Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2006] NIFET 374_04, [2006] NIFET 374_4

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 374/04FET

2451/04

CLAIMANT: William James Kennedy

RESPONDENT: Department for Employment & Learning

DECISION

The decision of the tribunal is that:-

The claimant's employer had been the Department for Employment and Learning and that the proceedings should be against that respondent only, and not the Northern Ireland Civil Service.

That the claims of unlawful sex, religious and political discrimination were not presented within the time limits laid down under Article 63 of the Sex Discrimination (Northern Ireland) Order 1976 and Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and,

That is it not just and equitable in all the circumstances of the case for the Tribunal to consider the claims despite the fact that they are out of time.

Constitution of Tribunal: Chairman Sitting Alone

Chairman: Ms P Sheils

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr T McGleenan, Counsel, instructed by

Mr P Butler of the Departmental Solicitor's Office.

Issues for the Tribunal

A Case Management Discussion took place on 25 January 2006. That Case Management Discussion identified a preliminary matter for determination by way of Pre-Hearing Review, being:-

(a) Whether the claim to the Fair Employment Tribunal was presented within the time limit laid down under Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and,

(b) If not, is it just and equitable in all the circumstances of the case for the Fair

Employment Tribunal to consider this claim despite the fact that it is out of time.

At the outset of the hearing of the Pre-Hearing Review it was agreed by the parties that the sex discrimination claim should be considered in the same way and at this hearing.

The Tribunal heard submissions from the claimant that his claims were not out of time and in the alternative that it would be just and equitable in all the circumstances of the case for the tribunal to consider his claims despite the fact they were out of time.

The Tribunal heard submissions from the respondent, through his representative, that the claims were grossly out of time and that there was no basis for the Tribunal to exercise its discretion that it would be just and equitable in all the circumstances of the case to consider the claims despite the fact that they were out of time.

The Claims and the Defence

The claimant lodged a claim form to the Office of the Industrial Tribunals and the Fair Employment Tribunal on 6 September 2004. In it he alleged that he had been unlawfully discriminated against by the Northern Ireland Civil Service on the grounds of his religion, political opinion and sex. The claimant indicated in that form that this discrimination had occurred while he was employed in the Department for Employment and Learning before his dismissal in April 2003.

Two Notices of Appearance were lodged on behalf of the Department for Employment and Learning. Both of these forms indicated that the Northern Ireland Civil Service was not the claimant's employer and each of them denied the allegations of religious and political discrimination and sex discrimination. Both Notices of Appearance indicated that the claimant's claims were out of time.

Background

The factual issues in this case that brought the parties to the Pre-Hearing Review were thus:-

(i) The claimant was employed by the Department for Employment and Learning as a Deputy Principal between July 1990 and April 2003.

(ii) On 11 April 2003 the claimant was dismissed by his employers because of allegations that he had not followed departmental procedures when dealing with consultants.

(iii) The Northern Ireland Civil Service Appeal Board found that the claimant's dismissal had been unfair.

(iv) The claimant lodged an unfair dismissal case with the Office of the Industrial Tribunals and the Fair Employment Tribunal in 2003. By consent between the parties the case was submitted to the Labour Relations Agency Arbitration Scheme. The case was finally resolved in the claimant's favour on 14 July 2004 and the claimant was awarded compensation. On foot of that his claim for unfair dismissal was withdrawn.

(v) The claimant read an article in the Belfast Telegraph on 10 June 2004. This article was about the publication by the Northern Ireland Audit Office of a report that appeared to indicate that government departments were repeatedly breaking rules about the employment of consultants and not adhering to rules of procedure or good practice. In a sample of 100 cases a large number of contracts had not gone to competitive tendering and had also gone over budget.

(vi) The claimant contacted the Northern Ireland Audit Office and was told that no one individual involved in any of the contracts that had been done outwith proper procedures had been disciplined and certainly no one had been dismissed.

The Claimant's Submissions

The claimant stated that he believed that he has been less favourably treated on the basis of his religious or political belief or on the basis of his sex in that no other individual had been dismissed for failures to adhere to procedures when dealing with consultants in the tendering processes, as he had been.

The claimant stated that he had raised this matter at the time, i.e. in June 2004, with his then trade union representative and had been advised by him that he had three months within which to lodge any claim of religious, political or sex discrimination he believed he may have arising out of this knowledge. The claimant was unable to support this contention as his trade union representative was not present and was no longer representing him.

The claimant lodged a claim form on 6 September 2004. In that form the claimant outlined the basis of his claim which is that it had come to his attention that others had failed properly to adhere to procedures in relation to the employment of consultants but that no one else had been disciplined or dismissed as he had been. He alleged that his dismissal was therefore unlawful discrimination on the grounds of his religion, political opinion and sex. The claim form indicated that the claimant is a male Protestant and a member of the Democratic Unionist Party. The claimant did not identify any comparators.

The claimant submitted that his claims for religious, political and sex discrimination had been lodged within time, that is, within three months of his having read the report in June 2004. The claimant stated that although he had become aware of the newspaper article in June 2004 he did not lodge it before September 2004 because he was so involved and absorbed in the process of completing the arbitration in relation to his unfair dismissal claim that he took no action at that stage save to discuss it with his trade union representative.

The claimant lodged his claim form in September 2004 but the claimant took no further action in relation to his claims until January 2006 when he wrote to the Head of the Civil Service asking for information in respect of the matters in the Audit Report. This was not a request of Further and Better Particulars. No statutory questionnaires were issued.

The Respondent's Submissions

The respondent's representative sought to rely on the following cases;

Kirklees Metropolitan Borough Council -v- Farrell (2000) ICR 1335

Churchill -v- Yeates (1983) ICR 380

The respondent's representative also sought to rely on the relevant text in Harvey, Division T, paragraphs 238-243

The respondent's representative submitted that the claimant's claims for religious, political and sex discrimination were out of time. The respondent's representative indicated that if the claimant had had such claims he ought to have lodged these at the same time or within the same time frame as the unfair dismissal claim had been lodged in 2003. The respondent's representative submitted that any claims that arose out of the circumstances that had been the basis for the unfair dismissal claim ought to have been lodged on or before 10 July 2003.

The respondent's representative indicated that the claimant had lodged a claim form in relation to the same set of facts that the claimant was now seeking to base additional claims and that this original claim form had been lodged within time on 23 June 2003. The respondent's representative indicated that there had been no reference to religious, political or sex discrimination on that claim form nor had it been raised by the claimant or his representative during the period from the date of lodging through to arbitration which was only finally completed until July 2004.

The respondent submitted that the claimant was demonstrably well versed in his obligations as regards time limits because of his experience of having brought an unfair dismissal claim.

The respondent also submitted that the claimant had no information from the Northern Ireland Audit Office Report on which to base a claim that he had been discriminated against on the grounds of his religion, political opinion or sex. The respondent submitted that although the Northern Ireland Audit Office Report indicated that there were other instances in the Northern Ireland Civil Service where contracts had been awarded to consultants in circumstances where procedures had not been adhered to, there was no details as to any of the actual instances nor was there reference to the gender, religion or political opinion of any of those involved. The respondent contended that the information in the Northern Ireland Audit Office Report gave the claimant nothing on which to support a claim of religious, political or sex discrimination.

In this regard the respondent relied on the relevant cases in Harvey and in particular on the cases of Machine Tool Industry Research Association v Simpson IRLR [1988] 212 and Churchill -v- Yeates & Son [1983] ICR 380.

The claimant in that case lodged a complaint for unfair dismissal outside the statutory three month period. He submitted that it was not reasonably practicable for him to have brought his unfair dismissal proceedings sooner until he had discovered the existence of the fact which provided him with the grounds for his belief that his dismissal was unfair. In this case this was the fact that someone else had been employed to do the claimant's job. Up until he became aware of that fact he had been unaware that the reason for his dismissal i.e. redundancy, might not have been the real reason, in that he had never been made redundant. As per Browne-Wilkinson J:

"If an employee can demonstrate to the industrial tribunal that until he was aware of the possibility of challenging the reason for dismissal given by the employers, he reasonably took the view that he had no reasonable grounds to complain of unfair dismissal, it is open to the tribunal to hold that it was not reasonably practicable for him to have brought that complaint until he had discovered the crucial fact".

The Employment Appeals Tribunal went on to hold that the "fact" in question must be one of such fundamental importance that its existence or non existence makes a crucial difference as to whether or not there is a claim for unfair dismissal.

Mr. Mc Gleenan submitted that the claimant had not discovered any such "crucial fact" in the Northern Ireland Audit Office Report on which he could rely to support a claim of discrimination on the grounds of his religion, political opinion or sex. The Report in question identified that there had been what Mr. Mc Gleenan referred to as "shortcomings" in the tendering processes but that there was no reference in the report to the gender or religious or political affiliation of the others involved in those instances where there had been "shortcomings".

The respondent's representative further submitted that the claimant's date of knowledge was critical. The claimant had become aware of the information in the Northern Ireland Audit Office Report on 10 June 2004 and yet he did not lodge his new claims until 6 September 2004. The respondent's representative submitted that becoming aware of information in June 2004 did not give the claimant a new three month time limit within which to lodge new claims. Rather, the claimant's actual time limit had expired on 10 July 2003, which was three months after the action taken against him by his employers, his dismissal, that had been subject of the unfair dismissal claim and was now to be the subject of his new religious, political and sex discrimination claims.

The respondent's representative submitted that in the circumstances where the claimant is asking the tribunal to extend time to bring claims within the time limit that expired on 10 July 2003 it beholds the claimant to have acted as quickly as possible after he had become aware of the potentiality for new claims in June 2004. The respondent's representative submitted that the claimant offered no cogent reason to explain this further and unnecessary delay between June 2004 and September 2004 before lodging his new claims.

The respondent's representative further submitted that the claimant had further sat on his hands between June 2004 and September 2004, in that he had made no

effort to uncover further information or evidence in support of his contentions during that time period.

The respondent's representative also sought to rely on the doctrine of res judicata and in particular in the case of Kirklees Metropolitan Borough Council -v- Olive Catherine Farrell EAT 1060 [1999]. In that case the claimant complained that her employers were in breach of the requirement of the Equal Pay Act 1970 in that she was paid less than a man employed by them on like work or work of equal value. She first brought a claim under the Equal Pay Act in October 1998. Subsequent negotiations led to that claim being withdrawn by the claimant and dismissed by the tribunal. This was done on foot of an agreement between the claimant and her employers but this agreement was not complied with by the employers. She lodged a further complaint in May 1999 which was found to be in all material aspects identical to that of her first complaint.

The Employment Appeals Tribunal held that in her second application she was relying on further contraventions of the equality clause within her contract of employment which had not been adjudicated upon in her first claim. However the Employment Appeals Tribunal stated that the issue before the tribunal was the same point that had been established by the first claim and that there was therefore no right to go back to the tribunal to re-establish or re-open what has already been decided. The Employment Appeals Tribunal held that the claimant was estopped from pursuing her second claim.

The respondent's representative in the instant case submitted that because the claimant had brought an unfair dismissal case based on the facts of his dismissal and that that case had been arbitrated and ultimately withdrawn by the claimant, the claimant was now estopped from bringing his claims of religious, political and sex discrimination.

The Claimant's Response

The claimant reiterated his submission that he had lodged his claims within time, in that he had lodged them within three months of his becoming aware that others who had been involved in similar practices as he had been in the tendering processes had not been dismissed as he had been.

The claimant indicated that the "crucial fact" in his case was that he had not been aware of the larger investigation that had taken place into shortcomings in the tendering processes.

The claimant was given a short time by the Tribunal to look at the case law referred to by Mr. Mc Gleenan. After reflection the claimant indicated that he wished to rely on the case of Machine Tool Industry Research Association -v- Simpson IRLR [1988] 212.

Applicable Law

Under the Fair Employment and Treatment (Northern Ireland) Order 1998, Article 46 the period within which proceedings must be brought is as follows:-

46(1) Subject to paragraph 5, the tribunal shall not consider a complaint under Article 38 of unlawful discrimination to a tribunal 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 had first knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

(b) the end of the period of 6 months beginning with the day on which the act was done.

46(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.

In relation to the claimant's sex discrimination claim the relevant law is under the Sex Discrimination (Northern Ireland) Order 1976 and in particular Article 76.

There is a clear and distinct difference between the two pieces of legislation which operate in relation to religious and political discrimination claims and sex discrimination claims. Under the Sex Discrimination (Northern Ireland) Order a claimant must present a complaint within three months beginning with the date of act of discrimination. Case law supports the position that the key date is the date of occurrence of the act, not the date when the claimant was aware of it: as per Mummery P in Mensah -v- Royal College of Midwives (17 November 1995, unreported, at 11 g-h)

"an act occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory. Knowledge is a relevant factor to the discretion to extend time. It is not a pre-condition of the commission of an act which is relied on as an act of discrimination".

Under the Fair Employment and Treatment Order, however, at Article 46 1(a), knowledge of the act is the trigger for the start of the period of three months within which a claim can be brought. However, this three month time limit, which commences with the day on which the claimant first had knowledge of the act complained of, is subject in the same Article to two restrictions. The first of these is that the claimant's knowledge is subject to the scrutiny of being knowledge that he might reasonably be expected to have had. The second of these restrictions is that the time limit period is delineated by the expiry of six months period which begins with the day on which the act was done.

Common to the time periods under both pieces of legislation is the fact that they may be extended if the Tribunal thinks it would be just and equitable to do so in all the circumstances of the case. In this regard the Tribunal was mindful of its obligations to exercise its discretion judicially and in accordance with the principles set out in the case of Selkent Bus Co. Ltd. -v- Moore. These principles require the Tribunal to exercise its discretion in light of the all the circumstances and to balance the injustice and hardship of extending the time limit against the injustice and hardship of refusing it.

The Tribunal also had regard to the case of British Coal Corporation -v- Keeble [1997] IRLR 636. That case held that the discretion under the Sex Discrimination

Act in Great Britain, which equates to the Sex Discrimination (Northern Ireland) Order 1976 in Northern Ireland, to grant an extension of time on just and equitable grounds is as wide as that given to the civil courts by the Limitation Act 1980. The equivalent legislation in Northern Ireland, Article 50 of the Limitations (Northern Ireland) Order 1989, sets out factors which can be considered by the tribunal in the exercise of this discretion and can be summarised by the following:-

(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 parties sued have co-operated with any request for information.

(d) The promptness with which the claimant acted once he/she knew of the fact giving rise to the cause of action.

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

The Keeble case also stated that the tribunal's function is to balance the degree of prejudice to the applicant caused by the operation of the limitation period against the prejudice to the employers if the case were allowed to proceed.

This discretion is the same under the Fair Employment and Treatment (Order) 1998 and the same principles apply.

The Tribunal's Conclusions

Consideration of the statutory time limits under the legislation

It is clear that the claimant's claim under the Sex Discrimination (Northern Ireland) Order 1976 relates to his having been dismissed. This dismissal occurred in April 2003.Therefore a new claim in relation to that dismissal on the ground of sex discrimination lodged in June 2004 is outwith the statutory time limit period under this Order in that it has been lodged more that three months after the act of discrimination has occurred, i.e. the dismissal of the claimant. Therefore the Tribunal must consider whether to exercise its discretion to extend the time limit on the just and equitable grounds.

It also appears to the Tribunal that the claimant's claims under the Fair Employment and Treatment (Northern Ireland) Order 1998 have also been lodged outwith the time limit under that Order. Again the new claims of religious and political discrimination relate to the claimant's dismissal in April 2003. This is on the basis that the claimant had, since April 2003, knowledge of the act about which he is complaining in June 2004.

Even though the claimant may not have been aware of the full extent of the legal implications for him of that dismissal the time limit relates to the knowledge he had of the act, not the lawfulness or otherwise of the act. The subsequent events that the claimant states caused him further thoughts and are the basis of his new claims

are factors that the Tribunal can consider in deciding whether to exercise its discretion to extend the time limit on the just and equitable grounds.

The Tribunal did not accept that the doctrine of estoppel applied in this case. In the Kirklees case the claimant sought to bring a similar fresh claim on the same grounds as an earlier claim the settlement in respect of which had broken down. This is not the case here. The claimant in the instant case is seeking to bring new claims on different grounds albeit arising out of the same circumstances. Therefore in the view if the Tribunal the issue of estoppel does not arise in this case.

The Just and Equitable Discretion

The cases referred to relate to the tribunal's discretion under the statutory employment law provisions of the employment protection legislation which would equate to the Employment Rights (Northern Ireland) Order 1996. Under those provisions the discretion the tribunal has to extend the time limit is on the basis of whether it was reasonably practicable for the claimant to present his claim within the three month period.

However the application to extend time in this case falls to be considered under the relevant discrimination provisions which relate to the proposed claims, i.e. the Fair Employment and Treatment Order 1998 and the Sex Discrimination Northern Ireland Order 1976. Under these provisions the discretion the tribunal has to extend the time limits is on a just and equitable basis, which discretion is wider. The Tribunal is of the view that the established principles under the first discretionary power are at least persuasive if not applicable under the second.

In relation to the Churchill case the claimant uncovered a crucial or fundamental fact that it was not reasonably practicable for him to have known before the time limit period had expired. In the instant case the Tribunal is of the view that the claimant has not uncovered any such crucial or fundamental fact. The claimant's claims are at best speculative in that while the Audit Report may have indicated that there were others who did not adhere to proper procedures in the tendering processes and that there, as far as the Audit Office knew no one had been dismissed, the claimant had no information about any of those others from which he could seek to establish that he had been less favourably treated on the grounds of his sex, politics or religion.

In the Machine Tool Industry Research Association case on which the claimant sought to rely involved the issue of redundancy and of the discovery by the claimant in the case that some one had been engaged to do her work subsequent to her departure. The Court of Appeal in that case held that this fact discovered subsequent to the expiry of the time limit was one that could reasonably give rise to the claimant's belief that she had a new claim. As stated the Tribunal is of the view that the claimant in the instant case has uncovered no such fact that could reasonably give rise to his claim that he has or may have been unlawfully discriminated against on the grounds of his sex, religion or politics.

The Tribunal concluded that the claimant had not uncovered a solid relevant fact on which the Tribunal could rely to exercise its discretion to extend the time limits. Although the Audit Report indicated that other people had not adhered to the proper tendering procedures the claimant did not identify anyone who had not done so in

the same circumstances that had led to his dismissal, nor did he identify such a person who was either of a different sex to him or was of a different religion or had different political opinions to him.

In light of this finding the Tribunal answered the questions posed in the pre-hearing review thus;

That the claims of unlawful sex, religious and political discrimination were not presented within the time limits laid down under Article 63 of the Sex Discrimination (Northern Ireland) Order 1976 and Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and,

That is it not just and equitable in all the circumstances of the case for the Fair

Employment Tribunal to consider the claims despite the fact that they are out of time.

Chairman:

Date and place of hearing: 2 March 2006, Belfast.

Date decision recorded in register and issued to parties: