FAIR EMPLOYMENT TRIBUNAL

CASE REF:   425/02 FET

APPLICANT:		Andrew S Loughlin

RESPONDENT:		Adria Limited

DECISION ON A PRELIMINARY ISSUE 

The unanimous decision of the Tribunal is that the application is out of time but that it is just and equitable to extend the time limit in all the circumstances.
Appearances:
The applicant was represented by Mr Ham, Barrister-at-Law, instructed by Richard Monteith, Solicitors.
The respondent was represented by Mr Hampson, Barrister-at-Law, instructed by Campbell Fitzpatrick, Solicitors.

1.	The applicant was employed by the respondent from 12 April 2002 until approximately November 2002.  However, the applicant’s last day at work was on or about 3rd May 2002.

2.	The applicant’s claim is that on 2 and 3 May 2002 he was subjected to sectarian harassment.  He alleged that on both occasions, the supervisor was aware of the incidents, and immediately gave him permission to leave the respondent’s premises, with the advice that “he should watch his back”.  After the second occasion, the applicant did not return to work.

3.	The Tribunal heard evidence from the applicant’s GP, Doctor Bailey.  He confirmed that the applicant consulted a GP at his Practice on 2 May, and thereafter on four other occasions, prior to the lodgement of his originating application on 10 October 2002.

On 8 May, the applicant was prescribed anti-depressants and diazepam for anxiety type symptoms.  He remained on the anti-depressants for four months and a week or two on diazepam.

4.	Doctor Bailey described how during the four months that the applicant received medication, he was depressed and anxious.  He described abdominal pains and vomiting, although there was a previous history of this complaint.  He described being afraid to go out, had sleep disturbance and a recurring nightmare.  His concentration was poor, and he had difficulty communicating.  Doctor Bailey confirmed that he observed a number of these symptoms himself, although in relation to others, he relied on the history given by the applicant.  Doctor Bailey indicated that the applicant had difficulty organising his thoughts and thinking clearly.  He diagnosed the applicant as having lapsed into “depressive illness”.

5.	The applicant’s father wrote to the respondent on 1 July 2002 seeking a “redress package” to enable the applicant to move on with his life.  As a consequence, it was agreed that the respondent would provide a series of counselling sessions for the applicant.

Due to the applicant’s erratic behaviour, and his failure to turn up for one of the sessions, his mother concluded that there was no point in further counselling.

6.	The applicant’s mother had spoken to the Citizen’s Advice Bureau in May, shortly after the incident.  She was advised to take the matter to the Press, but she was reluctant to do so.

The Citizen’s Advice Bureau also arranged to send out “forms” to the applicant, however the “forms” did not arrive.  The applicant’s mother did not pursue the issue because she was busy with her own business, and she was worried about the health of her son.

7.	In or about October 2002, the applicant’s mother consulted a Solicitor, and the originating application was lodged on 10 October 2002, two months and two days outside the statutory time limit.

8.	The issue for the Tribunal is whether in all the circumstances it is just and equitable to extend the time limit.  Harvey at Volume 2L Paragraph 559 cites a non-exhaustive list of factors which may prove helpful in assessing individual cases:-

(a)	the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings);

(b)	the presence or absence of any other remedy for the applicant if the claim is not allowed to proceed;

(c)	the conduct of the respondent subsequent to the act of which complaint is made up to the date of the application;

(d)	the conduct of the applicant over the same period;

(e)	the length of time by which the application is out of time;

(f)	the medical condition of the applicant taking into account, in particular, any reason why this should have prevented or inhibited the making of any claim;

(g)	the extent to which professional advice or making a claim was sought and if it was sought, the content of any advice given.

9.	We are satisfied that in all the circumstances of this case it is just and equitable to extend the time for lodging the applicant’s complaint.  We have reached this conclusion for the following reasons:-

(a)	The medical evidence provided to the Tribunal confirms that the applicant suffered from a depressive illness from May 2002, and that he required medication until September 2002.  We are also satisfied that he depended on his mother to arrange his affairs during that period.  We conclude that this illness impeded the presentation of the claim within the statutory time limit.
(b)	It was not suggested on behalf of the respondent that it would suffer any prejudice if time were to be extended, other then the prejudice of having to defend the case.  In particular, there was no suggestion that the cogency of evidence would be affected by the delay.  Indeed, the applicant gave a statement to his supervisor at the time of the alleged incidents in which he named his alleged harassers.

(c)	If the claim is not allowed to proceed the applicant will have no other remedy.  Although the applicant’s mother did seek help from the Citizen’s Advice Bureau, that advice appeared to be mainly concerned with involving the Press in the situation.

She did not seek advice from a Solicitor until October 2002, and we are satisfied that the reasons for her delay were the pressures in her own life, and her worry about the welfare of her son.  Having consulted a Solicitor the originating application was lodged promptly.

10.	We therefore conclude that the Tribunal does have jurisdiction to hear this case, notwithstanding that it was lodged outside the statutory time limit.

Chairman:

Date and place of hearing:	9 February 2004, Belfast

Date decision recorded in register and issued to parties: