Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF: 37/01FET

APPLICANT: Doctor Douglas Sloane Harper

RESPONDENTS: 1. Civilian Personnel B Department

2. Chief Constable of the Royal Ulster Constabulary

DECISION

The unanimous decision of the tribunal is that the originating application has been presented outside the time limit and that it would not be just and equitable, in all the circumstances of the case, for the tribunal to consider it. The complaint is therefore dismissed.

Appearances:

The applicant appeared in person.

The respondent was represented by Mr F O'Donoghue, Barrister-at-Law instructed by the Crown Solicitors Office.

1. The applicant, a General Practitioner, was one of eight Night-time Deputy Forensic Medical Officers.
2. In December 1999 one of the two Day-time Deputy Forensic Medical Officer's posts became vacant. The applicant applied for the vacant post together with three other Night-time Deputies. The applicant and one of the other candidates were Protestants. The other two candidates were Catholics. The other Protestant candidate withdrew leaving the applicant and the two Catholic candidates.
3. On 5 June 2000 the applicant was informed that he had not been selected.
4. On 4 January 2001 the applicant brought an originating application alleging that he had been unlawfully discriminated against on the ground of religious belief.
5. By Notice of Appearance received on 22 February 2001 the respondents denied the alleged unlawful discrimination and contended that the applicant's complaint was out of time.
6. A hearing was therefore arranged to consider the following preliminary issues:

"1. Was the application presented within the specified time limit?

2. If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this complaint despite the fact that it is out of time?"

7. Article 46(1) of the Fair Employment & Treatment (Northern Ireland) 1998 provides:-

"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 with the day on which the act was done."

8. Article 46(5) confers a discretion on the tribunal to extend time as follows:-

"…the Tribunal may nevertheless consider any such complaint, … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

9. There was no dispute that the act complained of was done on the 5^th June 2000. There was dispute however as to when the applicant first had knowledge or might reasonably be expected first to have had knowledge of the act complained of. The applicant contended that it was the 30^th October 2000. If that date was correct then the time limit expired on the 5^th December 2000 as that was the earlier of the two periods of three months from the date of first knowledge or six months from the date of the act. The respondent contended that it was the 5^th June 2000. If that was date is correct then the time limit expired on the 5^th September 2000 as that was the earlier of the two periods of three months from the date of first knowledge or six months from the date of the act.
10. The tribunal found the following relevant facts in relation to the applicant's knowledge.

(1) Prior to the 5^th June 2000 the applicant knew that there were four candidates for the post: 2 Protestants and 2 Catholics.

(2) Prior to the 5^th June 2000 the applicant knew that one of the Protestant candidates withdrew leaving himself and the two Catholic candidates.

(3) Prior to the 5^th June 2000 the applicant knew that the Senior Forensic Medical Officer on whose rota the successful candidate would be working was a Catholic.

(4) Prior to the 5^th June 2000 the applicant knew that the selection procedure which had previously been used to fill such vacancies had been changed for this vacancy so that instead of a selection panel, the candidates were required to submit a report they had previously written which would be annonymised and sent for assessment by an independent consultant in England.

(5) Prior to the 5^th June 2000 the applicant was concerned that the Senior Forensic Medical Officer would favour the Catholic candidate who was in fact selected. He was also concerned that the Senior Forensic Medical Officer may have been behind the change in the selection process to neutralise the applicant's experience and training which he believed were superior to either of the two Catholic candidates.

(6) Prior to the 5^th June 2000 the applicant was concerned about the independence of the consultant in England.

(7) Prior to the 5^th June 2000 the first respondent asked the applicant to confirm that the report he had submitted was an original report. Although the applicant had altered his original report he was concerned that the first respondent was trying to exclude him unjustifiably.

(8) Prior to the 5^th June 2000 the applicant knew that the Catholic candidate who was in fact selected usually followed the Senior Forensic Medical Officer's shift and that they were therefore aware of each others working and holiday arrangements.

(9) Prior to the 5^th June 2000 the Senior Forensic Medical Officer telephoned the applicant to ascertain whether, if he was appointed, he could fit in with his holiday arrangements.

(10) Prior to the 5^th June 2000 the applicant knew that the Senior Forensic Medical Officer and the candidate who was in fact selected were not only Catholics but were next door neighbours, good friends and that their General Medical Practices were joint fund holders.

(11) On the 5^th June 2000 the applicant knew that he had not been selected.

(12) Within a day or two of the 5^th June 2000 the applicant knew that the successful candidate was the Catholic candidate he was concerned the Senior Forensic Medical Officer would favour. He also knew that this appointment resulted in a fifty-fifty split in the religious composition of the day time Forensic Medical Officers in Belfast.

11. Notwithstanding that knowledge and those concerns the applicant claimed that on or about the 5^th June 2000 he believed that the successful candidate had been selected because he could fit in with the Senior Forensic Medical Officer's working and holiday arrangements and that religion as a cause never crossed his mind until the 30^th October 2000 when:

(i) he received a letter from Mr Cox, the first respondent's Director of Personnel confirming that:

(a) the change to the procedure was intended to improve it so that it would be objective and be seen to be so;

(b) if the perception was that the new procedure was open to accusations of manipulation it would have to be looked at again;

(c) the previous arrangements would therefore be used for any future appointments;

(d) the Forensic Medical Officer's Association would be consulted if there was any change to that position;

which he had already told him at a meeting between them in early October 2000;

(ii) another colleague informed him that the successful candidate and the Senior Medical Officer had gone to grammar school together and worshipped at the same church.

12. The tribunal agreed with Mr O'Donoghue that if the applicant only became aware of the information referred to at paragraph 11(ii) above at the end of October 2000, it is surprising that he did not refer to that in his detailed originating application form. His failure to do so caused the tribunal to reject his evidence in that regard. In any event in view of the knowledge and concerns the applicant had prior to and shortly after the 5^th June 2000, the tribunal concludes that he could reasonably have been expected to have had knowledge of the act complained of by the 7^th June 2000. While the information received from Mr Cox at the beginning of October 2000 (the letter received around the 30^th October 2000 simply confirmed that information) may have reinforced his concerns, the tribunal does not accept that he could not reasonably have been expected to have had knowledge of the act complained of without that additional information and certainly not until he received that same information in written form. The complaint should therefore have been presented by the 7^th September 2000 as that was the earlier of the two periods of three months from the date of knowledge or six months from the date on which the act was done. As the complaint was not brought until the 4 January 2001, it has been brought approximately four months outside the time limit.
13. The tribunal therefore considered whether it would be just and equitable, in all the circumstances of the case, to consider the complaint notwithstanding that it was out of time. In so doing the tribunal considered the prejudice which each party would suffer as a result of granting or refusing an extension, having regard to all the circumstances of the case, 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 request for information;

(d) the promptness with which the applicant acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the applicant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

14. In relation to (a) - the length of and reasons for the delay, the applicant's main reason for the delay was that he did not realise that the discrimination, he believed he had suffered in June 2000, was due to religion until the end of October 2000. For the reasons set out at paragraph 12 above the tribunal did not find that explanation to be reasonable. Further the tribunal considered that if the applicant could not reasonably be expected to have had knowledge of the act complained of until the end of October 2000 (which the tribunal did not accept), the applicant could still have presented his complaint timeously as the time limit would not have expired, in those circumstances, until the 5^th December 2000. That was because the 5^th December 2000 would have been the earlier of the two periods of three months from the date of first knowledge or six months from the date of the act. Although the applicant consulted an Employment Law Solicitor at the beginning of November 2000 and the Equality Commission at the end of November or beginning of December 2000 and was advised by the Equality Commission in early December 2000 to bring his complaint, he did not do so. The applicant gave the tribunal a number of reasons for that failure and for the failure to bring his complaint until the 4^th January 2001. Those reasons were:

(i) he understood he could not bring proceedings without legal representation;

(ii) he considered solicitors fees to be prohibitive;

(iii) the Equality Commission advised him that they would probably be unable to assist him;

(iv) he was under pressure from colleagues not to bring a complaint because it might bring the allocation of duties on the Belfast rota into question;

(v) he believed his claim would be unsuccessful until he received further advice from the Equality Commission in early January 2001.

The tribunal found some of those reasons to be inconsistent and less than credible and overall to be less than reasonable.

15. In relation to (b) – the extent to which the cogency of the evidence is likely to be affected by the delay, Mr O'Donoghue accepted that the respondent would not be unduly prejudiced by the delay.
16. In relation to (c) – the extent to which the party sued had co-operated with any request for information. Although the applicant did not agree with the information provided by Mr Cox, there was no suggestion that Mr Cox had refused to co-operate with any requests for information.
17. In relation to (d) – the promptness with which the applicant acted once he or she knew of the facts giving rise to the cause of action. The tribunal considered that the applicant had knowledge of all the salient facts by the 7^th June 2000. He did not bring his complaint until the 4^th January 2001 approximately four months outside the time limit. Even if Mr Cox's response to the Forensic Medical Officers' Association at the beginning of August 2000 did put the applicant off seeking legal redress at that time and even if the applicant did not have knowledge of the act complained of until the end of October 2000 (which the tribunal did not accept) those matters did not stop the time limit running. Although the applicant was advised by the Equality Commission in early December 2000 to bring proceedings he did not do so at that stage.
18. In relation to (e) – the steps taken by the applicant to obtain appropriate professional advice once he or she knew of the possibility of taking action. The tribunal is satisfied that the applicant contacted an Employment Law Solicitor for appropriate professional advice at the beginning of November 2000, within a few days of receiving Mr Cox's letter. However the tribunal considered that the applicant could reasonably have been aware of the possibility of taking action at a much earlier stage in view of the knowledge and concerns he had by June 2000. Further although the Employment Law Solicitor informed the applicant of the existence of the Equality Commission at the beginning of November 2000, he did not contact the Equality Commission for a further month.
19. Although the respondents have adduced no evidence of prejudice as a result of the applicant's delay that is just one of the circumstances to be taken into account. Having considered all the circumstances as set out above, the tribunal does not consider that it would be just and equitable to extend the time limit. The applicant's complaint is therefore dismissed.

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Date and place of hearing: 7 December 2001, Belfast

Date decision recorded in register and issued to parties: 4 February 2002