Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:  304/16

1219/18

 

CLAIMANT:                          Donna Nesbitt

 

 

RESPONDENT:                  The Pallet Centre Limited

 

 

 

DECISION ON A REVIEW

 

The unanimous decision of the tribunal is that the application for review is granted and the tribunal confirms its decision save that it varies the total award of compensation to be paid by the respondent to the claimant from £13,453.83 to £16,517.67.

 

 

Constitution of Tribunal:

 

Employment Judge:                                  Employment Judge Drennan QC

           

Members:                                                     Mr I Carroll

                                                                        Mrs A Gribben

 

Appearances:

 

The claimant appeared in person and was not represented.

 

The respondent was represented by Mr D McGettigan, Peninsula Business Services Ltd

 

REASONS

 

 

1.         The tribunal issued a decision, which was recorded in the register, and issued to the parties on 17 August 2018, in which it held:-

 

                        “1.        The claimant’s claim of equal pay, pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended, is dismissed, the respondent having established the genuine material factor defence, for the purposes of Section 1(3) of the said Act.

 

                        2.         The claimant was unfairly constructively dismissed.

 

                        3.         The claimant was unlawfully discriminated by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976.

 

                        4.         The tribunal makes a total award of compensation to be paid by the respondent to the claimant in the sum of £13,453.83.

 

                        5.         The claimant’s claim of sexual harassment, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and her claim for unauthorised deduction of wages and/or breach of contract for non-payment of bonus are dismissed upon withdrawal.”

 

1.2       The claimant made an application for a review of the said decision, dated 31 August 2018 and received by the tribunal by email on 4 September 2018, and by hard copy on 5 September 2018.  The said application for review was made, pursuant to Rule 34(3)(e) of the Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) and also contained an application for an extension of time, on the grounds the decision arrived at the claimant’s address at a time when she was already on a pre-arranged holiday.

 

1.3       In a letter, dated 10 September 2018, the tribunal informed the parties, as follows:-

 

                        “In relation to your application for a review of the decision issued to the parties on 17 August 2018, on the grounds that the interests of justice require a review, Employment Judge Drennan QC, after a preliminary consideration of the application pursuant to Rule 35 of the Rules of Procedure has extended the 14 day time limit as he considers it just and equitable to do so for the reasons set out in the application and has directed that Review Hearing be arranged to determine the said application.  The Parties will be notified in due course of the date and time of the review.  Notice of the Review Hearing to be heard on 1 November 2018 and was issued to the parties on 4 October 2018.”

 

2.         The Rules of Procedure, in so far as relevant in relation to this application, provide as follows:-

 

            Rule 34 – Review of Other Decisions

 

            (1)       Parties may apply to have certain decisions made by a tribunal as a Chairman reviewed under this role and Rules 35 and 36.  Those decisions are –

 

            …

 

            (3)       …. Decisions may be reviewed on the following grounds only.

 

            (e)       the interests of justice require a review.

 

            Rule 35 – Preliminary consideration of application for review.

 

            (1)       An application under Rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties.  The 14 day time limit may be extended by a Chairman if he considers that it is just and equitable to do so.

 

            (2)       The application must be in writing and must identify the grounds of the application in accordance with Rule 34(3) and provide the details of the grounds so identified, ….

 

            (3)       The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the Chairman of the tribunal which made the decision …..

 

                        and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under Rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.

 

            ….

 

            Rule 36 – The Review

 

            (1)       Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in Rule 35, the decision shall be reviewed by the Chairman or tribunal who made the original decision …….

 

            ……

 

            (3)       A tribunal or chairman who reviews a decision under paragraph (1) … may confirm, vary or revoke the decision.  If the decision is revoked, the tribunal or chairman must order the decision to be taken again ….

 

3.1.      The ground for review – “interests of justice require a review”, set out in Rule 34(3)(e) of the Rules of Procedure has often been referred to as a residual category, giving the tribunal a wide discretion (see Flint v Eastern Electricity Board [1975] IRLR 277).  However, it was also held in Flint, although the discretion is undoubtedly wide, it was not boundless and it must be exercised judicially having regard to the terms of the overriding objective; and with regard, not just to the interests of the party applying for a review but also the other party and the public interest requirement that there should be, as far as possible, finality of litigation.

 

3.2       It used to be thought a review on these grounds could only be granted in “exceptional circumstances” (see Trimble v Supertravel Ltd [1982] IRLR 451).  This was doubted in Williams v Ferrorsan [2004] IRLR 607, which held that, in light of the overriding objective, there was in fact no reason for an “exceptionality hurdle and that there is a difference between saying that a case, to which the interests of justice ground applies, will in practice be unusual or exceptional and saying that this ground should be read as if inserted into it are the words ‘exceptional circumstances’ (see also Sodexho Ltd v Gibbons [2005] ICR 1647).  These authorities also emphasise that such a review is not an opportunity for a disappointed party to proceedings to get a second bit of the cherry.  In Stevenson v Golden Wonder Ltd [1977] IRLR 474, Lord McDonald said the review provisions were “not intended to provide the parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis ….”

 

3.3       In the case of Newcastle upon Tyne City Council v Marsden [2010] ICR 743, Underhill P, as he then was, reviewed the relevant principles and expressed the view the “broad statutory discretion has become gradually so encrusted with case law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires in the particular case.  He accepted tribunals were no longer required to apply an exceptionality test when considering applications on the grounds of interests of justice requiring a review nor any other type of restrictive formula, such as “procedural mishap or procedural shortcomings”, as referred to in Trimble; but he warned against rejecting the basic principles in the older cases and, in particular, after referring to Rimer LJ’s statement in Jurkowska v Hlmad Ltd [2008] ICR 841 that “dealing with cases justly requires that they be dealt with in accordance with recognised principles” and held that the principles set out in Flint and other cases to the importance of finality of litigation remained valid.  In the recent case of Ministry of Justice v Burton [2016] EWCA Civ 714, albeit pursuant to Rule 70 of the 2013 Rules of Procedure in Great Britain, relating to “reconsideration where it is necessary in the interests of justice”, which has replaced the previous role in Great Britain which was similar to Rule 34 of the Rules of Procedure in Northern Ireland.  Elias LJ, at paragraph 21, stated the discretion to act in the interests of justice is not open-ended and emphasised the importance of finality, which he said militated against the discretion being exercised too readily.  In Outasight v B Ltd v Brown [2015] ICR DII, the EAT confirmed that Rule 70 of the 2013 Rules of Procedure did not alter the substantive legal principles relating to “interests of justice”, established under the previous role.

 

4.1       The claimant’s application for review on the grounds that the interests require a review, related, in particular to the tribunal’s decision to dismiss the claimant’s claim for equal pay, pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended and the amount of compensation awarded to the claimant for the injury to her feelings/personal injury on foot of the tribunal’s decision that the claimant had been unlawfully discriminated against by way of victimisation pursuant to the Sex Discrimination (Northern Ireland) Order 1076.  (See copy of the said application for Review by the claimant attached at Appendix A to this decision and the respondent’s written submissions attached at Appendix B to this decision).  At the Review Hearing the claimant and the respondent’s representative made further oral submissions, on foot of the said application and written submissions.

 

4.2       The main focus of the claimant’s application for review, relating to the claimant’s claim for equal pay, related to the fact, in relation to this claim, the only witness for the respondent was Mr Julian Morrow, the general manager of the respondent and that none of her four comparators or their immediate line managers were called by the respondent to give evidence.  Indeed, the claimant in the course of the substantive hearing, raised this issue, as referred to in paragraph 3.4 of the decision and, as set out in the said paragraph, the tribunal has specifically addressed that issue and its reasons for not drawing the inference sought by the claimant.  In the decision the tribunal has set out in considerable detail its findings of fact, having considered the evidence given to the tribunal by the parties, the documents contained in the trial bundles as amended to which the tribunal was referred during the course of the hearing, together with the submissions of the claimant and the respondent’s representative.  In particular, the tribunal considered, as set out in the decision, the documentary evidence, as presented to the tribunal in evidence, following the previous series of Case Management Discussions and the Orders made at those hearings.  In light of its conclusions, as set out in the said decision, in relation to Mr Morrow’s evidence, it was not necessary for the tribunal to consider any issue of inference in relation to the history of these proceedings at the previous Case Management Discussion.

 

            It was not, as suggested by the claimant in her application that the claimant was not given the opportunity to challenge the evidence of Mr Morrow.  Indeed she did so; but, as set out in paragraph 3.4 of the decision, she was not in a position, as set out therein, to challenge his evidence in relation to the specific role/work of the comparators in the course of her own evidence or cross-examination.  The tribunal has carefully set out its findings of fact in relation to the claimant’s role/work and the roles/work of her comparators and its conclusion, in light of those findings of fact, in relation to the said issue of the genuine material factor defence.  (See in particular paragraphs 3.5-4.2 of the decision).  The tribunal addressed in paragraph 3.4 of the decision, issues relating to uncertainty in relation to the precise job titles of the claimant and her comparators and its conclusion that such differences were not of significance and relevance in comparison to the actual job/work carried out by them.

 

4.3       The tribunal can fully understood the claimant’s disappointment with the tribunal’s decision in relation to her claim of equal pay.  However, as set out above, the tribunal, in the course of its decision, has addressed the issues, the subject of her application for review in relation to her claim of equal pay.  The tribunal considers the claimant’s application is an attempt to relitigate these issues which is not the purpose of a review.  In addition, there must be finality of litigation.  The tribunal’s decision or review, after considering the claimant’s review application, the said submissions of the parties in light of the relevant case law is therefore to confirm its decision to dismiss claimant’s claim of equal pay.

 

5.1       In relation to the claimant’s application for review, relating to the amount of compensation awarded to the claimant for the injury to her feelings, pursuant to the tribunal’s decision that the respondent had unlawfully discriminated against the claimant by way of victimisation and that there should have been an uplift for aggravated damages.

 

            The tribunal at this Review Hearing has carefully reconsidered its findings of fact in relation to its said decision and, in particular, the award it made in relation to compensation for injury to feelings/personal injury arising from those acts of discrimination; and, whether the award was “too low” and should therefore be varied on review.  The tribunal is satisfied it is entitled, pursuant to an application for review, on the grounds the interests of justice require such a review, and in light of the case law, referred to previously, to vary such an award, if its considers it is appropriate to do so in the interests of justice.

 

5.2       In relation to any award of aggravated damages, such an award is an aspect of injury to feelings and is only awarded to the extent that the aggravating features have increased the impact of the discriminatory act/acts on the claimant (see further Underhill P in Commissioner of Police of the Metropolis v Shaw (UKEAT/0125/11), where he refers to the phrase “high handed, malicious, insulting or oppressive” behaviour.  It has to be emphasised such compensation is compensatory only and is not to punish the respondent for his conduct.  Further in McConnell v The Police Authority for NI (1997) N 1 244, and subsequent decisions in Great Britain, aggravated damages have been held to be a sub-heading/element of injury to feelings.

 

5.3       The tribunal, on foot of this application for review of the said award for compensation, has carefully reconsidered the level of award made by the tribunal for compensation for injury to feelings/personal injury arising from the findings of fact it made in deciding the claimant had been unlawfully victimised by the respondent.  (It should be noted that, in the decision of the tribunal in relation to the award of compensation there was a typographical error and the relevant date in relation to the interest awarded should have been 16 August 2018; albeit the sum calculated was correct).  The tribunal has taken into account the case law referred to previously and, in particular, the issue of finality of litigation.  In relation to the award of compensation for injury to feelings/personal injury, the tribunal is satisfied, in light of the terms of the said application and the submissions of the parties, the claimant is seeking to relitigate and have another “bite of the cherry” of the matters before the tribunal on this issue and which it determined as set out in the decision; and a review on the ground the interests of justice require a review, is not appropriate in the circumstances – subject to what is set out below.  It has concluded, in light of the said submissions of the parties at this Review, it failed to sufficiently take into account the cumulative nature of the series acts of victimisation, as found by the tribunal and their specific nature with regard to the claimant and the impact on the claimant, on the evidence before it, as a consequence (see, in particular paragraphs 6.2-6.5 of the decision).  It concluded that, in the circumstances, the respondent’s actions were high handed and insulting and spiteful in nature and thereby increasing the impact on the claimant; and that the award of compensation should have included therefore an award of aggravated damages, as an element of the said award of compensation for injury to feelings/personal injury.

 

5.4       In light of the foregoing, the tribunal was satisfied, in the exercise of its discretion, the interests of justice required a review of the decision of the tribunal to award the claimant the sum of £4,500 together with interest; and the said decision should be varied to increase the award of compensation for injury to feelings/personal injury to £7,000.00, together with interest, as set out below:

 

                                    Injury to feelings/personal injury               -           £7,000.00

                                    Interest (at 8% from 22 October 2015

                                    Until 16 August 2016                                  -           £1,578.74

 

                                                                                                                        £8,578.74

 

5.5.      The tribunal therefore varied the total compensation to be paid by the respondent, on review, as follows.

 

                        £7,938.93

                        £8,578.74

 

            Total  £16,517.67

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:          1 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties:

See attached letter