Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 59/05 FET

459/05

CLAIMANT: Katrina Farley

RESPONDENT: Northern Ireland Housing Executive

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is as follows:-

1. The claim of unlawful discrimination on grounds of religious belief was not presented within the time limit set out in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1988.
2. It is not just and equitable in all the circumstances of the case to extend the time limit and for the Tribunal to consider the claim.
3. The claim of sex discrimination was not presented within the time limit set out in Article 63 of the Sex Discrimination (Northern Ireland) Order 1976.
4. It is not just and equitable in all the circumstances of the case to extend the time limit and for the Tribunal to consider the claim.
5. &6. Given the answers to questions 1-4 set out above, it is not necessary to deal with questions 5 and 6.

Constitution of Tribunal:

Chairman (sitting alone): Miss E M McCaffrey

Appearances:

The claimant was represented by Mr Eamon O' Neill

The respondent was represented by Mr Ferrity, Barrister-at-Law, instructed by Jones and Cassidy, Solicitors.

The Issues

The issues for the Tribunal to consider were:

6. Whether the claim of unlawful discrimination on grounds of religious belief was presented within the time limit set out in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1988;
7. 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 presented out of time?
8. Whether the claim of unlawful discrimination on grounds of sex was presented within the time limit set out in Article 63 of the Sex Discrimination (Northern Ireland) Order 1976, as amended;
9. If not, is it just and equitable in all the circumstances of the case for the Tribunal to consider this claim, despite the fact that it is out of time?
10. Whether the claimant's contentions in relation to both cases have little prospect of success; and
11. If so, whether the claimant should be required to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to those matters.

Facts

12. The factual background to this case was not disputed and no oral evidence was presented to the Tribunal. I make the following findings of fact, based on the claim form presented by the claimant, the response lodged by the respondent and the representations made on behalf of both parties at the hearing.
13. The claimant worked for the respondent as an Administrative Officer and was successful in an application to be appointed as a Senior Administrative Officer in 2004. She was placed on a reserve list for appointments as and when vacancies at the appropriate level arose. On 30 July 2004 the claimant was sent a letter by the respondent, offering her a position in the Cookstown office. This was sent in error and on 2 August 2004, a further letter was sent to the claimant, advising her that the offer in fact related to a post in Omagh not Cookstown. The position was confirmed by a letter of 10 August 2004 from Claire McIlhatton of the respondent's Personnel and Management Services to the claimant, in which an apology was offered for the distress caused.
14. In her claim to the Fair Employment Tribunal and the Employment Tribunal, the claimant alleged that the matter of which she was complaining happened on 10 August 2004 "further compounded. Decision on 8-21 February 2005". This appears to refer to an internal appeal made by the claimant in relation to the matter, which resulted in the finding that the claimant had not been discriminated against on grounds of religion or sex. The claimant had had correspondence with the respondent regarding the matter in August and September 2004 and indeed had engaged a solicitor to deal with the matter on her behalf. She also accessed the internal appeals procedure within NIHE as mentioned above. Mr O'Neill suggested that the claimant had only become aware of certain matters in December 2004 which had led her to the view that she had suffered discrimination on grounds of religious belief, but it was not clear if he was alleging that this was a separate act of discrimination or was more detailed information regarding events in August 2004. It seemed to be the latter, and in the absence of any mention of this matter in the Claim Form and of any evidence on the point from the claimant, who did not attend the hearing, I so find.
15. The claimant lodged her claim at the Office of the Industrial Tribunals and the Fair Employment Tribunal on 7 March 2005.

The Law

The relevant legislation regarding the Fair Employment claim is to be found in Article 47 of the Fair Employment and Treatment (Northern Ireland) Order 1988, which provides as follows:

"46(1) Subject to paragraph (5), the Tribunal shall not consider a complaint under Article 38 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 first had 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 the act was done…….."

"(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."

The relevant legislation regarding the sex discrimination claim is to be found in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) which provides as follows:

"76.(1) An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the period of three months beginning when the act complained of was done…….."

"(5) A court or 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."

I also considered case law on the issue of when the Tribunal should exercise its discretion under the "just and equitable" principle to extend the time for lodging a discrimination claim, including the decision in British Coal Corporation –v- Keeble [1997] IRLR 336 and the later decision in Robinson –v- Post Office, subsequently approved by the Court of Appeal for England and Wales in Apelogun-Gabriels –v- London Borough of Lambeth [2002] IRLR 116. In Apelogun-Gabriels, the Court of Appeal found that an extension of time on the basis that it would be just and equitable was not automatic in a case where the claimant waited until an appeal or grievance procedure was completed before lodging his claim with the Tribunal. The Court found that the Tribunal should consider all the relevant circumstances, of which the appeal or grievance was only one.

Decision

The act complained in both the claimant's Fair Employment claim and her sex discrimination claim was the decision of the respondent, confirmed in the letter of 10 August 2004, that the claimant was not to be offered a post in Cookstown, as had happened in error. She was aware of that decision, as was conceded by the respondent on 10 August 2004 and the letter refers to a telephone conversation between the claimant and Ms McIlhatton the same day. So the claimant's claim form should have been lodged with the Tribunal office by 10 November 2004 for the sex discrimination claim and either by 10 November 2004 or, at the very latest by 10 February 2005 for the Fair Employment claim. The claims were both lodged on 7 March 2005 and both parties agreed that the claims were therefore lodged out of time. The answer to the questions 1 and 3 before me is that neither the Fair Employment claim nor the sex discrimination claim was lodged in time.

The issue remains to be considered as to whether the Tribunal considers it just and equitable to extend the time limit in all the circumstances. Mrs Farley, the claimant, raised the issue of her appointment to a post in Omagh or Cookstown in correspondence with the respondent over a period of months through until October and sought the advice of a solicitor in doing so. She then initiated an internal appeal, outside the normal time for doing so, but her employer allowed the appeal to proceed. That appeal was only finalised in February 2005 and it was argued on the claimant's behalf that she had awaited the outcome before lodging her claim with the Office of the Industrial Tribunals. However, she was aware of the grounds of her complaint, she had access to legal advice and to her representative Mr O'Neill and in those circumstances I find that the claimant was in a position where she could have lodged her claim earlier and did not do so. Although the criterion I have to apply is whether it would be just and equitable to extend the time to allow these claims, and not the "reasonably practicable" test, I have to consider the justice and equity to both parties of allowing the claims to proceed. I find in all the circumstances of this case it would not be just and equitable to allow the claims to proceed. Accordingly, the answer to questions 2 and 4 is "No".

In the circumstances, it is not necessary to reply to questions 5 and 6 and the claims will be dismissed.

Chairman:

Date and place of hearing: 8 September 2006, Belfast

Date decision recorded in register and issued to parties: