FAIR EMPLOYMENT TRIBUNAL

CASE REF:	8/05FET

CLAIMANT:	Patrick Brogan

RESPONDENT:	Western Education and Library Board

DECISION

The decision of the Tribunal (chairman sitting alone) is that the Fair Employment Tribunal does not have jurisdiction to hear the originating complaint as it was not presented within the specified time limit and it is not just and equitable in all the circumstances of the case for the Fair Employment Tribunal to extend the time limit for presenting the complaint.

Constitution of Tribunal:

Chairman:		Ms J Knight

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Mike Brown, Solicitor of the Education and Library Boards’ Solicitors.  

The issues to be determined by the Tribunal were whether the originating complaint was presented within the specified time limit, and if not, whether it is just and equitable in all the circumstances of the case for the Fair Employment Tribunal to consider this complaint despite the fact that it is out of time. 

The Tribunal considered the originating claim and the oral evidence of the claimant and documentation furnished by the parties. The chairman made the following findings of relevant facts:-

1.	The claimant, Mr Patrick Brogan, has been employed by the respondent from 25th January 1985.  From the 30th October 1985 until the 30th April 1989, he was employed as a library assistant/relief driver.  He then transferred to a librarian post within the respondent Education and Library Board and is currently employed as a senior librarian in Omagh Branch Library.

2.	The claimant’s claim relates to the period of his employment by the respondent from the 30th October 1985 until the 30th April 1989.  Throughout this period the claimant made several enquiries with his line manager about his contractual entitlement to receive a mobility allowance. This allowance was contractually payable to librarian staff regularly employed by the respondent on mobile libraries.

3.	During this period three of the claimant’s colleagues, all of whom were from a different community background from the claimant, received payment of the mobility allowance from the respondent.  The claimant was told by his then line manager that the payments of mobility allowance made to those three colleagues were “personal to holder” and that he was not entitled to receive the mobility allowance.  The claimant accepted this explanation.  The claimant took no further action and made no further enquiry or claim to the respondent for the mobility allowance.

4.	Then in May 2003, (not July 2003 as stated in the originating claim), the claimant had a conversation with a Mr Edwin Johnston who had been appointed Library Assistant/Relief Driver in early 2003.  Mr Johnston informed the claimant that he had been paid the mobility allowance shortly after his appointment in 2003 and that it had been backdated until the commencement of his employment with the respondent.  Mr Johnston is of a different community background from the claimant.

5.	The claimant contacted his local NIPSA representative, a Mr Terry Wylie about this matter. Mr Wylie told the claimant that he would look into the matter for him, but unfortunately shortly afterwards Mr Wylie had a heart attack and went off on long term sick leave and has since retired.  The claimant then contacted NIPSA headquarters in Belfast but did not receive any response.  He telephoned NIPSA every few weeks but received no 	communication. The claimant eventually sent a letter dated the 28th April 2004 to NIPSA headquarters addressed to Mr Martin Murphy, a full time official.  

6.	The claimant did not contact Mr Eugene McDermott, Equal Opportunities Officer in the Western Education and Library Board about this matter until March or April 2004.  He subsequently wrote a letter to Mr McDermott on the 20th May 2004 outlining his concerns.  The claimant received a response dated 22nd November 2004 from Ms Philomena Molloy, Equal Opportunities Officer for the respondent advising that in the view of the board, the relief driving duties undertaken by the claimant at that time were not sufficient to warrant  such a payment and therefore he had been paid a subsistence allowance for expenses occurred.  She further advised the claimant that the Board considered his claim was time barred. 

7.	The claimant sought advice from the Labour Relations Agency in November 2004.  The claimant subsequently lodged a complaint of unlawful discrimination on the ground of religious belief which was received by the Fair Employment Tribunal on the 15th December 2004.  The claimant did not receive any advice from NIPSA prior to lodging his complaint with the Industrial Tribunal.  The claimant finally spoke to Mr Murphy directly when he visited Omagh in relation to an unrelated matter concerning three other Western Education and Library Board Employees in or about September 2005, some nine months after the originating claim had been lodged. 

8.	The respondent contends that the complaint had been lodged out of time and that the Tribunal does not have jurisdiction to hear it.

9.	Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998, provides “subject to paragraph (5), the tribunal should not consider a complaint under Article 38 unless it is brought before, whichever is the earlier of –

a.	The end of the period of three months beginning with the day on which the claimant first had knowledge, or might be expected to first have knowledge, of the act complained of; or

b.	The end of the period of six months beginning with the day on which the act was done.” 

     	Article 46(5) provides that “a court or a tribunal may nevertheless consider any such           	complaint, claim or application which is out of time, if all the circumstances of the 	case, it considers that it is just and equitable to do so.”

10.	The claimant accepted that his complaint had not been presented within the statutory time limit. Therefore the Tribunal had to decide whether it was just and equitable to extend the time limit.

11.	In deciding whether it is just and equitable to extend the time limit, the Tribunal must consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular to :

a)	The length and reasons for the delay;

b)	The extent to which the cogency of the evidence is likely to be affected by the delay;

c)	The extent to which the party sued has cooperated with any requests for information;

d)	The promptness with which the claimant acted once he knew of the facts giving rise to the cause of action and;

e)	The steps taken by the claimant to obtain appropriate professional advice once he knew of the possibility of taking action.

12.	Neither the claimant nor the respondent’s representative made any submissions to the Tribunal on the prejudice that they might suffer as a result of the decision to be made by the Tribunal. 

13.	The claimant’s claim relates to his entitlement to be paid a mobility allowance during a period fifteen to twenty years ago.  The Tribunal accepted the claimant’s evidence that he did not take any action at this time because he had accepted his line manager’s assurance that the payment was personal to holder. The tribunal finds that the claimant became aware of facts giving rise to the cause of action when he had the conversation with Mr Johnston in May 2003.

14.	The Tribunal does not consider that the claimant acted promptly as he did not put the respondent on notice about this matter until some ten or eleven months after May 2003 by which time the claim was already out of time.  The originating claim was not then lodged until some eighteen months after the date of knowledge. The tribunal took into consideration the fact that the claimant had had no difficulty in raising the issue himself directly with his line manager on earlier occasions during the 1985 – 1989 period.

15.	The Tribunal was not satisfied that the claimant had taken reasonable and appropriate steps to obtain advice. Although he had sought advices from his trade union, he had simply let matters drift when that advice was not forthcoming.  He could have sought advice from an alternative source, such as the Labour Relations Agency, at an earlier stage when it became apparent that his union was not responding to his requests for assistance.

16.	The tribunal does not find that is just and equitable in all the circumstances of the case to extend the time for presenting the complaint to the Fair Employment Tribunal and therefore decides that the Fair Employment Tribunal does not have jurisdiction to hear this complaint.

Chairman:

Date and place of hearing: 1st December 2005, Belfast

Date decision recorded in register and issued to parties: