Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2003/267_00.html
Cite as: [2003] NIFET 267_, [2003] NIFET 267_00

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00267/00FET

APPLICANT: Mrs Ann Clifford

RESPONDENT: Homefirst Community Health & Social Services Trust

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the Tribunal is that that part of the applicant's complaint which relates to her non-appointment to the post of Senior Care Assistant by the respondent is out of time but that in all the circumstances of the case it would be just and equitable to extend the time for considering that part of the application. Accordingly the Tribunal has jurisdiction to hear the entire claim lodged with the Tribunal on 9 June 2000.

Appearances:

The applicant was represented by Ms M Larkin, Barrister-at-Law, instructed by Michael Flanigan, Solicitor.

The respondent was represented by Mr S Crothers, Solicitor of Brangam Bagnall & Company, Solicitors.

The applicant was interviewed for the post of Senior Care Assistant with the respondent on 24 February 2000. On 25 February 2000 she learned that she had been unsuccessful. At that time she was an acting Senior Care Assistant and she continued in that role for some time. In or around March 2000 she discussed with her brother her failure to be appointed to the post and they considered whether the reason for this could be either religious belief or political opinion. The applicant took no steps at that time with regard to this. However she had a meeting with a Mrs Simpson, an Assistant Principal Social Worker, on 18 May 2000. At that meeting she was assured that her acting-up position was secure. She had sought assistance from her union with regard to attending that meeting but this had been refused. Some days after her meeting with Mrs Simpson she was informed by the Deputy Manager of the home where she worked that she was likely to be demoted to the job of a Care Assistant. The applicant felt at that stage that in view of the lack of assistance from her union there would be no point in approaching the union again. She spoke with her brother again and they got some advice from Mr McLatchie of the Unemployed Centre and the applicant completed an Originating Application form to the Fair Employment Tribunal on 8 June 2000 which was lodged on 9 June 2000. By that time she was aware from information obtained from Mr McLatchie that it was possible that her complaint with regard to her non-appointment to the post in February might be out of time. Prior to that she had no knowledge of time limits. The applicant had not approached her union at the time when her non-appointment was known because she felt that the union shop-steward in her place of employment was part of the problem as far as her failure to be appointed was concerned.

Mr Crothers suggested that the Tribunal had to take into account the length of time by which the application was out of time, any medical condition of the applicant and the extent of any professional advice sought. He also pointed out that the applicant in conjunction with her brother had considered within a fortnight of her non-appointment to the post that there was a possibility of bringing a complaint to the Fair Employment Tribunal. He suggested the applicant had failed to avail herself of trade union advice, she being a member of UNISON, and he suggested that if there were difficulties in dealing with her shop steward she should have made her request elsewhere. He suggested that the applicant's failure to seek advice should not be accepted as a reason for extending the time. He also suggested that the length of time between 18 May and 9 June was such that it should not be regarded as reasonably prompt when the applicant delayed for that period before issuing the proceedings.

Ms Larkin pointed out that the Tribunal has a wide discretion in these matters. She pointed out that the application was out of time by slightly over a fortnight. She pointed to the applicant's difficulties in obtaining advice and assistance from both the shop steward and her union UNISON. She suggested that the applicant acted very quickly after she became aware of her proposed demotion and took steps to see what she could do to rectify the situation. She suggested that the length of time was very short, that the cogency of the evidence would not be affected and that no prejudice would result to the respondent if the time was extended.

The applicant had three months from 25 February 2000 to lodge a complaint within the time limits laid down in the Fair Employment and Treatment (Northern Ireland) Order 1989. She in fact lodged her application in relation to this and other matters which were in time on 9 June 2000 – slightly over a fortnight late. The Tribunal was satisfied that no prejudice attached to the respondent as a result of this fortnight's delay nor would the cogency of the evidence in relation to this aspect of the matter be affected. The Tribunal noted the difficulties facing the applicant in approaching either her shop steward or her union, particularly once the union had refused her assistance in relation to the meeting on 18 May 2000, which was within the time limit in relation to the date when she first knew of her non-appointment to the post. Taking these matters into account and the fact that she presented her complaint to the Tribunal promptly once she was aware of the time limits, the Tribunal considered that it would be just and equitable to extend the time for considering this aspect of the applicant's complaint.

Chairman:

Date and place of hearing: 12 September 2003, Belfast

Date issued to the parties: