FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   189/05 FET
1415/05

CLAIMANT:		Eithne McLaughlin

RESPONDENT:		The Queen’s University of Belfast

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that it does not have jurisdiction to consider the claimant’s claims as they have been presented outside the three month time limit stipulated in the relevant legislation.  Accordingly, the claims are dismissed.

Constitution of Tribunal:
Chairman:		Mr E McArdle

Appearances:
The claimant did not appear, nor was she represented.
The respondent was represented by Ms R Carson, of Legal Services Limited, Queen’s University of Belfast.

REASONS

The claim 

1.	The claimant, a professor employed by the respondent, alleged that she had been discriminated against by the respondent in the course of a recruitment procedure for a senior post, on the grounds of religious belief or political opinion, alternatively, or in addition, on the ground of her sex, and/or that she had been unlawfully victimised contrary to the disability discrimination legislation.

The issues

2.	The sole issues before the Tribunal on the pre-hearing review were to determine whether:-

(a)	the claims were presented to the Tribunal within the prescribed time limits; and

(b)	if not, whether it was just and equitable, in all the circumstances of the case, to permit the claimant’s claims to proceed.

Evidence

3.	The claimant did not attend, was not represented and had not sent any communication to the Tribunals Office as to the reasons for her non-attendance.  The respondent’s representative indicated that the claimant had not made any contact with the respondent in relation to the hearing.  The Tribunal was satisfied that appropriate notice of the hearing had been served on the claimant in advance of the hearing.  The Tribunal resolved, therefore, pursuant to its powers under Rule 23(5) of the 2005 Fair Employment Tribunal Rules of Procedure, to dispose of the proceedings in the claimant’s absence.  In accordance with Rule 23(6) it considered the information set out in the claim form and the response form, and heard representations from the respondent.

4.	The Tribunal found the following facts:-

(i)	The respondent organised a recruitment competition for the post of Head of School of Sociology, Social Policy and Social Work in early 2005.  The claimant applied for the post.

(ii)	The respondent’s short-listing panel decided, at a meeting on 10 May 2005, not to short-list the claimant, ostensibly on the grounds that she did not satisfy one of the essential criteria for the post.

(iii)	The decision not to short-list was communicated to the claimant by correspondence of 27 May 2005.

(iv)	The convenor of the panel, who is also the Pro-Vice-Chancellor, Professor K Brown, met a number of unsuccessful candidates to provide them with feedback.  He met the claimant on 30 May 2005 and provided her also with feedback and an explanation as to why she did not meet one of the essential short-listing criteria.

(v)	The respondent had received no subsequent representations from the claimant under the respondent’s grievance procedure.

(vi)	At Section 5.5 of the claimant’s claim form in response to the question, “Have you put your complaint in writing to the respondent?”, the claimant had left the claim form blank.

(vii)	The claimant’s claim was received at the Office of Industrial Tribunals and the Fair Employment Tribunal on 18 October 2005.

The law

5.	The Fair Employment and Treatment (Northern Ireland) Order 1998, at Article 46, provides:-

“(1)	Subject to Paragraph (5), the Tribunal shall 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 complainant first had knowledge, or might reasonably be expected to first to have knowledge, of the fact complained of; or

(b)	the end of the period of six months beginning with the day on which the act was done …

(5)	A court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

6.	Article 76(1) and (5) of the Sex Discrimination (Northern Ireland) Order 1976, and Schedule 3, Paragraphs 3(1) and (2) of the Disability Discrimination Act 1995 set out similar provisions regulating the time limits for presenting complaints of sex discrimination and disability discrimination respectively, and similar provisions explaining the grounds on which a Tribunal may extend time.

7.	The statutory dispute resolution procedures in force since 3 April 2005 apply to the complaints made by claimant.  (See Regulation 6, Paragraph 1(a) and (b) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.) The statutory grievance procedure would extend the time for presentation of the claimant’s complaints by a period of three months, had the claimant complied with it by presenting a grievance to her employer either within the statutory limitation period (three months) or even within a further period of one month from the end of the statutory limitation period.  Moreover, one of the main lessons of the case law from the Employment Appeal Tribunal in Great Britain considering these procedures, is the flexibility Tribunals have in deciding what precisely amounts to a written grievance.  It is not confined to compliance with the employer’s formal grievance procedure, and to that extent the respondent’s reliance on this in their response form is misplaced.  (See Shergold  v  Fieldway Medical Centre [2006] IRLR 76.)  In the present case, however, in the absence of any evidence from the claimant that she pursued a grievance of any kind with her employer, and in the absence of the claimant, the Tribunal concludes that she is not entitled to an extension of time under the statutory grievance procedure.

Conclusion

8.	The Tribunal concludes that the claimant had knowledge of the matters giving rise to her complaints, the failure to short-list her for the post, by 30 May 2005 at the latest.  She did not present her complaints, however, until 18 October 2005.  Her claims are therefore out of time, by a margin of six to seven weeks.

9.	As to whether the Tribunal should exercise its discretionary power to extend time under the ‘just and equitable’ jurisdiction conferred upon it by the discrimination statutes, the burden of persuading the Tribunal that it should exercise that power in favour of admitting a late claim falls squarely upon the claimant.  In the claimant’s absence, and in the absence of any adequate explanation for delay in her claim form, the Tribunal declines to exercise its discretion in the claimant’s favour.

10.	Accordingly, the claimant’s complaints are dismissed in their entirety.

Chairman:

Date and place of hearing:	13 April 2006, Belfast

Date decision recorded in register and issued to parties: