Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2002/595_01.html
Cite as: [2002] NIFET 595_1, [2002] NIFET 595_01

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 595/01FET

3873/01

APPLICANT: Shirley Reid

RESPONDENT: Royal Mail

DECISION

The unanimous decision of the tribunal is that the application was not presented within the specified time limit. It is just and equitable in all the circumstances of the case for the Fair Employment Tribunal to consider these complaints and the applications can proceed to hearing of the substantive issues.

Appearances:

The applicant was represented by Mr D Lunny BL, instructed by J G O'Hare, Solicitors.

The respondent was represented by Mr J Park BL, instructed by Napier & Son, Solicitors.

The applicant has been employed by the respondent since January 1997. She presented a claim of both sexual and religious discrimination relating to a series of events combining on 14 February 2001. The originating application was lodged on 5 December 2001. The case came before the tribunal to consider preliminary issues.

"(i) was the application presented within the specified time limit.

(ii) 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."

The application relates to both case reference numbers 595/01FET and 3873/01.

At the outset of the hearing it was accepted on behalf of the applicant that the application lodged on 5 December 2001 was out of time, the tribunal heard evidence from the applicant relating to the events which took place between 14 February 2001 and the lodging of the application on 5 December 2001. The applicant sought Trade Union advice after the alleged incidents on 14 February 2001 and was advised to request an internal investigation of her complaint. She met Mr Bell from the respondent on 8 March 2001. She was then advised by her Trade Union to take her complaint through Internal Grievance Procedure rather than the more serious step of going to a solicitor. The applicant was interviewed by the respondent on 18 May 2001 and confirmed that she wished her complaint to be formerly dealt with. She had a further meeting scheduled for 1 June 2001. She was unable to attend this meeting as she was in hospital from 27 May 2001 to 5 June 2001 with viral hepatitis. She did not return to work until 5 October 2001. The applicant was advised by the respondent that the investigation would not progress until she returned to work. The applicant remained unwell after returning to work and was treated with anti-depressants and assisted by the respondent's Welfare Department. The applicant was interviewed on 12 October 2001 and received a letter dated 14 November 2001 telling her that her allegation had not been upheld. The applicant contacted her Trade Union representative who arranged an appointment for her with a solicitor and her application was lodged on 5 December 2001 some 19 days after the notification to her of the result of the internal procedure.

Mr Lunny submitted that several factors had to be considered in this case. The first of these was the ongoing internal procedure which took 9 months to complete. He argued that the applicant had acted immediately by contacting her Trade Union representative and acted on his advice. He argued that the applicant wished to exhaust this procedure because she remains in the respondent's employment and did not wish to damage that relationship. Mr Lunny referred to the fact that the delay in the procedure was due to the applicant's illness and that she should not be prejudiced because of this. Mr Lunny further referred to the fact that the applicant had sought advice from her Trade Union and was advised to extinguish the internal procedure. Mr Lunny acknowledged that the question of prejudice to the respondent had to be considered. He stated that the period between the ending of the internal procedure and submitting the application was short and that there should be no prejudice to the respondent. He also argued that to disallow the application could result in prejudice to the applicant because she could have no other redress. He also referred to the seriousness of the complaint and the fact that at the end of the internal procedure the applicant had acted with due diligence and had not slept on her rights.

Mr Park submitted to the Tribunal that the applicant should have lodged her application while pursuing her internal grievance and she had not been given the right advice to pursue the internal procedure first. He stated that the interests of the respondent had to be taken into account. Mr Park referred to the fact that the applicant was well enough to resume work on 30 September 2001 and this was some 9 weeks before her application was submitted. He further argued that there was prejudice to the respondent because the incidents referred to date back to 1999 and there was a difficulty regarding witness's recollection of events and a need for certainty in these matters.

The tribunal considered all the factors raised in relation to the application which it was agreed was presented outside the relevant time limits. The tribunal considered the question of the just and equitable extension of the time limit in these cases. We took into account the fact that the applicant promptly took Trade Union advice after 14 February 2001 and was advised to proceed with her internal complaint. We are mindful of the fact that employees remaining in employment may well wish to exhaust the internal procedure before embarking on an external claim and this is one of the factors to be considered. We also took into account the applicant's illness and the effect that this had upon the completion of the Internal Grievance Procedure. We noted that she acted promptly when that procedure was completed and when she was advised to do so by her union. We also accepted that she was not aware of the time limits for presenting a claim. The tribunal considered these matters and balanced them against the possible prejudice to the respondent, but we did not find that such prejudice would be significant as the internal procedure was only just completed and information would have been recently obtained. The tribunal find that in the individual circumstances of this case and taking all the relevant factors into account it is appropriate to exercise our discretion and we find that it is just and equitable to extend the time limit for presenting the applications and the case may proceed to substantive hearing.

Chairman:

Date and place of hearing: 5 June 2002, Belfast

Date decision recorded in register and issued to parties: