CASE REF: 83/06 FET
CLAIMANT: Seamus Alphonsus Kerr
RESPONDENT: British Telecommunications PLC
The decision of the Tribunal is that the claim has not been presented within the time limit set out in Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 and that it would not be just and equitable in all the circumstances of the case to extend the time limit.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
The claimant appeared in person and represented himself.
The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.
Issues to be decided
Sources of evidence
Findings of fact
"Seamus asked for permission to show the letter to the Fair Employment Agency, as he believed that they would 'blow it to shreds'. Deborah stressed the importance of not doing so at this stage as the grievance process needed to be adhered to internally first of all. The next stage was to appeal. If Seamus was not happy with that outcome then it may be possible to proceed to a High Level Review and ultimately Employment Tribunal."
"If you have a complaint for the Tribunal to consider you should make sure that the Tribunal has the power to deal with the complaint you wish to raise, and that you submit your application within the time limit allowed. Failure to make your application within this time limit may deprive you of the right to have your case heard. Your application should be brought before:-
(a) the end of the period of three months beginning with the day in which you 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 six months beginning with the day in which the act was done;
whichever is earlier.
The Tribunal may consider an application outside this period if, in all the circumstances, it considers it just and equitable to do so."
"At this point Tommy asked for clarification about what restrictions meant for Seamus if he was talking to, eg The Labour Relations Agency. Tommy was advised that it was Seamus' right to go this route if he wished and information could be passed to them and would be dealt with in confidence prior to any formal external procedure."
Relevant time limits
(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 have knowledge, of the fact complained of; or
(b) the end of the period of six months beginning with the day in 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."
The Tribunal's discretion
"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 Section 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal Corporation v Keeble, DPP v Marshall, above). Under that 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 appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corporation v Keeble  IRLR 336, at Paragraph 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 tribunal in exercising its discretion' (Southwark London Borough v Afolabi  EWCA Civ 15,  IRLR 220 at Paragraph 33, per Peter Gibson LJ)."
"It has long been known to those practising in this field that the pursuit of domestic grievance or appeal procedures will normally not constitute a sufficient ground for delaying the presentation of an appeal. The very fact that there have been suggestions made by eminent judges in 1973 and in 1982 that the statutory provisions should be amended demonstrates that, without such amendment, time would ordinarily run whether or not the internal procedure was being followed. From my part therefore, I can see no error whatever in what Lindsay J said in the present case in relation to this matter, that is to say that the fact, if it be so, that the employee had deferred commencing proceedings in the Tribunal while awaiting the outcome of domestic proceedings is only one factor to be taken into account."
Date and place of hearing: 6 December 2006, Belfast
Date decision recorded in register and issued to parties: