FAIR EMPLOYMENT TRIBUNAL

CASE REF:   277/04 FET

CLAIMANT:		Ivor Joseph Bell

RESPONDENTS:		1.	Montupet (UK) Ltd
		2.	Brendan Doyle

DECISION ON PRE-HEARING REVIEW

The decision of the Tribunal is:-

1.	The claims of the claimant against each respondent insofar as these relate to the incident on 17 October 2002 are out of time and the Tribunal does not consider that it is just and equitable to extend time.

2.	The claims of the claimant against each respondent insofar as these relate to the acts complained of from May 2003 to 7 May 2004 are within time.

Constitution of Tribunal:
Chairman (sitting alone):		Mr I Wimpress

Appearances:
The claimant was represented by Mr M Wolfe, Barrister-at-Law, instructed by McCartan Turkington & Breen, Solicitors.
The first-named respondent was represented by Ms J L Toolan, of the Engineering Employers’ Federation.
The second-named respondent was unrepresented and appeared on his own behalf.

1.	The purpose of this hearing is to determine the following preliminary issues:-

(1)	Was the application presented within the specified time limit?

(2)	If not, is it just and equitable, in all the circumstances of the case, for the Tribunal to consider this complaint despite the fact that it is out of time?

2.	In the claim filed by the claimant on 27 May 2004, he alleged that he was discriminated against by the respondents on the grounds of religious belief and political opinion.  The claimant was employed by the first-named respondent from September 1997 to May 2004.  It transpired during the course of the hearing that the claimant was somewhat vague and confused about the dates of the incidents complained of but the parties’ representatives were in broad agreement as to approximately when the key events were alleged to have occurred.

3.	The first-named respondent filed a response denying discrimination.  The             second-named respondent filed a more detailed response which denied discrimination and gave a substantive account of the matter from his perspective.

4.	The Tribunal received a small bundle of documents by agreement and heard evidence from the claimant.

5.	The claimant’s case was that on 17 October 2002 he attended a training course at the first-named respondent’s premises entitled ‘Dignity at Work’.  The course was delivered by the second-named respondent who worked as a consultant for HR Training and Support Services Ltd.  The course was attended by approximately eight persons who were drawn from senior management and shop stewards.  The claimant was a shop steward for the Amicus trade union.

6.	The claimant alleged that at the outset of the course, the second-named respondent asked the participants to give their names.  When the claimant gave his name, the second-named respondent said “That’s a name from the past” and said that he knew another person called Ivor Bell and asked if he was anything to the claimant.  The claimant said that he didn’t know and the second-named respondent then said that this Ivor Bell was an IRA commander in Belfast.  The claimant then stated that Ivor Bell was his father and asked the second-named respondent to stop talking about it.  The     second-named respondent thought that he was joking and continued talking.  The claimant assured the second-named respondent that he was not joking and he did then stop.  The claimant alleged that he was shocked and embarrassed by the incident.

7.	The claimant was anxious that the information about his father’s identity did not get out onto the shop floor and spoke to a fellow shop steward, Mr Jimmy Donaghy, about it.  He also spoke to Sue Bill, the Head of Human Resources, and she said that she would speak to the people who attended the course and let them know that the information about the claimant’s father wasn’t to leave the room.

8.	The claimant gave evidence that he felt that in making the remarks in question, the second-named respondent was discriminating against him on the basis of his perceived political beliefs.  He did not seek legal or other professional advice and he did not contemplate lodging a complaint in the Tribunal.  He was aware of the existence of the Equality Commission because the second-named respondent had mentioned it during the ‘Dignity at Work’ training.  He had also heard of the Fair Employment Agency and was aware that the first-named respondent had an equal opportunities policy and a harassment policy.  The claimant told the Tribunal that the reason for not taking any action was that he believed that the company would deal with it at that level and that at the time there were no consequences apart from embarrassment and annoyance.

9.	In May 2003 the claimant became aware of graffiti about him and death threats written on the walls of the factory toilets.  The claimant was informed by colleagues that something had been written about him in the Sigma toilet block and he went to see it.  The graffiti read, “Fat Ivor PIRA scum RIP OV”.  The claimant understood OV to stand for ‘Orange Volunteers’.  The claimant also alleged that on the same night his locker was broken into and that letters and notebooks containing personal details about himself and colleagues had been stolen.  The claimant reported these matters to his supervisor, Mr Ronnie Torrence.  As a result of these incidents the claimant suffered from depression and took six weeks sick leave.  The claimant also started drinking at this time and came to rely on alcohol to help him deal with his problems at work.  On his return to work the claimant detected a change in attitude amongst his colleagues who no longer greeted him in a friendly manner and acted as if they were suspicious of him.

10.	On two subsequent dates, that the claimant was unable to specify with any degree of precision, the claimant was informed by colleagues about further sectarian graffiti.  On one of these occasions, a colleague, Mr Eamonn Brady, told him that there was graffiti about him in the dye coat toilets.  The claimant went to look at it and reported it to Mr Donaghy and to a supervisor, Mr Alan Kelly.  On the other occasion, the claimant was told there was writing about him in the wheels locker room but when he went to look at it, it had been wiped off.  The claimant’s attention was also drawn to graffiti in the cylinder head locker room but it was written by a marker and had been either rubbed our or painted over.  He was informed by a colleague that ‘Provie bastard’ had been written.  The claimant did not report these incidents because he did not want his colleague to become targets.

11.	In his evidence to the Tribunal, the claimant also referred to a further incident when his notebooks were stolen when he was operating a forklift truck.  The notebooks contained times and dates of previous incidents.  The incident was reported to his supervisor.

12.	On 7 May 2004 a bullet was left in his locker while he was working on the night shift.  The claimant immediately went to see the Plant Manager, Mr Jim Burke, who called in the supervisor on site, Mr Tony Mallon.  The police were also summoned.  The claimant was unable to finish his shift and was given a lift home by Mr Burke.  The claimant did not feel safe at work after this incident and never returned to work.

13.	On 27 May 2004, the claimant lodged a claim with the Tribunal complaining in relation to both respondents about the matters set out above.  As appears from the claimant’s claim and the statutory questionnaires, he holds the second-named respondent liable for the incident on 17 October 2002 and also the sectarian harassment that commenced in May 2003.

14.	The preliminary issues to be determined by this Tribunal are whether the application was brought within the specified time limit and, if not, whether it is just and equitable, in all the circumstances of the case, for the Tribunal to consider the complaint notwithstanding that it is out of time.

15.	Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998, insofar as material provides as follows:-

“(1)	Subject to Paragraph (5) that 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 on the day on which the complainant first had knowledge of, or might reasonably be expected to have had knowledge, of the act complained of; or

(b)	the end of the period of six months beginning on 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)	For the purposes of this Article –

(c)	any act extending over a period shall be treated as done at the end of that period.”

16.	On behalf of the claimant, Mr Wolfe’s primary submission was that the claimant’s case fell under Article 46(6)(b) in that the bullet incident on 7 May 2004 was the last in a series of acts that extended over the period from 17 October 2002 to 7 May 2004 and that accordingly the claim was within time.  Mr Wolfe relied on the decision of the English Court of Appeal in Hendricks  v  Commissioner of Police for the Metropolis [2003] IRLR 96 CA and contended that there was a tenable case that all the acts of which the claimant made complaint were sufficiently connected to bring the case within Article 46(6)(b).

17.	Mr Wolfe’s secondary submission was that the Tribunal should exercise its discretion to extend time under Article 46(5).  In relation to the 2002 incident, Mr Wolfe submitted that there was no prejudice given that the first-named respondent received a prompt report of the incident and that the second-named respondent clearly had a good recollection of what occurred from his own perspective.  Mr Wolfe also drew attention to the fact that the claimant gave the first-named respondent the opportunity to deal with the matter internally.  With regard to the May 2003 incident, Mr Wolfe submitted that there was clear evidence that the claimant was severely unwell and was prescribed anti-depressants.  Finally, Mr Wolfe submitted that in terms of general fairness it would be artificial to include some incidents and exclude others.

18.	On behalf of the first-named respondent, Ms Toolan submitted that the facts of the present case were far removed from the situation that prevailed in Hendricks and that the incidents that the claimant complained of were sporadic in nature and not sufficiently connected to bring the case within Article 46(6)(b).  Ms Toolan accepted, as she was bound to, that the May 2004 incident was within time.  In relation to Mr Wolfe’s secondary submission, she submitted that the Tribunal should not extend time under Article 46(5).  Ms Toolan pointed out that the claimant did not seek legal advice in relation to 17 October 2002 incident, and clearly did not intend lodging proceedings.  Similarly, the claimant did not take any action in relation to the May 2003 incident.  Ms Toolan submitted that in view of the considerable delay, there was prejudice to the first-named respondent and queried whether it would be possible to fairly defend the allegations.  Ms Toolan emphasised that the claimant’s state of mind was relevant and that he made a conscious decision not to lodge proceedings.  Further, Ms Toolan drew attention to the fact that there was nothing inhibiting the claimant from lodging proceedings such as a medical condition and that as a shop steward he was in a good position to obtain advice from union colleagues.  The claimant was also aware of the existence of the Equality Commission and had heard of the Fair Employment Agency.

19.	The second-named respondent submitted that there was no connection between the complaint made against him and the acts of harassment perpetrated against the claimant.  He drew attention to the fact that seven months had elapsed between the training course delivered by him and the first incident of sectarian graffiti.

20.	In Hendricks the Court of Appeal was faced with a case involving sex and race discrimination which included nearly 100 specific allegations of discrimination mainly in the period 1989 to 1994 involving 50 or more police officers.  The Court of Appeal per Lord Justice Mummery held that:-

“The question is whether that ‘an act extending over a period’, as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date which each specific act was committed.”

21.	At this stage of proceedings, I am satisfied that acts complained of by the claimant as occurring between May 2003 and 7 May 2004 are sufficiently connected to constitute an act extending over a period and therefore are within time.  It is material to note that the alleged acts of sectarian harassment were mainly in the form of graffiti and bear a degree of similarity that might be regarded as the hallmark of a concerted campaign against the claimant.

22.	I am not however persuaded that the complaint against the respondents in relation to the second-named respondent’s remarks form part of a series of connected events but rather was an isolated act.  In so holding, I have had regard to the fact that the       second-named respondent’s unwise remarks were of a very different character to the alleged sectarian harassment that ensued.  This part of the claim is therefore outside the time limit.

23.	It is then necessary to consider whether, in all the circumstances of the case, it would be just and equitable to consider the complaint against the respondents insofar as it relates to 17 October 2002 incident.  The claimant gave evidence that he considered that the behaviour of the second-named respondent was discriminatory yet he took no action against either respondents regarding the matter for some 18 months despite being aware of the Equality Commission and one of its predecessors, the Fair Employment Agency.  He did not seek professional help or advice and it is clear that he made a conscious decision not to issue proceedings against either respondents in respect of this incident.  It is also significant that the claimant refrained from issuing proceedings in relation to this incident when the sectarian harassment commenced some seven months later nor when further acts of harassment occurred on subsequent dates.  No action was taken by him until 7 May 2004 incident prompted him to lodge proceedings on 27 May 2004.

24.	There has therefore been a considerable delay by the claimant in bringing proceedings against the respondents in relation to 17 October 2002 incident which is unexplained save for the hope that the matter would be dealt with by the first-named respondent internally.  

25.	There is no suggestion that the claimant was given misleading advice at any time and it would appear that the claimant did not seek any professional advice until after 7 May 2004.  In addition there was no medical reason for the claimant not issuing proceedings within three months of 17 October 2002 incident.  There is nothing however to suggest that the cogency of the evidence has been affected by the delay in raising proceedings in respect of this incident.

26.	Having regard to all of the above matters, I am not satisfied, in all the circumstances of the case, that it would be just and equitable to extend time in respect of the claim insofar as it relates to the incident on 17 October 2002.

Chairman:

Date and place of hearing:		6 January 2006, Belfast

Date decision recorded in register and issued to parties: