Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 376/04FET

2457/04

CLAIMANT: Ronan Gabriel Deehan

RESPONDENT: Ministry of Defence

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the application to the Fair Employment Tribunal was not presented within the appropriate time limit and in all the circumstances it is not just and equitable for the Fair Employment Tribunal to consider the complaint despite the fact that it is out of time. The claim of constructive dismissal was withdrawn at the outset of the hearing, and is dismissed.

Constitution of Tribunal:

Chairman: Ms W. A. Crooke (sitting alone)

Appearances:

The claimant was represented by Mr Henry, Barrister-at-Law, instructed by MacDermott & McGurk Solicitors.

The respondent was represented by Mr Coll, Barrister-at-Law, instructed by Crown Solicitor's Office.

Sources of Evidence

The Tribunal had an agreed booklet before it and heard evidence from the claimant on his own behalf.

The Facts Found

1. It was common case that the claim of the claimant was presented substantially out of time in that it was lodged with the Tribunal approximately 15 months after the date of the last alleged discriminatory act.
2. The claimant allegedly as a result of activities of colleagues in the armed services tried to end his own life.
3. The claimant was not successful in ending his own life and was referred to the Community Psychiatric Nurse.
4. The claimant believed that he would be discharged from the army in May 2004 but was actually discharged from the army in July 2004.
5. The claimant's claim to the Tribunal was presented in or around 7 September 2004. There was no information before the Tribunal which could lead it to infer that there was any delay in presenting the application to the Tribunal by the claimant's solicitors, MacDermott & McGurk.

The Relevant Law and The Issue Arising Therefrom

6. The relevant law is found in the Fair Employment & Treatment (Northern Ireland Order 1998. The issue arising from Article 46 of that Order is as follows:-

"Was the application to the Fair Employment Tribunal presented within the appropriate time limit?"

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

Conclusions

7. This was not a case in which the claimant was unaware of his rights. He pointed out under cross-examination that he knew that everything that he had undergone in the armed services was religious discrimination. Many of the incidents he referred to were on average four and five years prior to the lodgement of his claim. Even if the Tribunal only took the last act as a point from which time runs that act was still 15 to 16 months prior to the lodgement of the claim. This is well outside the normal time limit of three months from the date of discrimination to the date of lodgement of proceedings. Although the claimant was undoubtedly suffering considerable mental ill-health from 1 April 2003 (being the date of the suicide attempt) to early in 2004, it was not the case that the claimant was house-bound or totally unable to engage with solicitors. In April 2003, the claimant was required to return to work on light duties by Major Cross his officer commanding. The claimant was deeply upset by this and attended his then solicitor to take advice on the issue. As a result of the solicitor's intervention, the claimant did not have to return to work even on light duties. Surely if the claimant was incapable as a result of his mental health difficulties, he would not have been able to take this action?

The claimant could not give any coherent reason why he did not take steps to bring his claim in time or even more swiftly than the actual time periods within which he brought his claim. All the claimant could say was that it all added up and he was concentrating on getting out of the army before he turned his attention to bringing the claim. As he said, "It was a later stage before I considered this line of attack". He was not able to give evidence on when he first applied his mind to the issue of bringing proceedings.

The Tribunal has weighed up the balance of prejudice in this case before reaching its decision. In the particular circumstances of this case, the Tribunal considers that the balance of prejudice tilts in favour of the respondent. In many instances in this case the relevant paper work will already have been destroyed and this is due to the claimant failing to bring his claim in a timeous fashion. Effectively, the armed services will be left trying to defend the claim made by the claimant without the information available to it. If the claimant was capable to talking to his solicitor about part of his overall situation (ie his need not return to work as he feared that it would cause him to self harm or that he would be 'got',) the Tribunal does not see why he could not take steps to bring his claim to the Tribunal if not within the three month time limit, then considerably closer to expiration of the time limit than the time at which he eventually achieved lodgement of his claim. It is hard for the Tribunal to avoid the conclusion that the claimant simply did not bother to bring his claim in time. For all these reasons, the Tribunal considered it would not be just and equitable for the time limit in this case to be extended to encompass a date of lodgement that was 15 months after the date of the alleged act of discrimination.

Chairman:

Date and place of hearing: 19 October 2006, Belfast.

Date decision recorded in register and issued to parties: