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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Morris v Belfast Health & Social Care T... [2010] NIFET 00193_08FET (02 February 2010)
URL: http://www.bailii.org/nie/cases/NIFET/2010/00193_08FET.html
Cite as: [2010] NIFET 193_8FET, [2010] NIFET 00193_08FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 193/08 FET
1731/08
5479/09
CLAIMANT: George Gerard Morris
RESPONDENT: Belfast Health & Social Care Trust
DECISION
The unanimous decision of the Tribunal is:-
(1) The claimant’s claim of unfair dismissal (Case Reference No: 5479/09) is out of time; in circumstances where the time-limit for bringing his claim of unfair dismissal has not been extended, by the Tribunal, pursuant to Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, and further the Tribunal is not satisfied that it was not reasonably practicable for the complaint to have been presented to the Tribunal in time, pursuant to the time-limits set out in Article 145 of the Employment Rights (Northern Ireland) Order 1996. The Tribunal therefore does not have jurisdiction to consider the claimant’s claim of unfair dismissal and it is dismissed.
(2) The claimant was not unlawfully discriminated against on the grounds of his sex, contrary to the provisions of the Sex Discrimination (Northern Ireland) Order 1976.
(3) The claimant’s claim of unlawful discrimination on the grounds of his religious belief contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 is dismissed, following the oral withdrawal of the said claim by the claimant, at the hearing of these proceedings.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mrs Adams
Dr Cradden
Appearances:
The claimant at the commencement of the hearing was represented by Mr G Hyland, Solicitor, of Hylands, Solicitors; but, subsequently, during the course of the hearing, he appeared in person.
The respondents were represented by Mr A Devlin, Barrister-at-Law, instructed by Ms E Ward, Solicitor, of Directorate of Legal Services, HSC Business Services Organisation.
Reasons
1.1 The claimant presented a claim to the Tribunal on 14 November 2008, in which he made a claim of religious discrimination, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 and a claim of sex discrimination, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, which were accepted by the Tribunal; and to which claims the respondent presented a response on 26 January 2009. These claims were given Case Reference No: 193/08 FET and 173/08.
1.2 On 2 June 2009 the claimant presented a claim to the Tribunal of unfair dismissal, pursuant to the Employment Rights (Northern Ireland) Order 1996, which was accepted by the Tribunal; and to which claim the respondent presented a response on 6 July 2009. This claim was given Case Reference No: 5479/09.
1.3 Following the commencement of this hearing the claimant who, at this stage of the hearing, was represented by Mr G Hyland, Solicitor, of Hylands, Solicitors, orally withdrew his said claim of religious discrimination in open Tribunal and it was dismissed. Mr Hyland also confirmed that, in relation to the claimant’s claim of sex discrimination, the claimant was no longer making any claim of sexual harassment and/or any claim arising out of his complaints relating to issues involving overtime/rotas/ timekeeping/attendance/working time – which had been referred to in the statement of agreed legal and main factual issues lodged with the Tribunal before the commencement of these proceedings.
1.4 Further, Mr Hyland, shortly after the claimant commenced to give his evidence in this matter, informed the Tribunal that, for professional reasons, he was no longer able to act as the representative of the claimant. He then withdrew from the proceedings. The claimant thereafter appeared in person and without any representation; and the Tribunal resumed the hearing of the claimant’s remaining claims of sex discrimination and unfair dismissal. It did so, after giving the claimant time, in accordance with the terms of the overriding objective, to obtain other legal representation, which he was unable to do; and subsequently, in the circumstances, allowed him further time to prepare his claim, as an unrepresented person.
2.1 At the outset of this hearing, Mr Devlin, on behalf of the respondent, indicated that the respondent also wished to contend that the Tribunal did not have jurisdiction to consider the claimant’s claim of unfair dismissal, as it was out of time. He acknowledged that this issue had not been raised during the course of the various Case Management Discussions held in this matter nor in the said agreed statement of legal and main factual issues lodged with the Tribunal by the parties. It was agreed by Mr Devlin and Mr Hyland, when he was still the representative of the claimant, that this issue of time was a jurisdictional issue; and it was a matter which the Tribunal would have always had to consider and determine, even though it had not been specifically pleaded in the respondent’s response to the said claim and/or raised in the said statement of issues. It was further agreed by the representatives the claimant would, in the circumstances, have to have some time to properly consider the said issue before it was dealt with during the course of the hearing and, in particular, before giving, in relation to the said issue, his evidence to the Tribunal. The claimant was given this further time and also an opportunity to consider the relevant legal authorities and extracts from Harvey on Industrial Relations and Employment Law.
2.2 The respondent had not, as set out above, previously raised this issue in the course of the Case Management Discussions and, in particular, had not made any application that the said time issue be determined by the Tribunal at a pre-hearing review. In the circumstances, whether a pre-hearing review would have been granted by the Tribunal, if applied for, is therefore hypothetical. Although, if it had been applied for, it was accepted by the representatives the Tribunal would have had to consider whether a pre-hearing review was appropriate, having regard to the guidance of the Court of Appeal in the case of Ryder v Northern Ireland Policing Board [2008] NICA 43, and which has now been approved by the House of Lords in the case of SCA Packaging Ltd v Boyle & Another [2009] IRLR 746.
2.3 The respondent, correctly in the Tribunal’s view, in circumstances where no pre-hearing review had previously been applied for or ordered, did not ask the Tribunal to consider the time-issue in advance of the claimant giving his evidence in relation to the claimant’s remaining claims, the subject-matter of these proceedings, which included his claim of unfair dismissal. To have done so, in essence, would have required the Tribunal to consider and determine the said time-issue ‘at a pre-hearing review’; but one which was conducted within the context of a substantive hearing. This, in the judgment of the Tribunal, would have been contrary to the guidance of the Court of Appeal in the Ryder case.
2.4 As set out above, the claimant, was given time to consider the said time-issue, before giving his evidence in relation to his remaining claims of unfair dismissal and sex discrimination. Having given his evidence on the merits of those claims, he then also gave his evidence in relation to the time-issue, in respect of his claim of unfair dismissal. When giving his evidence, the claimant was no longer represented by Mr Hyland, for the reasons referred to above.
2.5 At the conclusion of the claimant’s evidence on all issues in respect of both claims, Mr Devlin, on behalf of the respondent, made an application to the Tribunal for the claimant’s claim of unfair dismissal to be dismissed on the grounds that the said claim was out of time and the Tribunal therefore had no jurisdiction to hear the claim.
2.6 It was not disputed by the parties that the onus was upon the claimant to show that the claim of unfair dismissal was presented to the Tribunal in time. Mr Devlin, emphasised that he was not seeking to make an application, in relation to the claim of unfair dismissal, of ‘no case to answer’; and that the various authorities set out in Harvey on Industrial Relations Law, Volume 5, Section T, Paragraphs 214 – 224, which warn of the difficulties of making such an application at the close of a claimant’s case, were of no or limited relevance to this application, which solely related to the Tribunal’s jurisdiction to consider a claim on the grounds that the said claim was out of time.
2.7 The Tribunal has wide powers to regulate its own procedures and to conduct the hearing in such manner as it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings. (See Rules 13(3) and 46(1) of the Fair Employment Tribunal Rules of Procedure, contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedures) Regulations (Northern Ireland) 2005). In this context, the Tribunal was also mindful of the terms of the overriding objective set out in Regulation 3 of the said Regulations; and the guidance given, on the application of the said Regulations by a Tribunal, as set out in the judgment of Girvan LJ in Peifer v Castlederg High School and Western Education & Library Board [2008] NICA 49, and now approved in the recent decision of Morgan LCJ in the case of Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.
2.8 In the circumstances, the Tribunal was satisfied there was no bar to the Tribunal considering and determining this application at this stage of the proceedings; and, in an appropriate case, it may be proper to do both, having regard, in particular, to the terms of the overriding objective. The Tribunal, firstly, agreed to hear the submissions of the claimant and Mr Devlin in relation to the said application before the commencement of the respondent’s case, as it considered to do so was in accordance with the terms of the overriding objective.
2.9 However, by a majority ruling, the Tribunal, after hearing the said submissions, decided that it was not appropriate to determine the respondent’s application at the conclusion of the claimant’s case; and further decided the Tribunal should hear any evidence the respondent wished to call in defence of the claimant’s claims of sex discrimination and unfair dismissal, and should then determine the application at the conclusion of the substantive hearing. The majority of the Tribunal considered that valuable time would be lost, whilst the Tribunal reached its decision on the said application, which could be more usefully used to conclude hearing all the evidence in this case. The majority also took into account the warnings set out in the Ryder case of the dangers of pre-hearing reviews and, in particular, that determination of preliminary issues can be too often ‘treacherous shortcuts’ – especially if appeals should arise and cases, following such an appeal, have to be remitted to hear evidence, which had not been heard because of the decision on the preliminary issue. The majority felt these warnings were of equal relevance, where an application on the time-issue was made before the respondent gave all its evidence, and should be applied to the determination of the respondent’s application. The minority member of the Tribunal considered that, to determine the application at the conclusion of the claimant’s case, would have been more appropriate, having regard to the terms of the overriding objective; on the grounds that, if the respondent was successful in the said application, considerable time and expense would be saved. It would not be necessary, in such circumstances, for the Tribunal to hear any evidence, on behalf of the respondent, in relation to the claimant’s case of unfair dismissal. In addition, the minority member of the Tribunal took into account that the claimant, upon whom the onus of proof lay to show the claim of unfair dismissal was in time, had given to the Tribunal, by that stage of the hearing, all relevant evidence he was in a position to give on that particular issue.
2.10 At the conclusion of the proceedings the Tribunal therefore, before considering the merits of the claimant’s claim of unfair dismissal, firstly considered and determined the respondent’s application to dismiss the claimant’s claim of unfair dismissal, on the grounds it was out of time; and the Tribunal therefore did not have jurisdiction to consider the said claim. At the conclusion of the proceedings, neither the claimant nor the respondent’s representative required to make any further submissions on the time-issue, in addition to those previously given by them at the conclusion of the claimant’s evidence. The respondent raised no issue of time in relation to the claimant’s claim of sex discrimination.
3.1 The Tribunal, in considering the respondent’s application in relation to the time-issue in respect of the claimant’s claim of unfair dismissal, made the following findings of fact, insofar as relevant and material:-
(a) The claimant presented ‘on-line’ his claim of unfair dismissal to the Tribunal (Case Reference No: 5479/09) on 2 June 2009. The claim form was signed on his behalf by his representative, Hylands, Solicitors. The effective date of termination of the claimant’s employment with the respondent was 10 February 2009. Mr Hyland formally became the representative of the claimant in relation to the claimant’s other claims to the Tribunal of religious discrimination and sex discrimination (Case Reference Nos: 193/08 FET and 173/08) on 24 March 2009. These claims of religious discrimination and/or sex discrimination had been presented by the claimant to the Tribunal, as set out previously, on 14 November 2008; but, although Mr Hyland did not formally come on record in relation to these claims until 24 March 2009, the Tribunal was satisfied the claimant was consulting and/or obtaining legal advice from My Hyland from in or about December 2008/January 2009 in relation to his employment with the respondent.
(b) Following the presentation of the claimant’s said claims of religious and sex discrimination on 14 November 2008, which were accepted by the Tribunal, as set out above, the claimant was informed by the Tribunal by letter, dated 17 December 2008, that the Tribunal had rejected the claimant’s claim of unfair (contemplated) dismissal, which he had also made in his claim, as at the date of presentation of the claim, it appeared to the Tribunal that he was still employed and was not under dismissal with notice. The claimant showed Mr Hyland this letter, dated 17 December 2008, when he first consulted with Mr Hyland, as set out above. The claimant also informed the Labour Relations Agency, when it contacted him in or about December 2008/January 2009, in connection with the Agency’s statutory conciliation duties, that Mr Hyland was now representing him in relation to these said claims. As a result, the Agency did not directly contact the claimant again in connection with these proceedings.
(c) The claimant was dismissed by the respondent on 10 February 2009, pursuant to the respondent’s dismissal procedures. He appealed the said decision by letters dated 17 February 2009/18 February 2009. The appeal was initially to have been heard on 10 April 2009, but was subsequently heard on 29 April 2009. At the appeal hearing, the claimant was represented by Mr J McCusker, of Unison, a senior full-time trade union official. Under the respondent’s procedures, the claimant was not able to be represented at the appeal by Mr Hyland, his solicitor.
At the Case Management Discussion on 7 April 2009, in relation to the claimant’s then claims of religious discrimination and sex discrimination, as set out in the Record of Proceedings dated 9 April 2009, the Tribunal noted that Mr Hyland, as the claimant’s then representative, was aware not only of the upcoming appeal against dismissal by the claimant, but also of the possibility the claimant might require to bring unfair dismissal proceedings in the Tribunal.
(d) Mr Hyland advised the claimant, following the said dismissal, that the claimant had to give his employer the opportunity to hear his appeal, as the outcome of any appeal was uncertain, “before the claimant would bring his claim to an outside agency, such as the Tribunal”. Mr Hyland, at no time, gave the claimant any specific/express advice in relation to the time-limits for bringing a claim of unfair dismissal to the Tribunal; but the claimant, in light of the above advice, believed he could not bring any Tribunal proceedings until the conclusion of the appeal. The claimant was aware, when he presented to the Tribunal his claims of unlawful religious and sex discrimination, which he did himself, as set out above, the normal time-limit to lodge proceedings in the Tribunal was three months.
(e) At the time of the appeal, Mr McCusker also advised the claimant he would have to wait until the appeal decision was made by the respondent before anything was final. The claimant, following this advice, believed that, if he wanted the trade union to act on his behalf in relation to any unfair dismissal claim, he had to wait until the conclusion of the appeal. In the event, the claimant did not ask his trade union to take any action on his behalf, following the outcome of the appeal, in relation to bringing an unfair dismissal claim. Mr McCusker also, at that time, gave the claimant no specific/express advice in relation to the time-limits for bringing a claim to the Tribunal of unfair dismissal.
(f) By letter dated 1 May 2009, the claimant was informed by the respondent that the appeal had been unsuccessful and the decision to dismiss him had been upheld. The letter concluded, inter alia:-
“ Your attention is drawn to the Trust’s Disciplinary Procedures, which state that the decision of the Appeal Panel is final.”
The claimant fairly and frankly accepted, in evidence to the Tribunal, that he knew, upon receipt of the letter, that the disciplinary procedure followed by the respondent was at an end and that no further appeal was possible.
(g) The claimant was not sure when he received the letter dated 1 May 2009, which is a Friday. It was not disputed the respondent sent the letter on Friday 1 May 2009. There would have been a postal delivery on Saturday 2 May 2009, but Monday 4 May 2009 was a public holiday, when there would have been no postal deliveries. The claimant accepted he could have received it on Tuesday 5 May 2009; but he agreed that he certainly received it no later than Wednesday 6 May 2009. He then, as he stated in evidence, ‘immediately’ [Tribunal’s emphasis] contacted Mr Hyland, on receipt of the letter, by telephone. He told Mr Hyland that the appeal had been unsuccessful; and during the course of this conversation, Mr Hyland agreed he would put in, on behalf of the claimant, a claim of unfair dismissal to the Tribunal. During this telephone call, a meeting was also arranged, for as soon as possible, between Mr Hyland and the claimant. The claimant brought the letter of 1 May 2009 to the meeting, which was held at Mr Hyland’s offices. The claimant stated, in evidence, that he believed the meeting was probably [Tribunal’s emphasis] held on Friday 8 May 2009. If it was not on that date, he accepted, it would have been on Monday 11 May 2009. The Tribunal therefore concluded, on the evidence, that the meeting, at Mr Hyland’s office was probably on 8 May 2009. At that meeting, Mr Hyland again confirmed that he would present, on the claimant’s behalf, the claimant’s claim of unfair dismissal to the Tribunal. Mr Hyland did not contact the claimant again until on or about 3 or 4 June 2009, when he told the claimant that he had presented the claimant’s claim of unfair dismissal to the Tribunal – which, as set out above, had been presented to the Tribunal on 2 June 2009. The claim form, presented to the Tribunal on 2 June 2009, was signed by Hylands, Solicitors, on behalf of the claimant, in accordance with the Rules of Procedure, with the relevant details of the claim inserted, in typed form, by Mr Hyland on behalf of the claimant. Neither at the said meeting, nor in the telephone call, did Mr Hyland give any indication to the claimant of any urgency in relation to the presentation of the claimant’s claim.
(h) The claimant having informed Mr Hyland, in the telephone call and again at the meeting, of the outcome of the appeal, then left it ‘in Mr Hyland’s hands’ to present his claim of unfair dismissal, on his behalf, to the Tribunal. Mr Hyland did so, as set out above, on 2 June 2009. The claimant was unable to give any reason why the claim form had not been presented by Mr Hyland, from the date of the meeting until 2 June 2009. He blamed his solicitor for the failure to present the claim prior to that date. He confirmed he had not been required to provide Mr Hyland with any further information following the meeting. Indeed, the claimant was satisfied that Mr Hyland had had all the relevant information to enable him to do so, at the time of the meeting, given that Mr Hyland had been advising the claimant since in or about December 2008/early 2009 in relation to his other claims of unlawful discrimination, which the claimant had presented to the Tribunal on 14 November 2008. Further; the claimant had kept Mr Hyland informed of his dismissal on 10 February 2009, and of his subsequent appeal, together with the decision of the appeal panel to uphold the decision to dismiss the claimant, as set out in the letter, dated 1 May 2009, which letter he had brought to the meeting at Mr Hyland’s office.
4.1 All the claimant’s claims, which initially included his said claim of religious discrimination were therefore required to be determined by a Fair Employment Tribunal, following an Article 85 Direction made, pursuant to Article 85 of the Fair Employment and Treatment (Northern Ireland) Order 1998. Pursuant to the said Direction, the Tribunal, in determining the claim of unfair dismissal, had the jurisdiction and was entitled to exercise all the powers of an industrial tribunal.
4.2 Under the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), Article 145(2) provides:-
“ … an industrial tribunal shall not consider a complaint (of unfair dismissal) unless it is presented to the Tribunal –
(a) before the end of the period of three months beginning with the effective date of termination; or
(b) within such further period as the Tribunal considers reasonable in case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”
4.3 Under Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) it is provided:-
“(1) Where a complaint is presented to a Tribunal under a jurisdiction listed in Schedule 2 or 3 or, as the case may be, under Article 38 of the Order of 1998, and –
(a) either the dismissal or disciplinary procedures is the applicable statutory procedure in the circumstances specified in Paragraph (2) apply; or
…
(b) the normal time-limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.
(2) The circumstances referred to in Paragraph (1)(a) are that the employee presents a complaint to the Tribunal after the expiry of the normal time-limit for presenting the complaint but had reasonable grounds for believing, when that time-limit expired, that a dismissal or a disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of Regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the Tribunal complaint.”
4.4 There was no dispute that the claimant’s claim of unfair dismissal was a jurisdiction listed in Schedule 2 or 3 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’).
4.5 Since the effective date of termination of the claimant’s employment with the respondent was 10 February 2009, then the said three month time-limit, set out in Article 145(2) of the 1996 Order, required the claimant to present his claim of unfair dismissal on or before 10 May 2009. However, 10 May 2009, was a Sunday and the Tribunal Office was therefore closed on that date; and the said office does not have a letterbox to allow the presentation of a claim. There has been considerable legal authority/case law (see further Harvey on Industrial Relations and Employment Law, Volume 5, Section T, Paragraph 138 – 185) in relation to what is the legal position, where the last day for presenting a claim to the Tribunal is a Sunday, the office is closed and there is no letterbox. In Consigna PLC v Sealy [2002] IRLR 624, Mummery LJ gave guidance on this issue, albeit in the context of a claim in Great Britain, and confirmed that, if a claimant or his agent proves it was impossible to present a complaint before the end of the three month period because the office was closed at the weekend and it did not have a letterbox, this does not automatically extend the three month period to the date when the office re-opens; but it will be possible to argue it was not reasonably practicable for the complaint to be presented within the prescribed period, following Swainston v Hetton Victory Club Ltd [1983] IRLR 164. Given that claims, both in Northern Ireland and Great Britain, can now be presented ‘on-line’/by use of ‘electronic transmission’, the above guidance is of even greater relevance. Since such a transmission can be sent at any time, and the time recorded, the previous issues relating to impossibility of presenting a claim, because of closed offices/absence of a letterbox, are now of less relevance, subject, of course, to the consideration of the particular facts in each case (see further Royal Bank of Scotland v Theobald [2007] UKEAT/0444/06). In light of the foregoing, the Tribunal therefore concluded the last day for presenting the claimant’s claim of unfair dismissal to the Tribunal was up to midnight on Sunday 10 May 2009. In the event (see later), whether the claim should have been presented on or before 10 May 2009 or 11 May 2009, made no difference to the Tribunal’s ultimate decision on this time-issue.
4.6 Since the claimant’s claim of unfair dismissal was not presented until 2 June 2009, the claim was therefore presented outside the normal three month time-limit. The first issue, which therefore required to be considered by the Tribunal, was whether the provisions of Regulation 15(2) of the 2004 Regulations applied and the claimant could show that the normal three month time-limit had been extended by a further period of three months, pursuant to the said Regulations. If it did, then clearly the claimant’s claim of unfair dismissal would have been presented in time and the Tribunal would have had jurisdiction to consider the claimant’s claim of unfair dismissal.
4.7 In the case of Remploy Ltd v Shaw [2009] UKEAT/0452/08, the Employment Appeal Tribunal confirmed that Regulation 15 (which is in similar terms to those contained in the equivalent provisions in Great Britain) is directly applicable only when the claimant reasonably believes, up to the expiry of the three month deadline, that a disciplinary or a dismissal procedure is ongoing. The deadline is then extended to six months. However, it has no application except to give the one-off extension from three to six months. Thus, if a claimant has the requisite belief at the relevant time, an extension of three months is automatically provided for. In the present case, therefore, if such a belief could be shown by the claimant, the claimant’s claim would be in time and the Tribunal would have had jurisdiction to consider the claimant’s claim of unfair dismissal.
HHJ McMullen QC said, in the course of his judgment:-
“(34) Regulation 15 encourages that to happen but it is of utility only once. It provides an extension of time from three to six months in an unfair dismissal case. It does nothing more. It does not depend on there being a procedure actually in place, but only the ‘reasonable belief’ that it is in the mind of the employee, see Towergate London Market Ltd v Harris [2008] ICR 1200, the Court of Appeal by a majority upholding, my judgment, reversing the employment tribunal in that appeal.
(35) It is limited to a moment in time, ie at the time the primary limitation period expires. If the claimant has that reasonable belief she gets an extension of three months in which to bring the claim … .”
In the case of Towergate London Market Ltd, Keene LJ, when considering the correct approach to interpretation of Regulation 15 said:-
“(39) … there can be no doubt that that requires an employment tribunal to ask itself two questions:-
First, did the complainant have such a belief?
Secondly, were there reasonable grounds for that belief?
What is patently not the test, is whether, as a matter of fact, such a procedure was being followed.”
(See further Mockett v Credit Suisse Securities (Europe) Ltd [2010] UKEAT/0289/09 where HH Judge McMullen QC referred again to the above authorities; with approval in relation to the proper interpretation of Regulation 15 of the 2004 Regulations.)
4.8 Once again, the 2003 Order and the 2004 Regulations have given rise to considerable difficulties of interpretation. The claimant was unrepresented and the Tribunal could fully sympathise with his inability to make any meaningful submissions to the Tribunal, in relation to the application of Regulation 15, in the context of the circumstances of his particular case. These provisions are complex, as acknowledged by His Honour Judge McMullan QC in the case of Eagles v Rugged Systems Ltd [2009] UKEAT/0018/09, when he referred to Underhill P’s memorable condemnation of these Regulations as rebarbative, a gastronomic image reflected in his judgment in Cambridge and Peterborough Foundation NHS Trust v Crouchman [2009] UKEAT/0108/09 as a ‘pig’s breakfast’. Despite their complexity, in particular for a lay person, this Tribunal has no alternative but to follow the said Regulations. Although the decisions of the Court of Appeal in Towergate and the Employment Appeal Tribunal in Remploy Ltd are not binding on this Tribunal, the decisions are highly persuasive, in the absence of any relevant decisions of the Court of Appeal in Northern Ireland. In these circumstances, the Tribunal therefore considered it appropriate to follow the decisions in Towergate and Remploy in relation to the proper interpretation of Regulation 15 of the 2004 Regulations.
4.9 The claimant fairly and frankly acknowledged that, upon receipt of the letter of 1 May 2009, which was certainly received by him on 6 May 2009, at the latest, he knew and accepted, at that date, the decision of the respondent to confirm his dismissal was final and the respondent’s disciplinary procedure was therefore at an end.
4.10 The Tribunal therefore could find no evidence to suggest the claimant, at the relevant time, namely the expiry of the three month time-limit, on 10 May 2009, had the necessary reasonable belief that a disciplinary or dismissal procedure, statutory or otherwise, was being followed; since on 6 May 2009, at the latest, he knew and accepted that the decision of the respondent to confirm his dismissal was final and the said disciplinary procedure was at an end.
4.11 Thus, the Tribunal was satisfied, in the circumstances, the claimant was not entitled to an extension of time to the normal three month time-limit, pursuant to Regulation 15 of the 2004 Regulations.
5.1 The claimant’s claim was therefore out of time, as it had not been presented within the normal three month time-limit, unless the claimant could persuade the Tribunal to extend the time, pursuant to Article 145(2)(b) of the 1996 Order, as set out above.
5.2 A claimant who seeks an extension of time, pursuant to the said Article, has to establish two matters:-
(a) that it was not reasonably practicable for the claim form to have been presented in time, and on this point, the onus is on him and requires him to show precisely why he did not present his complaint in time; and
(b) that it was then presented within a ‘reasonable time’.
In relation to the test of ‘reasonably practicable’ the Court of Appeal, in the case of Marks & Spencer v Williams-Ryan [2005] IRLR 562, has indicated that the said words should be given a liberal interpretation in favour of the employee; and in the case of Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, the Court of Appeal interpreted ‘reasonably practicable’ to mean ‘was it feasible’ for the complaint to be presented to the tribunal within the relevant three months?”
However, it is well recognised the test of ‘reasonably practicable’ is much narrower and harder for a claimant to establish than the test of ‘just and equitable’, which allows time to be extended in discrimination cases. The wider ‘just and equitable’ test is not what Parliament has provided under Article 145(2) of the 1996 Order; although it could have done so had it thought appropriate.
5.3 It has long been held that, if in the circumstances, a claimant’s solicitor was at fault in failing to present the complaint within the normal time-limit, then a claimant will not establish that it was not ‘reasonably practicable’ for the complaint to have been presented in time. Such a failure has therefore very serious potential consequences for a claimant and/or his solicitor. As Lord Denning MR put it in the case of Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379:-
“If a man engages skilled advisers to act for him – and they mistake the time-limit and present it too late – he is out. His remedy is against them.”
5.4 There is no doubt that this may be considered a harsh decision, not least when compared to the authorities relating to the failure of a skilled adviser in the context of the ‘just and equitable’ test applied in discrimination cases, as referred to above.
Indeed the decision in Dedman has been the subject of much discussion and controversy in the intervening years (see further Harvey on Industrial Relations and Employment Law Paragraph 214 Section T Volume 5). Issues have arisen whether distinctions can be made between advisers who are skilled and are unskilled, and between skilled advisers who are engaged and those who are not. In the case of London International college v Sen [1993] IRLR 333 the Court of Appeal held that the cases – insofar as they suggest that a prospective claimant, who consults a solicitor or a trade union official or similar adviser, can no longer say that it was not reasonably practicable for him to comply with the time-limit even if the adviser advised wrongly – are not purporting to lay down a rule of law to govern what is essentially a question of fact. A prospective claimant does not lose for all time his right to rely on the ‘not reasonably practicable’ defence once he consults a solicitor who is potentially liable for wrong advice if – as was the case in Sen – he distrusts that advice and immediately proceeds to obtain further advice from a body such as the Tribunal Office itself, which may not be so liable.
However, Bingham MR in the course of his judgment in Sen, which as seen above did not depend on the wrong advice of the solicitor but on the facts the wrong advice of the Tribunal Office accepted, obiter, that a distinction could be drawn between a solicitor and some other skilled adviser:-
“If the rationale is that he cannot rely on the escape clause because in such circumstances it is his adviser and not the employer who should compensate him, then there would appear, as the authorities suggest, to be a distinction between a solicitor who is prima facie liable for misleading advice and other sources of advice which are not, or may not be, liable for giving incorrect advice.”
In the more recent case of Marks and Spencer v Williams Ryan [2005] IRLR 562, the Court of Appeal again reviewed the authorities, including Dedman and Sen. In the case, Lord Philips MR, as he then was, observed, obiter, that there was no binding authority to equate advice from a Citizens Advice Bureau to that from a solicitor, as in Dedman. Whilst this case suggests therefore that a distinction may be drawn between a skilled adviser, such as a solicitor, and some other skilled adviser such as a member of the Citizens Advice Bureau, Lord Philips did not suggest that the principle in Dedman set out above does not continue to be good law in relation to a solicitor. Reviewing the authorities he said:-
“The passage I quoted from Lord Denning’s judgment in Dedman … was part of the ratio. There the employer had retained a solicitor to act for him and failed to meet the time-limit because of the solicitor’s negligence. In such circumstances it is clear the adviser’s fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an employment tribunal.”
In the recent case of Royal Bank of Scotland v Theobald [2007] UKEAT/0444/06, Lady Smith in the course of her judgment, after reviewing the authorities, again obiter, did not suggest the principle in Dedman of the liability of a skilled adviser did not apply to a solicitor, in comparison to, for example, a member of the Citizens Advice Bureau (which was relevant to the particular case); but went on to observe:-
“27 It does, however, seem that a distinction should be drawn between such a case and circumstances where a claimant does not instruct an adviser to present his case for him but simply seeks advice in circumstances where he retains responsibility for the presentation of his claim himself. In such a case none of the existing authorities would seem to indicate that the claimant must necessarily be fixed with the fault of his adviser so as to make ‘the escape clause’ unavailable to him. In the case of the fault of the skilled adviser who has been charged with the responsibility of presenting the claim, it will not normally be able to be suggested that it was reasonable for such an adviser to delay beyond a statutory time-limit. Such an adviser should know better. If, on the other hand, the adviser has not been instructed to act for the claimant in presenting and furthering the claim, matters appear rather differently. The claimant retains responsibility for that and he does so in circumstances where he has been misinformed, by a skilled adviser, as to his right to lodge a claim. The difference is that in that event, it is likely to be the case that whilst it may well have been practicable in the sense of it being possible or feasible to present the claim in time, it is not reasonable to have expected that to be done. In such circumstances the claimant has been told by someone upon whose advise he was entitled to relay that he was not entitled to do so.
28 To put it another way, in the case of the negligent adviser who has been instructed to present the claim, his error may disable him from doing so in time, but it can hardly be said it is reasonable that it does so since the error is within his control and should not have occurred. On the other hand, in the case of the claimant who has not handed over responsibility for presentation of his claim to an adviser, he too may be disabled from timeous presentation but the error being outwith his control and being something which he is entitled to rely on as being non-erroneous, whatever the true situation, it seems to me that there is likely to be much less chance of a view being taken that it was, nonetheless, reasonably practicable to present the claim in time.
29 I recognise that the result may be that in some cases where liability might otherwise have been passed on to the negligent adviser, that will not happen. The employee will be able to proceed against his employer despite the lateness of his claim. That should not, however, be a matter of concern. The above analysis properly accords with the statutory formula, in my view, a formula which is not directed towards the achievement of any particular system for the allocation of responsibilities as between employer and professional indemnity or other insurer or third party.”
It is therefore apparent, in light of the above authorities, that whether the ‘escape clause’ can be successfully invoked may, subject to the particular facts of any case, depend on arguably some fine distinctions.
5.5 As seen in Harvey in Industrial Relations and Employment Law, Volume 5, Section T, Paragraph 253, the general rule, prior to the introduction of the statutory dismissal procedure in Northern Ireland in April 2005 under the 2003 Order and 2004 Regulations, was that an employee who delayed making an unfair dismissal claim, whilst he invoked an internal dismissal procedure, in the absence of exceptional circumstances, would be unable to persuade a Tribunal that the invoking of such a procedure was sufficient to persuade a Tribunal it was not reasonably practicable to present the claim in time. In the case of Palmer and Saunders v Southend-on-Sea BC [1984] IRLR 119, the Court of Appeal approved the judgment of Browne-Wilkinson J, in the case of Bodha v Hampshire Health Authority [1982] ICR 200 when he said:-
“There may be case where the special facts (additional to the bare facts that there is an internal appeal pending) may persuade an employment tribunal, on a question of fact, that it was not reasonably practicable to complain to the Tribunal within the time-limit. But we do not think the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was not ‘reasonably practicable’ to present a claim to the Tribunal.”
5.6 As seen above, the claimant was not able to establish he was entitled to an automatic extension under Regulation 15 of the 2004 Regulations. However, there has been some recent case law, which has suggested that, since the commencement of the statutory procedures in April 2005 under the 2003 Order and the 2004 Regulations, the previously established position, as set out in Bodha and Palmer, has altered; not least in relation to the test of reasonable practicability, in circumstances where an internal procedure has been invoked.
5.7 In this context, the Tribunal therefore found it necessary to consider a number of decisions of the Employment Appeal Tribunal, which are not binding on this Tribunal but are highly persuasive, namely:-
Ashcroft v Haberdashers’ Aske’s Boys School [2008] IRLR 375; and
Royal Bank of Scotland v Bevan [2008] ICR 682
Each case was decided to its own facts. In the case of Bevan, the internal appeal process ended some five hours prior to the expiry of the three month time-limit; whereas in Ashcroft, it was some six hours. In both cases, it was held that it was not reasonably practicable to present the claim within the three month time-limit – on the basis that, although each claimant knew the internal process had ended, there was not, on the facts, sufficient time to get the claim presented to the Tribunal within the three month normal time-limit. Whether a claim is in time, is pre-eminently a question of fact for a Tribunal, taking into account all the circumstances of the case (see Palmer and Saunders v Southend-on-Sea BC, above).
By way of contrast, in the case of Royal Bank of Scotland v Theobald [2007] UKEAT/0446/06, for example, the claimant had one to two days to bring the proceedings before the end of the normal three month time-limit; and the Employment Appeal Tribunal concluded, on appeal, that the Employment Tribunal did not have grounds to conclude that it was not reasonably practicable for the claim to be presented in that part of the three months that remained, after the appeal process was completed. The Employment Appeal Tribunal found, on the facts, the claim could have been presented, on-line, in the above 11/2 to 2 days remaining of the normal three month period.
The judgments in the Bevan and Ashcroft cases were made without reference to each other. (In Bevan reference is made to Theobald). Although the conclusion in Bevan and Ashcroft was the same, as seen above, it is possible to note a difference of approach by the different appeal tribunal in each case.
In particular, Burton J in Ashcroft held that the new statutory procedures had created a ‘new scenario’ in which claimants were encouraged not to present Tribunal claims, whilst the statutory procedures remained ‘live’ and Regulation 15 (of the 2004 Regulations) had ‘effectively repealed Palmer/Bodha’. In contrast, HHJ Richardson in Bevan also considered the statutory purpose behind Regulation 15 and said:-
“21. It is convenient to start with the Tribunal Chairman’s observation that the purpose of Regulation 15 was to encourage parties not to start proceedings, until internal procedures have been completed.
22 In general, I agree with this observation. Indeed I can see no other discernable statutory purpose behind Regulation 15. If the claim is one to which the statutory dismissal procedure applies, Regulation 15 extends time so long as the employer has reasonable grounds for believing, when the normal time-limit expires, that a reasonable procedure is being followed, even if it is not the statutory dismissal procedure. There would be no point in extending time in this way unless it was envisaged that it was both reasonable and desirable that an employee should delay issuing proceedings so long as he reasonably believed that a dismissal procedure was being followed … .”
But, significantly, he emphasised this was not an unlimited period when he said:-
“23. I would however sound one note of caution. Regulation 15 extends normal time-limits for only three months. Nothing in Regulation 15 suggests that its purpose was to encourage parties to delay the commencement of proceedings beyond that time. So, in an unfair dismissal claim, the statutory intention is that after six months the claim should be commenced, even if an employee reasonably believes that a procedure is still being followed.”
“32 To my mind the Tribunal Chairman was fully entitled to conclude that this was a case where, exceptionally, it was not reasonably practicable for Mr Bevan to present his claim. Mr Bevan reasonably believed until shortly before the expiry of the deadline that the appeal procedure was ongoing, and was expecting that he would present his claim if and when he learned that the appeal procedure was unsuccessful. Like the Chairman, I have concluded that this is a perfectly reasonably stance for an employee to take – for it is plainly envisaged by the DRR that procedures should be able to take their course before proceedings are commenced. There is, of course, one important caveat to that proposition. It applies only so long as the additional three month period does not elapse, for nothing in the new Rules gives any encouragement to delaying the making of a claim after the additional three month period expires.” [Tribunal’s emphasis]
In Cambridge and Peterborough Trust v Crouchman [UKEAT/0108/09], Underhill P stated at Paragraph 5 of his judgment:-
“Whereas previously the position had been that the existence of a pending appeal would not normally be held to render it not reasonably practicable to commence proceedings within the time-limit, it should now normally be regarded as the right course for employees not to commence proceedings whiles internal processes are continuing, at least within the primary three month period – with the result that if those processes terminate very shortly before the expiry of that period it may well be correct to conclude that it was not reasonably practicable for the employee to present his claim in time.”
In the recent case of Remploy v Shaw [2009] UKEAT/0452/08, HHJ McMullan QC has sought to resolve the differing approaches seen in the decisions in Ashcroft and Bevan, referred to above. In particular, he disagrees with the judgment of Burton J, in Ashcroft, that Palmer was repealed as a result of Regulation 15; and he prefers the position adopted by HHJ Richardson in Bevan. HHJ McMullan QC therefore concluded (see Paragraph 37) in Remploy that ‘the proper interpretation of Regulation 15 is that it is limited to the first period of time and has no life thereafter’. It is used once at midnight at the end of the first three month period and that is its ‘utility’.
In addition, HHJ McMullen QC added (see Paragraphs 38 and 39):-
“Since the outcome of an appeal has not been notified to the claimant until towards the very end of the primary limitation period, it is reasonable to expect them to be holding their hand on a tribunal claim in anticipation of the result and in anticipation of their being able to take advantage of Regulation 15(20. It is therefore correct to hold that where that is the view of the claimant’s case, it is not reasonably practicable for the claim to be presented. Thus, I accept that where a claim is not brought before that time, it may not be reasonably practicable to have done so. This does not go on for ever … one has only to look at the Civil Service Appeal Board, for example, which may take a year or so following the dismissal. It cannot have been the intention of Parliament to allow an open-ended time for the presentation of a claim during the passage of an internal procedure. As I have said, it would have been open to Parliament to amend Section 111 [ERA] to provide just that, but it did not do so. Parliament intended to go only so far in its support for voluntary resolution of disputes about dismissal when it comes to extending time and that was embodied by Regulation 15(2).”
5.8 Whatever is the proper approach, and the Tribunal preferred the approach seen in Crouchman, Bevan and Remploy, the Tribunal, in light of the above authorities, accepted that until the claimant was given notice of the outcome of the appeal, it was not reasonably practicable for him to present the claim of unfair dismissal to the Tribunal. In those circumstances, therefore, the crucial issue, for the Tribunal, was whether it could conclude, given the claimant knew on 6 May 2009, at the latest, the outcome of the appeal, it was not reasonably practicable to have presented the claim by the expiry of the three month time-limit on 10 May 2009. The claimant telephoned his solicitor on 6 May 2009, at the latest, and probably had a meeting with him on 8 May 2009. Certainly, in the telephone call with his solicitor, Mr Hyland agreed to present a claim of unfair dismissal on the claimant’s behalf to the Tribunal. It was not reasonable, albeit that the solicitor was fully aware of the recent history of the claimant’s employment with the respondent, for the solicitor to arrange a meeting with the client before doing so. It was clearly arranged for 8 May 2009, as a matter of urgency. It also gave the claimant the opportunity to give to his solicitor a copy of the letter dated 1 May 2009. 8 May was a Friday and the next working day for the solicitor would have been Monday 11 May 2009. Whilst recognising that the claimant’s solicitor could have presented the claim to the Tribunal, on behalf of the claimant, ‘on-line’ prior to midnight on 10 May 2009, albeit it was a Sunday, when the normal time-limit expired, the Tribunal came to the conclusion that to have required him to do so would have failed to reflect the realities of life in a solicitor’s office but, in particular, the fact of the intervening weekend when the solicitor’s office would have been closed. The Tribunal further concluded that, in the particular circumstances of this case, that it was not therefore reasonably practicable for the claimant’s claim to have been presented at the expiry of the three month time-limit on 10 May 2009. In doing so, the Tribunal fully recognised that this was not a case, as in Bevan and Ashcroft, when the relevant period to present the claim was a matter of hours. It was closer to the facts in Theobald, where the relevant period was one – two days. However the Tribunal considered the Theobald decision could be distinguished as the period of one – two days did not fall over a weekend. The Tribunal was fully aware of the many decisions in which it has been found that a Tribunal was correct to accept a failure to present a claim in time, where matters of minutes/seconds were involved (see further Beasley v National Grid Electricity Transmissions [2007] UKEAT/0626/06). In the circumstances, the internal process having terminated on 6 May 2009 and the meeting with the solicitor having been held on 8 May, in the judgment of the Tribunal this was not ‘very shortly’ before the end of the normal time period (see further Crouchman), taking into account the intervening period.
5.9 However although the Tribunal concluded it was not reasonably practicable for the claim from to have been presented in time, it was then necessary for the Tribunal to consider had the claim been presented in a reasonable time thereafter (see Paragraph 5.2 of this decision).
The claim was not presented until 2 June 2009, some three weeks approximately following the expiry of the normal time-limit. It was presented ‘on-line’ by the solicitor, who clearly was aware of the facility to present claims in that manner. At all material times he had agreed that he would present the claim to the Tribunal on the claimant’s behalf and the claimant had ‘left it in the solicitor’s hand’ to do so (see Theobald). The solicitor had not required to obtain any further information from the claimant to enable him to draft and present the claim. If the claim had been presented, for example, by the solicitor within the early part of the week commencing 11 May 2009 the Tribunal might have been prepared to look sympathetically at such a period; but it was not prepared to do so in the case of a delay in presenting the claim of approximately three weeks. In the circumstances, the Tribunal concluded the claim was not presented therefore in a reasonable time thereafter. In doing so it fully recognises the fault for not presenting the claim has, in the circumstances, on the evidence before the Tribunal, was the fault of the claimant’s solicitor. But on the authority of the Dedman, but also the Theobald case, that does not allow the claimant to satisfy the ‘escape clause’, provided in Article 145 of the 1996 Order.
5.10 The Tribunal finds it hard not to have some understanding and sympathy for any skilled adviser, in particular a solicitor, in relation to time-limits in Tribunal proceedings, not least since the introduction of the statutory dismissal procedures and all their complexities and their impact on time-limits, as set out previously in this decision. Indeed, if the Tribunal had not found itself constrained by legal authority in the case of Dedman, and as now approved in Marks and Spencer and Theobald, it might have reached a different conclusion on the time-issue in respect of the claimant’s claim of unfair dismissal.
5.11 The Tribunal therefore decided the claim was out of time and the claimant had not shown that it was not reasonably practicable for the claimant’s claim of unfair dismissal to be presented in time pursuant to the time-limits set out in Article 145(2) of the 1996 Order. The Tribunal therefore decided it did not have jurisdiction to consider the claimant’s claim of unfair dismissal and it must be dismissed. In so deciding, the Tribunal therefore reached no conclusions in relation to the merits, or otherwise, of the claimant’s claim of unfair dismissal.
6.1 In relation to the claimant’s claim of unlawful discrimination on the grounds of sex, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 (‘1976 Order’) the Tribunal, insofar as relevant and material to that claim, made the following findings of fact:-
(a) The claimant was employed by the respondent as a Clerical Officer from in or about 1990 in the Medical Records Department of the Trust. In July 2008, he was principally employed as a Band 2 Health Records member of staff in the Patient Registration Unit of the Medical Records Department. Other staff in the Department included a Ms ‘A’, who was a temporary Band 2 Receptionist, Health Records, who at that time was working in the Special Investigation Reception Area.
(b) On 24 July 2008, Ms Karen Young, Band 5 Receptionist Manager, Health Records, who was Ms ‘A’s’ line manager, was in the said reception area of the Outpatients Department of the Trust, where Ms ‘A’ was working, when Ms Young observed an e-mail, in large font, open on Ms ‘A’s’ computer – which an audit trail subsequently identified had been sent to her by the claimant at 15.06 pm. The said computer, at Ms ‘A’s’ workstation, could be seen by not only other members of staff working in the area but also by patients using the reception, due to the location of the said workstation.
Ms Young was concerned that the content of the e-mail was inappropriate, and that it could be seen by patients and staff in the reception area. As a result, she spoke to Ms ‘A’, who subsequently also provided her with a copy of a further e-mail, again in large font, which an audit trail also subsequently showed had been sent by the claimant to her at 15.39 pm.
The Tribunal was satisfied that both e-mails were inappropriate – but, in particular, they each contained obvious sexual undertones/ innuendo; but it was also satisfied that the use of the large font was a deliberate act on the part of the claimant, which was designed to emphasise the said sexual undertones/innuendo. The Tribunal did not accept the claimant’s innocent non-sexual explanation, for the earlier e-mail, that he was merely seeking to speak to Ms ‘A’; especially when both e-mails were read together and having regard to the reference contained in the later e-mail to the earlier e-mail sent by the claimant. In light of the foregoing, the Tribunal did not consider it necessary, for the purpose of this decision, to set out, in this decision, the precise terms of the said e-mail. The size of the large font increased the visibility of the contents of the e-mails to any member of staff or patient who could see Ms ‘A’s’ computer at her said workstation in the reception area. Ms ‘A’ confirmed to Ms Young, at the time, and subsequently in the course of investigation, carried out by the respondent, that the said e-mails sent by the claimant were not welcomed by her, and which she found embarrassing.
(c) Mr Paul Sharpe, who was Senior Manager in the Health & Social Care Records at the Trust, was informed by Ms Young what she had observed in the reception on 24 July 2008 and also what she had been told by Ms ‘A’, as set out above. She provided him with copies of the said e-mails sent by the claimant to Ms ‘A’, together with the said audit trail, relating to the said e-mails, which confirmed the time of sending and the identity of the person who had sent the e-mail to Ms ‘A’, as referred to previously.
(d) Following consultation with his line manager, Ms Lynd, General Manager of Health & Care Records with the Trust, and members of Human Resources, on 6 August 2009, Mr Sharpe held a meeting with the claimant and his trade union representative. At that meeting, Mr Sharpe placed the claimant on precautionary suspension from duty with immediate effect until further notice.
Following the meeting, suspending the claimant, the claimant was written to by letter dated 6 August 2008, by Ms Whann, Senior Human Resources Officer, there was no dispute that the letter reflected what had taken place at the earlier meeting on that day.
The letter stated, inter alia:-
“ … The reason for the precautionary suspension is owing to the allegation that you forwarded inappropriate and offensive e-mails from your work e-mail address, contrary to the Trust’s policy on computer use and also, the working well together policy which aims to promote dignity and respect in the workplace.
You will continue to receive your full remuneration during this period of precautionary suspension. It must be stressed that precautionary suspension is not a disciplinary sanction nor is it a presumption of guilt, but a means of facilitating a proper investigation.
I would also advise that you must not contact any member of staff or clients involved in this investigation or anyone to do so on your behalf. If you do so, this may lead to a charge of seeking to interfere with witnesses. You must also not visit your place of work during the period of your suspension.
… .”
(e) On 7 August 2008, the claimant sent an e-mail to Mr Sharpe, in which he stated, inter alia:-
“ … I also informed you yesterday that I had evidence that line managers under your suspension had been inappropriately misusing the e-mail system and also the internet system which I have no access to. Therefore I am forwarding a few recent e-mails which two of them are involved in though I do have many more involving them and the other line managers I named yesterday.
I feel this would be sufficient evidence for the Trust to access these two individuals’ e-mail and internet accounts and I hope you treat them and all others involved in such activities as you have treated me by using the punitive measures used against me. If the same measures are not used towards all these people as myself immediately then I will be given the impression that the bullying and harassment has moved on to include both the sexual and discrimination of me also. … .”
(f) With the said e-mail, the claimant enclosed two attachments. One was a media file, entitled ‘Why women need catalogues’ and the other was an e-mail, setting out what might be described as a ‘stereo-typical type joke’ involving an Asian lady and a resultant misunderstanding of language. The Tribunal was prepared to accept both e-mails were inappropriate. Again, in the circumstances, the Tribunal does not consider it necessary, for the purposes of this decision, to set out, the precise contents of the said e-mails, save as set out above. In particular, although inappropriate, there was no evidence that the contents of the said e-mails contained any sexual undertones/ innuendo and they were not, in the judgment of the Tribunal, of a similar nature to the e-mails sent by the claimant to Ms ‘A’ on 24 July 2008, as set out above. The audit trail showed that the media file was sent on 6 August 2008 by Mrs Cole, who was Assistant Manager to Ms Lynd in Health & Care Records, to Ms Karen Young and other members of staff, who had, in turn, on the same day, sent the media file onto further staff members of the respondent. Similarly, the audit trail in relation to the said joke e-mail was sent by Mrs Cole to Ms Young and others on 25 July 2008, who had in turn sent the e-mail on the same day to other staff members of the respondent. Despite what the claimant had said in his letter dated 7 August, he never produced any further e-mails involving Mrs Cole and Ms Young.
Further, the said e-mails were not sent in large font and there was no evidence that there was any opportunity for members of staff or the public to see these e-mails when they were opened on the relevant computers.
Mr Sharpe passed on to Human Resources the said e-mails, unopened, which had been sent to him by the claimant. The respondent decided because of the nature of the e-mails sent by Mrs Cole and Ms Young and, in particular, the differences between those e-mails and the e-mails sent by the claimant, no further action was required to be taken by the respondent against either Ms Young or Mrs Cole in relation to the sending of the said e-mails. In particular, unlike the claimant, no action was taken by the respondent to suspend and/or carry out any further investigation leading to any disciplinary hearing and/or the termination of employment of either of them. In the circumstances, the Tribunal could not find any evidence from which it could infer that the failure to take any action against Mrs Cole and Ms Young was by reason of sex. It accepted the decision was taken by the respondent for the reasons set out above.
(g) Following the said suspension of the claimant, an investigation was carried out by the Trust, which resulted in the Trust deciding, as set out in the Trust’s letter dated 15 January 2009, to proceed to a disciplinary hearing in relation to a number of allegations, including the sending by the claimant of the said e-mails on 24 July 2008 to Ms ‘A’. Following the disciplinary hearing, and subsequent appeal, the claimant’s employment with the Trust was terminated with effect from 10 February 2009. The said investigation hearing and disciplinary appeal were the subject of the claimant’s claim of unfair dismissal, which the Tribunal does not have jurisdiction to consider, for the reasons set out above, and it was not necessary or appropriate for the purposes of this decision, in relation to the claimant’s claim of sex discrimination, for the Tribunal to consider these matters further, save as set out above.
6.2 In essence, the claimant, in relation to his claim of sex discrimination, contended that, he had been treated less favourably on the grounds of his sex, in comparison to his named comparators, Ms Young and Mrs Cole, when, unlike him, neither had been the subject of any suspension and/or investigation and/or disciplinary hearing, with the termination of employment, after Mrs Cole had sent to Ms Young the said e-mails, and Ms Young had, in turn, sent them on to other members of staff of the respondent, as referred to above. In response the respondent did not dispute that there had been a difference of treatment between what happened to the claimant and what happened to Ms Young and/or Mrs Cole – but the respondent contended that the said difference was not on the grounds of sex and therefore unlawful contrary to the 1976 Order. Further, in particular, the respondent contended that Ms Young and Mrs Cole were not true comparators, for the purposes of the 1976 Order.
7.1 Article 3 of the 1976 Order states:-
(1) In any circumstances relevant for the purpose of any provision of this Order, other than the provision to which Paragraph 2 applies, a person discriminates against a woman if –
(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or … .”
Article 4(1) of the 1976 Order provides that Article 3 and the provision of Parts III and IV relating to sex discrimination against women are to be treated as applying equally to the treatment of men, and for that purpose shall have effect with such modification as are requisite.
7.2 Article 7 of the 1976 Order states:-
“Each of the following comparisons that is –
(a) comparison of the cases of persons of different sex under Article 3(1) or (2);
…
… must be such that the relevant circumstances in the one case are the same, or not materially different in the other.”
7.3 Article 8(2) of the 1976 Order provides:-
“It is unlawful for a person, in the case of a woman employed by or at an establishment in Northern Ireland, to discriminate against her:-
…
(b) by dismissing her or subjecting her to any other detriment.”
7.4 Article 63A of the 1976 Order provides:-
“(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –
(a) has committed an act of discrimination which is unlawful by virtue of Part III; or
(b) …
The Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act.”
8.1 As has been seen in the recent decision in the Court of Appeal in Northern Ireland, in the case of Nelson v Newry & Mourne District Council [2009] NICA 24, identifying the proper comparator in any claim of sex discrimination is essential.
As was stated at Paragraph 27 of the judgment of Girvan LJ in the above case:-
“For discrimination to be established a comparison of the cases of persons of different sex must be such that the relevant circumstances in the one case are the same or not materially different from the others. The test for discrimination involves a comparison between the treatment of the complainant and another person (the statutory comparator actual or hypothetical of the other sex).”
Lord Hoffman pointed out in Asher v Watt [2008] 1AER869:-
“It is probably uncommon to find a real person who qualifies under Section 34 as the statutory comparator. The question of whether the difference between the circumstances of the complainant and those of the putative statutory comparator are materially different is often likely to be disputed. In most cases, however it will be unnecessary for the Tribunal to resolve this dispute because it should be able by treating the putative comparator as an evidential comparator and having due regard to the alleged differences in circumstances and other evidence to form a view on how the employer would have treated the hypothetical person who was a true statutory comparator. If the Tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it will be well-advised to avoid deciding whether any actual person was the statutory comparator.”
Further at Paragraph 28 of the said judgment, Girvan LJ stated:-
“ … Once one recognises that there were sufficient differences between the two cases that can sensibly lead to a difference in treatment it is not possible to conclude, in the absence of other evidence pointing to a gender-based decision-making that an inference or presumption of sex discrimination should be drawn because of the disparate treatment of Ms O’Donnell and Mr Nelson.”
The importance of correctly identifying a comparator in the circumstances relevant to the case was identified by Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 when he stated:-
“The choice of comparator requires that a judgment must be made as to which of the differences between any two individuals are relevant and which are irrelevant. The choice of characteristics may itself may be determinative of the outcome. … This suggests that care must be taken not to approach this issue in a way that will defeat the purpose of the legislation, which is to eliminate discrimination … in all the areas with which it deals.
When comparing the claimant’s situation with that of his chosen actual comparators, it was therefore necessary that the cases must be such that the circumstances which were relevant to the way the claimant was treated were the same, or not materially different, than the way in which the comparators were treated (see further Paragraph 49 of Lord Hope’s opinion). If they were not, the claimant’s case had to fail, as was recognised in the Nelson decision.
8.2 The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 256, considered the provisions equivalent to Article 63a of the 1976 Order, and approved, with minor amendment, the guideline in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of subsequent decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong and the said two-stage process to be used in the relation of the burden of proof, in the case of unlawful discrimination. In the case of Bridget McDonagh & Others v Samuel Thom T/A The Royal Hotel Dungannon [2007] NICA 3, the Court of Appeal, in referring to the said two-stage process stated:-
“The first stage required the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, the complaint is not to be upheld … .”
The decision in Igen v Wong has been the subject of a number of further decisions, including Madarassy v Nomura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR746, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and Another [2007] NICA 25, but also Nelson v Newry & Mourne District Council [2009] NICA 24.
In Madarassy, the Court of Appeal held, inter alia, that:-
“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination : could conclude in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It should also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons have been made by the complainant were of like-with-like as required by Section 5(3) and available evidence of all the reasons for the differential treatment … .”
As Girvan LJ in the Nelson case made clear, at Paragraph 23 of the judgment, the Madarassy decision “makes clear that the words ‘could conclude’ is not to be read as equivalent to ‘might possibly conclude’”. The facts must lead to the inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which the discrimination can be presumed.
In Curley v Chief Constable of the Police Service of Northern Ireland & Another [2009] NICA 8, the Court of Appeal emphasised the need for a Tribunal engaged in determining such an unlawful discriminatory claim to keep in mind the fact that the claim put forward relates to such an allegation; and the need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination. In addition, in the Curley case, the Court of Appeal approved the judgment of Elias J in Laing, which was also quoted with approval by Campbell LJ in the Arthur case, that it was not obligatory, in each case, for a Tribunal to go through the form of steps set out in Igen.
In the case of Network Rail Infrastructure Ltd v Griffiths-Henry [2006] IRLR 865, the Employment Appeal Tribunal emphasised that unfairness is not itself sufficient to establish discrimination.
9.1 There was no doubt that the claimant was treated differently to his named comparators, Ms Young and Mrs Cole. Both had, like the claimant, sent e-mails, which the Tribunal accepted were inappropriate. But unlike the claimant, they had not been suspended, subject to any further investigation or any disciplinary hearing and ultimately termination of employment. However, as seen in Madarassy, the fact that there was a difference in treatment and the claimant was male and Ms Young and Mrs Cole were female, were not sufficient, without more, to show that the claimant could have been unlawfully discriminated on the grounds of sex. The fact that the claimant believed it was unfair he was so treated, in comparison to Ms Young and Mrs Cole, as he undoubtedly did, was also not sufficient to establish sex discrimination (see Network Rail Infrastructure Ltd v Griffiths-Henry [2006] IRLR 865).
9.2 As recognised in Nelson v Newry & Mourne District Council [2009] NICA 24, if Ms Young and Mrs Cole were not true comparators, then the claimant would not be able to succeed in his claim, as he would not be able to set up the necessary comparison, which is a fundamental part of establishing such a claim of sex discrimination. To be a true comparator, the relevant circumstances in the case of the claimant had to be the same or not materially different from the case of his said comparators. The Tribunal concluded that they were not. In so concluding, it relied, in particular, on the fact that the e-mails sent by the claimant, unlike those sent by Ms Young and Mrs Cole, contained obvious sexual undertones and/or innuendo. In the judgment of the Tribunal, this was a significant and crucial difference in comparing the relevant circumstances, between those of the claimant and his said comparators. In addition, the claimant had deliberately increased the font size of the e-mails sent by him to Ms ‘A’ in order to emphasise the sexual undertones and/or innuendo of the e-mails. Ms Young and Mrs Cole had not taken any such similar action. In addition, the e-mails sent by the claimant, with the said increased font size, were sent to a person at a workstation, where they could be seen by other members of staff, but, in particular, members of the public. There was also evidence, unlike in relation to the e-mails sent by Ms Young and Mrs Cole, that the recipient of the claimant’s e-mails, Ms ‘A’ found them unwelcome and embarrassing.
The Tribunal was satisfied that these differences accounted for the difference in treatment between the claimant and Ms Young and/or Mrs Cole and that, in the circumstances, the claimant could not establish the necessary comparison for the purposes of his claim of sex discrimination. There was no other evidence to show that the action taken in relation to the claimant, in comparison to the decision to take no action against Ms Young and/or Mrs Cole, was gender-based and was not accounted for by reason of the above differences. The differences between the cases of Ms Young and/or Mrs Cole and the claimant were such that their position were not comparable. The decision by the respondent to take action against the claimant, and not Mrs Cole and/or Ms Young, given the differences, was not, in the judgment of the Tribunal, irrational or perverse in the circumstances (see further Nelson v Newry and Mourne District Council [2009] NICA 24).
9.3 The Tribunal therefore decided that the claimant could not establish that he was unlawfully discriminated against on the ground of sex, pursuant to the 1976 Order; and the claim must be dismissed.
Chairman:
Date and place of hearing: 9 - 11 November 2009;
16 – 20 November 2009;
23 and 25 November 2009, Belfast
Date decision recorded in register and issued to parties: