in force in Northern Ireland.”

The 1954 defines ‘instrument’ as:-

“‘Instrument’ includes an order in council, order or warrant (other than an order made or warrant issued by a court), scheme, rule, regulation, or bylaw.”

38. Mr Ferrity, on behalf of the claimants, made the argument that there was an element of discretion in relation to these Regulations. They provide for a limited discretion whereby constables facing disciplinary proceedings could be excluded from this Scheme. However, once in the Scheme there were clear entitlements pursuant to that Scheme. That narrow discretion, given to the Chief Constable, did not advance the claimants’ argument on jurisdiction and, on the evidence before it, did not affect any claimant.

39. The claimants argued that payments in relation to severance arrangements were not made in compliance with the requirement of any statutory provision for the purposes of Regulation 28. The tribunal regards this argument as misconceived. Having looked at the scheme, its implementation and the wording in the regulations, it seems clear to this tribunal that the payments made to the claimants were payments made pursuant to requirement of the statutory provision, ie pursuant to a requirement of the Severance Regulations. The Severance Regulations were a statutory provision for the purposes of Regulation 28. The tribunal’s conclusion is therefore that Regulation 28 of the Age Discrimination Regulations applies and excludes the impact of the Severance Regulations from scrutiny by this tribunal. The claimants have no remedy under the Regulations in this respect.

40. This is not as draconian an exclusion as it might seem at first glance. It cannot have been the intention of the legislature that this statutory tribunal should have had the power to examine, and the power to overturn as discriminatory, provisions of all statutory schemes. Such schemes, put in place by the legislature, could have, for example, related to the decommissioning of fishing boats, the inheritance of farms, assistance with younger or long term unemployed etc etc. A power to overturn such schemes would have had a wide effect. The Age Discrimination Regulations and indeed the underlying EU directive were focused on a much narrower issue, ie on employment and on vocational training as the full title of the domestic regulations suggests. On examination of the regulations it is quite clear that Part 2 relates to discrimination in employment and in vocational training. Part 1, deals with interpretation and Part 3 deals with ‘other unlawful acts’. They are closely focused on the core issue of employment and vocational training. The requirements in relation to officeholders and the police service are not such as to change the focus of these regulations. They are certainly not enough to give the statutory tribunal the statutory jurisdiction necessary to assume quite a wide ranging power to examine and the power to overturn acts of the executive or of the legislature which are not themselves directly related to the scope of these regulations and to the jurisdiction conferred on the tribunal.

41. Turning from the terms of the Age Discrimination Regulations to the underlying directive, ie Directive 2000/78/EC, the focus of the Directive as set out in Article 3.1. It is again focused on employment and vocational training. The purpose of the Directive is set out in Article 1:-

“The purpose of the Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age (tribunal’s emphasis) or sexual orientation as regards employment and occupation [tribunal’s emphasis] with a view to putting into effect in the Member States the principle of equal treatment.”

42. At Article 3.3 of the Directive it states:-

“This Directive does not apply to payments of any kind made by state schemes or similar, including state security or social protection schemes.”

This appears to the tribunal to be an exclusion from the scope of the Directive which is, firstly, in very wide terms and secondly, is in accordance with the purpose and the focus of the Directive. It applies to payments ‘of any kind’ made by state schemes ‘or similar’. It includes, by way of an example only, state social security of social protection schemes but does not seek to limit the wide exclusion in those terms. It is particularly noteworthy that it does not say “such as state social or social protection schemes”, thereby introducing ejusdem generis as an aid to statutory interpretation (if again, that doctrine survives a Channel crossing) and effectively limiting the extent of the exclusion accordingly. The two items mentioned, ie the state social security or social protection schemes are mere examples of the type of scheme which could be covered by the broad exclusion from the effect of the Directive.

43. In short, what the claimants are relying on in respect of age discrimination is a very narrow set of Regulations based on a very narrow Directive, both of which are focused on employment and vocational training and both of which necessarily exclude compliance with the requirements of a statutory provision from their effect. To do otherwise, as indicated above, would give the tribunal an excessive jurisdiction in analysing and in potentially setting aside actions of the legislature and the executive which were never meant to be subject to scrutiny by this statutory tribunal. The tribunal therefore concludes that the provisions of Regulation 28 are compatible with the terms of the Directive and dismisses the claimants’ arguments to the contrary.

44. Therefore the tribunal concludes that Regulation 28 applies in this case and that no claim of age discrimination as outlined can lie to this statutory tribunal under domestic or EU laws.

45. Mr Ferrity argues that Regulation 28 should be dis-applied and set aside as contrary incompatible with the ECHR. He relies on Article 14 (the right not to be discriminated against) together with Article 1 of the First Protocol (protection of property rights).

46. Counsel for the claimants, the respondents and the notice parties have put forward very learned and very interesting arguments in relation to whether or not the Severance Regulations, as properly construed, are incompatible with the ECHR. The panel does not propose to address these arguments in detail. This is a tribunal with a narrow statutory jurisdiction which it cannot properly exceed except, by disapplying words or parts of legislation. As has been set out above in relation to unfair dismissal, a statutory tribunal simply cannot arrogate to itself a jurisdiction which it does not otherwise have, particularly when that jurisdiction properly lies to be exercised by others. In the present case, if the claimants had felt that the Severance Regulations were incompatible with either the Regulations or with the Directive, they should have proceeded by way of an application for judicial review within three months (or as soon as possible) of the date on which either those regulations were made or the date or dates on which the regulations were implemented in relation to certain individuals. They chose not to do so and chose not to pursue this claim in the Court with a proper jurisdiction in these matters. The interesting arguments put to the tribunal about whether the scheme could mount to a property right or whether there had been differential adverse treatment can be set aside. The tribunal has no statutory jurisdiction under the Regulations or, directly, under the Directive. It does not intend to seize that jurisdiction where it properly lies with the High Court.

47. As indicated above in relation to the unfair dismissal claims, the tribunal does not conclude that the judicial review jurisdiction in the High Court has in any way failed to meet the requirements of Article 6 or that the claimants could argue that they have been denied the right of fair trial in this matter.

48. The tribunal therefore concludes that it has no jurisdiction in relation to the claims of age discrimination and dismisses those claims.

Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 – Jurisdiction of the tribunal

49. The claimants’ argument under these Regulations in these cases is that the claimants were, at the relevant time, fixed term employees who had been employed on a succession of contracts each for fixed terms. They alleged that they had a protected status and that they had been less favourably treated than their regular colleagues in the police service by:-

(i) their compulsory termination; and by

(ii) their severance compensation provisions.

50. The Regulations specifically apply to police constables. Regulation 15(1) states:-

“For the purposes of these Regulations [tribunal’s emphasis], the holding, otherwise than under a contract of employment, of the office of constable or an appointment as a police cadet shall be treated as employment, under a contract of employment, by the relevant officer.”

51. The respondents and the notice parties argued that a termination per se of a fixed term contract can never amount to a detriment for the purposes of the Regulations. Their argument was that fixed term contracts are not illegal. The Directive and the implementing domestic regulations simply provide that the misuse of fixed terms contracts is to be curbed but the use of those contracts is nowhere prohibited and is still very much a part of normal activity in the field of offices and appointments.

52. The issue had arisen in the case of Department for Work and Pensions v Webley [2005] IRLR 288. In that case an administrative officer in the Civil Service had been employed in a series of short fixed term contracts. Her final contract was terminated and she brought a complaint under the Fixed Term Regulations alleging that she had been less favourably treated than comparable permanent employees by having her contract terminated. The Court of Appeal held that:-

“Where the only matter of which the applicant complains is that her employer has refused to review or extend her fixed term contract, that is not capable of involving less favourable treatment under Regulation 3(1) of the Fixed Term Employees Regulations. Once it is accepted, as it must be, that fixed term contracts are lawful, it follows inexorably that the termination of such a contract by simple effluxion of time cannot, of itself, constitute less favourable treatment by comparison with a permanent employee. It is of the essence of a fixed term contract that it comes to the end of the expiry of the fixed term. Thus, unless it can be said that entering into a fixed term contract is of itself less favourable treatment, the expiry of a fixed term contract resulting in the dismissal of a fixed term employee cannot be said to fall within the right not be treated less favourably in Regulation 3(1). Similarly, the fact that the termination of the contract by effluxion of time results in the dismissal of the fixed term employee cannot, of itself, represent a detriment within Regulation 3(1)(b). The termination of the contract is an evitable consequence of it being for a fixed term.”

53. The Court of Appeal had earlier directed its attention to the terms of Directive 99/70 which underpinned the domestic legislation in relation to fixed term work. It accepted the argument on behalf of the appellant that there was nothing unlawful about fixed term employment contracts and stated that this had been made clear by paragraphs 6, 7 and 8 of the General Considerations within the framework agreement itself. It quoted from paragraph 8 which stated that:-

“Fixed term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers.”

54. The tribunal therefore concludes that the Court of Appeal decision in Webley effectively determines the argument in this matter. Mr Ferrity invited the tribunal to disagree with the Court of Appeal decision in that case on the ground that it was not binding on the tribunal. While it is doubtless correct that it is not strictly binding on the tribunal, being a decision of the GB Court of Appeal, it is nevertheless exactly on point and is highly persuasive. Furthermore, no real argument has been advanced by Mr Ferrity to counter the decision. It cannot be the case, without clear evidence, that the Directive and the Regulations are both incompatible with EU and Convention rights. The Directive is quite plain in its terms and the Regulations comply fully with those terms. It simply defies logic to suggest that the inevitable conclusion of a fixed term contract, which is after all an agreement freely entered into between consenting adults, can amount to less favourable treatment without more.

55. Therefore the part of the claimant’s case which relates to the Fixed Term Regulations and which is based solely on the termination by compulsory means of the fixed term contracts on their expiry is dismissed for want of jurisdiction. No breach of the Regulations has been shown in this respect.

56. There remains a matter on which we had not heard evidence. That matter is whether or not there is a proper comparison to be made between the full-time reserve constables on the one hand and the regular constables on the other hand for the purposes of the Fixed Term Employees Regulations and therefore whether or not there has been adverse and less favourable treatment of the claimants in the detailed severance arrangements. Without having heard any evidence in this matter the tribunal is reluctant to express any conclusions in this regard, save as to repeat Mr Ferrity’s express concerns about the nature of the comparison put forward in this respect. We have been shown a schedule of the differences between full time reserve constables’ conditions of appointment and work, and those of regular constables. There is a real issue to be considered here as to whether or not, for the purposes of the present claims, regular constables can in reality be regarded as ‘comparable permanent employees’ for the purposes of those regulations. The claimants will want to consider their position carefully before proceeding with this matter.

Vice President:

Date and place of hearing: 26 - 28 November 2012, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGurnaghan v Chief Constable of the Police ... The Police Service of Northern... [2012] NIIT 01680_11IT (28 November 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/1680_11IT.html Cite as: [2012] NIIT 01680_11IT, [2012] NIIT 1680_11IT

Industrial Tribunals Northern Ireland Decisions