FAIR EMPLOYMENT TRIBUNAL

CASE REF:	202/05 FET	

CLAIMANT:			James Ian Wilkinson			

RESPONDENT:		Belfast City Council		

DECISION ON A PRE HEARING REVIEW
The decision of the tribunal is that:-

1. 	Part of the claimant’s claim relating to the incident that is alleged to have occurred on 27 April 2005 was commenced out of time and that it would not be just and equitable in all the circumstances to extend the time limit.

2.	The claim relating to the grievance procedure was commenced in time. 

Constitution of Tribunal:

Chairman (sitting alone):		Mr WA Palmer		

Appearances:
The claimant represented himself.

The respondent was represented by Mr Patrick Ferrity, Barrister - at Law, instructed by Ms Dympna Murtagh of the respondent’s Legal Services Department.

The Evidence

1.	The claimant submitted a written statement to the tribunal, without objection.  The only oral evidence heard by the tribunal was from the claimant.  At the start of the hearing the claimant provided the tribunal with a bundle of documents (“the bundle”), without objection.  He also provided the tribunal with a copy of a letter, dated 20 March 2006, that he had written to the Office of the Industrial Tribunals and the Fair Employment Tribunal, concerning consolidation.  Some of the documents were referred to during the course of the hearing.

Background

2.	The claimant has a case pending before the Fair Employment Tribunal against the respondents, his employer (“the first proceedings”). That case was presented on 19 October 2004 and has yet to be heard.  On 22 November 2005 the claimant presented a further claim against the respondents (“the second proceedings”), in which he claims that he was the subject of discrimination by way of victimisation by the respondent as a result of bringing the first proceedings.  He claims that there were two instances of victimisation, one on 27 April 2005 (“the first victimisation”) and the other (“the second victimisation”) which, although it occurred earlier than 25 August 2005, only came to his knowledge on that date.  This hearing concerns the second proceedings and is limited in its purpose in that it has been convened to decide the matters set out immediately below.

Matters to be decided and the Statutory Provisions on Time Limits and Victimisation

		Matters to be decided	
			
3.	(a)	Whether the second proceedings are in time; and, if not, whether it is just and equitable in all the circumstances to extend the time limit.	
			
		Statutory provision on time limits	
			
	(b)	Insofar as relevant for the purposes of the matters to be considered, Article 46 (1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the Order”) provides that the Fair Employment Tribunal shall not consider a complaint unless it is brought before whichever is the earlier of (a) the end of the period of three months beginning on the day on which the complainant first had knowledge of the act complained of, or might reasonably be expected to have knowledge of that act, or (b) the end of the period of 6 months beginning with the day on which the act complained of was done.

Even if a claim is made out of time the tribunal is empowered to consider the claimant’s complaint if it, in all the circumstances of the case, the tribunal considers that it is just and equitable to do so.  This power is contained in Article 46 (5) of the Order.	
			
		Statutory provision on victimisation	
	(c)	Article 3 (4) and (5) of the Order provide that one person discriminates by way of victimisation against another in any circumstances relevant for the purposes of the Order if he or she treats that person less favourably than he or she treats or would treat other persons in those circumstances and does so because the person has brought proceedings against him or her. 	

The First Victimisation

4.	This incident concerned the review of a staff appraisal on the claimant.  The claimant alleges that as a result of bringing the first proceedings, he was threatened with the proposition that if the review proceeded some of his scores would be reduced.  This occurred on 27 April 2005.  The claimant alleges that if the scores in his appraisal had been reduced he would not have received a rise in salary.

The provisions in the Order dealing with the time within which proceedings must be brought are referred to in paragraph numbered 3, immediately above.  These provide that, subject to Article 46 (5) of the Order, the tribunal does not have jurisdiction to consider this complaint unless it is brought before which is the earlier of (a) before the end of a period of 3 months beginning with knowledge of the act complained of, or (b) the end of the period of 6 months beginning with the day on which the act was done.  The act in this instance was done on 27 April 2005.  The 27 October 2005 is 6 months from that date.  The complaint was brought on 22 November 2005, which is more than 6 months after the act complained of was done.  This part of the claim was not, therefore, brought in time.

 The Just and Equitable Jurisdiction, including the relevant Law 

5.	In light of the finding above, it is now necessary for the tribunal to consider whether it should exercise its powers under the just and equitable jurisdiction in respect of that part of the claimant’s claim concerning appraisal.

Article 46 (3) of the Order provides that the tribunal may consider a complaint, “which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so”. The reference in this quotation to “the case” does not refer to the entire case, but to matters relating to the extension of time.  Philips J, in Hutchinson v Westward Television Ltd [1977] IRLR 69, said, at paragraph 8, in relation to a similar provision in the Sex Discrimination Act 1975 (legislation applicable in Great Britain), 

“The ‘case’ does not refer, we think, to the entire complaint which if time is extended would have to be investigated.  The words refer to the actual facts as far as relevant to the matter in hand.”

The onus lies with the claimant to satisfy the tribunal that, in the circumstances, it should exercise its “just and equitable” jurisdiction to extend time for presenting a claim.  Also, there is no presumption in favour of the exercise of the jurisdiction vested in the tribunal.  Furthermore, time limits are to be exercised strictly in industrial and employment cases.  Auld LJ said in Robertson v Bexley Community Centre [2003] IRLR 434, at paragraph 25;

“It is also of importance to note that the limits are exercised strictly in employment and industrial cases.  When tribunals consider their discretion to consider a claim on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion.  Quite the reverse.  A tribunal cannot hear a complaint unless the applicant [claimant] convinces it that it is just and equitable to extend time.  So, the exercise of discretion is the exception rather than the rule.”

The discretion given to tribunals under the “just and equitable” jurisdiction is a wide one and the tribunal is entitled to take account of matters that it considers relevant.  In Hutchinson v Westward Television Ltd (which has been previously cited) Philips J said of the “just and equitable” jurisdiction (at paragraph 9), that,

“…..it [the jurisdiction] gives the industrial tribunal a wide discretion to do what it thinks just and equitable in the circumstances.  These words are very wide words.  They entitle the Industrial Tribunal to take into account anything which it judges to be relevant.”

There is the suggestion in Mills and Crown Prosecution Service v Marshall [1998] IRLR 258, that an important, and perhaps crucial, factor in the exercise of the jurisdiction is whether it is possible to have a fair trial of the issues.  Morrison J said in that case, at paragraph 21;

“The industrial tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complainant [claimant].”

At T279 of Harvey on Industrial Relations and Employment Law (“Harvey”), it is stated as follows:

“The discretion to grant an extension of time under the ‘just and equitable’ formula has been held to be as wide as that given to the civil courts by s 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal v Keeble, DPP v Marshall, above).  Under the section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (a) the length of 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 had co-operated with any requests for information; (d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and (e) the steps taken by the claimant to obtain the appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corpn v Keeble [1997] IRLR 336, at para 8).  However, although, in the context of the ‘just and equitable’ formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, ‘provided of course that no significant factor has been left out of account by the employment [industrial] tribunal in exercising its discretion’ (Southwark London Borough v Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at para 33, per Peter Gibson LJ).” 

Much of the above was referred to by either Mr Ferrity or Ms Murtagh in submissions and those submissions are taken into account in reaching a decision on this issue.

The reason given by the claimant for not lodging a complaint was that he thought that the two victimisation matters would be considered at the hearing of the first proceedings.  He raised the matter of victimisation at a Case Management Discussion on 14 November 2005 (“the CMD”) and said that he was advised at the CMD that any allegation of unfair treatment alleged after he lodged the papers in the first proceedings could not be considered at the hearing of those proceedings: if he wanted to make a complaint about victimisation he would have to lodge a new complaint.  The record of the CMD was provided in the bundle and it is recorded as follows.  “I pointed out to [the claimant] that if he wanted to make a claim for victimisation he would have to lodge a new claim.  I also indicated to him that he may wish to seek legal advice”.  The claimant later contacted the Equality Commission.  He had not previously sought legal advice.  He thought that it would have been too expensive to do so.  However, he did not consult his trade union; nor did he consult the Citizens’ Advice Bureau.  When asked in cross - examination why it would be just and equitable to extend time he dealt mostly with the grievance issue (which was quite proper, as the tribunal may have had to consider its just and equitable jurisdiction in that issue).  However, he did say that the respondent says that the two complaints are “inextricably linked” and for this reason time should be extended.  Among the submissions made by Mr Ferrity and Ms Murtagh between them are the following.  This claim is clearly out of time and should have been made by 27 July 2005 (That is 3 months after the act was done.), the claimant failed to set out grounds for the exercise of the jurisdiction, there were no reasons given for the delay, the claimant would have been aware of the guidance notes provided to potential claimants, the respondent would be prejudiced in that it would be out expense in defending this allegation (no evidence was called nor any point made about any other possible prejudice) and Parliament has laid down limits for a reason and can only be extended in exceptional circumstances and these circumstances do not exist in this case.

On 18 August 2005 the claimant received a number of documents from the respondent.  These documents were connected to the first proceedings.  The claimant claims that on 25 August 2005, after studying the documents, he realised that he had been victimised.  On this basis he claims that, in respect of the second proceedings (which includes this matter), time began to run from that date. In a letter, dated 24 October 2005, to the respondent in which he points out a number of faults, as he saw it, in the grievance process (which gives rise to the second victimisation claim) he does not mention the issue of the appraisal.  In a letter of clarification, dated 20 November 2005, clarifying the letter of 24 October 2005, he does not mention the issue of the appraisal.  That letter states;

“I refer to my letter to you dated 24 October 2005 in which I complained about the management of the Grievance Procedure and the manner in which the investigation was conducted.

As matters investigated through the Grievance Procedure were, at the time, the subject of an application to the Fair Employment Tribunal I believe that I have been victimised.”

It appears to the tribunal that it was not the documents that he received on 18 August 2005 that alerted the claimant to this part of his claim.  It is clear to the tribunal that the claimant is a capable and articulate person and it is satisfied, on reading his correspondence that he provided to the tribunal, reading his statement and listening to him give evidence, that if the documents had alerted him to the claim concerning the appraisal he would have said so.  He did not.  It seems to the tribunal that the nub of the claimant’s case on this issue is that he thought that the first victimisation would be dealt as part of the hearing of the first proceedings.  The tribunal considers that, on the balance of probabilities, the claimant would have realised on 27 April 2005 that he had the possibility of a victimisation claim, but thought that it would be dealt with in the first proceedings.  

The tribunal in considering all relevant matters, including the law, is of the view that in all the circumstances of the case it would not be just and equitable to extend time in respect of the first victimisation.

The Second Victimisation (The facts and findings)

6.	On 19 October 2004 the first proceedings were commenced.

On 29 November 2004, that is, just over 1 month after commencing the first proceedings, the claimant raised matters, that were the subject of those proceedings, with the respondent under its grievance procedure.  These matters were, briefly, that he was required to work at home during a period when he was off ill as a result of his mother’s death on 31 October 2003 and that this was one of a number of episodes that demonstrated a sustained period of unfair treatment of him by the respondent.  The matters were investigated by the respondent under the grievance procedure and the initial determination was provided to the claimant by letter on 25 January 2005.  The claimant was dissatisfied with the letter.  A second letter of initial determination was received by him on 9 March 2005.  The claimant appealed the initial determination.  By letter, dated 27 June 2005 and which was received by the claimant on that date, the respondent informed the claimant of the outcome of the appeal.  The second victimisation claim arises out of the investigation and appeal under the grievance process.

On 18 August 2005 the claimant received most of the documentation from the respondents that he had been seeking in respect of the first proceedings.  He claims that it was one week after he received these documents that he became aware of the victimisation.

 What the tribunal has to decide, in respect of the second victimisation, is the date the claimant first had knowledge of the act complained of, or that he might reasonably have had expected to have had knowledge of that act.  The tribunal reminds itself that it is not necessarily on the date that the claimant was informed of the outcome of his appeal, namely, 27 June 2005, that he would have knowledge of the act about which he complains.

Although it took the claimant some time to analyse the documents, he became aware, on 25 August 2005, from the documents provided that, as he averred in his statement, at paragraph numbered 8, “the investigation of [his] complaints had been entirely unprofessional and that the conclusions drawn by the investigating officers 

appear contrary to the evidence”.  In his application to the tribunal he states, at paragraph numbered 7.4, “On 25 August 2005 I became aware of the flagrant nature and scale of the unfair treatment when I was provided with documentation”  In his oral evidence he stated that on, 25 August 2005, he became aware that the investigation was a catalogue of contradictions and unprofessional.  The respondent, in a submission made on its behalf, submitted that it did not consider that the 7 day delay between receipt of the documents and the conclusion reached to be reasonable.  In other words the claimant should have reached his conclusion earlier.  The claimant in his statement avers that it took him a number of weeks fully to analyse the documents and the tribunal accepts this.  The tribunal considers that the 7 days was not an unreasonable amount of time to take. In the tribunal’s view the conclusion that the claimant reached (rightly or wrongly) from the documentation must have raised his suspicions and the tribunal so finds. The tribunal has heard nothing that would tend to contradict the claimant’s assertion that he became aware of a possible claim on 25 August 2005.  The second victimisation claim was commenced in time and the tribunal so finds.

Article 46 (6) (b) of the Order

7.	This provision provides for the purposes of Article 46(which deals with the  period within which proceedings must be brought) that any act extending over a period shall be treated as done at the end of that period.  The tribunal raised this provision during the course of the proceedings, but made it clear that to decide the point would be outside its remit as it was on this occasion sitting to decide the issues set out at paragraph 3(a) above.  Besides, the record of the CMD states at paragraph 3,  “Ms Murtagh stated that in addition to the issues indicated by the claimant, the respondent intended to raise a time issue.  The respondent does not accept that all the acts relied on could be regarded as constituting part of a series of acts.  I pointed out that in order to make a determination the tribunal would have to hear the evidence and therefore a pre-hearing review would not be appropriate”.  This tribunal will not, therefore decide whether or not the first victimisation claim is saved by this provision.  

Consolidation

8.	As stated, the issues before the tribunal are those set out at paragraph 3(a) above.

At a Case Management Discussion held on 14 March 2006 (“the second CMD”) the respondent sought a pre-hearing review to consider whether this claim was within time or, if not, whether time should be extended.  It was agreed that the case be listed for a pre-hearing review on 29 March 2006, which is this hearing.

Also, at the second CMD the first proceedings were listed for hearing on 24-28 April 2006 and 2-3 May 2006.  Further, Ms Murtagh, who appeared at the second CMD on behalf of the respondent, asked that it be recorded that depending on this outcome of this hearing, she may seek an adjournment of the first proceedings to enable consolidation to take place, if that turned out to be appropriate.

At this hearing Mr Ferrity applied, in the event of a finding in the claimant’s favour, to have both claims consolidated.  The tribunal heard submissions from him and the claimant, who opposed the application.  The tribunal indicated to the parties on several occasions that it was minded to stick to its remit.  It gave no indication that it 

would decide the issue.  The tribunal, in considering that it was constituted to deal with the time issue and in light of what occurred at the second CMD, decides that it should not deal with this issue.

Decision on the Pre-hearing Issue

9.	The decision of the tribunal is, therefore, that 1.that part of the claimant’s claim relating to the incident that is alleged to have occurred on 27 April 2005 was commenced out of time and that it would not be just and equitable in all the circumstances to extend the time limit, and 2.the claim relating to the grievance procedure was commenced in time.

Chairman:

Date and place of hearing:         29 March 2006, at Belfast

Date decision recorded in register and issued to the parties: