CASE REF: 59/05 FET
CLAIMANT: Katrina Farley
RESPONDENT: Northern Ireland Housing Executive
The decision of the Tribunal is as follows:-
Constitution of Tribunal:
Chairman (sitting alone): Miss E M McCaffrey
The claimant was represented by Mr Eamon O' Neill
The respondent was represented by Mr Ferrity, Barrister-at-Law, instructed by Jones and Cassidy, Solicitors.
The issues for the Tribunal to consider were:
The relevant legislation regarding the Fair Employment claim is to be found in Article 47 of the Fair Employment and Treatment (Northern Ireland) Order 1988, which provides as follows:
"46(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 3 months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or
(b) the end of the period of 6 months beginning with the day 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."
The relevant legislation regarding the sex discrimination claim is to be found in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) which provides as follows:
"76.(1) An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the period of three months beginning when the act complained of was done…….."
"(5) A court or 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."
I also considered case law on the issue of when the Tribunal should exercise its discretion under the "just and equitable" principle to extend the time for lodging a discrimination claim, including the decision in British Coal Corporation –v- Keeble  IRLR 336 and the later decision in Robinson –v- Post Office, subsequently approved by the Court of Appeal for England and Wales in Apelogun-Gabriels –v- London Borough of Lambeth  IRLR 116. In Apelogun-Gabriels, the Court of Appeal found that an extension of time on the basis that it would be just and equitable was not automatic in a case where the claimant waited until an appeal or grievance procedure was completed before lodging his claim with the Tribunal. The Court found that the Tribunal should consider all the relevant circumstances, of which the appeal or grievance was only one.
The act complained in both the claimant's Fair Employment claim and her sex discrimination claim was the decision of the respondent, confirmed in the letter of 10 August 2004, that the claimant was not to be offered a post in Cookstown, as had happened in error. She was aware of that decision, as was conceded by the respondent on 10 August 2004 and the letter refers to a telephone conversation between the claimant and Ms McIlhatton the same day. So the claimant's claim form should have been lodged with the Tribunal office by 10 November 2004 for the sex discrimination claim and either by 10 November 2004 or, at the very latest by 10 February 2005 for the Fair Employment claim. The claims were both lodged on 7 March 2005 and both parties agreed that the claims were therefore lodged out of time. The answer to the questions 1 and 3 before me is that neither the Fair Employment claim nor the sex discrimination claim was lodged in time.
The issue remains to be considered as to whether the Tribunal considers it just and equitable to extend the time limit in all the circumstances. Mrs Farley, the claimant, raised the issue of her appointment to a post in Omagh or Cookstown in correspondence with the respondent over a period of months through until October and sought the advice of a solicitor in doing so. She then initiated an internal appeal, outside the normal time for doing so, but her employer allowed the appeal to proceed. That appeal was only finalised in February 2005 and it was argued on the claimant's behalf that she had awaited the outcome before lodging her claim with the Office of the Industrial Tribunals. However, she was aware of the grounds of her complaint, she had access to legal advice and to her representative Mr O'Neill and in those circumstances I find that the claimant was in a position where she could have lodged her claim earlier and did not do so. Although the criterion I have to apply is whether it would be just and equitable to extend the time to allow these claims, and not the "reasonably practicable" test, I have to consider the justice and equity to both parties of allowing the claims to proceed. I find in all the circumstances of this case it would not be just and equitable to allow the claims to proceed. Accordingly, the answer to questions 2 and 4 is "No".
In the circumstances, it is not necessary to reply to questions 5 and 6 and the claims will be dismissed.
Date and place of hearing: 8 September 2006, Belfast
Date decision recorded in register and issued to parties: