FAIR EMPLOYMENT TRIBUNAL

CASE REF: 18/15FET

CLAIMANT:		Matthew Winton

RESPONDENTS:		1.	Whitbread Group Plc
		2.	Eoin Quinn
		3.	Graeme Callender

DECISION ON A PRE-HEARING REVIEW

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge McCaffrey			

Appearances:

The claimant did not attend and was not represented.

The respondents were represented by Ms A Porter, Trainee Solicitor of Weightmans LLP Solicitors.

1.	There were a number of issues before the tribunal to be dealt with by way of a pre-hearing review.  These were as follows:-

(1)	Whether it would be just and equitable for the Fair Employment Tribunal to consider the claimant’s claim of unlawful discrimination on the grounds of religious belief and political opinion notwithstanding that it has been presented outside the statutory time limit; 

(2)	Whether the claimant’s claim against any or all of the respondents is vexatious and if so, whether it should be struck out; and

(3)	Whether the claimant’s claim against any or all of the respondents has otherwise no reasonable prospect of success and, if so, whether it should be struck-out.

(4)	Whether it would be appropriate to make an Order against the claimant requiring payment of a deposit not exceeding £500 in relation to each of the three respondents as a condition of being permitted to continue to take part in the proceedings on the grounds that the claimant’s claims had little reasonable prospect of success.

(5)	Whether the claimant’s claim should be struck out due to his failure to comply with the Order of the Fair Employment Tribunal made at a Case Management Discussion on 26 June 2015 that the claimant should respond to a Notice for Additional Information served by the respondent by sending the information sought to the respondents’ representative by 17 July 1015.

2.	On the basis of the contentions of the respondents at the hearing I was satisfied that the claimant’s claim had been lodged outside the statutory three month time limit and it would not be just and equitable to extend time.  I gave reasons orally and what follows is a summary of the reasons which were given.  

3.	The claimant did not attend the pre-hearing review.  I was satisfied however from a perusal of the file that the notice of hearing in relation to the pre-hearing review had been properly served on him at his current address.  I was also satisfied that he had been in email correspondence with the Office of the Tribunals as recently as 17.06 hours on 28 July 2015 and that he had been reminded about the hearing scheduled for 29 July 2015 in an email from the Office of the Industrial Tribunals and the Fair Employment Tribunals sent on 28 July 2015.
4.	On the morning of the hearing I delayed the start of the hearing until 10.15 am to allow the claimant time to arrive but he did not attend and there was no communication from him as to why he had not attended the hearing.  In those circumstances, and in light of the fact that the respondent’s representative had travelled from Birmingham to be present at the hearing, I did not consider it appropriate to adjourn the matter and proceeded in the claimant’s absence.  
5.	I indicated to the respondents’ representative that I would deal first of all with the issue of the time limit for the bringing of proceedings.  The claimant’s claim is one of unlawful discrimination on grounds of his religious belief or political opinion and related to an incident which he had clarified at the Case Management Discussion on 26 June 2015 had occurred on 13 July 2014.  His claim however was not lodged until 18 March 2015.

6.	The time limit for lodging a claim under the Fair Employment and Treatment (Northern Ireland) Order 1998 is set out in Article 46 of that Order.  The relevant provisions provide 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 three 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 six months beginning of the day on which the act was done
...

(5)  	A Court or Tribunal may nevertheless considers 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”.

7.	In this case the claimant’s claim related to an incident which occurred on 13 July 2014.  Accordingly his claim should have been lodged in the Fair Employment Tribunal by 13 October 2014 at the latest.  Instead it was lodged some five months outside the time limit on 18 March 2015.  As the claimant did not attend the hearing I did not have the benefit of hearing from him as to the reasons why he considered that it would be just and equitable in all the circumstances for me to extend the time limit.

8.	Ms Porter referred me to the relevant case law in relation to this matter and in particular to Robinson v Bexley Community Care Centre t/a Leisure Link [2003] EWCA Civ 576 and to the case of British Coal Corporation v Keeble [1997] IRLR 336.

9.	In Robinson the Court of Appeal commented:-

	“It is also important to note the time limits are exercised strictly in employment and industrial cases.  When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there was no presumption that they should do so unless they can justify failure to exercise the discretion.  Quite the reverse.  A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.  So, the exercise of discretion is the exception rather than the rule.  It is of a piece with those general propositions that an appeal tribunal may not allow an appeal against the tribunal’s refusal to consider an application out of time in the exercise of its discretion merely because the appeal tribunal, if it were deciding the issue at first instance, would had formed a different view.”

	In the Keeble case referred to above it was found that the discretion to grant an extension of time under the “just and equitable” formula is as wide as that given to the civil courts by Section 33 of the Limitation Act 1980 (and its Northern Ireland equivalent) to determine whether to extend time in personal injury actions.  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 other circumstances, in particular the length and reasons for the delay, the extent to which the cogency of the evidence was likely to be affected by the delay; the extent to which the parties sued had co-operated with any request for information; the promptness of which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate professional advice once her or she knew of the possibility of taking legal action.  While it is not a legal requirement for the tribunal to go through this “check list”, it is relevant to ensure that the tribunal takes all significant factors into account in exercising its discretion.  

10.	In this case, I have not heard from the claimant as to the reasons for the lengthy delay in lodging his claim.  There was no suggestion that the cogency of the evidence would be affected by the delay.  However there appears to be a lack of promptness in the claimant’s action and although at the Case Management Discussion at the end of June the claimant was advised by the President of the Fair Employment Tribunal that it may be helpful for him to seek legal advice, there is no evidence he has done so.    

11.	The respondent is concerned that they may be prejudiced by having to defend the claim given the lack of information available to them.  Certainly the claim form lodged by the tribunal is unclear as to the nature and extent of the discrimination alleged.  While the strength or weakness of the claimant’s case is not to be taken into account in deciding whether or not to extend the time limit, it appears to me that it may be prejudicial to the respondent not to have this information to hand.  At this stage the respondent has been put to the time and trouble of preparing a response and attending a Case Management Discussion at which various orders were made.  The respondent sent a request for additional information to the claimant by post and email on 30 June 2015.  The deadline for replies passed on 17 July with no response.. The respondent then wrote to the OITFET indicating that no response had been received and asking for the matter to be addressed at the pre-hearing review.  The claimant then replied to the respondent, saying  copies were sent by post.  The respondent then requested confirmation of the date the replies had been sent and an electronic copy by email of 27 July 2015.  OITFET confirmed to both parties that the respondents’ letter of 21 July would be considered at the pre-hearing review.  By email on 28 July 2015 at 17.06 pm the claimant informed the tribunal that the information had been sent.  Ms Porter advised me on the morning of the hearing, and I accept, that she had not received any reply from the claimant.  

12.	In light of the fact that the claimant has not replied to the Orders made by the tribunal and that the respondent has thereby been prejudiced given the lack of information available and given also the delay of the claimant both in lodging his claim and in seeking advice.  I do not consider that it would be just and equitable to extend the time limit in this matter.  Accordingly the claimant’s claims are dismissed.  

13.	Given my ruling in relation to this question, it is not necessary for me to address the other issues set out at paragraph 1 above and accordingly these matters are also dismissed.

Employment Judge:       

Date and place of hearing:  29 July 2015, Belfast. 	

Date decision recorded in register and issued to parties: