Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 23/07FET

CLAIMANT: Frankie McCourt

RESPONDENT: UK Passport Agency

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is as follows:-

The claim of unlawful religious and political discrimination was not presented within the time-limit provided for in Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("the 1998 Order"). Nevertheless, it is just and equitable (within the meaning of Article 46(5) of the 1998 Order) for the Fair Employment Tribunal to consider the claim.

Constitution of the Tribunal

Chairman: Ms F Oliver

Appearances

The claimant appeared in person and represented himself.

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

Sources of Evidence

The tribunal heard evidence from the claimant and from Ms Sinclair on behalf of the respondent. The tribunal also received an agreed bundle of correspondence containing six letters and e-mails dating from 7 March 2006 to December 2006.

The Issue

The purpose of this pre-hearing review was to consider one issue. In essence, the issue is as follows:

Has the political and religious discrimination claim been presented within the relevant time-limit specified in Article 46(1) of the 1998 Order and, if not, is it just and equitable to extend that time-limit (pursuant to Article 46(5) of that Order)?

The Relevant Statutory Provisions

Article 46(1) of the 1998 Order provides as follows:

"(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 three months beginning with the date 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 six months beginning with the day on which the act was done".

Paragraph (5) of the same Article provides as follows:

"(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."

Analysis of the Evidence

The claimant gave his evidence in an open and honest manner. The tribunal found him to be a credible witness. There was very little conflict in the factual evidence provided.

Findings of Fact

The claimant applied for the post of Regional Change Manager (the post) with the respondent in February 2005.

On 1 April 2005, the claimant undertook an interview and assessment for the post.

The claimant was assessed as fully meeting the minimum requirements at both the interview stage and the presentation and along with three other candidates he was placed on a merit list.

The claimant was informed during the course of enquiries during the following ten months that the respondent would carry out pre employment checks before reaching a decision on who would be offered the post.

On 8 March 2006, the claimant received a letter informing him that his application had been unsuccessful.

In June 2006 after a chance encounter with a person who worked in the Passport Agency, the claimant became aware that the person who was offered the post may not have been the first choice and he therefore sent an e-mail dated 20 June 2006 to Mrs Margaret Sinclair asking for some feedback.

Mrs Sinclair replied to the claimant on 2 August 2006 indicating that the post could not be offered to him as a result of their pre employment checks.

On 7 August 2006 the claimant sent an e-mail to Mrs Sinclair asking what elements of the pre employment checks disqualified him from being offered the post.

On 8 December 2006 the claimant received a compliments slip from Mrs Sinclair attaching a copy letter from the Departmental Security Unit of the Home Office. The letter from the Home Office stated that the claimant's uncle was interned in the mid 1970s for his involvement with PIRA and that his involvement with this organization continued for some time afterwards.

The claimant contacted his solicitor on two occasions before Christmas 2006.

On 12 December 2006 the claimant contacted the respondent by phone and there was a rather heated exchange. The claimant mentioned that he was seeking legal advice.

The claimant indicated that once he contacted his solicitor in December 2006 he was aware that there were time limits but he thought he had three months from the date when he found out about the alleged discrimination in which to lodge his claim.

His solicitor advised him to contact the Equality Commission and he did this either just before Christmas or shortly afterwards.

The Equality Commission sent out a pack of information to him including a claim form. He completed the claim form himself, signed it on Thursday 11 January 2007 and posted it to the tribunal where it arrived on Monday 15 January 2007.

The Submissions

The claimant states that when he received the letter 8 March 2006 telling him that he was unsuccessful, he tried to move on. He said people told him that he must not have been as high on the merit list as he thought. His wife told him that the respondents had been stringing him along and he reluctantly accepted that this was the case.

When he had the chance encounter in June he decided to find out if there was any truth in what was being said and he sent an e-mail to Mrs Sinclair. He accepted that at this stage he thought he must have been number one on the list but he could not understand why he had been turned down by security. When he received the letter in August this confirmed his view that he had been number one on the list and that he had been turned down as a result of a security check but he was unaware of why he had failed the security check. He sent the e-mail to Mrs Sinclair on 7 August asking for details of what element of the pre-employment checks disqualified him from being offered the post and he awaited her response. Mrs Sinclair did not reply until 7 December 2006. He did not chase up an answer during this time for a number of reasons - he had a busy life, he trusted Mrs Sinclair to contact him when she had information, he knew that it would take sometime for the information to come through, it had taken over a year for the respondent to reach a decision on the job application. For all these reasons he did not chase up a response between August 2006 and December 2006.

When he received the letter in December 2006, he was totally taken aback. He had not been aware of his uncle's history and he had not been in contact with him for many years. During the time between August 2006 and December 2006 he had never considered that this would be the reason for his failure of the security check.

When he received the copy letter in December, he contacted his solicitor who told him to obtain information regarding his uncle and he did this. He contacted his uncle and spoke to him. His uncle informed him that he had been interned for membership of the IRA but he was not convicted and he is now a social worker.

The claimant then contacted the Equality Commission. He was informed that there was a time limit but he was also advised that he may well have time extended. With the intervention of Christmas and the New Year he believes the time scales are reasonable and that he acted quickly. He did have a sense of urgency.

The main thrust of the respondent's argument was that the claimant was aware from August 2006 that he had a potential claim and did not act on this information until he lodged his claim on 15 January 2007. This delay was unacceptable. The respondent argued that the claimant had sufficient information to instigate tribunal proceedings in August 2006 as he knew that he had been turned down for the job on security grounds. The respondent argued that the claimant did nothing in the period of four months between August 2006 when he sent the e-mail to the respondent and the 8 December 2006 when he received the response to his e-mail. The respondent further argued that there was an inexcusable time delay between receipt of the copy letter from the Home Office on 8 December 2006 and the instigation of proceedings on the 15 January 2007.

The Law

The provisions of Article 46(1) of the 1998 Order have already been set out above. In my view, it is clear that Article 46(1) provides for a time-limit which will end no later than the end of the period of six months beginning with the day on which the act was done, regardless of the state of the claimant's knowledge at that time.

If the complaint is out of time with regards to the initial six month period the tribunal may consider the case if, in all the circumstances of the case, it considers that it is just and equitable to do so. The tribunal therefore has discretion to extend time.

In deciding whether or not to extend the time-limit, a central question is whether or not there can still be a fair hearing. However, other issues are of relevance as well. In particular, I have to bear in mind the fact that the legislator has chosen to impose short primary time-limits. That indicates a legislative policy that discrimination claims should be brought promptly. In deciding whether or not to extend the time-limit, I am entitled and obliged to take account of the length of time which has elapsed from the date of the alleged discriminatory act to the date of presentation of the relevant claim. It is also appropriate that I should take careful note of the length of the period which elapsed between the date on which the claimant first became aware, or could reasonably have become aware, of the fact that he had an arguable case, and the date on which the claim was presented. In considering whether to extend the time-limit, it is also appropriate to have regard to the matters listed in section 33(3) of the Limitation Act 1980 (which is operative in England and Wales): See British Coal Corporation v Keeble [1997] IRLR 336.

Conclusions

I am satisfied that the claim was not presented within the time-limit provided for in Article 46(1) of the 1998 Order, because the claim was not presented within six months of the date of the respondent informing the claimant that he had been unsuccessful in his job application.

However, I am satisfied, on balance, that it is nevertheless just and equitable for a tribunal to consider the claim under the 1998 Order, in the light of the circumstances, and because of the reasons, outlined in the following paragraphs.

I accept that the initial time limit expired in September 2006 being six months from the day on which the act was done.

I accept the claimant's position that he was not aware of a potential discrimination claim until he received the copy letter from the Home Office in December 2006. I do not accept the respondent's contention that the claimant ought reasonably to be expected to have had knowledge of the potential discrimination claim in August when he was simply informed that he had failed the security check. In my view there was nothing in that situation to alert a claimant to the fact that an act of discrimination had taken place. I accept also the claimant's evidence that he was not consciously aware of his uncle's circumstances until December 2006 when he received the letter from the Home Office and I accept his evidence that he did not have this in my mind when he received the letter in August 2006.

I do not accept the respondent's view that the claimant should be penalised for his failure to chase up the respondent for a reply to his query of August 2006. The delay was on the part of the respondent in replying to the query and it would not be equitable to allow the respondent to benefit from a delay of its own making. The respondent should have been well aware of the sensitive nature of the situation and should have responded promptly to the claimant's query.

I am satisfied that the cogency of the evidence will not be substantially affected by the delay in presenting this claim. I am also satisfied that the delay will not affect the ability of the respondent to receive a fair hearing.

I have taken full account of the period of delay between 8 December 2006 and 15 January 2007. I have noted that the Christmas and New Year period fall within this time and I accept the claimant's evidence that he acted promptly in accordance with the advice he was given.

In all the circumstances of this claim I believe it is just and equitable to extend time and accept the claim for determination.

Chairman:

Date and place of hearing: 13 August 2007

Date decision recorded in register and issued to parties: