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Cite as: [2007] NIFET 62_07, [2007] NIFET 62_7

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THE FAIR EMPLOYMENT TRIBUNAL

CASE REF: 62/07FET

CLAIMANT: Ronald Chambers

RESPONDENT: Tesco Stores Limited

DECISION ON A PRE-HEARING REVIEW

The Claimant's claims are dismissed in their entirety as they are all out of time, and there are no just and equitable circumstances found to extend time to the date of presentation, viz: 28 March 2007.

Constitution of the Tribunal:

Chairman (Sitting Alone): Mr M G O'Brien

Appearances:

The Claimant was represented by Ms A McManus of Donnelly & Kinder, Solicitors.

The Respondent was represented by Mr C Hamill, of Counsel, instructed by Alana Jones-Campbell, Solicitors.

Sources of Evidence

The Claimant gave evidence.

Mr Simon Jones gave evidence for the Respondent.

The Contentions of the Parties

By his claim, presented on 28 March 2007, the Claimant asserted at section 7.1 that he has been discriminated against by the Respondent on ground of his religious belief/political opinion. At section 7.2 of the claim form, he asserted that this act of discrimination took place on 9 January 2007 and was ongoing. At section 7.2 of the claim form, the Claimant asserted that he first knew of this discrimination on 9 January 2007. The Claimant then expanded on this assertion in numbered paragraphs, as follows;

1. The Claimant commenced employment with the Respondent on 4 September 1989.

2. The Claimant is employed as a Team Manager in the Distribution Centre of the Respondent Company.

3. The Respondent is Tesco Stores Limited.

4. In and around July 2006, the Claimant became aware that allegations had been made by [Mr B]…that the Claimant was a member of the Ulster Defence Association.

5. At this stage the Claimant was unsure as to the specific nature of these allegations.

6. The Claimant contends that at this time, he was approached by fellow members of staff and questioned as to the allegations, particularly he was questioned as to his involvement in a paramilitary organisation.

7. The Claimant categorically denied, and continues to deny, any such involvement.

8. Indeed at the time, the Claimant began to suffer stress and anxiety resulting from the said allegations, and commenced sick absence on 28 July 2006.

9. In and around 1 September 2006, the Claimant returned to work within the Respondent Company.

10. In and around 15 September 2006, the Claimant attended a meeting with Alana Jones-Campbell, the legal representative for the Respondent Company, to discuss issues raised by the Claimant on his Return to Work Form submitted on 1 September 2006.

11. At this meeting, the source of the allegations which had been made concerning his involvement in paramilitary activities was elucidated to the Claimant. The Claimant was given a witness statement of an ex-employee [Mr A], whom the Claimant is now aware was engaged in proceedings against the Respondent Company.

12. This witness statement of [Mr A] was provided pursuant to these proceedings between [Mr A] and the Respondent. Specifically, the Claimant became aware that [Mr A] had allegedly been threatened by a fellow member of staff…, and it was communicated by [Mr B] to [Mr A] that the Claimant was a member of the UDA, and if he wanted the Claimant to "sort out" [this fellow member of staff] then he could arrange this.

13. At the said meeting, the Claimant wholly rejected the assertion that he was involved in paramilitary activities such as these and indeed that he could assist any individual in the manner as alleged.

14. The Claimant communicated to Ms Jones-Campbell that he was absent from work because of work-related stress.

15. A further meeting was convened on 29 September by Laura Goodall, Personnel and Training Manager for the Respondent Company, under the Dignity At Work policy.

16. It was communicated to the Claimant that there was insufficient evidence upon which to make a finding and that the allegation could not be substantiated as no independent witnesses were available.

17. In and around 26 October 2006, the Claimant registered a grievance with the Respondent Company, on the basis of the allegation that [a member of staff] i.e. [Mr B] had communicated to another member of staff that the Claimant belonged to a paramilitary organisation.

18. In and around December 2007, the Claimant attended further meetings with Rachel Smith of the Respondent Company in relation to Stage 2 Dignity At Work grievance.

19. By correspondence dated 9 January 2007, the outcome of the grievance was communicated to the Claimant, and the decision to reject the grievance was upheld.

20. The Claimant contends that he has been subjected to treatment amounting to discrimination on the grounds of his religious belief and political opinion and harassment. As a result, he has suffered injury to feelings, and pecuniary loss, and seeks relief under the Fair Employment and Treatment (NI) Order 1998, as amended. The Claimant claims that this discriminatory treatment is ongoing.

By its response to the claim, presented on 14 May 2007, the Respondent asserted at section 3.6 that the Claimant's grievance procedure had been completed. The Respondent set out an extensive denial and resistance of the Claimant's contentions at section 5.2 of the response. Point 10 of this defence states;

10. The Claimant's claim form does not demonstrate that this claim has been raised in time. The Claimant has indicated that his claim is in relation to comments allegedly made in July 2006. The Claimant has attempted to show that his claim is in time by asserting that in July 2006 he was "unsure as to the specific nature of these allegations". It is the Respondent's view that the Claimant should not be permitted to use the meeting with Ms Jones-Campbell on 15 September 200[6] in an attempt to allege that any alleged discrimination or harassment by the Respondent was 'ongoing' by trying to assert that it was only then that he became aware of the 'source' of the allegations. The Claimant went off sick on 28 July 2006, so this demonstrates that the Claimant was aware of the specific details of the allegation in July 2006. At the meeting with Ms Jones-Campbell, the Claimant also told her that he had met [Mr A] one night in a bar and that [Mr A] had told him that he had the alleged conversation recorded on a Dictaphone. This demonstrates that the Claimant was aware of the alleged act of discrimination prior to the meeting with Ms Jones-Campbell. At the meeting [on 15 September 2006] the full nature of the information that the Claimant had been made aware of in July 2006 was discussed by the Claimant, and at no time did he say that any information was new to him that day. It is clear, therefore, that the remark(s) that the Claimant alleges amount to discrimination and harassment on the grounds of his religious belief and political opinion were allegedly made in or around July 2006. As a result, the Claimant's claim for any form of discrimination or harassment is now time-barred. Even using the information on the Claimant's claim form, this demonstrates that the Claimant's claims are time-barred. The Claimant has alleged that he only became aware of the full nature of the allegations on 15 September 2006. The Claimant has not lodged his claim form with the Tribunal within six months of this. The Claimant's form was not lodged until 28 March 2007. In the light of the fact that the Respondent believes that the Claimant was aware of the full nature of the alleged comments by [Mr B] in July 2006, the Claimant's claims are out of time…

The Findings of Fact Made by the Fair Employment Tribunal

On 25 June 2004, Gillian Somerville (Respondent HR Manager) and another Respondent employee (named to the Tribunal, and whom the Tribunal shall refer to as Mr B) met a third Respondent employee (named to the Tribunal and whom the Tribunal shall refer to as Mr A). This meeting took place in Yorkgate. Mr B told Mr A that the Claimant could 'sort out' a problem Mr A had, because the Claimant was associated with the Ulster Defence Association.

The Tribunal readily finds that the Claimant has never had an association with or involvement in any paramilitary organisation.

The Claimant first became aware of the suggestions or allegations that he was a member of an illegal paramilitary organisation, the Ulster Defence Association, in May 2006.

Mr A left the Respondent's employment before September 2005.

The suggestion of any such paramilitary involvement by the Claimant came to the Claimant's attention in May 2006 when he had a conversation with Mr A, and when Mr A told the Claimant that Mr B had made the suggestion of such involvement, and specifically that the Claimant could 'sort out' a problem that Mr A had had. The Claimant robustly told Mr A that he had never had any involvement with any paramilitary organisation.

After this conversation with Mr A, the Claimant returned to work. He was struggling with domestic care commitments at that time. In or about 20 July 2007, the issue returned to the Claimant's attention when another employee (named to the Tribunal, and whom the Tribunal shall refer to as Mr C) told the Claimant there were rumours circulating in the workplace as to his involvement with the Ulster Defence Association. Mr C had also been told by Mr B that the Claimant could 'sort things out' for him because of his involvement with paramilitaries, and that the Claimant had already resolved a problem for another non-nationalist employee in this respect. This non-nationalist employee is referred to by the Tribunal as Mr D. He lived in an area of Belfast where he was the victim of racist abuse. The Claimant had gone to this neighbourhood, and told his abusers to desist from such abuse, which they did. The resolution of this problem by the Claimant's intervention had nothing whatsoever to do with any paramilitary involvement by any party.

When the Claimant heard of these rumours in or about 20 July 2006 from Mr C, he was disgusted and dejected. He confronted Mr B on 25 July 2006, and told him there was no substance to these rumours, and that their very existence could endanger him and members of his family. Mr B immediately apologised for any such endangerment.

On 28 July 2007, the Claimant went off on sick leave for five weeks. He was stressed because of his care commitments at home and because of the rumours about him within the workplace, and thus required time off work. The Claimant returned to work on 1 September 2006.

Any return to work in the Respondent's workplace requires a Return-to-Work process. The Return-to-Work interview was conducted on 1 September 2006, between the Claimant and Mr B, and the documentation relating to this meeting states the Claimant was absent owing to stress. The Claimant told Mr B he was fit to return to work. The Claimant signed off on the documentation, but added to it "I still have issues". Mr B did not probe what these issues were, and the Claimant did not elaborate on them.

Upon his return to work, the Claimant discovered the rumours about his involvement with paramilitaries were still circulating.

The Claimant met the Respondent's Solicitor on 15 September 2007. This meeting was not part of any grievance process raised by the Claimant, but was connected with ongoing litigation started by Mr A against the Respondent in 2004. Mr A's claim was before the Fair Employment Tribunal, and referred to Mr B's allegation against the Claimant. The Claimant felt the Respondent should have thoroughly investigated these allegations in 2004.

In the course of this meeting on 15 September 2007, the Claimant was shown Mr A's witness statement prepared for the litigation. This witness statement referred to the allegation that the Claimant was involved with a paramilitary organisation. Mr A's statement did not contain anything about the Claimant that the Claimant had not already heard. 15 September 2006 was the first time the Claimant had seen a written reference to the allegation that he was associated with or a member of the Ulster Defence Association. One outcome of this meeting was that the Claimant compiled a witness statement for the forthcoming litigation. At paragraph 4 of this witness statement, the Claimant stated that Mr A had been told by Mr B that the Claimant could sort out problems because of paramilitary associations. Paragraph 4 also includes an emphatic denial by the Claimant of such association or involvement. The Claimant was very upset by the contents of Mr A's witness statement, and wanted to pursue a legal action against the Respondent. The Claimant did not raise the issue of the Respondent's alleged discriminatory treatment at the meeting on 15 September 2006.

Shortly after 15 September 2006, the Claimant sought advice from his Trade Union about his position. He was angered by the persistence of the allegations to 20 July 2006 that he was somehow involved with paramilitaries, and wished to take legal action because of the circulation of these rumours. The Claimant wished to be compensated and to receive an apology. The Claimant asked the Trade Union adviser if he should pursue a claim to the Fair Employment Tribunal. The Claimant was considering such an action in or about 15 September 2006. His Trade Union adviser recommended the Claimant pursue an internal grievance before pursing a legal action.

On 21 September 2006, at 10.45pm - the Claimant had a meeting with Gillian Somerville (HR Manager) and Simon Jones (General Manager). The Claimant requested this meeting, and wanted Mr Jones to know how he was feeling. The Claimant was not represented. He felt that Ms Somerville should not attend the meeting, because she had heard the slander against his name made by Mr B on 25 June 2004 at Yorkgate. However, the Claimant reluctantly proceeded with the meeting, and told Mr Jones how he felt. He tried to raise the matter of the Respondent's alleged discriminatory treatment. Ms Somerville made frequent interjections when the Claimant was speaking, and the Claimant aborted the meeting because of these interruptions.

Ms Somerville ceased the Respondent's employment before 29 September 2006.

A further meeting took place on 29 September 2006 at 1.15pm attended by the Claimant, his TU Representative (Mark Williams), Laura Goodall (who had taken over from Gillian Somerville as HR Manager), Simon Jones, and a notetaker. The Claimant related in full his grievance about the allegations made by Mr B to Mr A, but did not make an explicit assertion of the Respondent (as his employer) having committed unlawful religious or political discrimination. Ms Goodall suggested moving the Claimant to another location, away from Mr B. The Claimant rejected this proposal. Ms Goodall suggested relocating Mr B, and the Claimant also rejected this proposal. Laura Goodall wished to commence afresh the Claimant's grievance under the Respondent's Dignity at Work procedure. This Dignity at Work procedure required hearing the grievance, and speaking to all relevant witnesses. The Dignity at Work procedure is processed through the Respondent's Human Resources department and not by management.

The Claimant met Laura Goodall again on 26 October 2006. Ms Goodall was personally sympathetic to the Claimant's plight, but informed him that, upon investigation of his grievance, she could find no hard evidence with which to uphold his grievance. This was because Mr A had left the Respondent's employment. The Claimant stated that he was not satisfied with this outcome, and wished to pursue the matter to the next stage of the grievance procedure.

A further meeting took place on 21 November 2006. This further meeting was a part of the next stage of the Dignity at Work procedure. It was facilitated by Rachel Smith. The Claimant exposed at length the detail of his grievance to Ms Smith.

On 12 December 2006, the Claimant met with Rachel Smith again. Ms Smith advised the Claimant she could not find sufficient evidence to uphold his grievance, and informed him that that was the end of the Dignity at Work process.

The Claimant received a letter dated 9 January 2007 informing him that his grievance had not been upheld.

Based on his own evidence, and the repeated submissions of Ms McManus, the Claimant seeks to place three issues before the Tribunal, viz;

(i) A claim of unlawful indirect religious discrimination because of what Mr B is alleged to have said about him on 25 June 2004 at Yorkgate;

(ii) A claim for unlawful discrimination on ground of his political opinion. The Claimant could not enlighten the Tribunal when he had raised this with the Respondent;

(iii) A claim for harassment because he has been the subject of rumours in the workplace since May 2006.

The Claimant did not explain to the Tribunal what comparators that he would assert when and if called on in evidence to prove claims (i) and (ii) above. Ms McManus represented to the Tribunal that she could not identify any comparators in respect of claims (i) and (ii) above. The Claimant did not identify before this Tribunal any person/s who have allegedly shunned or harassed him because of the allegations that emanated from Mr B to Mr A. The Claimant was unable to give any evidence as to when, if at all, he had raised the issue of harassment with the Respondent. Therefore the Tribunal cannot make any finding about the nature, extent or duration of such alleged harassment.

The Issues to be Decided

The issues to be decided in this Pre-Hearing Review are as follows;

1. Was the claim presented within the specified time limit;

2. 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.

Applicable Law

The law applicable to the issues to be decided at this Pre-Hearing Review are provided by Articles 3, 3A and 46 of the Fair Employment and Treatment (NI) Order 1998 ["the 1998 Order"], as amended. These Articles provide;

"Discrimination" and "unlawful discrimination"

3. — (1) In this Order "discrimination" means—

(a) discrimination on the ground of religious belief or political opinion; or

(b) discrimination by way of victimisation;

and "discriminate" shall be construed accordingly.

(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this Order, other than a provision to which paragraph (2A) applies, if—

(a) on either of those grounds he treats that other less favourably than he

treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—

(i) which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it.

(2A) A person also discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of any provision referred to in paragraph (2B) if—

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—

(i) which puts or would put persons of the same religious belief or of the same political opinion as that other at a particular disadvantage when compared with other persons;

(ii) which puts that other at that disadvantage; and

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.

(2B) The provisions mentioned in paragraph (2A) are—

(a) Part III;

(b) Article 27, so far as it applies to vocational training or vocational guidance;

(c) Article 32; and

(d) Part V, in its application to the provisions referred to in sub-paragraphs (a) to (c).

(3) A comparison of the cases of persons of different religious belief or political

opinion under paragraph (2) or (2A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(4) ….

(7) For the purposes of this Order a person commits unlawful discrimination

against another if—

(a) he does an act other than an act of harassment in relation to that other which is unlawful by virtue of any provision of Part III or IV; or

(b) he is treated by virtue of any provision of Part V as doing such an act.

"Harassment" and "unlawful harassment"

3A. — (1) A person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or effect of—

(a) violating B's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in sub-paragraphs

(a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.

(3) For the purposes of this Order a person subjects another to unlawful

harassment if he engages in conduct in relation to that other which is unlawful by virtue of any provision mentioned in Article 3(2B).

Period within which proceedings must be brought

46. — (1) Subject to paragraph (5) and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003, 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 on which the act was done.

(2) ….

(3) Subject to paragraph (5), the Tribunal or county court shall not consider an application under Article 42(2)(a) unless it is made before the end of the period of 6 months beginning with the day on which the act to which it relates was done; and a county court shall not consider an application under Article 42(4) unless it is made before the end of the period of 5 years so beginning.

(4) …

(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.

(6) For the purposes of this Article—

(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.

The Decision of the Tribunal

The Tribunal wishes to emphasise that it has considered the assertions in the claim and the response, and all the evidence and submissions made to it in the course of the Pre-Hearing Review.

In applying Article 46 of the 1998 Order to the facts found above, the Tribunal has had resort to Harvey on Industrial Relations & Employment Law, Vol 5, T, paragraphs 277 et seq. The Tribunal understands it has a wide judicial discretion under Article 46(5) of the 1998 Order to grant an extension of time 'if, in all the circumstances of the case, it considers that it is just and equitable to do so', or according to some such formula. Where these words appear, it has been held that they give the Tribunal 'a wide discretion to do what it thinks is just and equitable in the circumstances ... they entitle the …Tribunal to take into account anything which it judges to be relevant'^[1]. However, notwithstanding the breadth of the discretion, there is no presumption that a Tribunal should exercise its discretion to extend time on the 'just and equitable' ground unless it can justify failure to exercise the discretion; as the onus is always on the claimant to convince the Tribunal that it is just and equitable to extend time, for it has been held that "the exercise of discretion is the exception rather than the rule" ^[2].

The Employment Appeal Tribunal in Hutchison, which concerned a claim under the Sex Discrimination Act 1975, rejected an argument that the Tribunal, before exercising its discretion under the escape clause, ought to try the merits of the complaint first, because of the wording in s 76(5) of that Act, 'in all the circumstances of the case'. It was held that 'the case' referred to meant the facts relevant to the application to extend the time and not those relevant to the substantive merits of the complaint. Phillips J, giving judgment, went on to stress the weight of the burden on an appellant seeking to upset the Tribunal's exercise of its discretion in such a case:

"Really he must show, if he is to succeed upon appeal, that the Tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or as a last resort which is always open on appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it".

The discretion to grant an extension of time under the 'just and equitable' formula has been held to be as wide as that given to the civil courts by section 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions ^[3]. Under that section the Court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (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 party sued had co-operated with any requests for information; (d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and (e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action^[4]. Lord Justice Peter Gibson has held in Southwark London Borough v Afolabi that although, in the context of the 'just and equitable' formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a Tribunal to go through such a list in every case, 'provided of course that no significant factor has been left out of account by the …Tribunal in exercising its discretion'^[5].

Thus, when considering whether to grant an extension of time under the 'just and equitable' principles, the fault of the claimant is a relevant factor to be taken into account. It is also settled law that if it is the claimant's solicitors who are at fault in presenting the claim, then such fault cannot be laid at the door of the claimant; accordingly, if the solicitors are negligent, the mere fact that the claimant may have a potential claim against them will not justify the refusal of an extension of time.^[6]

At Vol 5, Section T, paragraph 280, Harvey sets out a number of examples to illustrate the type of factual situations in which applications for an extension of time on the just and equitable principle have been considered by the Tribunals:

(i) Where a claim of race discrimination was additional to, and overlapped with, an existing unfair dismissal complaint which was made in time but had not yet been heard, an extension of time was granted to allow the race claim to be heard: Berry v Ravensbourne National Health Service Trust^[7].

(ii) Where a delay in commencing a claim of sex discrimination was due to reliance on incorrect legal advice, an extension was granted, even though it would not have been granted under the stricter 'not reasonably practicable' test provided by Article 245 (2) (b) of the Employment Rights (NI) Order 1996 for untimely claims of unfair dismissal to the Industrial Tribunal in Northern Ireland.

(iii) A delay caused by a claimant invoking an internal grievance or disciplinary appeal procedure prior to commencing proceedings may justify the grant of an extension of time but it is merely one factor that must be weighed in the balance along with others that may be present^[8]: Thus the claimant in Robinson v Post Office^[9], who delayed making a disability discrimination claim whilst he pursued an internal disciplinary appeal, was refused an extension of time as he knew of the time limit for bringing a race discrimination claim and refused to take his union's advice to lodge the application in time. In Apelogun-Gabriels v London Borough of Lambeth^[10] the Court of Appeal expressly rejected the suggestion, emanating from Morison J's judgment in Aniagwu v London Borough of Hackney^[11], that there is a general principle that an extension should always be granted where a delay is caused by a claimant invoking an internal grievance or appeal procedure, unless the employers could show some particular prejudice.

(iv) An extension of time was granted to a claimant who did not discover the evidence which led to his race discrimination claim (concerning the failure to appoint him to a particular grade) until nine years after the expiry of the time limit^[12]. Factors taken into account were that he had no reason to discover the evidence earlier; that he presented his complaint within three months of discovering it; and that the nine-year delay would be equally prejudicial to both parties. Mr Hamill conceded to the Tribunal that - in respect of the Claimant's first complaint {at paragraph 23(i) above}, of unlawful discrimination on 25 June 2004 – had the Claimant presented this complaint within three months of first finding out about this in May 2006, this complaint would have been difficult to resist on grounds that it was out of time.

(v) An extension of time may be granted where, as a result of a judicial decision, the law, as previously understood, appears to have changed in such a way as to give the claimant a right which he did not enjoy before^[13].

It is clear to the Tribunal that each application must be looked at separately and on its own facts and merits in applying the just and equitable principle. A line must be drawn somewhere to ensure finality, but exactly where it is to be drawn is a question of fact and degree in each case.

Synthesising these precedents, and applying Article 46 of the 1998 Order, the Tribunal finds the claims presented on 28 March 2007 are comprised of three separate assertions, as set out in paragraph 23 above.

The First Claim – Unlawful Indirect Discrimination Occurring on

25 June 2004

The Claimant and his representative maintained this first claim was one of indirect religious discrimination contrary to Article 3(2)(b) and Article 3(2A)(b) of the 1998 Order. The Tribunal has struggled, unsuccessfully, to construe how such a claim could logically be grounded on Articles 3(2) (b) and 3(2A) (b) of the 1998 Order. The Tribunal remarks - in parenthesis - that, if such a claim were properly framed, it must surely come within the ambit of Article 3(2) (a) and/or 3(2A) (a) of the 1998 Order. However, that is not the issue before the Tribunal in this Pre Hearing Review.

The issue to be decided is whether the claim – however framed – was presented in time. The Tribunal has found that the news of this potential discrimination first reached the ears of the Claimant sometime in May 2006. Allowing the utmost leeway to the Claimant, and conjecturing that this news came to his attention on 31 May 2006, by applying the provisions of Article 46(1) (a) of the 1998 Order, the Tribunal can reason that this first complaint should have been presented to the Fair Employment Tribunal by midnight on 31 August 2006. Had it been presented on or before the expiry of the three-month time limit in August 2006, Mr Hamill conceded it would have been impossible to argue it was out of time. The Tribunal would then - most probably - have applied the precedent set out in Afolabi in favour of the Claimant. However, the claim was not presented until 28 March 2007. It is, therefore, manifestly out of time.

Is the Claimant then to benefit from the judicial discretion bestowed by Article 46(5) of the 1998 Order? To do so, the Tribunal must look at all the circumstances of the case, conscious that it is for the Claimant to satisfy the Tribunal that he should benefit from the exercise of this discretion. It is clear from British Coal Corporation v Keeble that the Tribunal should look at the length of the delay. The delay is one of almost seven months. The Tribunal has made no finding about how the cogency of the evidence on this first claim could be affected by such a lengthy delay, or the extent to which the parties co-operated with one another in pursuing their rights and remedies in law. The Claimant was suffering a period of stress for some five weeks from 28 July 2006 until 1 September 2006. However, there is no evidence before the Tribunal as to why it was not possible for him to obtain professional or legal advice from the time in May 2006 when he first became aware of the allegations, until 28 July 2006 when he was compelled to go off work owing to stress. It is clear from the findings of fact that the Claimant had the intention of doing something about these matters from 1 September 2006, and by or about 15 September 2006 had sought out advice from his Trade Union. Any presentation of the first claim would then have been approximately 15 days out of time. Despite this mental intention, and the advice that went with it, this first claim was not presented until 28 March 2007; a lengthy delay by any standard. There is no finding of fact that mitigates the determination that the Claimant is wholly at fault for this delay. It was not contended before the Tribunal that the Claimant had received incorrect legal or professional advice. The Court of Appeal in Apelogun-Gabriels has rejected the contention that the just and equitable principle should be automatically exercised in favour of the tardy claimant where an internal grievance is being pursued. There have been no significant jurisprudential upheavals in respect of time points since May 2006, and so the Tribunal can see no reason to provide relief to the Claimant under the principles set out in Foster. The Tribunal has not forgotten to balance the potential prejudice the Appellant will face in having this first claim dismissed, against the potential prejudice to the Respondent if it is allowed to proceed. It is clear that Mr A left the Respondent's employment before September 2005, and that the balance is negatived against the Respondent in that regard. However, it is pertinent that Ms Somerville left the Respondent's employment before 29 September 2006 and thus the length of the delay could potentially operate against the Respondent were the Claimant's first claim allowed to proceed.

What the Tribunal must do, therefore, is apply the law as it finds it in Article 46(1) (a) of the 1998 Order. That provision expressly states that time runs "beginning with the day on which the complainant first had knowledge …of the act complained of"^[14]. Having found that that day was sometime in May 2006, then time elapsed (at very latest) on 31 August 2006. The Tribunal cannot find any circumstances in this case which would warrant the application of the just and equitable principle of Article 46(5) of the 1998 Order. Accordingly, the determination of the Tribunal is that this first complaint is out of time, and should not benefit from any extension of time to 28 March 2007. The Tribunal thus dismisses this complaint for being out of time.

The Second Claim – Unlawful Indirect Discrimination On Grounds of the Claimant's Political Opinion

Likewise of the above, the Tribunal has struggled, unsuccessfully, to understand how such a claim could logically be grounded on Articles 3(2) (b) and 3(2A) (b) of the 1998 Order. Ms McManus argued that the events from 1 September 2006 were evidence of a programme of indirect discrimination against the Claimant on ground of his political opinion. She cited an example of this being the meeting on 21 September 2006 when Ms Somerville kept interrupting the Claimant's exposition of his grievance. She maintained this discriminatory pattern of treatment continued throughout the Dignity at Work process, and culminated in the letter from Ms Smith of 9 January 2007. Thus, Ms McManus posited, time should run from 9 January 2007 and expire on 9 April 2007. Such a time line would then make the claim in time.

The Tribunal cannot accept this argument because it conflicts with the clear wording of Article 46(1) (a) of the 1998 Order. Once again, the Tribunal refers to that wording which provides that time runs "beginning with the day on which the complainant first had knowledge …of the act complained of". At its narrowest construction, the Tribunal can say that time ran from 1 September 2006, when the Claimant found Mr B did not probe the "issues" he raised at the return to work interview, and expired on 1 December 2006. Certainly, the last incident of which the Claimant first had knowledge of was the interview with Ms Smith on 12 December 2006, when she informed him that the renewed Dignity at Work process had been unable to uphold his grievance. Three months running from that date leaves times expiring on 12 March 2007. The claim was not presented until 28 March 2007. It is, accordingly, out of time.

Is the Claimant then to benefit from the judicial discretion bestowed by Article 46(5) of the 1998 Order? The Tribunal has not been distracted at any stage by the Claimant's complete inability to identify any potential comparators, whether his claim is one of direct or indirect discrimination. Rather, the Tribunal has focused on the all the circumstances of the case, conscious that it is for the Claimant to satisfy the Tribunal that he should benefit from the exercise of the just and equitable discretion. It is clear from British Coal Corporation v Keeble that the Tribunal should look at the length of the delay. At its narrowest interpretation, the delay is one from 1 December 2006 – 28 March 2007, a period of almost four months. At its widest interpretation, the delay is from 12 March 2007 – 28 March 2007, just over a fortnight. The Tribunal has made no finding about how the cogency of the evidence on this second claim could be affected by such a delay. There was a lot of activity in the intervening months from 1 September – 12 December 2006. However, the Claimant did not raise with management Mr B the issues that were annoying him on 1 September 2006. Whilst he was distressed at seeing these issues in print on 15 September 2006, the printed version in Mr A's witness statement did not contain anything additional to what Mr A had told him in May 2006. The Claimant did not raise these issues with the Respondent's management on 15 September 2006. Although he wished to receive compensation and an apology from the Respondent, and wished to pursue a legal action, he did not present a claim to the Fair Employment Tribunal when he received advice from his Trade Union shortly after 15 September 2006. He did seek a meeting with Mr Jones on 21 September 2006, and co-operated with Ms Goodall from 29 September 2006 onward. However, in all the circumstances of the case, there is absolutely no explanation as to why he waited from 12 December 2006 to 28 March 2007, and there is no finding of fact that would mitigate the delay in presenting his claim on or before 12 March 2007. He had had the benefit of advice from around mid-September 2007. That advice was to pursue an internal grievance first. That, clearly, was exhausted on 12 December 2006. Applying the guidance provided by her Majesty's Court of Appeal in Apelogun-Gabriels the Tribunal cannot automatically exercise the just and equitable escape clause in favour of the Claimant where an internal grievance is being pursued, and certainly not once it has been concluded on 12 December 2006. Likewise, there has been no change in the law in respect of time points affecting this second complaint, and so the Tribunal can see no reason to give aid to the Claimant under the principles set out in Foster. Once again the Tribunal balanced the potential prejudice the Appellant will face in having this second claim dismissed against that of the Respondent if it is allowed to succeed. In this exercise, it is relevant that Ms Somerville left the Respondent's employment before 29 September 2006. Had the Claimant presented his claim from the narrow starting point of 1 September 2006, the Respondent could more easily have taken Ms Somerville's instructions before she left its employment. By not presenting the second claim until 28 March 2007, the balance of the prejudice comes down to operate against the Respondent inasmuch as it then became potentially more difficult for the Respondent to engage with Ms Somerville after 29 September 2006. It is clear that Mr A left the Respondent's employment before September 2005, and that the balance is negatived against the Respondent in that regard.

Article 46(1) (b) of the 1998 Order avails the Claimant of nothing, since Article 46(1) provides that the Tribunal shall not consider a complaint unless it is brought before whichever is the earlier of either (a) three months beginning on the day on which the complainant first 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. The Tribunal cannot find any circumstances in all of this case which would warrant the application of the just and equitable principle of Article 46(5) of the 1998 Order to the second complaint. Accordingly, the determination of the Tribunal is that this second complaint is out of time, and should not benefit from any extension of time to 28 March 2007. The Tribunal thus dismisses this complaint for being out of time.

The Third Claim – Unlawful Harassment

The Claimant's last complaint is that he has been the subject of harassment at work since May 2006, contrary to Article 3A of the 1998 Order. On 20 July 2006, Mr C repeated to the Claimant the rumour of paramilitary involvement. The Claimant's evidence to the Tribunal was that this continued to the time of presenting his complaint. Accordingly, he argued, this meant that this third claim was in time. The Claimant was unable to give any evidence as to when, if at all, he had raised the issue of harassment with the Respondent. On balance of probabilities, the Tribunal was not convinced of the Claimant's credibility in relation to the third complaint. Inter alia, the Tribunal reached this view because it conflicts with what is said at paragraph 6 of section 7.2 of the claim form, where the Claimant asserted that in July 2006 he was approached by fellow members of staff and questioned as to the allegations, particularly regarding his involvement in a paramilitary organisation. Therefore the Tribunal could not make any finding about the nature, extent or duration of such alleged harassment. Because of the credibility issue, and the paucity of detail in the Claimant's evidence in this regard, the Tribunal has been unable to make a finding about the duration of any such harassment, other than it was apparently repeated by Mr C on 20 July 2006. Applying Article 46 (6)(b) of the 1998 Order, the three month time limit then expired on 20 October 2006.

The Tribunal has found this alleged harassment started in May 2006. Allowing the utmost benefit to the Claimant, and conjecturing that this harassment started on 31 May 2006, continued to 20 July 2006, therefore this third complaint should have been presented to the Fair Employment Tribunal by midnight on 20 October 2006. However, the claim was not presented until 28 March 2007. It is, therefore, also out of time.

Should the Claimant then benefit from Article 46(5) of the 1998 Order? Having balanced all the circumstances of this case in respect of the complaint of harassment, the Tribunal is not persuaded to exercise its judicial discretion in the Claimant's favour. The Tribunal stresses again that it is for the Claimant to satisfy the Tribunal that he should benefit from the exercise of this discretion. He has failed to do so, particularly in respect of this third complaint as his evidence was sparse and not credible. The length of the delay is significant – over five months. The cogency of the evidence is affected by Ms Somerville's departure from the Respondent's employment between 21 and 29 September 2006. The Claimant was suffering a period of stress for some five weeks from 28 July 2006 until 1 September 2006. However, there is no evidence before the Tribunal as to why it was not possible for him to obtain professional or legal advice from the time in May 2006 when he first became aware of the alleged harassment, until 28 July 2006 when he was compelled to go off work owing to stress. It is clear from the findings of fact that the Claimant had the intention of doing something about these matters from 1 September 2006, and by or about 15 September 2006 had sought out advice from his Trade Union. Any presentation of the third claim from 15 September to 20 October 2006 would then have been within time. Despite this mental intention and the advice that went with it, this third claim was not presented until 28 March 2007; again, lengthy delay by any standard. There is no finding of fact that mitigates the determination that the Claimant is wholly at fault for this delay. It was not contended before the Tribunal that the Claimant had received incorrect legal or professional advice. The Court of Appeal in Apelogun-Gabriels has rejected the contention that the just and equitable principle should be automatically exercised in favour of the tardy claimant where an internal grievance is being pursued. The Tribunal has already determined there have been no developments since May 2006 in respect of the just and equitable principle that would upturn previously-understood legal norms. Deadlines are there to be observed and met. By presenting his claim late and after the departure of Ms Somerville, the Claimant has placed the Respondent in a potentially-significant disadvantage in that it cannot take her account of the Claimant's allegations as readily as it could otherwise have done before her departure. Thus, there is foreseeable prejudice to the Respondent in this regard. The Tribunal cannot find any circumstances in this case which would warrant the application of the just and equitable principle of Article 46(5) of the 1998 Order to the third complaint. Accordingly, the determination of the Tribunal is that this complaint of harassment was out of time after midnight on 20 October 2006, and significantly out of time when it was presented on 28 March 2007. This late complaint of harassment should not benefit from any extension of time to 28 March 2007. The Tribunal thus dismisses this complaint for being out of time.

No other Order is now made.

Chairman:

Date and place of hearing: 23 August 2007, Belfast

Date decision recorded in register and issued to the parties

Note 1   Hutchison v Westward Television Ltd [1977] IRLR 69    [Back]

Note 2   Robertson v Bexley Community Centre [2003] EWCA Civ 576, [2003] IRLR 434, at para 25, per Auld LJ    [Back]

Note 3   British Coal Corpn v Keeble, DPP v Marshall [1977] IRLR 336    [Back]

Note 4   [1997] IRLR 336, at para 8    [Back]

Note 5   [2003] IRLR 220 at paragraph 33    [Back]

Note 6   see Virdi v Commr of Police of the Metropolis , EAT, applying the principles set out in Steeds v Peverill Management Services Ltd [2001] EWCA Civ 419,     [Back]

Note 7   [1993] ICR 871, EAT    [Back]

Note 8   Robinson v Post Office [2000] IRLR 804, EAT, approved by the Court of Appeal in Apelogun-Gabriels v London Borough of Lambeth [2001] EWCA Civ 1853, [2002] IRLR 116.    [Back]

Note 9    [2000] IRLR 804, EAT    [Back]

Note 10   [2002] IRLR 116    [Back]

Note 11   [1999] IRLR 303, EAT    [Back]

Note 12   Southwark London Borough v Afolabi [2003] EWCA Civ 15, [2003] IRLR 220.     [Back]

Note 13   Foster v South Glamorgan Health Authority [1988] IRLR 277, [1988] ICR 526, EAT; British Coal Corpn v Keeble [1997] IRLR 336, EAT.     [Back]

Note 14   Emphasis added    [Back]