FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 129/10 FET
CLAIMANT: Geraldine Kelly
RESPONDENTS: 1. Hazel Black
2. Asha Rennymon
3. Titty George
4. Jacqueline Boyle
5. Southern Cross Health Care Limited
DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal is that the claim of religious discrimination is out of time and that there are no grounds upon which that time-limit could be extended.
Constitution of Tribunal:
Vice President (sitting alone): Mr Noel Kelly
The claimant appeared in person.
The first, second, third and fifth-named respondents were represented by Mr Mercer, Barrister-at-Law, instructed by Abbey Legal Protection Limited.
The fourth-named respondent did not appear but Rafferty and Donaghy Solicitors confirmed by e-mail that they acted on her behalf and had no objection to the pre-hearing review continuing.
1. The pre-hearing review had been listed to determine:-
“Whether the Tribunal has jurisdiction to entertain the claimant’s complaint in view of the provisions of Article 46 of the Fair Employment Tribunal (Northern Ireland) Order 1998.”
2. At a Case Management Discussion held on 27 January 2011, the claimant had stated that the incident of religious discrimination, of which she complained, occurred in October 2008. Her claim form to the Tribunal had been lodged on 13 October 2010.
3. Mr Mercer submitted that on that basis, the claim of religious discrimination was substantially out of time and that the Tribunal therefore had no jurisdiction to hear that claim. The claimant had prepared a written statement which she read out to the Tribunal. In that she said that she had wanted to believe that this had been a one-off incident, that she had been apprehensive about taking it further and asked for the time to be extended.
4. The claimant confirmed by reference to her diary that the alleged incident occurred on 18 October 2008. She further confirmed that she was not alleging that any other incident amounted to religious discrimination.
5. The claim which was lodged in the Tribunal on 13 October 2010 was therefore almost two years after the event complained of. The claimant put forward no basis on which the Tribunal could reasonably have decided to extend the time-limit in this case on just and equitable grounds. The claim of religious discrimination was therefore dismissed as being out of time and therefore outside the jurisdiction of the Tribunal.
6. At that point, it emerged that the claimant believed that she still had an extant claim of constructive unfair dismissal before the Tribunal. The claim form which she had lodged appeared on first reading to include only a claim of religious discrimination and a claim of unauthorised deduction from earnings. That latter claim had been met by the respondent and had been dismissed by consent. The religious discrimination claim had just been dismissed as being out of time.
7. It was pointed out to the claimant that in paragraph 7.1 of the claim form, she had not ticked the box for unfair dismissal and had not indicated in that paragraph that her complaints of harassment were in any way related to an allegation that she had been constructively dismissed. The claimant stated that her complaints of ‘harassment, bullying, personal threat, victimisation, and stalking’ were related to her claim of constructive unfair dismissal. She did not allege that these allegations related to any other allegation, eg race discrimination.
8. The claim form, which contained several hand written pages of allegations, contained on the third such page, a sentence which states:-
“In July 2010 I was left no option but to terminate my contract as they still had not resolved my grievances.”
9. I therefore accepted that the claimant had in fact lodged a claim of constructive unfair dismissal even though the form had not been properly completed in respect of paragraph 7.1. It was apparent that none of the respondents had picked up this reference and equally apparent that they had not responded to any such claim. I therefore gave leave to Southern Cross Health Care Limited to amend their response by 11 March 2011 to address a claim of constructive unfair dismissal.
10. Since a constructive unfair dismissal claim can only lie against the employer, the claims in respect of all other respondents are dismissed. The only remaining respondent is Southern Cross Health Care Ltd, and the only remaining claim is one of constructive unfair dismissal. There is no claim of race discrimination.
11. It would appear this case will need to be listed for four days and, once the amended response has been received, the matter shall proceed to Listing on that basis.
Date and place of hearing: 11 February 2011, Belfast
Date decision recorded in register and issued to parties: