Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 152/07FET

1813/07IT

CLAIMANT: Irene Lucy Simpson

RESPONDENTS: 1. Gordon Scott t/a Windsor Home Bakery

2. Wayne McEvoy

3. Ruth Taylor

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is as follows:

(1) That the claimant's claim for unfair dismissal was lodged in time;

(2) That Gordon Scott T/A Windsor Home Bakery is a proper respondent to the unfair dismissal claim and that an industrial tribunal does not have jurisdiction to hear an unfair dismissal claim against Wayne Mc Evoy and Ruth Taylor for unfair dismissal;

(3) That an industrial tribunal does not have jurisdiction to hear the claim in respect of unfair dismissal, as the claimant had not been continuously employed for a period of not less than one year; and

(4) That the claim, in respect of discrimination on the grounds of religious belief, was lodged in time and that it may proceed against the named respondents.

Constitution of Tribunal:

Chairman (sitting alone): Mr Palmer

Appearances:

The claimant was represented by: Mr Rafferty, Belfast Centre for the Unemployed.

The respondents were represented by Mr Murphy, Engineering Employers' Federation.

Direction of the Vice-President

1. On 28 December 2007 the Vice-President made the following direction:

"I direct that the matters that would otherwise fall to an industrial tribunal for consideration shall instead be heard and determined by the Fair Employment Tribunal.

The claims, insofar as the Fair Employment Tribunal deems appropriate, shall be heard and considered together."

The Issues

2. The Tribunal was convened, following a Case Management Discussion held on 31 March 2008, to decide the following:

1. Whether the claimant is disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (NI) Order 1996 regarding a minimum period of continuous employment.

2. Who is/are the correct respondent(s) in the case?

3. If applicable, whether the tribunal has jurisdiction to entertain the claimant's complaint in view of the provision of Article 145 of the Employment Rights (NI) Order 1996 regarding the time limit for presenting her complaint.

4.1 Was the claim of discrimination on the grounds of religious belief presented within the specified time limit?

4.2 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?

Mr Edwards

3. During the course of the hearing, Mr Murphy informed me that a Mr Edwards is, and was at the relevant time, in partnership with Mr Scott, the first-named respondent. This information was unexpected. Mr Murphy also informed me that Mr Edwards was not present, nor was he available to attend and that he (Mr Murphy) did not have instructions to represent him. Mr Rafferty applied to add Mr Edwards' name to the proceedings in respect of discrimination on the grounds of religious belief. I consider that this application should not be entertained, at this point, as no evidence was adduced with regard to Mr Edwards' position as an employer and also Mr Edwards was not present to avail himself of an opportunity of being heard on the matter.

The Unfair Dismissal Claim

4. I shall deal with this in 3 parts. I shall deal firstly with whether the claim was presented in time, secondly with whether Mr Scott, Mr Wayne McEvoy and Ms Ruth Taylor are proper respondents to this claim and thirdly with the continuous employment aspect.

Whether the claim was presented in time

5. On 6 August 2007 the Office of the Industrial Tribunals and the Fair Employment Tribunal (the Office) wrote to Mr Rafferty as follows:

"The claim form has been referred to a chairman who has decided that the claim cannot be accepted for the following reason:

The claim in respect of Unfair (Constructive) Dismissal is rejected as the claimant has put her complaint in writing to the respondent on 26 June 2007 but has not waited 28 days prior to presenting her claim to the Office of the Tribunals in accordance with Rules 1 (4) (j) and (k) of Schedule 1 of The Industrial Tribunals Rules of Procedure 2005.

The claim in respect of Unfair (Constructive) Dismissal is further rejected in relation to the Third, Fourth and Fifth respondents as it does not include all of the relevant required information in respect of the details of the claim in accordance with rule 1 (4) (g) of Schedule 1 of The Industrial Tribunals Rules of Procedure 2005, relating in particular to Surnames of these respondents.

If the claimant wishes to make a new claim, you must submit the claim on a new form (a revised claim pack is enclosed), quoting the pre-acceptance reference number, once the 28 days have elapsed. Please note that the original time limit for commencing these proceedings has been extended by 3 months to enable the claimant to comply with this obligation."

6. The new claim was presented on 16 October 2007 and was, therefore, lodged in time.

Mr Scott, Mr Mc Evoy and Ms Taylor as Respondents

7. It was accepted that neither Mr Mc Evoy nor Ms Taylor was the claimant's employer. It was accepted that Mr Scott was one of her employers. I am satisfied that Mr Scott is a proper respondent to the proceedings.
8. Article 126 (1) of the Employment Rights (Northern Ireland) Order 1996 (the Order) provides:

"An employee has the right not to be unfairly dismissed by his employer."

9. Article 145 (1) of the Order provides;

"A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer."

10. I consider that, in the light of these provisions, it is only against the employer that proceedings may be instituted. That being so, I consider, and find, that an industrial tribunal does not have jurisdiction to entertain the proceedings, in respect of unfair dismissal, against either Mr Mc Evoy or Ms Taylor, as neither was the claimant's employer.

The continuous employment aspect

11. The claimant claims that she was constructively dismissed: she claims that, due to circumstances, she left her employment without notice.
12. Her employment commenced on 2 February 2007 and she left on 23 April 2007. Applying Article 129 (4) of the Order, the effective date of termination was 30 April 2007. Article 129 (4) extends the effective date of termination by the statutory notice period contained in Article 118 of the Order: in this case by one week.
13. Article 140 (1) of the Order provides;

"Article 126 [See paragraph numbered 8 above] does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination."

14. Mr Rafferty submitted that the minimum period of continuous employment should not be applied in this case. He argued that the principal reason why the claimant is no longer working in her post is because of religious discrimination and, given that the dismissal was a discriminatory act, that act deprived the claimant of eventually achieving the minimum period of employment required to bring a claim for unfair dismissal. He was unable to assist me by referring me to any authority in support of his proposition.
15. Mr Murphy submitted that I have no jurisdiction to do what Mr Rafferty suggested. Mr Murphy submitted that I am "barred" by Article 140 of the Order from doing so and that there are no exceptions in Article 140 that would accommodate Mr Rafferty's submission.
16. I have reflected on Mr Rafferty's submission, but consider that I am not empowered to ignore, what appears to me to be, the clear provisions of Article 140 (1) of the Order. There is nothing in the remaining provisions of Article 140 to assist Mr Rafferty in his submission. I agree with Mr Murphy's submission.
17. I find that the claimant does not have continuous service of at least one year in order to qualify to bring unfair dismissal proceedings and, therefore, an industrial tribunal does not have jurisdiction to deal with this claim.
18. In view of my findings, it is not necessary to determine the matter at number 3 of the Issues.

The Religious Discrimination Claim

19. I shall deal with this under 2 headings, namely, the correct respondents and the time point.

The correct respondents

20. Mr Murphy accepts that the present respondents in this claim are proper ones. I agree with him. The reason that I agree is that I am of the view, and find, that this is not a plain and obvious case where the claimant should be prevented, at this stage, from pursuing her claim against all the present respondents.

The time point

21. The matter complained of by the claimant occurred, according to the claimant in her claim form, on 21 April 2007 when she alleges that she was given information by Mr Scott that led her to leave her employment on 23 April 2007.
22. On 6 August 2007 The Office wrote to Mr Rafferty in the following terms:

"The claim form has been referred to a chairman who has decided that the claim cannot be accepted for the following reasons;

The claim in respect of Discrimination on the grounds of Religious Belief is rejected as the claimant has put her complaint in writing to the respondent on 26 June 2007 but has not waited 28 days prior to presenting her claim to the Office of the Tribunals in accordance with Rules 1 (4) (g) of Schedule 1 of The Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

The claim in respect of Discrimination on the grounds of Religious Belief is further rejected as it does not include all of the relevant information in respect of the details of the claim in accordance with Rule 1 (4) (e) of Schedule 1 of The Fair Employment Tribunal Rules of Procedure 2005, in particular the Surnames of the third, fourth and fifth respondents.

If the claimant wishes to make a new claim, you must submit the claim on a new form (a revised pack is enclosed), quoting the pre-acceptance reference number, once the 28 days have elapsed. Please note that the original time limit for commencing these proceedings has been extended by 3 months to enable the claimant to comply with this obligation."

23. The claimant submitted her new claim on 16 October 2007, which, in view of the extension of time referred to in the above letter, is within time.
24. It is not necessary to determine number 4.2 of the Issues.

Chairman:

Date and place of hearing: 20 June 2008, Belfast.

Date decision recorded in register and issued to parties.