FAIR EMPLOYMENT TRIBUNAL
CASE REF: 87/09FET
CLAIMANT: John Glenn
RESPONDENT: University of Ulster
DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal is that the claimant’s claim was presented outside the requisite time limit, the Tribunal is not persuaded to extend time and the claimant’s claim is therefore dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Mrs Ó Murray
The claimant represented himself.
The respondent was represented by Mr O McCullough.
The claimant’s claim was for discrimination on grounds of religious belief and political opinion arising out of his failure to be short-listed for a post with the respondent following a recruitment exercise.
The issues before me at the Pre-hearing Review were as follows:-
1. Whether the claim presented on 13 March 2009 was within the time limits stipulated in the Fair Employment and Treatment (NI) Order 1998 as amended.
2. If the claim was not presented within the requisite time limit should time be extended on just and equitable grounds.
Sources of Evidence
I heard evidence from the claimant and submissions from both the claimant and Mr McCullough. I also had documentation produced by both sides at the hearing.
Findings of Fact
I found the following facts relevant to the issues before me;-
1. The claimant applied for the post of Project Manager with the respondent and was advised by letter of 4 September 2008 that he had been unsuccessful at the short-listing stage.
2. The claimant requested feedback on the reasons for him not being short-listed and received a letter of 16 September 2008 from the respondent giving feedback on the criteria which the respondent said the claimant had not met. The claimant complained to the respondent about the feedback given and received a letter of 3 October 2008 with further details. The claimant also raised concerns with the Vice- Chancellor of the University of Ulster and received a letter in response from him dated 22 October 2008.
3. The claimant lodged a claim (reference number 49/09) for age discrimination and recruitment discrimination on 3 December 2008. The claim of recruitment discrimination was rejected and the rejection of this claim was confirmed at a Review Hearing before the Vice-President on 10 March 2009.
4. The decision on the review application states as follows at paragraph 3;-
“The claimant also provided a detailed account of the nature of his complaint which relates to the failure of the respondent to short-list the claimant for the post of Project Manager (Estates Department). The claimant’s complaint is that the information in his possession is that only one candidate was short-listed from a total of 17 applicants. The claimant does not allege that he was discriminated against on grounds of sex, race, religion/politics, disability, sexual orientation or any other form of unlawful discrimination. His complaint is that he feels that it was “a fixed appointment” with someone making sure that they got “their man” and hoping that no one would object to the reasons given.”
5. The claimant’s claim for age discrimination was withdrawn by him at a Case Management Discussion hearing before the President on 23 April 2009 and the claim was therefore dismissed by Order dated 29 April 2009. This related to the claim with reference number 49/09.
6. The claimant lodged proceedings for discrimination on grounds of religious belief and political opinion on 13 March 2009 (reference number 87/09 FET).
7. The claimant stated that the date of the act of discrimination alleged was sometime during the short-listing stage that is between the date the applications closed, namely 14 August 2008 and the date he received the letter advising him that he had been unsuccessful, namely the letter dated 4 September 2008.
8. The claimant was very clear in his evidence that he sought advice from the Equality Commission in or around October 2008, that is, after he had received the letter advising him that he had not been short-listed. He had several telephone conversations with the Equality Commission and received correspondence from them between October and December in relation to his potential claim. The claimant stated that the advice that he received was that the respondents had not followed good employment policy and procedure and that this “raised the hare” for him and made him suspicious. He said that he “smelt a rat” at that stage and decided to make a claim.
9. When the claimant filled in the claim form (which he lodged on 3 December 2008 and whose reference was 49/09) he stated in evidence that he saw that there were several types of discrimination that he could apply for. He gave evidence that he was going to indicate three heads of discrimination namely age discrimination, discrimination on the grounds of religion or political belief and recruitment discrimination. However the claimant decided not to include the religion and belief ground and he made it clear in evidence to me that he regretted that decision. The reason the claimant thought that he should put age discrimination and religion/political opinion discrimination in the form was because, at the time, he thought they were the two most likely forms of discrimination. He confirmed that he had put down “recruitment discrimination” because the recruitment policy was not a good policy and he disagreed with it, for example, in relation to its requirement for “personal details”. As outlined above, this claim was part-rejected and the remaining claim was withdrawn by the claimant.
10. After the proceedings were lodged in December 2008, the claimant continued to receive advice from the Equality Commission and took legal advice before he put in the claim in March 2009. He took legal advice on his claim and the “technicality” issue and he confirmed to me that he was pursuing the claim having taken legal advice and was not doing it “off his own bat”.
11. The claimant repeatedly said in evidence that he lodged the second set of proceedings on 13 March 2009 alleging discrimination on grounds of religion/political opinion as “a technicality” as he believed that his claim for recruitment discrimination was still “live”. He was clear in his evidence that he lodged the second set of proceedings in order to obtain further information as to why he failed to be short-listed.
12. The claimant confirmed that he was aware of time-limits at the time he lodged the first set of proceedings and confirmed that he had received advice about time-limits.
13. The claimant advanced the following arguments;-
(1) That his claim was not out of time because the claim submitted on 13 March 2009 was lodged in order to elicit information from the respondent and was in addition to his existing claim for recruitment discrimination which was still live, despite the decision of the Vice-President on 10 March 2009.
(2) The fact that the respondent had not responded to his request for additional information and discoverable documentation meant that the respondent was out of time and therefore could not argue that his claim was outside the requisite time limits laid out in the legislation.
(3) If the claimant’s claim was out of time, the time limit should be extended because he has a good claim which should be heard and it was highly suspicious that the respondent had not given him the further information which he had requested on a number of occasions.
14. The respondent advanced the following arguments;-
(1) The claimant’s claim was clearly out of time and he had advanced no reason for the time limit to be extended on just and equitable grounds.
(2) The claimant’s previous claim had been withdrawn or rejected and was no longer “live”.
(3) The claimant was looking for a “label of convenience” to enable him to carry on with his case and his reference to a “technicality” had no legal basis.
15. The claimant’s claim for discrimination on the grounds of religion/political opinion falls under the Fair Employment and Treatment (Northern Ireland) Order 1998 as amended. The time limit for presenting a claim for such a discrimination is set out at Article 46 of the Order which states as follows;-
“46.-(1)…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, 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 on the day on which the act was done.
16. The employment Appeal Tribunal in the case of British Coal Corporation-v-Keeble  IRLR 636 held that the discretion to grant an extension of time on just and equitable grounds is as wide as that given to the Civil Courts by the Limitation Act 1980. The equivalent legislation in this jurisdiction is the Limitation (NI) Order 1989. At Article 50(4) of that Order outlined the matters which can be considered and these include; the extent of the delay; the reasons for the delay; whether advice was sought and whether action was taken as a result and the effect of the delay on the cogency of the evidence.
17. The Court of Appeal in the case of Robertson-v-Bexley Community Centre  IRLR 434 stated as follows in relation to the issue of the extension of the time limit;-
“An Employment Tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider everything that it considers relevant. However time limits are exercised strictly in employment cases. When Tribunal’s consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption they should do so unless they can justify the failure to exercise the discretion. On the contrary the Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule.”
18. I have considered the submissions of the parties and factors outlined in the British Coal Corporation-v-Keeble case and the factors indicated in the Limitation (NI) Order 1989 and I conclude as follows.
19. The alleged act of discrimination was the failure to shortlist the claimant for the post. The letter of rejection was sent to the claimant on 4 September 2008 and the claimant knew of the act when he received that letter. His claim therefore had to be lodged by early December 2008.
20. The claim that was lodged on 3 December 2008 was for age discrimination. The claim for recruitment discrimination was rejected and this rejection was confirmed at a Review Hearing before the Vice-President. I do not accept the claimant’s argument that the recruitment discrimination claim is still “live”. The confirmation of the rejection was explained to him at the hearing before the Vice-President and was set out in writing in the Vice-President’s written decision. I therefore regard it as disingenuous of the claimant, a highly articulate and highly educated man, to maintain that the proceedings lodged on 13 March 2009 are somehow a continuation of proceedings which had clearly been rejected
21. The claimant confirmed in evidence that he knew about time limits, he sought and received advice on a number of occasions from the Equality Commission and has received legal advice over a lengthy period. He admitted that he considered including a claim for discrimination on grounds for religion/political opinion when he lodged his first set of proceedings but decided against it. I therefore conclude that the claimant knew he could have made such a claim within the time limits having received advice but decided against it.
22. The claimant directed me to his outstanding notice for particulars and documentation as pointing to reasons which related, in some way, to the time point. The further information and documentation relates to the substantive case and the claimant had given me no information as to how that had any bearing on his thought process in relation to time limits and the lodging of this claim.
23. The claim was lodged on 13 March 2009 and was therefore lodged over three months outside the requisite time limit and the claimant has given no evidence of any reasons as to why that delay occurred nor has he given me any reason which would persuade me to extend the time limit to enable the claim to have been lodged in time.
24. In deciding not to exercise my discretion to extend the time limit I am very mindful of the fact that the Court of Appeal has advised that time limits are there to be adhered to and that extensions of time are the exception rather than the rule. The burden was on the claimant to persuade me to extend time and in the circumstances he has not discharged that burden.
25. The claimant’s claim is therefore dismissed in its entirety.
Date and place of hearing: 3 September 2009, Belfast.
Date decision recorded in register and issued to parties: