Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 48/04FET

307/04

CLAIMANT: Steven Andrew Lowrey Wilson

RESPONDENTS: 1. P.S.N.I

2. Chief Constable of the Police Service of Northern Ireland

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claim of Religious Discrimination has been presented to the Tribunal within 3 months from the date on which the claimant first knew of the act complained of and that in relation to the allegations of sexual discrimination and racial discrimination, the time limit should be extended in accordance with the provisions of Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 and Article 65 of the Race Relations (Northern Ireland) Order 1997.

Constitution of Tribunal:

Chairman: Mr S A Crothers (Chairman sitting alone)

Appearances:

The claimant was represented by Mr McEvoy, Barrister-at-Law, instructed by Harrison & Barbour, Solicitors.

The respondents were represented by Ms Murnahan, Barrister-at-Law, instructed by the Crown Solicitor's Office.

1. The Tribunal heard evidence from the claimant. In addition the Tribunal received a bundle of agreed documents and a separate bundle from the claimant's solicitors, and heard evidence from the claimant and his solicitor Mr Barbour.
2. The issues before the Tribunal were as follows:-

(i) was the claim in respect of religious discrimination lodged within the time limit specified by Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and, if not, is it 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.

In relation to the allegation of sex discrimination: -

(ii) was the claim presented within the time limit specified by Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 and if not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this complaint despite the fact that it was out of time.

In relation to the allegation of Racial Discrimination: -

(iii) was the claim presented within the time specified by Article 65 of the Race Relations (Northern Ireland) Order 1997 and if not is it 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.

3. The tribunal, having analysed the evidence in relation to the issues set at above, made the following findings of fact:-

(i) The effective date of termination of the claimant's employment was the 6 November 2003.

(ii) The alleged acts of discrimination took place on 25 September 2003.

(iii) The claim was presented to the Tribunal on 4 February 2004.

(iv) The claimant had applied for a period of unpaid leave by letter to the respondent dated 17 September 2003. The application was approved in correspondence to PSNI Headquarters by Superintendent K Deane, Operations Manager, South Belfast DCU on 25 September 2003.

(v) By correspondence to Superintendent Deane, dated 25 September 2003 and received by South Belfast DCU on 7 October 2003, the said application was refused by PSNI Headquarters. The claimant however conceded in cross-examination that he was verbally informed of the refusal at some stage not later than one week before the 9 October 2003, being the date on which he tendered his resignation by giving 28 days notice. The resignation took effect on 6 November 2003.

(vi) The claimant named a comparator by the name of Bernie Cowan whom he claimed had been granted leave in similar circumstances to take up employment with the United Nations in Sierra Leone. The claimant described Bernie Cowan as a black female catholic. The Tribunal accepts the claimant's evidence that he had no knowledge of the foregoing until he had a conversation with a colleague Wayne Tolmie on 24 December 2003. The claimant had gone to Iraq on or about the 8 November 2003 and had returned just prior to Christmas. He had planned a family holiday in Andorra from Boxing Day 2003 until 3 or 4 January 2004. When the claimant returned from this holiday he made arrangements to see his solicitor Mr Barbour. Mr Barbour had himself been on leave in Scotland from 27 December 2003 until 3 January 2004. In his evidence, he re-collected the claimant contacting him by telephone stating that he believed that he had been discriminated against. He was advised by Mr Barbour to obtain an application pack. The tribunal accepts Mr Barbour's evidence that a partially completed application form was sent to him on 9 January 2004 by the claimant, duly signed. Correspondence produced to the Tribunal showed that Mr Barbour had forwarded the form to the claimant's wife on 14 January 2004 for completion as the claimant had by this stage returned to Iraq. A reminder was sent to the claimant's wife on 29 January 2004 and subsequently the completed form was faxed to the Tribunal on 4 February 2004 and the original sent by First Class post.

4. The Tribunal heard submissions from both counsel. The respondent's counsel submitted that the claimant should or would have known the situation regarding Bernie Cowan in or around the 25 September 2003. She further submitted that if the Tribunal rejected this contention, it should not exercise its discretion to extend the time limit for the purposes of the sexual and racial discrimination claims even if it believed that the claimant first knew of same on 24 December 2003 given his delay in presenting the application until 4 February 2004. The respondents' counsel also submitted that the respondents would suffer prejudice if an extension was granted as it would have to defend the cases. In relation to the religious discrimination claim, she submitted that the claimant ought reasonably to have known of the act complained of in or around the 25 September 2003 and therefore urged the Tribunal not to extend time.

The claimant's counsel urged the Tribunal to find that the Religious Discrimination claim was in time, having been lodged within 3 months from the date on which the claimant first knew of the act complained of, namely on 24 December 2003. He further contended that there was no prejudice caused to the respondents and since the respondent had not called any evidence, he submitted that the Tribunal should not rely on the speculative suggestions made by the respondents in relation to the claimant's likely date of knowledge of the acts complained of. In relation to the period between the 24 December 2003 and 4 February 2003 the respondents' counsel pointed out that the claimant had had a pre-arranged family holiday over Christmas and that when he returned to the jurisdiction he contacted his solicitor as soon as he was available. He mentioned the complicating factor of the claimant returning to Iraq thus leaving his solicitor to correspond with the claimant's wife but urged the Tribunal to find that all efforts had been made as soon as practicable to have the claim presented to the Tribunal. He urged the Tribunal to have regard to his solicitor's correspondence in this regard. The Tribunal was also referred to Harvey on Industrial Relations at Division L, paragraphs 555, 566, and 577 and the cases referred to therein.

5. The law in relation to the issues is governed by Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998, Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 and Article 65 of the Race Relations (Northern Ireland) Order 1997.
6. Having applied the relevant principles of law to the facts the Tribunal concludes as follows:-

(i) The claim in respect of Religious Discrimination is in time having been presented to the Tribunal within 3 months from the date on which the claimant first knew of the act complained of.

(ii) In relation to the allegations of sexual and racial discrimination the Tribunal extends the time for lodging both claims as it is satisfied that it is just and equitable in all the circumstances of the case to do so.

Chairman:

Date and place of hearing: 4 September 2006, Belfast

Date decision recorded in register and issued to parties: