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Cite as: [2010] NIFET 00254_09FET, [2010] NIFET 254_9FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 254/09 FET

7559/09

CLAIMANT: Roisin Mullan

RESPONDENT: Western Health & Social Care Trust

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that:-

(i) The claimant’s claim of unfair dismissal, pursuant to the Employment Rights (Northern Ireland) Order 1996 is out of time; and the Tribunal is not satisfied it was reasonably practicable for the claim to be presented to the Tribunal in time, pursuant to the time-limits set out in Article 145 of the 1996 Order.

(ii) The claimant’s claim of discrimination on the grounds of religious belief and/or political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 is out of time; and the Tribunal does not consider that it is just and equitable to consider the claim, which is out of time, pursuant to the time-limits set out in Article 46 of the 1998 Order.

(iii) The Tribunal therefore does not have jurisdiction to hear the said claims and they are dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Ms E Ward, Solicitor, of Directorate of Legal Services, HSC Business Services Organisation.

Reasons

1.1 This pre-hearing review was arranged to consider the following issues, as amended:-

(i) Whether the Tribunal has jurisdiction to entertain the claimant’s claim, in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996, regarding the time-limit for presenting her claim of unfair dismissal.

(ii) Whether the Tribunal has jurisdiction to entertain the claimant’s claim in view of the provisions of Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998, regarding the time-limit for presenting her claim of unlawful discrimination on the grounds of religious belief and/or political opinion.

1.2 The claimant presented her claim form to the Tribunal on 4 December 2009, in which she made a claim of unfair dismissal, pursuant to the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) and a claim of discrimination on the grounds of religious belief and/or political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’).

1.3 The Tribunal heard oral evidence from the claimant together with oral submissions from the claimant and the respondent’s representative. There was no dispute between the parties that the effective date of termination of the claimant’s employment with the respondent was 28 March 2007.

2.1 Under Article 145(2) of the 1996 Order, it is provided:-

“(2) … an Industrial Tribunal shall not consider a complaint under this Article unless it is presented to the Tribunal –

(a) before the end of the three months beginning with the effective date of termination;

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

2.2 Under Article 46 of the 1998 Order, it is provided:-

“(1) Subject to Paragraph (5) … the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever the earlier of –

(a) the end of the period of three months beginning with the day in which the complainant first had knowledge, or might reasonably be expected first to have had knowledge of, the act complained of; or

(b) the end of the period of six months beginning with the day on which the act was done.

…

(5) … the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

3.1 The Tribunal made the following findings of fact, which were relevant and material to the said issues, the subject-matter of this hearing, as set out in the following sub-paragraphs.

3.2 By letter dated 28 March 2007, the claimant was informed, inter alia, that she was summarily dismissed on that date by the respondent, from her position as a Staff Nurse, for gross misconduct on the grounds that:-

(i) on 19 January 2007, the claimant had inappropriately kept a vulnerable elderly male patient out of bed for the duration of the night shift; and

(ii) she failed to provide an accurate account of what had occurred at the handover meeting with the day shift on 20 January 2007, which contributed to the patient remaining out of bed for a total of 33 hours; and that her actions constituted the deliberate neglect and abuse of a vulnerable adult.

3.3 The claimant appealed the said decision and, by letter dated 7 June 2007, she was informed that the appeal had been unsuccessful and that the appeal panel had upheld the decision of the disciplinary panel that her conduct constituted gross misconduct and that she should be dismissed with immediate effect.

3.4 In the said letter of dismissal, reference was also made by the respondent to the Nursery & Midwifery Council (‘NMC’) Code of Professional Conduct and that the respondent considered that she had displayed an unprofessional attitude and was in breach of Clause 2.2 of the said Code – which states:-

“You are personally accountable for ensuring that you promote and protect the interest and dignity of patients and clients, irrespective of gender, age, race, ability, sexuality, economic status, lifestyle, culture and religious or political beliefs.”

Following the dismissal of her appeal by the respondent, the claimant was informed, by letter dated 8 June 2007, the respondent had referred a complaint to the NMC ‘Fitness to Practice Committee’ to consider, in accordance with its procedures, the matters, the subject-matter of the said dismissal by the respondent. As a result of the said referral, a panel of the NMC conducted a hearing to consider the claimant’s ‘fitness to practice’ on 2 – 4 September 2009. By letter dated 9 September 2009, the claimant was informed, by the Chair of the Conduct and Competence Committee, that the panel had decided the claimant’s ‘fitness to practice’ was not impaired and the allegations were not well-founded.

3.5 By letter dated 13 October 2009, the claimant wrote to the respondent, in which she stated, inter alia:-

“As you are aware I was dismissed from my position of Staff Nurse at Waterside Hospital in June 2007. Consequently my case was referred to the NMC who held a ‘fitness to practice’ tribunal on the 2^nd, 3^rd and 4^th September 2009.

I have enclosed a copy of their findings and now ask the Trust to overturn my dismissal and reinstate me as a Staff Nurse within your Trust.”

By letter dated 9 November 2009, the respondent replied to the claimant stating, inter alia:-

“ … The NMC proceedings are separate to the Trust disciplinary procedure and, therefore, have no bearing on the decision of the disciplinary appeal panel. The decision of the Trust to dismiss you remains extant.”

3.6 The claimant, in or about early July, on the advice of her sister, following receipt of the letter dated 7 June 2007 from the respondent informing her that her appeal of her said dismissal by the respondent was unsuccessful, went to the Labour Relations Agency in Derry. The claimant was somewhat vague in her evidence in relation to what she was told by the representative of the Agency she spoke to. However, it would appear she was informed that any Tribunal proceedings, which she wished to bring, had to be lodged within three months and that, as she had been dismissed with effect from 28 March 2007, she was now out of time. She was also given some indication, though again her evidence was vague, that the time for presenting proceedings to a Tribunal could be extended if she felt procedures were ongoing. The claimant interpreted this to mean the NMC proceedings and not her employer’s procedures; although she accepted, in evidence, that this was her interpretation and that she had not been so informed by the representative of the Labour Relations Agency. Indeed, it was not clear what the representative was told either about her employer’s procedures or the NMC procedures and/or the stage they had reached. Whilst the claimant indicated that, following her dismissal, she was on medication for depression arising out of her said dismissal, the Tribunal certainly noted that she was able to attend the Labour Relations Agency, despite such depression, in early July 2007.

3.7 Following her meeting at the Labour Relations Agency, the claimant took no further action or steps in relation to bringing any claim to the Tribunal or the further steps, if any, she required to take, nor did she seek any other advice until she wrote to the respondent by letter dated 13 October 2009, as set out above. The claimant explained the delay in writing to the respondent until 13 October 2009, although she had been informed of the findings of the NMC by letter dated 9 September 2009, on the basis she had been away for a two week period at about this time due to the serious illness of her brother. However, following receipt of the reply from the respondent dated 9 November 2009, as set out above, the claimant consulted Ms H Carmichael, Solicitor, who has a practice in Derry, in or about early December 2009. She had not taken any steps to see her or any other solicitor prior to that date. Following receipt of advice from Ms Carmichael, the claimant agreed with Ms Carmichael that Ms Carmichael would present, on the claimant’s behalf, her claim form to the claim to the Tribunal; although she would not be acting as her representative for the purposes of the Tribunal proceedings. After reading the claim form, prepared for her by Ms Carmichael, the claimant signed the claim form, which was then subsequently presented to the Tribunal by Ms Carmichael on 4 December 2009.

3.8 The claim form claimed unfair dismissal but also claimed discrimination on the grounds of religious belief and/or political opinion. In Paragraph 5.2 it stated:-

“an incident occurred on 19/20 January 2007 whereby the Trust claimed i failed to take adequate care of Mr X by keeping out of his bed. This was completely untrue however i was dismissed on 26^th of March 2007. i exhausted the internal disciplinary procedures and the Trust also lodged an investigation with the Nursery & Midwifery Council. On 9^th of September 2009 the Council confirmed the allegation was not founded and my fitness to practice was not impaired. i contacted the Trust and they have refused to reinstate me.

The action taken was extremely robust considered there was no evidence against me and it was completely untrue. i believe the action taken against me was based on religion. in December 2006 approximately i was told by other members of staff the staff in the office had searched my name on Google and had found a picture of me. i had been on holiday in Waterford that Summer or before my photograph appeared in the newspaper at the opening of a Sinn Fein Office, i was simply on holiday with a friend and i was standing beside him at the opening and i could not believe my photograph was taken. i believe that once they believed they discovered i was political and a republican thereafter the treatment changed. i am not in any way political. thereafter i had one glove and a scarf taken and not returned. My mobile went missing however i told Sister Mary Patterson that i would go to the police and it was returned. Sister Patterson instigate me dismissal.”

3.9 The claimant, despite the terms of the claim form presented to the Tribunal, as set out above, and which clearly stated the information, in relation to Google and the picture, had been given to her in December 2006 and about her holiday in Waterford that Summer (i.e. 2006), all of which were central to her claim of unlawful discrimination, contended, in evidence, that this reference on the form to December 2006 was wrong and that she was in fact only told about such matters in or about late November 2009 and approximately one week prior to her going to see Ms Carmichael, which was on or about 3 December 2009. She could give no explanation for this mistake and suggested that it might have been the mistake of Ms Carmichael. However, she also acknowledged that it was possible that Paragraph 5.2 of the claim form had been typed up by herself, and provided to Ms Carmichael for inclusion in her claim form, whenever the various typographical/ grammatical errors and/or the use of the lower case (eg lower case ‘i’) were pointed out to her. In any event, the claimant could give no explanation why she had not realised a mistake had been made, whenever she had read the form before it was signed by her. The claimant accepted that she knew, in or about December 2006, about the theft of her glove and scarf and about the incident involving her mobile phone, which had all occurred in or about Christmas 2006 and before the events in January 2007, the subject-matter of the dismissal.

3.10 At both her disciplinary hearing and her appeal hearing the claimant was represented by her trade union representative; but I understand she was not satisfied with his representation. However she did not ask him, either after the disciplinary hearing or the appeal hearing, what further action, if any, she could take against her employer, arising out of her dismissal.

3.11 The respondent did not call any evidence. Although the respondent’s representative did not refer to any specific prejudice which the respondent would suffer, if the Tribunal was to extend time, she referred to the fact that the matters, the subject-matter of the claimant’s claim, occurred some three/four years ago and to the risk that the memories of the respondent’s witnesses would be affected by the passage of time and therefore the cogency of their evidence; and in particular, in the context that the first time that the claimant had made any claim of unlawful discrimination, as set out in Paragraph 5.2 of the claim form was on the presentation of the claim form on 4 December 2009.

4.1 Under the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’), when an employer is dismissing an employee, the employer is required to follow the relevant dismissal and disciplinary procedure, pursuant to the 2003 Order and the 2004 Regulations. The normal three month time-limit, referred to above, in relation to claims of unfair dismissal and/or discrimination on the grounds of religious belief and/or political opinion may be extended, pursuant to Regulation 15 of the 2004 Regulations.

Under Regulation 15 of the 2004 Regulations, it is provided:-

(i) 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 and disciplinary procedures is the applicable statutory procedure in the circumstances specified in Paragraph (2) apply; or

(b) either of the grievance procedures is the applicable statutory procedure in the circumstances specified in Paragraph (3) apply;

the normal time-limit of 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.

The claimant’s claim of discrimination, as set out in her claim form, clearly related to her said dismissal and/or matters pertaining to that dismissal, including the reason why she said it was unfair and unlawful. In those circumstances, it was not necessary for the claimant to raise any grievance. (See further Lawrence v HM Prison Service [2007] IRLR 468.) In those circumstances, it is therefore necessary to consider further Regulation 15(2) which states:-

“(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 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.”

4.2 In this particular case, the claimant’s employment having been terminated on 28 March 2007, the relevant three month time period ended on 28 June 2007. By that date, the claimant had been informed by the respondent, by letter dated 7 June 2007, that her appeal of her dismissal had been unsuccessful. In the case of Remploy Ltd v Shaw [2009] UKEAT/0452/08 the Employment Appeal Tribunal confirmed that Regulation 15 is directly applicable only when the claimant reasonably believes, up to the expiry of the three month deadline, that a disciplinary or 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 the claimant had the requisite belief at the relevant time, an extension of three months would automatically be provided for:-

“(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 Appeal Tribunal in that appeal.

(35) It was limited to a moment in time, ie at the time the primary limitation 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.”

4.3 In this particular case, at the date of the expiry of the three month time period for the claimant to bring either her claim of unfair dismissal and/or religious discrimination, the claimant knew that her appeal, in relation to her said dismissal, under the employer’s disciplinary procedure had been unsuccessful and that the said procedure had therefore been concluded. With that knowledge, applying the above test, as set out in Towergate London Market Ltd, to the employer’s said disciplinary procedures, I do not consider that the claimant can establish that she had the necessary belief. The issue therefore relates to whether the claimant can establish the said test, as set out in Towergate London Market Ltd, if her belief does not relate to the respondent’s disciplinary procedures but the NMC procedures, following the referral made by the respondent to the NMC, which the claimant had been informed was taking place and ongoing, prior to the expiry of the said three month time period. As Regulation 15(2), as set out above, refers to ‘dismissal or disciplinary procedures, whether statutory or otherwise [Tribunal’s emphasis]’ I think there is some support for the view that the addition of these words appears to allow a broader interpretation to be given to Regulation 15 (see Eagles v Rugged Systems Ltd [2009] UKEAT/0018/09). However, I think that broader interpretation can only relate to a disciplinary procedure being carried out by the respondent, as the claimant’s employer. This was not such a disciplinary procedure, carried out by the claimant’s employer; but rather it was a procedure, carried out by NMC. Thus, I do not think that the claimant can show that she can satisfy the relevant test of belief, set out in Towergate London Market Ltd above, where the NMC procedure is relied on by the claimant. At all times, the claimant knew that the relevant procedure was being carried out by NMC and not her employer and therefore she could not reasonably believe a relevant procedure was ongoing at the expiry of the three month period. It is also to be noted, in this context, it was the claimant, not the Labour Relations Agency, who made the assumption that the procedure, which was ongoing before the NMC, allowed her to obtain the said extension of time.

Even if I am wrong and the claimant is entitled to an extension of time on the grounds that the NMC procedure was a relevant disciplinary procedure which was being followed at the date of the expiry of the three month time-limit for bringing her complaints to the Tribunal, and that that belief was reasonable, any such extension would only have given the claimant a three month extension from 29 June 2007. It would not have given her an extension of time to allow her to bring her claims to the Tribunal on 4 December 2009, pursuant to Regulation 15 of the said Regulations. It also has to be remembered that the claimant took no further action from her visit to the Labour Relations Agency in July 2007, until she went to see Ms H Carmichael, Solicitor, on or about 3 December 2009.

5.1 In light of the foregoing, in relation to the claimant’s of unfair dismissal, (and in the absence of any extension pursuant to Regulation 15 of the 2004 Regulations) it was therefore necessary for the Tribunal to consider whether the claimant was entitled to an extension of time, pursuant to Article 145(2)(b) of the 1996 Order, as set out above and, in particular, whether she had satisfied the test of ‘reasonably practicable’.

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 wording should be given a liberal interpretation in favour of the employee; and in the case of Palmer and 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 that 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 (see later).

Whilst the Tribunal has no doubt that the claimant was depressed, following her dismissal, as she stated her job was her life, the Tribunal was given no evidence that her medication was such that prevented her bringing her claim within the relevant period. Indeed, she was well enough in early July to go to the Labour Relations Agency. At the time of her disciplinary hearing and her appeal she had a local trade union representative. Although she informed me that she had been unhappy with her representation, she made no attempt to seek advice from her trade union representative or anyone else in the trade union during the relevant three month period, until she went to the Labour Relations Agency, to ascertain her rights and what further steps she could take, including taking Tribunal proceedings. In essence, the claimant, wrongly, for the reasons set out above, made an assumption that she did not require to take any further step until the conclusion of the NMC proceedings. In the circumstances, I concluded that the claimant had not satisfied the ‘reasonably practicable’ test and that it was feasible for the complaint of unfair dismissal to be presented to the Tribunal within the relevant three month period. Even, if I am wrong and it was not reasonably practicable to present her claim within the said three month period, I do not consider she did so within a reasonable period thereafter. In the period between July 2007 and September 2009 she took no steps in relation to the bringing of Tribunal proceedings against her employer. She sought no further or detailed advice from the Labour Relations Agency or anyone else.

5.2 In the circumstances, I therefore concluded that I was not satisfied that it was not ‘reasonably practicable’ for the complaint of unfair dismissal to be presented to the Tribunal in time, pursuant to the time-limits set out in Article 145 of the 1996 Order the Tribunal therefore does not have jurisdiction to consider the claimant’s complaint of unfair dismissal and it is dismissed.

6.1 In relation to the claimant’s claim of unlawful discrimination, as I have stated above, the test of ‘just and equitable’ is much wider than the test of ‘reasonably practicable’.

The claimant contended that her claim of unlawful discrimination was not in fact out of time, as she contended she only discovered the facts relevant to bringing her said claim of unlawful discrimination in December 2009, and not December 2006, as set out in her claim form. This she submitted had been stated in error and that she had therefore brought her claim within three months of the relevant date of knowledge of those facts, pursuant to Article 46 of the 1998 Order.

6.2 I am not satisfied that this was stated in error. I am satisfied that the claimant was aware in December 2006, as stated in Paragraph 5.2 of the claim form, of the matters which she now relies on in seeking to establish that her dismissal was discriminatory and her claim was therefore brought within time. In particular, if the error was that of Ms Carmichael, it seems surprising that such an error would be made by an experienced solicitor, who would be fully aware of setting out the dates of such knowledge accurately. Indeed, there was no evidence that she did so, other than the contention of the claimant, who sought to blame Ms Carmichael, as the person who had presented the claim on her behalf. Secondly, the claimant, on her own admission, read Paragraph 5.2 before she signed the claim form. She raised no query with its accuracy and, in particular, she did not point out that a mistake had been made in Paragraph 5.2 in relation to the date of knowledge. The claimant was prepared to admit, in evidence, the possibility that Paragraph 5.2 was in fact drafted by herself, rather than Ms Carmichael, and was inserted by Ms Carmichael in the claim form, having been provided to her by the claimant. I think this is what in fact occurred; and that what is stated in Paragraph 5.2 are in fact her own words and not those of Ms Carmichael and set out what she intended to state, in her claim form. I so conclude, despite the claimant’s denials and attempts to pass the blame to Ms Carmichael. I do not believe Ms Carmichael would have typed the paragraph using, for example, lower case ‘i’ throughout or would have made the various typographical/grammatical mistakes in the said paragraph. In addition, I note that Paragraph 5.2 is in a different type font/size in comparison to other paragraphs of the claim form, which undoubtedly were filled in on the claimant’s behalf, by Ms Carmichael.

6.3 The claimant’s claim of unlawful discrimination, relating to her said dismissal, was therefore out of time, having been presented on 4 December 2009, in circumstances where the said dismissal was on 28 March 2007.

6.4 In such circumstances, the claimant therefore had to persuade me to exercise my discretion to grant an extension of time under the just and equitable formula as set out in Article 46 of the 1998 Order. It has been held to be as wide as that given to the Civil Courts testing, having regard to the factors indicated in the Limitation (Northern Ireland) Order 1989 which determine whether to extend time in personal injury actions (see further British Coal Corporation v Keeble [1997] IRLR 336). However, in the case of London Borough of Southwark v Afolabi [2003] EWCA Civ 15 the Court of Appeal held that it was not mandatory to go through all the various factors in every case though acknowledged that these factors will frequently serve as a useful checklist.

6.5 In Johnston & Others v Chief Constable of the Royal Ulster Constabulary [1998] NI 188, applying Hickey v Laggan t/a The Fly Bar, the fact that no undue prejudice would be caused to the respondent if the claim was allowed to proceed does not mean that it is just and equitable to ignore the time-limits. Indeed, in the case of Robinson v Bexley Community Centre [2003] IRLR 434 it was held:-

“An Employment Tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider everything that it considers relevant. However, time-limits are exercised strictly in employment cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption they should do so unless they can justify the failure to exercise the discretion. On the contrary a Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend the time. The exercise of discretion is thus the exception rather than the rule.”

Robinson was endorsed by the Court of Appeal in the case of Department of Constitutional Affairs v Jones [2008] IRLR 128 and followed by the Employment Appeal Tribunal in Chief Constable of Lincolnshire Police v Caston [UKEAT/0530/08]. Although the respondent did not rely on any specific prejudice, the Tribunal has to have regard to the fact that, prior to the presentation of the claimant’s claim form in December 2009, the claimant had not raised with the respondent any allegation that the claimant’s claim was discriminatory on the grounds of religious belief and/or political opinion in circumstances where the dismissal had taken place in March 2007 and the matters relied upon in support of that discriminatory dismissal, occurred in or about December 2006. The recollection of witnesses and cogency of their evidence, has to be a matter of concern, albeit not determinative of my decision, given this considerable three/four year delay. In essence, in light of the foregoing, the claimant primarily excused her said delay, in bringing her claim, on the basis that she was awaiting the outcome of the NMC procedure. This is a very different procedure to the disciplinary procedure conducted by the employer. Indeed, as the claimant knew only too well, it was a procedure conducted by the NMC and not her employer and which related to her ‘fitness to practice’ and not whether the employer was entitled to fairly dismiss her. The fact that, on the evidence heard by the NMC, it decided that her ‘fitness to practice’ was not impaired and the allegation was not well-founded does not necessarily mean that the respondent was not entitled to fairly dismiss her.

6.6 I have little doubt that, if the NMC had reached a different result, that the claimant would not have proceeded with her claim. It would have been possible, if the claimant had brought her claim within time to have applied for a ‘stay’ of those proceedings until the outcome of the NMC proceedings was known. As set out previously, in relation to the claimant’s claim of unfair dismissal and the test of ‘reasonable practicability’, the claimant made no attempt during the three month period, when it was feasible for her to have done so, to obtain advice from the Labour Relations Agency and/or her trade union representative. In essence, the claimant took no further steps in relation to bringing such Tribunal proceedings until she obtained a favourable result from the NMC proceedings. I am not satisfied that she was entitled to do so. Indeed, the opportunity to obtain a ‘stay’ of proceedings, pending the outcome of other proceedings is designed to cover the very situation which the claimant says she found herself in.

6.7 In seeking the discretion of the Tribunal to extend time on just and equitable grounds, it was a matter of considerable concern to me that the claimant, for the reasons set out above, wrongly sought to persuade the Tribunal that a mistake had been made in Paragraph 5.2, by others; whereas, in my judgement, she had been the author of the terms of the said paragraph.

6.8 For the reasons set out above, and in light of the guidance in the case law referred to above, I decided that I was not prepared to exercise my discretion to extend the time-limit. The burden was on the claimant to persuade me to extend time and I am not satisfied, in the circumstances, that she has discharged that burden. The Tribunal therefore does not have jurisdiction to hear the claimant’s claim of discrimination on the grounds of religious belief and/or political opinion, pursuant to the 1998 Order and it is therefore dismissed.

Chairman:

Date and place of hearing: 2 July 2010, Belfast

Date decision recorded in register and issued to parties: