Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 337/04 FET

CLAIMANT: Christopher Ryder

RESPONDENT: Northern Ireland Policing Board

DECISION ON A PRE-HEARING REVIEW

The unanimous decision of the Tribunal is that:-

(i) the application was not presented within the specified time limit;

(ii) it is 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 outside the time limit laid down by the Fair Employment and Treatment (Northern Ireland) Order 1998, ("the Order").

Constitution of Tribunal:

Chairman: Mr Cross (sitting alone)

Appearances:

The claimant represented himself before the Tribunal.

The respondent was represented by Mr Patrick Lyttle QC, instructed by the Crown Solicitors' Office.

1. Sources of Evidence

The Tribunal heard evidence from the claimant on his own behalf. No other

evidence was heard by the Tribunal.

2. The Claimant's Claim

The claimant explained to the Tribunal that he had applied for the post of Director of Communications in the respondent's organisation. The claimant was not short listed for interview. In fact no appointment was made at that time, although several other applicants for the post were interviewed. The claimant commenced proceedings in the Fair Employment Tribunal under case FET 373/03 in connection with the fact that he was not short listed for the post. These proceedings are continuing before the Tribunal.

The post was subsequently re-advertised on 30 January 2004. The original July 2003 advertisement had stated that – "Applicants must demonstrate, in the application form that they have at least three year's experience as a senior/middle level in public relations or journalism." The January 2004 re-advertisement stated that – "The successful candidate must demonstrate a minimum of three year's experience in a high profile, senior public relations role". In other words, the reference to experience in journalism was no longer included. This excluded the claimant who has had a career in journalism.

3. The claimant seeks to bring further Fair Employment proceedings against the respondent in respect of this advertisement stating that he is discriminated against as a result of the advertisement. He therefore submitted a second application to the Fair Employment Tribunal dated 22 July 2004. This is the case FET 337/04. This application is outside the time limit of a period of three months which ran from 30 January 2004 being the date on which the second advertisement appeared. It is agreed by the claimant and the respondent that the time limit laid down by the Order expired on 30 April 2004. The claimant however seeks to convince this Tribunal that his claim should be allowed to proceed, it being 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.
4. The Respondent's Case

The respondent argued that the claimant knew about the time limits, having already presented one claim to the Tribunal, namely FET 373/03. He had spoken to both his solicitor and to the Equality Commission about the case and there was no reason why he should delay in making his claim to the Tribunal. The respondent argued that the Tribunal should not extend the time limit on the just and equitable ground in this case, as the claimant was seriously in delay as he only lodged his claim on 22 July 2004 almost three months after the time limit had expired.

5. The Issues in the Case

The Tribunal has to decide whether the claimant, who readily admits that his claim is presented outside the specified time limit, had communicated to the respondent that he intended to bring a claim in connection with the second competition. The Tribunal must also decide whether the respondent was prejudiced by the late

notification of the claim and whether the respondent, by its conduct and correspondence, gave the claimant the impression that it was admitting that the second claim was really part of the first claim and would be considered as such by the Tribunal. In other words, the respondent is estopped from denying the claimant the right to bring a second claim as a separate claim if it entered into correspondence with the claimant, within which correspondence the claimant made it quite clear that he intended to bring before the Tribunal the matters relating to the

second competition.

6. Analysis of Evidence

The evidence of the claimant was that he had made it quite clear to the respondents immediately the second advertisement appeared that he felt that this was a further act of discrimination against him.

7. The claimant gave further evidence that, whilst in correspondence with the Crown Solicitors' Office concerning the second competition and the claimant's view that it should be taken into account in the first case already launched by the claimant, the Crown Solicitors' Office asked the claimant to regularise his claim by bringing the second application. When the second application was brought, in good faith, by the claimant the respondent took the point that it was out of time.
8. The Findings of Fact

The Tribunal found the following facts:-

(i) the claimant did notify the respondent immediately the second advertisement appeared that he felt that he had been discriminated against further by this second advertisement;

(ii) the claimant was not sure that because he had not applied for the second post, whether he could, in such circumstances, claim a further act of discrimination in respect of that post, or whether the first claim already made by him would cover the subsequent advertisement and removal of journalism as one of the qualifications for the post;

(iii) the claimant, despite discussing the matter of the second advertisement with

his solicitor in a most informal way and mentioning it to the Equality Commission, did not seek specific advice on whether or not he should file a second application. Only when the respondent's solicitors suggested to him that he should regularise the situation did he, at their request, file the second application, otherwise he would have been content to let all matters proceed on foot of the first application; and

(iv) the respondent had, in fact, given Discovery and Further and Better Particulars of matters arising in connection with the second advertisement to the claimant. The claimant's interest in making the second claim, if it was not to be incorporated automatically in the first claim, was to ensure that compensation could be awarded to him if he was successful, on the basis that he had been further discriminated against by the second advertisement.

9. On an application for Further and Better Particulars dated 14 April 2004, the

claimant asked for information concerning the second competition. In the reply to that application, dated 25 May 2004, the Crown Solicitor replied that the questions had no relevance to the current application to the Fair Employment Tribunal. The claimant then notified the Crown Solicitor that he had indeed written on 4 February, stating that he had sought to include the second advertisement within his first claim and therefore felt that he should be given the Further and Better Particulars requested. Subsequently, the Crown Solicitor wrote to the claimant on 27 May, stating that – "You know that, at the hearing of the above matter, you cannot rely on matters that have occurred since the date of your originating application. If it is your intention to do so, could I ask you to regularise your Further Victimisation claim for the benefit of the respondent and the Tribunal who will eventually hear your case". This led to the claimant bringing the second

application.

10. The Law

Under the provisions of Article 46 of the Order, the Tribunal can only consider a complaint under Article 38 (ie a complaint such as the present one) if it is brought before the end of a period of three months, beginning at the date on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of.

Article 46(5) states:-

"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".

The respondents referred the Tribunal to the case of Robinson –v- The Post Office 2000 IRLR 804 which laid down the rule that if an applicant or a claimant was pursuing an internal grievance then that could be a reason for allowing additional time for him to bring his claim to the Tribunal under the just and equitable ground. If one compares an internal grievance procedure with, in this case, the fact that the claimant was pursuing his first claim and assuming that it would take care of the further discrimination points which arose out of the second claim, then an analogy is available to justify the delay of the claimant in pursuing the second claim. However, the case of Apelogun Gabriels –v- The London Borough of Lambeth 2001 IRLR 116 refines the rule in the Post Office case by stating that the delay in awaiting the outcome of internal claims or proceedings is only one of the matters that a Tribunal should consider when deciding whether to allow additional time, under the just and equitable ground.

For instance, the Tribunal should take into account whether or not the claimant knew of the time limits and was aware of them and the prejudice that may arise for a respondent if a claim is late in being presented. Also to be taken into account is the advice that was available for the claimant and whether or not he took advice from professional or trade union advisors.

11. Taking all these matters into consideration, this Tribunal holds that the claimant did genuinely believe that he could link his claim in the second case with his claim already in existence in the first case and he was not disabused of this view, even after entering into correspondence with the respondent concerning it. The

respondent was not prejudiced by this delay, as they knew that the claimant was considering bringing proceedings regarding the second advertisement and was already looking to include it in the first claim. Indeed, the respondent did, to some extent, lull the claimant into a false sense of security by suggesting that he regularise the second part of his claim and also by giving him information which he requested in respect of the second advertisement.

12. This Tribunal can see an analogy between the Internal Grievance procedure-type cases referred to in the Post Office and the Apelogun Gabriels cases and hold that it is just and equitable to allow the claimant to bring his second claim before the Tribunal, even though it is outside the time limit laid down under the Order.
13. The claimant recognised that he had received all Discovery and Further and Better Particulars in connection with the second claim already from the respondents and the only outstanding matter under the new second claim is the fact that at the hearing he will be able to claim compensation in respect of his claim that the advertisement was changed to his detriment.
14. The claimant agreed that if the Tribunal did allow him to proceed with his second claim, that the second claim should be merged with the first claim and the two claims heard together by the same Tribunal. This Tribunal so orders the right of the claimant to bring the second claim outside the time limit, it being just and equitable that he be so allowed; and that under Regulation 9 of Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, that the second claim be heard and considered together with the first claim.

Chairman:

Date and place of hearing: Belfast on 20 January 2006.

Date decision recorded in register and issued to parties: