Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2001/193_01.html
Cite as: [2001] NIFET 193_1, [2001] NIFET 193_01

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 193/01FET

APPLICANT: James Alan Kerr

RESPONDENT: Queens University Belfast

DECISION

The unanimous decision of the Tribunal is that this Originating Application was presented outside the time limits provided in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and it would not be just and equitable in all the circumstances of the case for this Tribunal to consider the complaint despite the fact that it was out of time. The Originating Application given the case reference number listed above is therefore dismissed.

Appearances:

The applicant appeared in person.

The respondent was represented by Mr B Lockhart, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

The applicant applied for the post of Estates Manager – Telecommunications with the respondent. Three persons were shortlisted and interviewed of whom the applicant was one but none were deemed suitable and no appointment was made to that post in June/July 1999. The applicant was informed that he was unsuccessful by letter dated 2 July 1999. He was subsequently told that an appointment had not been made at that time to that post.

On 19 December 2000 a letter was sent by the respondent to the applicant as Telecom's manager in the Royal Group of Hospitals making arrangements for the refurbishment of a building on the Royal Group of Hospitals site. In that letter there was a reference to "Kristin Neeson (QUB Telecommunications Manager)" who had been one of the persons previously interviewed in June 1999 for the post for which the applicant had also applied. The applicant received this letter on 2 January 2001. He immediately sought advice from the Equality Commission who wrote several letters on his behalf to the respondent in relation to the appointment to the post of Ms Neeson and the respondent replied to this correspondence giving information about the post which they maintained Ms Neeson fulfilled. The respondent replied to the enquiry from the Equal Opportunities Commission initially on 9 February 2001 and in more detail on 27 February 2001. The applicant's son became quite ill and was hospitalised from 2 March 2001 to 14 March 2001. This child was subsequently off school for a further period of one month. The applicant lodged his Originating Application with the Tribunal on 2 April 2001 believing that he had three months from the date when he received the letter from the respondent referring to Ms Neeson as the QUB Telecommunications Manager in which to present his complaint to the Tribunal.

The applicant while he had been off work from 18 December 2000 to 1 January 2001 with bronchitis was present at work during January and February and most of March except for the period when his son was ill. During the period from January to April he consulted with the Equality Commission on the telephone on several occasions and completed and hand-delivered the Originating Application to the Tribunal on 2 April 2001.

Mr Lockhart maintained that the act complained of was the respondent's non-appointment of the applicant to the post for which he applied in June 1999. He suggested therefore that the Originating Application presented to the Tribunal on 2 April 2001 was considerably out of time. He suggested that in circumstances where the applicant having gained the knowledge he did from the respondent's letter to him of 19 December 2000 and having had the benefit of advice from the Commission within a very short time thereafter, should have promptly lodged his complaint with the Tribunal and not waited for the full period of three months before lodging his complaint. Mr Lockhart also argued that if the applicant had meant to rely on his own ill-health as an explanation for the delay he should have produced documentation from both his employer and his medical practitioner to demonstrate his medical capacity and difficulties during that period. Mr Lockhart also maintained that the respondent would be at some difficulty and certainly expense in researching the matters which were the subject of this complaint in view of the fact that the matter of which the applicant complained was already twenty months old when he presented his complaint.

The applicant maintained that his Originating Application was presented within three months of his date of knowledge and that in any event he had been under considerable stress and ill during the period from the end of December 2000 until April 2001. He suggested that this was compounded by the illness of his son and an unfortunate incident which took place at his workplace while his son was in hospital in March.

Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides:

(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;

(b) the end of the period of 6 months beginning with the day on 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.

(6) For the purposes of this Article –

(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done."

The Tribunal accepted the act complained of occurred in July 1999 and that the Originating Application presented on 2 April 2001 was considerably out of time. The Tribunal considered that the applicant was misguided if he believed that he had three months from the date of receipt of the letter of 19 December 2000 in which to lodge his complaint. The Tribunal went on to consider whether it would be just and equitable to extend the time. In the circumstances of this case the Tribunal concluded that it would not be just and equitable. The Tribunal noted that the applicant had legal advice from early in January 2001 which advice should have been that he should present his application to the Tribunal promptly. Instead of this the applicant took the whole of the three month period plus an extra day before lodging his Originating Application. The Tribunal accepted that the respondent would be at some prejudice if this matter were allowed to proceed. However, even taking into account the applicant's son's hospitalisation and illness the Tribunal does not accept that the applicant has satisfied us that his own medical situation was such as would justify the Tribunal concluding that it would be just and equitable to consider this complaint. The Originating Application is therefore dismissed.

Chairman:

Date and place of hearing: 18 December 2001 and 8 November 2002, Belfast

Date decision recorded in register and issued to parties: