Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2007/83_06.html
Cite as: [2007] NIFET 83_6, [2007] NIFET 83_06

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 83/06 FET

CLAIMANT: Seamus Alphonsus Kerr

RESPONDENT: British Telecommunications PLC

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claim has not been presented within the time limit set out in Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 and that it would not be just and equitable in all the circumstances of the case to extend the time limit.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

Issues to be decided

Was the claim presented within the specified time limit.

If not is it just and equitable in all the circumstances of the case that the Fair Employment Tribunal consider this claim despite the fact it was out of time.

Sources of evidence

The Tribunal heard evidence from the claimant, considered documents referred to it and heard submissions on behalf of the parties.

Findings of fact

The claimant is employed by the respondent and claims discrimination in relation to his non-appointment to a survey officers post within the respondents organisation.

The post became vacant due to retirement. The post was filled on a temporary basis by a number of different employees of the respondent and ultimately in May 2004 by Mr Sterling.

The claimant was interested in applying for this post. He made several requests to fill the post on a temporary basis and was refused. He enquired of his line manager and others when the post would be advertised and was repeatedly told it had not yet been permanently filled.

The claimant became aware that the post was not available to him on 24 June 2005. He contacted the Labour Relations Agency on that day and was advised to commence an internal grievance procedure.

The claimant sent an e-mail to the respondent on 24 June 2005 seeking clarification. The respondent confirmed by e-mail on 25 August 2005 that the post had been filled.

The claimant commenced a grievance procedure on that date.

The claimant had obtained the appropriate forms and guidance notes from the Fair Employment Tribunal. He believed he had six months from the date of his knowledge of the issues to bring a claim. He believed his claim would have to be brought by 24 December 2005.

A Stage I fact finding hearing as part of the internal grievance procedure was held on 29 September 2005 at which the respondent's investigating manager stressed to the claimant the need for confidentiality in the process. The claimant was advised that a breach of confidentiality could result in disciplinary action.

An outcome meeting was held on 7 December 2005. At that meeting the claimant asked for permission to show correspondence to the Fair Employment Agency (sic). However an individual at the meeting described by the investigating manager as the equality and diversity specialist tried to persuade him not to. The relevant section of the notes of that meeting prepared by the investigating manager read as follows:-

"Seamus asked for permission to show the letter to the Fair Employment Agency, as he believed that they would 'blow it to shreds'. Deborah stressed the importance of not doing so at this stage as the grievance process needed to be adhered to internally first of all. The next stage was to appeal. If Seamus was not happy with that outcome then it may be possible to proceed to a High Level Review and ultimately Employment Tribunal."

The claimant then initiated the appeal process on 12 December 2005. He decided in light of the representations made by the equality and diversity specialist on behalf of the respondent that he would not lodge his claim with OITFET even though he knew of the time limits involved and had read the guidance notes. Those notes include the warning:-

"If you have a complaint for the Tribunal to consider you should make sure that the Tribunal has the power to deal with the complaint you wish to raise, and that you submit your application within the time limit allowed. Failure to make your application within this time limit may deprive you of the right to have your case heard. Your application should be brought before:-

(a) the end of the period of three months beginning with the day in which you 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 in which the act was done;

whichever is earlier.

The Tribunal may consider an application outside this period if, in all the circumstances, it considers it just and equitable to do so."

There was a further Stage II fact finding meeting on 14 February 2006. The claimant was accompanied by a union representative who asked for clarification of the confidentiality restrictions. The relevant section of the note of that meeting reads:-

"At this point Tommy asked for clarification about what restrictions meant for Seamus if he was talking to, eg The Labour Relations Agency. Tommy was advised that it was Seamus' right to go this route if he wished and information could be passed to them and would be dealt with in confidence prior to any formal external procedure."

On 23 March 2006 the respondent wrote to the claimant confirming that it found no breach of the respondent's equal opportunity and diversity policy. This letter also advised the claimant of his right to proceed to a high level review stage.

The claimant requested a high level review on 27 March 2006.

On 31 May 2006 the respondent wrote to the claimant refusing a high level review.

The claimant then completed his claim form to the Fair Employment Tribunal and sent this to the Fair Employment Tribunal at the beginning of July 2006. It was received at the Office of the Fair Employment Tribunal on 6 July 2006.

The claimant knew that the appropriate time limit for bringing his claim had expired but chose not to make a claim until the internal grievance procedures had been fully completed.

Relevant time limits

The Fair Employment and Treatment (Northern Ireland) Order 1998 provides:-

(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 day on which the complainant first had knowledge, or might reasonably be expected to first have knowledge, of the fact complained of; or

(b) the end of the period of six months beginning with the day in which 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 Statutory Dispute Resolution Procedures in force since 3 April 2005 apply to the complaint made by the claimant. Under the terms of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 if the claimant presents a grievance to the respondent within the normal time limits for presenting a complaint then the normal time limit for presenting the complaint will be extended for a period of three months beginning with the day after the day in which it would otherwise have expired.

The Tribunal was referred to Harvey on Industrial Relations and Employment Law T277 – T282 and to the cases of Robinson v The Post Office [2000] IRLR 804 and Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116.

The Tribunal's discretion

The onus lies on the claimant to satisfy the Tribunal that in the circumstances of the case it should exercise its just and equitable jurisdiction to extend time for presenting a claim. There is no presumption in favour of the exercise of the jurisdiction vested in the Tribunal. Whilst the Tribunal has a wide discretion to do what it thinks is just and equitable in the circumstances and should take into account anything which it judges to be relevant, the exercise of the discretion is the exception rather than the rule.

Harvey at Paragraph T279 states as follows:-

"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 (British Coal Corporation v Keeble, DPP v Marshall, above). 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 (see British Coal Corporation v Keeble [1997] IRLR 336, at Paragraph 8). However, 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 employment tribunal in exercising its discretion' (Southwark London Borough v Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at Paragraph 33, per Peter Gibson LJ)."

Decision

The Tribunal concludes the claimant had knowledge of the matters giving rise to his claim by 24 June 2005 at the latest. The claimant should therefore have lodged his claim before 24 September 2005. However as he lodged his internal grievance on 25 August 2005 being within the normal time limit for lodging a claim, the time limit would be extended by a further three months to 24 December 2005.

The claimant was in fact aware that the time for lodging the claim would expire on 24 December 2005 although he arrived at that date via a different route.

The claimant did not lodge his claim within the original time limit despite knowing of that date. The claimant stated that he was concerned firstly at the threat of disciplinary action for breaching the confidentiality of the internal grievance process and secondly on the express comment by the respondent's equal opportunity and adversity specialist on 7 December that he should adhere to the internal process first.

However the situation changed at the subsequent fact finding meeting on 14February 2006 when the claimant's trade union representative asked what the consequences of the confidentiality restrictions would be for the claimant if he was to seek outside advice and was clearly told that information could be used to seek such outside advice.

The reason given by the claimant for not lodging his claim was that he thought that he had to complete the entire internal grievance procedure including the high level review before he could make his claim. Reference was made to the case of Robinson v Post Office referred to above and to the Court of Appeal's decision in Apelogun-Gabriels –v- London Borough of Lambeth where the court made clear that a delay caused by a claimant in completing 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. On the facts of Robinson v Post Office the claimant in that case delayed making a disability discrimination claim whilst he pursued an internal disciplinary appeal and he was refused an extension of time as he knew of the time limit for bringing a race discrimination claim and refused to take his unions advice to lodge the application in time.

In Apelogun-Gabriels v London Borough of Lambeth, Lord Justice Peter Gibson said:-

"It has long been known to those practising in this field that the pursuit of domestic grievance or appeal procedures will normally not constitute a sufficient ground for delaying the presentation of an appeal. The very fact that there have been suggestions made by eminent judges in 1973 and in 1982 that the statutory provisions should be amended demonstrates that, without such amendment, time would ordinarily run whether or not the internal procedure was being followed. From my part therefore, I can see no error whatever in what Lindsay J said in the present case in relation to this matter, that is to say that the fact, if it be so, that the employee had deferred commencing proceedings in the Tribunal while awaiting the outcome of domestic proceedings is only one factor to be taken into account."

By 14 February 2006 therefore the claimant knew or ought to have known that he was free to make his claim or to seek advice on his rights. The respondent at that time made it clear that the claimant was entitled to pursue other paths. The claimant made no attempt to seek further clarification of the issue that concerned him, namely the consequences of a potential breach of the confidentiality of the internal grievance process. The claimant stated expressly that he ignored the time limits in following the internal grievance process. However even on completion of that process he did not lodge his claim for over a month.

Taking into account the factors identified by Harvey and all the other circumstances of this case the Tribunal considers that the delay in presenting the claim by the claimant up to 14 February 2006 was justified by the actions of the respondent. However having received the reassurance at that meeting that there was no prejudice to seeking outside advice the claimant took no steps to seek such advice. He already knew that he was outside the time limits for his claim and had obtained and read the guidance for lodging a claim with the Fair Employment Tribunal. He was clearly aware of the sources of advice available to him but did not take any steps to obtain such advice. Even when the internal appeal procedure was terminated it still took some weeks before the claim was finally lodged. The burden of persuading the Tribunal that it should exercise its power to extend time under the just and equitable jurisdiction and to admit a late claim, falls squarely upon the claimant. The decision of the Tribunal is that it would not be just and equitable in all the circumstances of this case to extend the time limit and the Tribunal therefore has no jurisdiction to hear the claim.

Chairman:

Date and place of hearing: 6 December 2006, Belfast

Date decision recorded in register and issued to parties: