Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2011/225_09FET.html
Cite as: [2011] NIFET 00225_09FET, [2011] NIFET 225_9FET

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THE FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 225/09 FET

7163/09

CLAIMANT: Julia Farkas

RESPONDENTS: 1. Charles Hurst Ltd

2. Alan Thompson

3. Colin McNabb

DECISION

The unanimous decision of the Tribunal is that:-

(i) it is ordered by consent that the third respondent be dismissed from these proceedings;

(ii) the Tribunal does not have jurisdiction to consider and determine the claimant’s claims of unfair dismissal and/or breach of contract against the first respondent as the claimant was not dismissed;

(iii) the Tribunal does not have jurisdiction to consider the claimant’s claim of unlawful discrimination on the grounds of religious belief and/or age and/or sex against the first respondent as the claimant did not comply with the statutory grievance procedures.

(iv) the Tribunal does not have jurisdiction to consider the claimant’s claim of unlawful discrimination on the grounds of religious belief and/or age and/or sex against the second respondent as the said claims were out of time and it was not just and equitable to extend the time; and

(v) the claimant’s claim against the respondents and each of them are therefore dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mrs J McCormick

Mrs M Heaney

Appearances:

The claimant appeared in person and was not represented.

The respondents were represented by Ms L Toolan, of the Engineering Employers Federation, Northern Ireland.

Reasons

1.1 The claimant presented a claim to the Tribunal on 3 September 2009, in which she made a claim of unfair dismissal and breach of contract against the first respondent, together with claims of unlawful discrimination on the grounds of religious belief and/or sex and/or age against the respondents and each of them. The claimant accepted that the breach of contract claim related to her claim of unfair dismissal.

The respondents presented a response to the Tribunal on 9 November 2009 in which the respondents denied liability for each of the claimant’s claims; but also raised various issues in relation to the claimant’s claims relating to time and/or compliance with the relevant statutory grievance procedures and the jurisdiction of the Tribunal to determine any or all of the claimant’s said claims.

1.2 The respondents’ representative at a Case Management Discussion on 9 March 2010 made an application for the Tribunal to order a pre-hearing review to determine the various jurisdictional issues raised by the respondents in their response. As set out in the record of proceedings, dated 19 March 2010, in relation to the Case Management Discussion on 9 March 2010, having heard submissions by both the claimant and the respondents’ representative, the respondents’ application was refused, having regard to terms of the overriding objection and in light of the guidance set out in the case of Ryder v Northern Ireland Policing Board [2008] NICA 43, as now approved by the House of Lords in the case of SCA Packaging Ltd v Boyle & Another [2009] UKHLJ 37. The substantive hearing was therefore listed to determine the claimant’s claims, including, if relevant, the various jurisdictional issues, the subject matter of the application for a pre-hearing review.

1.3 At the outset of the substantive hearing, the respondents’ representative again raised the issue of the said jurisdictional issues and whether the Tribunal was minded to consider the jurisdictional issues at the outset of the hearing. She was informed the Tribunal did not intend to do so. Indeed, to have done so would have required the Tribunal, in essence, to consider and determine the said jurisdictional issues 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, as now approved in SCA Packaging Ltd.

1.4 At the conclusion of the claimant’s case, the respondents’ representative renewed her application that, on the basis of the evidence heard by the Tribunal, the Tribunal should hear and determine the said jurisdictional issues and, if it found the Tribunal had no jurisdiction to hear the said claims, dismiss them before the respondents were required, if they wished to do so, to call any evidence in defence of the claimant’s claims. In making the said application, the respondents’ representative said that to consider and determine these jurisdictional issues, upon which the burden of proof was upon the claimant, at this stage of the proceedings was in accordance with the terms of the overriding objective; and, if the Tribunal found that it did not have jurisdiction to consider the claimant’s claims, there would be a saving in time and expense as the Tribunal would not require to hear any evidence on the part of the respondents. Having heard submissions by both the claimant and the respondents’ representative, the Tribunal decided that, in its judgment, it was not appropriate to consider and determine the jurisdictional issues at the conclusion of the claimant’s claim; but rather the hearing should proceed and the respondents should call such evidence as they considered appropriate in defence of the claimant’s claims and that the Tribunal should determine the said jurisdictional issues at the conclusion of the substantive hearing. It was further agreed that the Tribunal would give its reasons for so deciding in this decision, which are set out in the following sub-paragraphs.

1.5 Ms Toolan emphasised, when applying for the Tribunal to consider and determine the said jurisdictional issue at the conclusion of the claimant’s case, she was not seeking to make an application of ‘no case to answer’ and that the various authorities set out in Harvey on Industrial Relations Law Volume 3 Section P1 892-895, 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 jurisdiction of the Tribunal to consider and determine the claimant’s claims. Whilst there is no doubt some strength in the respondents’ submission in relation to the relevance of the said authorities, it has to be recognised that they echo similar warnings to be found in the guidance given in the Ryder and SCA Packaging decisions referred to above.

1.6 The Tribunal has wide powers to regulate its own procedures and to conduct the hearing in such a 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 Procedure) 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, in the application of the said Regulations by the Tribunal, as set out in the judgment in Girvan LJ in Peifer v Castlederg High School and Western Education & Library Board & Another [2008] NICA 49 and approved in the judgment of Morgan LCJ in the case of Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

1.7 In light of the foregoing, the Tribunal was satisfied that there is no bar to a Tribunal considering and determining such jurisdictional issues, in an appropriate case, at the conclusion of the claimant’s case and in such a case, it may be appropriate to do so, having regard, in particular, to the terms of the overriding objective. The Tribunal recognised that the exercise of the discretion in any particular case can be difficult, balancing the relevant matters to be taken into account, not least the terms of the overriding objective. The Tribunal also recognised that applications at the conclusion of a claimant’s case to determine such preliminary jurisdictional issues may become more frequent, as a consequence of the guidance in Ryder and SCA Packaging cases; and which decisions have made it more likely that such jurisdictional issues are required to be determined at a substantive hearing rather than at a pre-hearing review. However, the fact that there may be increased applications for the determination of such jurisdictional issues at the conclusion of a claimant’s case does not mean that such applications should be granted and each application, whenever made, must be carefully considered in light of its own particular facts.

1.8 In this particular case, the Tribunal, after hearing the said submissions, decided, in the exercise of its discretion, as set out above, it was not appropriate to consider and determine the jurisdictional issues at the conclusion of the claimant’s case. In so deciding, the Tribunal was very aware that, if it decided to proceed to hear the respondents’ case, it would only require up to two further days of hearing. The Tribunal was also very aware that the claimant, when making arrangements for the substantive hearing of this matter, had taken unpaid leave for the period of the hearing; and depending on the Tribunal’s decision in relation to the jurisdictional issues, which was likely to be reserved, might be required to obtain a further period of unpaid leave in the future, if the Tribunal decided it had jurisdiction to consider all or any of her said claims. Valuable time therefore could be lost, whilst the Tribunal reached its reserved decision in relation to the jurisdictional issues, which could be more usefully used to conclude the hearing all the evidence in the matter and, in particular, any evidence which the respondents wished to call in defence of the claimant’s claims.

The Tribunal further considered that the potential outcome of a decision on the jurisdictional issues might be that the Tribunal had jurisdiction to hear some of the claimant’s claims and the Tribunal would therefore require to resume to hear the respondents’ case in respect of those claims.

The Tribunal also took into account the warnings set out in the Ryder case of the dangers of pre-hearing reviews and, in particular, that the determination of preliminary issues can be too often ‘treacherous shortcuts’ – especially if appeals should arise from the Tribunal’s determination of the jurisdictional issues and the case has to be remitted to hear further evidence, which had not been heard because of the decision taken on the jurisdictional issues at the conclusion of the claimant’s case. The Tribunal considered that, in this particular case, those warnings were of equal relevance, where such jurisdictional issues might be determined before the respondents gave their evidence.

1.9 In light of the foregoing, the Tribunal therefore decided to proceed to hear all the evidence which the respondents wished to call in defence of the claimant’s claim in relation to all issues.

2.1 During the course of the proceedings, it was further agreed by the parties, with the consent of the Tribunal, that as the parties were not in a position to deal with any issues relating to remedy, the Tribunal, subject to the Tribunal’s determination of the said preliminary jurisdictional issues, would only consider and determine issues relating to the liability of the respondents, if any, in respect of each of the claimant’s claim; and the Tribunal would be reconvened, if necessary, to hear evidence and to determine any issue relating to the remedy the claimant was entitled to, in light of the Tribunal’s determination of the said liability issues, in the circumstances set out above.

2.2 At the conclusion of the hearing, the Tribunal therefore, after hearing submissions on the said jurisdictional issues and liability issues from the claimant and the respondents’ representative, firstly, considered and determined the said jurisdictional issues. In light of the Tribunal’s decision, as set out above, the Tribunal did not have jurisdiction to hear the claimant’s claims against the respondents and that each claim must therefore be dismissed, the claimant, save insofar as was necessary to determine those said jurisdictional issues, reached no conclusions in relation to the merits or otherwise of each said claim.

3. As set out above, the claimant’s claims raised various jurisdictional issues, which related to whether the claimant was dismissed and/or whether the statutory grievance procedures applied to any of the said claims and, if so, whether the said procedures had been complied with; but also, insofar as it was necessary to do so, whether any of the said claims were in time, in accordance with the relevant statutory provisions.

4.1 The Tribunal, in considering and determining the said jurisdictional issues, made the following findings of fact, as set out in the following sub-paragraphs.

4.2 The claimant presented her claim form, setting out her said claims to the Tribunal, on 30 September 2009, though she had signed and dated it on 13 September 2009. Her explanation for the delay in presenting the claim from the date of signature was that the claimant wished to post it by Recorded Delivery and to await her monthly salary to enable her to do so; albeit she accepted that the cost of posting the claim form in that matter was less than a few pounds, and also that she could have posted it by First Class post and/or hand delivered it to the Office of the Tribunals. The Tribunal noted, in this context, the claimant could also have e-mailed or faxed her claim to the Tribunal or used the online facility. The claimant lives in the Belfast area and continues to work in the Boucher Road, Belfast Complex, which is owned and operated by the first respondent and which is not far from the Tribunal building in the Gasworks Complex.

4.3 The claimant was employed from on or about 1 August 2005 as a trainee salesperson at the Dundonald Nissan Showroom of the first respondent. The first respondent is a well-known firm, who hold a number of franchises for selling cars of a number of leading manufacturers, including Nissan. Shortly thereafter, the claimant moved to the Nissan Showroom of the first respondent in the Boucher Road, Belfast Complex. By in or about June/July 2006, the claimant was the dedicated/specialist mobility adviser in that showroom.

By way of background, for the purposes of this decision, mobility sales are available for persons who are awarded the higher rate mobility component of the Disability & Living Allowance, which enables those persons to fund a vehicle, through the mobility charity, at what are very advantageous financial terms. The customer is required, subject to circumstances, to pay certain sums towards the price of the vehicle, which price is agreed between the mobility charity and the car manufacturer. The motor dealer earns, as determined by the manufacturer, a fixed amount on each mobility sale; and only small amounts of commission, if relevant on accessories and paint protection can be earned on a mobility sale. The manufacturer, depending on its pricing structure at any particular time, can increase/decrease the number of sales of particular vehicles through the mobility scheme. For a motor dealer, a mobility sale is a ‘volume sale’, depending on the availability of cars; but the number of mobility sales depended, as indicated above, to a great extent on the price. In particular, it depended on the deposit required to be paid by the customer, which varied, as determined by the manufacturer at any given time and its consequential attractiveness to the customer. During the period of the claimant’s employment, relevant and material to these proceedings, the Tribunal was satisfied the sales of the Nissan car, ‘Qashqai’ were extremely popular for mobility customers. However, the price and deposit structure imposed by Nissan fluctuated over the years and was out of the control a the motor dealer, such as the first respondent. By way of contrast, a ‘retail sale’ to a non-mobility customer allowed much greater scope to the motor dealer in relation to pricing and allowed the motor dealer to obtain greater profit from any such sale. It also allowed the sales representative, on such a retail sale, to obtain greater commission. Indeed, the claimant, by her own admission, at all material times, had obtained virtually no retail sales experience; albeit she was an experienced and successful mobility adviser and further at all times met her targets for such mobility sales.

In or about January 2007, the second respondent became the general manager/ dealer principal of the Nissan Showroom and, in effect, the claimant’s line manager.

4.4 It was not suggested by the respondents, in the course of this hearing, that there was any issue about the claimant’s performance in her job as the mobility adviser at the Nissan Showroom; but in a letter dated 8 September 2008 the claimant was informed by the second respondent that the first respondent was:-

“ … considering making the position of mobility specialist for Charles Hurst Boucher Road redundant. In the current trading environment it is necessary to look at cost savings. Regrettably this means that it is appropriate for you to be advised that the company considers it appropriate to enter into a redundancy consultation with you.

The announcement that is being made to you today necessarily marks the start of a formal redundancy consultation process.

During the time ahead the company would like to consult with you. The purpose of this consultation period is to discuss ways of avoiding redundancies or reducing the number of redundancies and mitigating against the consequences of the redundancies. As part of this, potential alternative positions with the company will be explored with you.

…

If, following consultation, the company is unable to provide alternative employment for an affected person, then unfortunately it is anticipated the position they hold is likely to become redundant. Assistance will be available with the preparation of a CV and reasonable time off will be given to attend interviews. Input would also be sought as to appropriate additional support to enable suitable alternative employment to be found.

… .”

4.5 There then followed a series of consultation meetings involving the claimant and the second respondent and others in the Human Resource Department of the first respondent, in which the claimant, in essence, put forward a number of counterproposals/objections in writing to the proposed redundancy of her post, including, inter alia, that others had joined the first respondent at a later date than her and/or her post should not be made redundant and that certain trainee sales executives, in particular, Nathan Kelly and Thomas Kielty, should be included in the pool for redundancy and that the criteria should be based on targets achieved/ performance rather than profitability for the first respondent, when comparing the profit obtained by the first respondent on retail sales in comparison to the profit obtained on mobility sales. It is not necessary for the Tribunal, for the purpose of this decision, to consider these counterproposals/objections in further detail – save to note that, when making these counterproposals/objections to making her post redundant, there was no complaint of unlawful discrimination, whether of age, sex or religious belief in relation to the making of the said post redundant, was made by the claimant during the course of this consultation process.

Ultimately, the claimant’s proposals/objections were rejected by the first respondent after the second respondent had agreed to wait, before taking a final decision, to see whether Nissan, as the manufacturer, would make any changes to pricing, which were due in or about October 2008, and to see if these changes made any difference to the decision to make the claimant’s post redundant. When the pricing changes were made in or about October 2008 by Nissan, the second respondent concluded that these made no difference and the claimant’s post of mobility specialist still required to be made redundant. During the course of the consultation exercise, the Tribunal is satisfied the claimant was told by the second respondent that, although there would no longer be a post of mobility specialist in the Nissan Showroom in the Boucher Road Complex, mobility sales would continue and would be cascaded across the retail sales staff, who were mobility accredited. Mobility accreditation was a necessary requirement for such a sale, but it only involved a short period of relevant training. However, the Tribunal is satisfied that, although it was made clear that mobility sales would be carried out by retail staff, who were appropriately accredited, the claimant was not given any specific details as to who, among the retail staff, would be given the task at any one time and/or how frequently and/or how such sales would be cascaded amongst the retail staff.

4.6 In accordance with the first respondent’s redundancy policy, the claimant was subsequently offered and accepted suitable alternative employment with the first respondent, when she was redeployed as a sales administrator in Business Solutions, which was another Division within the first respondent. She formally took up her post on or about 1 November 2008. At all material times, there was no breach in the continuity of the claimant’s employment and, as a consequence of the foregoing, she did not receive any redundancy payment from the first respondent.

It was a further term of the first respondent’s redundancy policy, as set out in Paragraph 19.9, that:-

“Should business subsequently improve, the company will give serious consideration to offering employment to those employees who left the company through enforced redundancy.”

Since the claimant, in the circumstances set out above, did not leave the company through enforced redundancy, the said term of the redundancy policy, in the judgment of the Tribunal, had no relevance to any of the claimant’s claims before the Tribunal.

4.7 The Tribunal accepted that, during her period of employment in the Boucher Road Belfast Complex Showroom in the Nissan, she had been required, on occasion, by the second respondent, to carry out various ‘errands’ such as delivery of vehicles to customers whereas other sales staff in the showroom had not. The reason why others were not and the precise circumstances in which such errands were required to be done did not require to be further considered by the Tribunal for the purposes of this decision. As indicated above, the requirement to carry out these errands arose when the claimant was employed in the Nissan Showroom at Boucher Road, which, as stated above, ceased from about 1 November 2008 when she was redeployed to Business Solutions.

4.8 The claimant, in a letter to the respondents’ representative dated 19 April 2010, in response to the respondents’ request for information, and which she also accepted in evidence, confirmed she became aware, by an e-mail on or about 7 November 2008, that one of the trainee sales executive, Nathan Kelly, who had not been made redundant, despite her counterproposals/objections, had been given some mobility sales to do at the Nissan Boucher Road Showroom.

4.9 Following her redeployment, the claimant, was anxious, if she could, to be able to return to the Nissan Showroom at the Boucher Road Complex from the Business Solutions Office, which was also contained within the Boucher Road Complex. In this context, she saw an advertisement for a service adviser at the Nissan Showroom. She became aware of this advertisement by means of an internal company e-mail on 8 April 2009 which was sent to her company internal e-mail address, which she had at all times; and, in particular, following her redeployment to Business Solutions. The claimant applied for this post of service adviser at the Nissan Showroom but was not shortlisted for interviewed. She was formally told by letter dated 25 May 2009 that she had not been shortlisted and therefore was unsuccessful for the post. There was an issue in these proceedings whether the claimant ever received this letter dated 25 May 2009; but she accepted, in evidence, that approximately three to four weeks from the closing date for the applications on 21 April 2009, she was so informed in a telephone call, which she herself had initiated. She shortly thereafter became aware that Mr Regan had obtained the said post.

4.10 There was a further internal vacancy advertised for trainee sales executives at the Boucher Road Complex – but the vacancies were not specific to any particular salesroom, eg the Nissan Showroom. The closing dates for the application was 1 May 2009. Although it was sent to all users by e-mail, which would have included the claimant who had a company internal e-mail at Business Solutions, as set out above, the claimant was at all times adamant that she did not see it. The Tribunal concluded that the claimant received this e-mail, having received the earlier service adviser position e-mail; but for some reason she did not see it/read it. The Tribunal was also satisfied the said vacancy would have been advertised in the company intranet, which the claimant admitted she had not checked. In any event, the claimant, in her letter dated 19 April 2010 to the respondents’ representative in reply to her request for additional information, accepted that she became aware on 12 June 2009 that Ms L Fells had obtained a trainee sales post at the Nissan Showroom following the above internal recruitment exercise, which had involved short listing/ interview; and shortly thereafter was aware from an invoice she tracked on the company computer, Ms Fells had also done a mobility sale. Subsequently, in or about August 2009, the claimant saw an advertisement for Charles Hurst Nissan which included also reference to the Nissan Mobility Scheme operating at the Nissan Boucher Road Showroom and that the contact names where Laurin, Brendan and Nathan. It also included a picture of the said persons. Laurin was Ms Fells and Nathan was Nathan Kelly, to whom earlier reference has been made above.

4.11 The claimant in her letter dated 19 June 2009, and in her evidence to the Tribunal, stated the 12^th of June 2009 was the first date she had, in her words, ‘hard evidence’ that she was being discriminated against on the grounds of age and/or religion. She was not specific or clear in relation to her claim of sex discrimination, in the letter, but the claimant did not strongly dispute in evidence to the Tribunal that, although not stated in the letter, the same applied to her claim of sex discrimination.

4.12 The claimant tried to contact the Citizens Advice Bureau in relation to her potential claims against the respondents, without any success in the week following 12 June 2009. She then contacted a former employer, who were a firm of solicitors in Belfast, who informed her that it did not deal with employment matters but gave her the name of another firm of solicitors on the Ormeau Road in Belfast. She tried to contact this form of solicitors by phone without success; but she never went back to check the information/telephone number she had been given was correct and took no further steps to obtain advice and assistance before bringing her claim to the Tribunal on 30 September 2009, as set out above. At some stage between 12 June 2009 and 30 September 2009, the claimant tried to check online whether she could obtain legal aid in order to bring proceedings; but without success.

4.13 At no time from her redeployment on 1 November 2008 to Business Solutions, until the claimant presented her claim to the Tribunal on 30 September 2009, did she write any letter of complaint to the respondents or either of them in relation to any of these matters. In particular, she did not write to the respondents, or either of them, making any complaint of unlawful discrimination on the grounds of religious belief and/or sex and/or age, which she alleged had arisen during the course of her employment. The first time that any such allegation of unlawful discrimination was made was when the claimant presented her claim to the Tribunal on 30 September 2010.

5.1 It was not disputed by the parties that, in order for the Tribunal to have jurisdiction to determine the claimant’s claim of unfair dismissal and/or breach of contract, under the Employment Rights (Northern Ireland) Order 1996 and/or the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, the claimant had to have been dismissed by the first respondent (ie her contract of employment had to have been terminated by the first respondent). The Tribunal is satisfied the claimant’s contract of employment was not terminated by the first respondent, when she was redeployed to Business Solutions (see further Paragraph 4.6 above). There was no breach in the continuity of her employment. The claimant was therefore not dismissed for the purposes of the said claims; and the Tribunal therefore does not have jurisdiction to consider and determine any such claim of unfair dismissal and/or breach of contract.

5.2 However, if the Tribunal is wrong and there was a dismissal by the first respondent following the said redundancy selection exercise, when the claimant was redeployed to Business Solutions, this occurred on or about 1 November 2008 when the claimant commenced work at Business Solutions.

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 a case where it is satisfied that it is not reasonably practicable for the complaint to be presented before the end of that period of three months.”

Since the claim was not presented until 30 September 2009 and the effective date of termination was on or about 1 November 2008, the claimant was therefore out of time and it was necessary for the claimant to seek an extension of time, pursuant to Article 145(2)(b) of the 1996 Order. To obtain such an extension of time, the claimant had to establish two matters:-

(i) it was not reasonably practicable for the claim form to have been presented in time; and, on this point, the onus is on the claimant and requires the claimant to show why the claim was not presented in time; and

(ii) if it was not that the claim was then presented within a further reasonable period.

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 made it clear the said words 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 claim to be presented to the Tribunal within the relevant three month time period.

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 cases of unlawful discrimination (see elsewhere in this decision). However, 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 it appropriate to do so.

Each case, of course, depends on its own particular facts.

It has long been held that it may not be reasonably practicable to present a claim in time where the claimant discovers some important act which transforms his existing belief that he/she had no cause of action into a belief that he/she does or may have a valid claim. Indeed this has frequently been relied upon by claimants in redundancy cases. Indeed, in the case of Machine Tool Industry Research Association v Simpson [1988] IRLR 212 the Court of Appeal held that an Employment Tribunal is entitled to find that it was not reasonably practicable for a complaint to have been presented timeously where during the period of the three month limitation there were crucial or important facts unknown, and reasonably unknown, to the claimant which then became known as facts to him such as to give him a belief, a genuine belief, that he had claim to be brought the Employment Tribunal. The Court of Appeal made it clear that the claimant must demonstrate three things, namely:-

(i) it was not reasonable to expect the claimant to have been aware of the factual basis upon which a claim could have been brought during the time-limit;

(ii) the applicant gained the knowledge thereafter reasonably and it was crucial, fundamental, or important to the change in the applicant’s belief that he now did have grounds for applying to a Tribunal;

(iii) the belief that there are grounds for an application must be reasonable and genuinely held.

The claimant submitted that she did not believe that she had a claim for unfair dismissal until she saw the advertisement showing Ms Fells, as one of the contract persons for mobility sales in the Nissan Boucher Road Showroom and that discovery of that fact transformed her earlier belief that she had no cause of action. The Tribunal could not accept this submissions. The claimant had known at the time of the consultation process for the redundancy that her post of specialist mobility sales was being made redundant and that mobility sales would continue to be carried out by the properly accredited retail sales staff, albeit she did not know who of these staff would actually be doing the work. However, within a very short period after she commenced work at Business Solutions, in or about November 2008 the claimant did know that Nathan Kelly, one of the persons she thought should have been made redundant was doing mobility sales. In the circumstances, the Tribunal considered that the claimant had known all the relevant facts within the three month time period to have allowed her to bring a claim for unfair dismissal. Further, in the Tribunal’s judgment, the discovery of the advertisement was not crucial or fundamental to change any previous belief, given what she had known from shortly after November 2008, and well within the three month time period. Indeed, the advertisement was merely further confirmation that members of retail sales were carrying out mobility sales. The Tribunal therefore did not consider the claimant had established that it was not reasonably practicable for the claim form to have been presented in time. Even if the Tribunal is wrong and the discovery of the advertisement in August 2009 was relevant and sufficient for the claimant to establish it was not reasonably practicable for the claim form to have been presented in time, as she submitted, the claimant still did not bring her claim within a reasonable time thereafter namely 30 September 2009. It was apparent that the claimant had signed the claim form on 13 September 2009, but did not present it until 30 September 2009. In the Tribunal’s judgment there was no good reason why she did not do so. Even if it was prudent for her to send the claim form by Recorded Delivery to the Office of the Tribunals, the Tribunal does not accept the cost of under £2.00 was sufficient reason for her to wait for her salary cheque to be paid by the first respondent. In any event, there were numerous other ways, such as First Class post, hand-delivery and/or e-mail/fax to enable the claimant to present the claim on 13 September 2009 or very shortly thereafter. To have not have presented the claim until 30 September 2009 was not a further reasonable period from the discovery of the advertisement in August 2009.

Thus, the Tribunal concluded, even if there was a dismissal, the claim of unfair dismissal was not brought in time and the Tribunal therefore did not have jurisdiction to determine it. Similar provisions relating to time apply to any claim of breach of contract, under the 1994 Extension Order. If it had been necessary to do so, the Tribunal would also have found the claim of breach of contract was out of time for the same reasons relating to the claim of unfair dismissal, as set out above.

5.3 The claimant, in the alternative, also brought claims of unlawful discrimination on the grounds of sex under the Sex Discrimination (Northern Ireland) Order 1976, on the grounds of religious belief under the Fair Employment and Treatment (Northern Ireland) Order 1998 and on the grounds of age under the Employment Equality (Age) Regulations (Northern Ireland) 2006. These are claims that are subject to the statutory grievance procedures contained in the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).

It was not disputed that, in relation to the claimant’s claims of religious discrimination and/or sex discrimination and/or age discrimination, pursuant to Articles 19 and/or 20 of the 2003 Order the claimant was required, if the Tribunal was to have jurisdiction to determine any such claim, to make a written grievance to her employer at least 28 days (the first respondent) before bringing the claim. Further, there was no dispute that the issue of compliance with the statutory grievance procedure by the first respondent had been properly raised by the respondents in the course of these proceedings in accordance with the relevant Rules of Procedure. In this context, it has to be noted the requirement for a written grievance was only relevant to a claim of unlawful discrimination against the first respondent but not the second respondent.

In Schedule 1 of the 2003 Order, it is provided that Step 1 of the statutory grievance procedure requires an employee to set out the grievance in writing and send a copy of it to the employer. There is no statutory definition of grievance; but it has been given a wide interpretation in various cases in the Employment Tribunal, which, in the absence of any relevant authority from the Court of Appeal in Northern Ireland, the Tribunal considered it was appropriate to follow. In particular, Elias J, as he then was, stated in the case of Canary Wharf v Edebi [2006] IRLR 416:-

“It seems to me that the objectives of the statute can be fairly met if the employer, on a fair reading of the statement, and having regard to the particular context in which it is made, can be expected to appreciate the relevant complaint has been raised. … The statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance, which is the subject of the Tribunal complaint, then the Tribunal cannot hear the claim. There is no overriding interest of justice, which can be involved to save it.

Therefore a failure comply with the said statutory grievance procedures can have a very harsh result for a claimant in which it does not allow a Tribunal to consider and determine the merits of any such claim against an employer. However, it has to be noted that the requirement for a grievance only is relevant to a claim against the employer and not any claim brought by a claimant by a fellow employee.”

Further, it has been held in a series of cases in the Employment Appeal Tribunal, that the statutory grievance procedures do not apply to an alleged discriminatory dismissal (see further Elias J in the case of Lawrence v HM Prison Service [2007] IRLR 468 – where it was held the issues relating to the discriminatory dismissal could be considered through the dismissal process).

5.4 The claimant never wrote to the first respondent, prior to presenting her claim to the Tribunal, setting out in writing any grievance that she was unlawfully discriminated against on the grounds of religious belief and/or sex and/or age. Her written counterproposals/ objections to the redundancy process properly raised issues about the pool and criteria, as set out previously, but even after reading this document in a non-technical and unsophisticated way, there was no suggestion, in the view of the Tribunal, that the claimant was at any time raising a grievance of unlawful discrimination on any ground pursuant to the said provisions. Further, following her redeployment, the claimant did not send any written communication to the first respondent about the matters relied upon her which occurred following her said redeployment and which are more specifically referred to in Paragraph 4 of this decision. In addition, she never raised in any way, either before or after her redeployment, the issue of the errands she was required to take, all of which occurred before her redeployment.

If the Tribunal had concluded there was a dismissal at the time of her redeployment following the redundancy exercise, then it would have been possible for the Tribunal to consider the claimant’s claim (subject to issues of time – see later) of an unlawful discriminatory dismissal in light of the decision in Lawrence, insofar as the claim of unlawful discrimination by the claimant related to the dismissal but not otherwise – as no written grievance was required for such a claim. Since the Tribunal concluded there was no dismissal in the circumstances, it was not necessary for the Tribunal to consider this issue further.

Not without some regret, given the harshness of the application of the statutory grievance procedures, as referred to above, which then applied to the claimant’s claim, the Tribunal concluded it had no jurisdiction to consider the claimant’s claim of unlawful discrimination on the grounds of religious belief and/or sex and/or age against the first respondent, as the claimant had not followed the statutory grievance procedures under the 2003 Order and 2004 Regulations.

5.5 Since the claimant was not required, in relation to her claim of unlawful discrimination against the second respondent, to send to him a statutory grievance, it was then necessary for the Tribunal to consider the issue whether the claimant’s claim of unlawful discrimination on grounds of religious belief and/or sex and/or age against the second respondent were in time.

Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’), sets out the relevant period within which claims for unlawful discrimination on grounds of religious belief must be brought:-

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

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

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

…

(5) A Court or a 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.

(6) For the purposes of this Article –

…

(b) an act extending over a period shall be treated as done at the end of that period.”

Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’) provides that the relevant period within which claims for unlawful discrimination on the grounds of sex must be brought:-

“(1) An Industrial Tribunal shall not consider a complaint under Article 63 unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done.

…

(5) A Court or 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.

(6) For the purposes of this Article –

…

(b) an act extending over a period shall be treated as done at the end of that period.”

Regulation 48 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘the 2006 Regulations’) sets out the relevant period within which claims for unlawful discrimination on the grounds of age must be brought. This is in similar terms to the provisions referred to above in Article 76 of the 1976 Order.

As seen above, there is a difference between the 1998 Order and the 1976 Order and/or the 2006 Regulations in relation to the terms relating to the relevant time period. As seen above, Article 46 of the 1998 Order, in contrast to the wording of Article 76 of the 1976 Order and/or Article 48 of the 2006 Regulations, provides, in particular, that the claim must be brought before the end of the period of three months beginning with the day on which the claimant first had knowledge or might reasonably be expected to have had knowledge of the act complained of. In the Fair Employment Tribunal case of Duffy v Belfast City Council [No 1] [1994], Unreported, it was held that a complainant’s knowledge of the act complained of, within the meaning of Article 46(1)(a) (or Section 24(2)(a) of the Fair Employment Tribunal (Northern Ireland) Act 1976, as it then was) meant knowledge of the act and not its nature, quality or legal significance. Following the decision of the Employment Appeal Tribunal in Clarke v Hampshire Electro Plating Company [1991] IRLR 490, albeit a sex discrimination case, it held that, in determining when the act complained of was done for the purposes of Article 46(1) (Section 24(2) of the 1976 Act) the question was whether the cause of action had crystallised and not whether the claimant felt he had suffered discrimination.

In a decision of the Fair Employment Tribunal in the case of Hickey v Laggan t/a The Fly Bar [1995] Unreported, the Tribunal held:-

“(i) The excuse that it did not occur to someone to complain cannot override a time-limit unless some new facts are discovered or a new interpretation of law revealed.

(ii) The simple fact that no undue prejudice is caused to the respondent does not mean that it is just and equitable to ignore the time-limit.

(iii) The reason there is a time-limit is to make the public realise that prompt attention must be given to any situation in which they feel they have been treated unfairly. The time-limit recognises the cases which may involve discrimination may well go undetected and unpunished, but that is the price to be paid for a system which requires the complaints to be made promptly. Although there will be exceptional cases where it will be just and equitable to extend time, respondents cannot be placed in a situation where they never know when the time for a complaint is past.”

In a decision of the Court of Appeal, in the case of Johnston & Others v Chief Constable of the Royal Ulster Constabulary [1998] NI 188, a claim of sex discrimination, Carswell LCJ, as he then was, expressly approved the decision in Hickey. In Johnston, the court held that the only reason the claimant failed to act within the prescribed time-limit was because they failed to appreciate that the law might afford them a remedy and the claimants had not shown they were handicapped in any way in ascertaining the proper position and the decision to allow an extension of time had to be set aside.

In Robertson v Bexley Community Centre [2003] IRLR 434 the Court of Appeal confirmed that 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 anything that it considers relevant; but also makes clear time-limits are exercised strictly in employment cases. It was also held that when Tribunals consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion; on the contrary, a Tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather the rule (see further DCA v Jones [2008] IRLR 128 and Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327).

In the case of London Borough of Suffolk v Afolabi [2003] IRLR 220, the Court of Appeal confirmed that when considering whether it is just and equitable to extend time, a Tribunal is not required to go through each of the matters relevant to the limitation legislation, provided no significant factor has been left out of account by the Tribunal in exercising its discretion.

5.6 The claimant submitted that, given the errands issue arose prior to her redeployment in November 2008 and the redundancy exercise itself, which resulted in that redeployment occurred in November 2008, that she should be able to rely on all these matters together with those that occurred subsequently to November 2008, as referred to previously in Paragraph 4, as claims of unlawful discrimination against the second respondent and were not time-barred, because they were all part of an act of continuing discrimination throughout the period by the second respondent.

The leading authority in relation to the issue of continuing discrimination is contained in the Court of Appeal decision in the case of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96. It held that, in determining whether there was ‘an act extending over a period’, as distinct from a succession of unconnected or isolated specific acts, for which time will begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples when an act extends over a period. They should be not treated as a complete and constricting statement of Indicia of ‘an act extending over a period’. It was further held the burden was on the claimant to prove, either by direct evidence or evidence of primary facts that the numerous alleged incidents of discrimination were linked to one another and that they were evidence of a discriminatory state of affairs. In Sougrin v Haringey Health Authority [1992] IRLR 416, the Court of Appeal held that a degrading decision is a one-off act with continuing consequences rather than a continuing act of discrimination. The Tribunal was satisfied that making the claimant’s post redundant was a one-off act with continuing consequences and there was no continuing discrimination in this matter. The claimant’s post of dedicated/specialist mobility adviser was made redundant with the consequence that she was redeployed to Business Solutions on or about 1 November 2008. This was a one-off act, albeit it clearly had consequences, including the future use of retail sales staff to carry out mobility sales. Indeed, the claimant was told, during the course of the consultation in relation to the said redundancy exercise, that given the post of dedicated/specialist mobility adviser was being made redundant that mobility sales would be carried out by the retail sales staff, properly accredited; albeit she was not informed at that time who exactly would be doing that work. However, clearly mobility sales were going to continue at some level and would require somebody to do the work, in addition to retail sales, in circumstances where the dedicated/specialist mobility adviser’s post had been made redundant. It was therefore inevitable that in the ensuing period various members of the retail staff would be seen to do mobility sales and that there would be changes of personnel in the retail sales. As stated previously, the claimant had no entitlement, given that she had been redeployed, her contract had not been terminated, to be considered for any future vacancies in the Nissan Boucher Road Showroom. So the fact that Mr Nathan Kelly did mobility sales and/or there was a subsequent recruitment exercise for trainee sales executive, which Ms Laurin Fells obtained, and subsequently Ms Fells was seen, along with others, in an advertisement to be one of the contact persons for mobility sales, was a consequence of making the redundancy of the dedicated/specialist mobility adviser post and was not sufficient to show continuing discrimination. Further, the Tribunal was satisfied the issue of the errands and/or the recruitment of the service adviser were in no way linked with the above matters and/or showed a discriminatory state of affairs.

5.7 Subject to the foregoing, having determined there was no continuous discrimination and the statutory grievance procedures did not apply to the claims of unlawful discrimination against the second respondent, the Tribunal had to consider whether any of the said claims were in time.

5.8 In relation to the claimant’s claim against the second respondent on grounds of sex in relation to the errands issue, all these occurred before the claimant’s redeployment on 1 November 2008 to Business Solutions. The claimant made no attempt to bring any such claim until she presented her claim to the Tribunal on 30 September 2009. She was aware of all the facts by 1 November 2008 but made no complaint of discrimination prior to the presentation of her complaint in relation to these matters. In the circumstances, the Tribunal could see no grounds for extending the time for making such a complaint on just and equitable grounds in relation to this matter.

5.9 In relation to the claimant’s claim of unlawful discrimination on the grounds of religious belief and/or age and/or sex in relation to her selection for redundancy of her post of dedicated/specialist mobility adviser and her consequential redeployment to Business Solutions, the Tribunal was satisfied that the claimant had all the relevant facts relating to any such claim on or before 1 November 2008 and certainly within one month of her redeployment to Business Solutions, when she became aware that Nathan Kelly had taken on some of the mobility sales. At all times, as set out previously, the claimant was aware that following the redundancy of her post that mobility sales were going to continue and would be carried by out by member of the retail sales staff. The claimant knew all of this when she was redeployed on 1 November 2008 but she certainly knew that this was occurring when she became aware that Nathan Kelly, one of her comparators, was carrying out such sales. There was therefore nothing to prevent her at that time making any claim of unlawful discrimination on the above grounds against the second respondent, but yet she did not do so until 30 September 2009. It was inevitable, as a consequence of the decision to make the claimant’s post redundant to place her former work to retail staff that various members of staff would subsequently be required to do that work. Indeed, as indicated above, she knew that that had occurred within one month of her redeployment when Nathan Kelly took on mobility sales work. The fact that in or about 12 June 2009 the claimant was aware of Ms Fells doing mobility sales and/or in August 2009 the claimant became aware of the advertisement which said that a number of persons from the retail sales were taking on that work was not relevant, since she knew any act of unlawful discrimination, in the absence of continuous discrimination, (see before), had occurred in or about November/December 2008, at the very latest. These claims relating to such matters were therefore out of time and were not brought within the relevant three month period. Even if the Tribunal accepted, which it does not as set out above, the claimant’s reply, in her letter of 19 April 2010, that she only had ‘hard evidence’ to make such a claim, on or about 12 June 2009, and time only began to run at that time, the claimant did not bring the claim until 30 September 2009, which is outside the three month period. Further, although she made initial enquiries with Citizens Advice Bureau without success and subsequently a firm of solicitors, when she was unable to make the contact with the solicitors, she did not take any further steps to follow this up during June/July 2009 or indeed in August 2009, following her sight of the said advertisement. As set out previously, even though she signed the claim form on 13 September 2009, the claimant still took until 30 September 2009 to have it presented to the Tribunal; and for which delay the Tribunal could see no good reason. In the circumstances, and in light of the legal authorities referred to above, the Tribunal could see no grounds to extend the time on just and equitable grounds to enable the Tribunal to consider and determine the said claims of unlawful discrimination.

5.10 In relation to the claimant’s claim of unlawful discrimination in respect of the fact that the claimant had not been shortlisted for the position of service adviser, which was advertised on 8 April 2009, again, this claim was clearly out of time as the claimant knew as a result of her telephone call, which she had initiated, within about three weeks of the closing date for the said application that she had not been successful and, in particular, she had not been shortlisted for interview. The fact that the formal letter in May 2009 so informing her appears not to have been received by the claimant was not relevant to this issue of time, as she knew she had not been successful in or about May 2009. Again, given that the claim was out of time, it was necessary for the Tribunal to consider whether time should be extended on just and equitable grounds. For similar reasons to those set out in the previous sub-paragraph, the Tribunal could see no reason for doing so.

5.11 Although the Tribunal concluded that the claimant would have been sent to her company e-mail the notification of the internal vacancy in May 2009, which resulted in the appointment of Ms Fells, the Tribunal accepts that the claimant did not know either of the recruitment process and/or Ms Fells’ appointment, following that process, until or about 12 June 2009. In relation to any claim of religious discrimination and/or age and/or sex arising out of these failures, the claimant, was fully aware of all the relevant and necessary facts in order to bring a claim on or about 12 June 2009, as set out in her reply dated 19 April 2010. In failing to bring the claim until 30 September 2009, it was out of time. If the sight of the advertisement was of any relevance to any exercise of the discretion to extend time, which the Tribunal does not accept, the claimant, in any event, did not act until 30 September 2009. Despite her initial contact with Citizens Advice Bureau, without success, she did not follow up her enquiries from the firm of solicitors. Indeed, it is known that the claimant signed the claim form on 13 June 2009 but yet continued to delay, for the reasons which the Tribunal does not accept, until 30 September 2009, when she eventually presented the claim to the Tribunal. As seen in the Fly Bar case, approved by the Court of Appeal in Johnston, the fact that there was no prejudice to the second respondent is not relevant. As the legal authorities have made clear, see in particular Robertson, the exercise of discretion is the exception rather than the rule; and the Tribunal could see no justification for the failure of the claimant, in the circumstances, to ensure the claim was made to the Tribunal in time. The claim was out of time and, in the circumstances, the Tribunal could see no grounds for extending the time on just and equitable grounds.

5.12 If the Tribunal had concluded there was a dismissal and therefore the claimant was not required to make a statutory grievance in relation to any claim of discriminatory dismissal against the first respondent (see Lawrence), the Tribunal would have had to determine whether any such claim was in time. For similar reasons to those set out above in relation to the claims against the second respondent in relation to the redundancy exercise which led to the dismissal, the Tribunal would have found any such claim of discriminatory dismissal, which would have occurred in November 2008, was out of time and it was not just and equitable to extend time.

6. In light of the foregoing, the Tribunal had no jurisdiction to determine and consider the claimant’s claim against the first respondent of unfair dismissal, and/or breach of contract as there had not been a dismissal for the purposes of the 1996 Order and/or 1994 Order. The Tribunal further did not have jurisdiction to consider and determine the claimant’s claims against the first respondent of unlawful discrimination on the grounds of religious belief and/or sex and/or age, as the claimant had not made a statutory grievance, in accordance with the 2003 Order and/or 2004 Regulations. Further, the Tribunal did not have jurisdiction to consider the claimant’s claims of unlawful discrimination on the grounds of religious belief and/or sex and/or age against the second respondent as the said claims were out of time and the Tribunal was not prepared, in the exercise of its discretion, to extend time in relation to the said claims on just and equitable grounds. Therefore, the Tribunal does not have jurisdiction to consider and determine the said claims against either the first and/or second respondent, and each of the said claims must be dismissed.

Chairman:

Date and place of hearing: 4 -5 October 2010;

7 – 8 October 2010;

11 – 13 October 2010, Belfast

Date decision recorded in register and issued to parties: