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Fair Employment Tribunal Northern Ireland Decisions

You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Mawhirt v British Telecommunications PLC [2007] NIFET 91_06 (26 March 2007)
URL: http://www.bailii.org/nie/cases/NIFET/2007/91_06.html
Cite as: [2007] NIFET 91_6, [2007] NIFET 91_06

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00091/06FET

CLAIMANT: Thomas Henry Mawhirt

RESPONDENT: British Telecommunications PLC

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that it does not have jurisdiction to entertain the claimant's claim as it has been presented outside the three-month time limit stipulated in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998. The Tribunal declines to extend time on just and equitable grounds and the claimant's claim is, therefore, dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mrs Ó Murray

Appearances:

The claimant did not attend and was not represented but served written submissions in a letter dated 22 January 2007.

The respondent was represented by Miss O O'Neill, Solicitor from Napier & Sons, Solicitors.

The claimant's claim was for discrimination on the grounds of religious belief contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 as amended.

The preliminary issues for the Tribunal to determine were as follows:-

(a) whether the claim was presented within the specified time limits;

(b) if not was it just and equitable in all the circumstances of the case for a Fair Employment Tribunal to consider the claim despite the fact that it was out of time.

The claimant did not attend and was not represented but wrote to the Tribunal on 22 January 2007 to indicate that he would not be in attendance and that he wished the hearing to proceed in his absence. In the letter of 22 January 2007 the claimant set out his written submissions on the issue of whether to extend time.

The Tribunal proceeded with the hearing in accordance with Rules 23(6) of the Fair Employment Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 referred to below as "the Rules". Before reaching its decision the Tribunal considered the claim form lodged by the claimant, the claimant's submission in his letter of 22 January 2007, the response form lodged by the respondent together with documentation produced during submissions by the respondent's representative.

Facts

After hearing the submissions of Miss O'Neill and considering the papers lodged by the claimant and the respondent the Tribunal found the following facts relevant to the issues before it.

.1 The respondent had a redundancy scheme which periodically requested volunteers for redundancy packages which were offered in time-limited tranches, each tranche offering different severance terms.

.2 On 18 March 2005 the claimant was rejected for the first tranche of the voluntary redundancy scheme.

.3 On 14 July 2005 the claimant accepted a redundancy package from the second tranche of the redundancy scheme which was made available.

.4 20 July 2005 the claimant started a grievance procedure relating to his refusal to be accepted for the first redundancy scheme on offer.

.5 The respondent produced documentation which the tribunal accepts to be accurate, showing that at the meeting related to the grievance procedure the claimant was accompanied by his trade union official from the Communication Workers' Union. In the minute of that meeting dated 25 August 2005 it is recorded that "Tom made me aware that the law in Northern Ireland regarding Labour Relations had changed on 5 April 2005 and showed me a guidance document from the Department of Employment and Learning. I asked if the guidance was significantly different … no just some of his time scales were different."

.6 On 17 November 2005 a third redundancy package was made available and the claimant was excluded on 28 November 2005 from applying under that tranche because he had already accepted redundancy under the second tranche of the scheme.

.7 On 19 December 2005 the claimant requested a "High Level Review" which was an appeal on the papers following a grievance procedure and appeal which found against him. That review took more than 30 days to be completed. The claimant submitted that the delay contributed to the delay in lodging his claim.

.8 On 9 March 2006 the claimant e-mailed the respondent and attempted to rise another grievance alleging unspecified discrimination relating to the alleged arbitrary application of the redundancy scheme and because he had not been offered enhanced terms.

.9 On 15 March 2006 the respondent e-mailed the claimant to say that they did not intend to start another grievance procedure because the original grievance procedure which had alleged unspecified discrimination and the arbitrary application of rules to the claimant was being reviewed in accordance with the claimant's request.

.10 23 March 2006 the outcome of the original grievance procedure was communicated to the claimant.

11 31 March 2006 was the claimant's final date in employment.

12 On 3 August 2006 the claim form was received by the Industrial Tribunal.

The Law

Under Fair Employment and Treatment (Northern Ireland) Order 1998, the time limit for presenting a claim is three months beginning when the act complained of was done. Under Article 46(5) of the Fair Employment and Treatment (Northern Ireland) Order 1998 a Tribunal may consider a late claim if in all the circumstances of the case it considers it just and equitable to do so. The Employment Appeals Tribunal in the case of British Coal Corporation -v- Keeble [1997] IRLR 636 held that the discretion to grant an extension of time on just and equitable grounds is as wide as that given to the civil courts by the Limitation Act 1980. The equivalent legislation in this jurisdiction is the Limitation (Northern Ireland) Order 1989. At Article 50(4) of that order are outlined the matters which can be considered and these include the extent of the delay, the reason for the delay, whether advice was sought and whether action was taken as a result and the effect of the delay on the cogency of the evidence.

Under the Employment (Northern Ireland) Order 2003 and the Employment (NI) Order (Dispute Resolution) Regulations (NI) 2004, (hereinafter referred to as "the dispute resolution regulations"), a claimant cannot lodge a tribunal claim unless he first raises a written grievance with his employer and then waits 28 days before initiating a claim. If the grievance is raised within the original time limit of 3 months from the date of the alleged act of discrimination, the 3 month time limit is extended by another 3 months giving the claimant 6 months from the alleged act to lodge his claim with the tribunal.

The law on time limits as they relate to this claim are outlined in Harvey at Division T at paragraphs 103-125 and at Division B at paragraphs 555-590. In relation to extending time the appellate courts has stated that the overriding consideration is whether a fair trial is still possible and further have stated that the time limits should be enforced strictly and that the onus is on the claimant to obtain an extension to the time limits. According to the case of Apelogun-Gabriels -v- Lambeth Borough Council [2002] ICR 713, which was referred to by the respondent, it is not enough for the claimant to say that he awaited the outcome of an internal grievance procedure to persuade the Tribunal to extend time. The respondent's submission was that in any event the grievance was lodged outside the normal time limit for lodging a claim arising out of the alleged first act of discrimination. It was the respondent's further submission that, as The Employment (NI) Order 2003 and the consequent Dispute Resolution provisions came into force following the main appellate decisions of Hendricks -v- Metropolitan Police Commissioner 2003 ICR 530; Apelogun; and Sougrin, and those regulations themselves gave a further period to enable the claimant to lodge his claim to allow the internal procedures to be completed, that any argument that a claimant should be granted a further extension of time to lodge tribunal proceedings should not be accepted by the Tribunal. The Tribunal accepts that this is one of the factors to be taken into account in deciding whether or not to exercise its discretion to extend time.

The Tribunal must distinguish between a continuing policy or practice which made the claimant the subject of a continuing act of discrimination on the one hand and, on the other hand, a series of acts which could amount to alleged discrimination but which had continuing consequences. This is the distinction outlined in the case of Barclays Bank -v- Kapur 1991 IRLR 136 HL and the case of Owusu -v- London Fire and Civil Defence Authority 1995 IRLR 574 EAT. In particular the Tribunal found the case of Sougrin [1991] of assistance. In that case the claimant alleged race discrimination arising out of a disputed grading and because it affected her pay she said it was a continuing act. The Employment Appeals Tribunal said that this is not the case that the effect on pay was a consequence of the disputed act which crystallised at the time of the grading. It was not the case that, as in Kapur, there was a less favourable term of the contract which continued to have an effect and could be relied upon by the claimant up until the date he left employment.

Findings

The claimant's first complaint outlined in the claim form related to his application to avail of a voluntary redundancy package which was rejected on 18 March 2005. The date of any claim arising from that rejection crystallised on 18 March 2005 and the three month time limit therefore would have expired on 18 June 2005. Under the Dispute Resolution Regulations there was the potential for extending the time limit to 18 September 2005 only if the claimant raised a grievance within the original time limit (Rule 15 of the Regulations). The claimant needed to put in his grievance by 18 June 2005 to avail of the extension. The claimant's documentation shows that he started that grievance procedure on 20 July 2005 which was just over one month outside the expiry of the first time limit and he therefore was not able to avail of the extension. The time limit for the first claim expired therefore on 18 June 2005. As the claim form was lodged on 3 August 2006 it was therefore lodged 14 months outside the expiration of the time limit.

The second complaint outlined on the claim form relates to the respondent's refusal to allow the claimant to be considered for another redundancy package which was offered in the period November 2005 to 31 March 2006. That rejection of his application was communicated to the claimant on 28 November 2005 and it is the respondent's submission that any claim arising out of that refusal crystallised on 28 November 2005. The normal time limit for lodging a discrimination claim arising out of that act of discrimination expired on 28 February 2006. In accordance with the Dispute Resolution Regulations the onus was on the claimant to raise a grievance within that normal time limit and if it was so lodged, the time limit for presenting a claim to Fair Employment Tribunal would be extended to 28 May 2006.

In the event the claimant sent an e-mail on 9 March 2006 raising a grievance alleging discrimination due to the arbitrary implementation of rules relating to the redundancy scheme generally. If that grievance related to the refusal to allow him to apply for the revised redundancy package then the grievance was lodged approximately nine days outside the relevant three month time limit and the claimant cannot therefore avail of any extension to the time limit.

The Tribunal's view is that the alleged act of discrimination occurred on two discrete dates namely 18 March 2005 and 28 November 2005 and that these are the relevant dates around which the time limits revolve. While the claimant made an allegation in his grievance e-mails of unspecified discrimination relating to the alleged arbitrary nature of the application of the rules, the Tribunal is not satisfied that this would lead it to conclude that the claimant was possibly the subject of a continuing act of discrimination.

In summary it is for the claimant to establish a continuing act in relation to the time limits and he has not done so. As the Tribunal's conclusion is that there are two discrete acts of alleged discrimination, time runs from each of them separately. The claimant is clearly 14 months out of time in relation to the first act and is nine days out of time in relation to the second act. The Tribunal now turns to whether it should exercise its discretion to extend time on just and equitable grounds.

The claimant has not referred in his submission to his knowledge of the time limits and did not attend to give evidence to discharge that burden. We have no information relating to what sort of advice the claimant received though from the documentation it is clear that he had a union representative at the grievance hearing and the complaint form confirms that he was a member of the Communication Workers' Union. It is also clear from the extract from documents quoted above that the claimant had looked at DEL guidance and was aware of time scales.

The effect of delay on the cogency of evidence was admitted by the respondent's representative not to be a great feature in this case although the issues in the case go back to 2005.

The Tribunal must take account of the promptness with which the claimant acted when he knew of facts giving rise to a cause of action. In paragraph 9.1 of the complaint form the claimant states that he "weighed everything up" on 23 March 2006 following anecdotal evidence from colleagues that he was being treated differently because he was not a Christian. However, he gives no indication as to what the anecdotal evidence from colleagues in relation to the reason for his treatment was nor does he give dates. Despite weighing things up on the 23 March 2006 the claimant did not try to launch tribunal proceedings until 3 May 2006 (a claim which was rejected) and did not lodge his valid claim form until 3 August 2006.

In relation to any prejudice to the respondent if time were extended by the Tribunal, Miss O'Neill submitted that the respondent would have to defend the claim involving expense and in accordance with the overriding objective set out at regulation 3 in the Rules, which stipulate that the Tribunal must deal with cases justly and elements of that overriding objective include ensuring that cases are dealt with expeditiously and fairly.

The Tribunal balances any potential prejudice which might be suffered by the respondent against the prejudice which would be suffered by the claimant if his claim is dismissed at this stage. Given that the principles in the appellate authorities are that there is a presumption that time limits are enforced strictly; that a claimant can not in all cases say that awaiting the outcome of a grievance procedure is enough to extend time; that the burden is on the claimant to persuade the Tribunal to extend time; and that the claimant has not given any evidence or indication as regards his knowledge of time limits or any advice given to him or sought by him in relation to time limits, the Tribunal is not persuaded to extend time on just and equitable grounds.

The claimant's claim, is therefore, dismissed.

Chairman:

Date and place of hearing: 22 February 2007, Belfast.

Date decision recorded in register and issued to parties:

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