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Cite as: [2013] NIFET 26_13FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 26/13 FET

CLAIMANT: James Baird

RESPONDENTS: 1. Department of Agriculture & Rural Development

2. James O’Boyle

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s claim was presented outside the requisite time limit, the tribunal declines to extend time and the claimant’s claim is therefore dismissed.

Constitution of Tribunal:

Chairman (Sitting alone): Mrs Ó Murray

Appearances:

The claimant was represented by Mr P Ferrity, Barrister-at-Law, instructed by Gus Campbell Solicitor.

The respondents were represented by Ms N Murnaghan, instructed by the Departmental Solicitor’s Office.

1. It was agreed by the claimant’s side that the claim had been lodged outside the requisite time limit. The issue therefore before the tribunal was whether time should be extended on just and equitable grounds.

2. The claim form was presented on 4 February 2013 alleging discrimination on grounds of religion and/or political opinion.

3. In essence, the claimant’s claim was that a Roman Catholic colleague (JL) was proactively assisted by being fast-tracked through a Level 3 qualification process in May 2010 to enable him to have the necessary qualifications for a Group 2 post which later became available. The claimant’s case was that he was not afforded any such favourable treatment and this led to his failure to be deemed eligible for a different Group 2 post which became available in April/May2011.

4. The tribunal heard evidence from the claimant and had regard to the documents to which it was referred.

The Law

5. The claim for discrimination falls under the Fair Employment and Treatment (NI) Order 1998 (as amended) (“FETO”). The time limit for presenting such a claim is three months from the date the claimant knew, or ought to have known, of the act complained of, or within six months beginning with the day the act was done, whichever is the earlier. (Article 46).

6. The Employment Appeal Tribunal, in the case of British Coal Corporation v Keeble 1997 IRLR 636, held that the discretion to grant an extension of time on just and equitable grounds is as wide as that given to the civil courts by the Limitation Act 1980. The equivalent legislation in the jurisdiction is the Limitation (Northern Ireland) Order 1989. At article 50(4) of that Order are outlined the matters which can be considered and these include: the extent of the delay; the reasons for the delay; whether advice was sought and whether action was taken as a result; the effect of the delay on the cogency of the evidence; the prejudice to either party. This is a non-exhaustive list of factors.

7. The Court of Appeal in the case of Robertson v Bexley Community Centre 2003 IRLR 434 stated as follows in relation to the issue of extension of the time limit.

“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 that they should do so unless they can justify the failure to exercise the discretion. On the contrary the tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule.”

8. Harvey Division P1 Practice and Procedure from paragraph 277 deals with extension on just and equitable grounds. Following the Robertson decision, the Court of Appeal confirmed the scope of the discretion of the tribunal as follows:

“There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised.

…

Whether a claimant succeeds in persuading a tribunal to grant an extension in any particular case is not a question of either policy or law; it is a question of fact and judgement to be answered case by case by the tribunal at first instance which is empowered to answer it”. (Para 277 Harvey)

9. Mr Ferrity drew particular attention to the case of Afolabi [2003] IRLR 220 (Court of Appeal). In that case an extension of time of nine years was granted because the evidence which led to the race discrimination claim was not discovered by the claimant for that period. This case illustrates the fact that the mere elapse of a lengthy period is not a bar to the extension of time.

Conclusions

10. There was some debate about the date of the act of discrimination. The date that the claimant relied on for the date of the act of discrimination is 28 May 2010 which is the approximate date when JL was advised to apply for the course. The post JL applied for was a different post and competition to that in issue in the claimant’s claim. The claimant also referred to the fact that JL had been advised by an employee of the respondent ten years earlier (2000) that obtaining his qualification would help him get a Group 2 post, although this was before the claimant was employed by the respondent.

11. In submissions Mr Ferrity suggested that the date of the act could be in May 2011 when the claimant was rejected for the Group 2 post without being told of the possibility of fast-tracking. Ms Murnaghan submitted that the date of the act was in 2000 when JL was told that he should acquire the Level 3 qualification. On the clear evidence given by the claimant, I find that the date of the act of discrimination relied upon is 28 May 2010 when JL applied for the training which was fast-tracked.

12. Proceedings (which were entirely separate from the claimant’s proceedings) were launched by JL against the respondent. As part of those proceedings a statement was provided by a manager of the respondent named Mr OB. JL’s case was settled on confidential terms in December 2011.

13. The claimant was unsuccessful in his application for a Group 2 post in May 2011. A consequence of this was that the post he already held was terminated on 28 October 2011. The claimant sued for unfair dismissal and for a period the dispute centred on whether he was an employee in that post. Following an admission from the respondent that the claimant was an employee, it was agreed that there was automatic unfair dismissal for failure to follow the statutory dismissal procedures. The hearing which ran on 21 September 2012 was therefore on remedy. Mr OB gave evidence in that hearing on the practicability of reinstatement or re-engagement. Compensation was awarded as the claimant’s application for reinstatement or re-engagement was rejected. That decision was issued to the parties on 9 November 2012.

14. On 15 November 2012 JL contacted the claimant to provide documentation from his case following JL’s request for advice on “taking the matter further politically”. It was Mr Baird’s case that JL contacted him as Mr Baird was a political representative. It was when Mr Baird saw the statement of Mr OB from JL’s case on 15 November 2012, that he strongly believed that he had been treated less favourably on grounds of his religion or political belief. The reason that Mr Baird held this strong belief was because it seemed clear to him that JL had been
fast-tracked for promotion when the claimant had not been told of that possibility, even though the claimant was working for the respondent at that time in May 2010.

15. The claimant contacted his solicitor that same evening (15 November 2012) and did so again the following week. An application for a review of the tribunal decision was then made by the claimant’s solicitor by email of 23 November 2012.

16. Essentially the application for review was on the basis that the evidence of Mr OB on the practicability of reinstatement or re-engagement should be rejected on credibility grounds because the information which had just come to light showed that Mr OB had given evidence in the claimant’s case (on another issue) which was at odds with Mr OB’s statement in JL’s case.

17. The review was rejected by letter of 6 February 2013 as the new evidence produced had no relevance or impact on the findings of fact or conclusions in relation to the practicability of reinstatement or re-engagement .

18. The unfair dismissal decision dealt with the re-engagement issue which turned on whether or not the claimant had the necessary Level 3 qualification for a Group 2 post. The tribunal’s decision on review was as follows:

“In relation to re-engagement the factual basis of the tribunal’s conclusion as set out at paragraph 40 of the decision was that the claimant did not at the date of the hearing hold the qualifications required for the new post of Land Based Instructor Inspector Group 2. [Mr OB’s] evidence on this point in the [JL] case is entirely consistent with this evidence in this case that is that the qualification required for this post was a Level 3 qualification in a land based subject. The claimant’s case to this tribunal was that his Level 3 qualification in Health and Safety met this requirement. The tribunal rejected this contention. The chairman does not believe that [Mr OB’s] evidence relating to the case of [JL] casts any doubt on the relevant findings of fact made by the tribunal in this case nor the tribunal’s conclusions in this case.”

19. Mr Baird’s evidence was that if had known at the time of his unfair dismissal claim, about this apparent inconsistency in the evidence of Mr OB, he would have added a FETO discrimination claim to his unfair dismissal claim. As it was, he used the new information to seek to have a review of the decision to award compensation for unfair dismissal. His ultimate aim in that review was to be re-engaged or reinstated.

20. The respondent in the hearing before me, attacked Mr Baird’s credibility essentially arguing that it was implausible for the claimant to state that he knew nothing about JL’s claim before JL presented papers to him on 15 November 2012. Ms Murnaghan pointed to the fact that the same solicitor and counsel acted for both the claimant and JL in their separate proceedings as evidence suggesting that both men were working in concert. Mr Baird emphatically defined that he had any prior knowledge of JL’s case. For the avoidance of doubt there was no suggestion by the respondent that there was anything untoward in the conduct of the solicitor and barrister involved in both cases.

21. I found Mr Baird to be an entirely truthful and candid witness who gave clear evidence of his shock at discovering what he believed to be evidence of discrimination by the respondent in its allegedly different actions towards the claimant and JL in relation to fast-tracked training. The claimant and JL are of different religions and the claimant believed that the less favourable treatment he believed he had suffered, was therefore on grounds of his religion or political opinion. Such was Mr Baird’s concern that he rang his solicitor that very day and it was decided that the review of the tribunal decision on remedy in his unfair dismissal claim should be lodged. Mr Baird was clear in his evidence to me that he knew at the relevant time what the time limit was for discrimination claims.

22. I accept Mr Baird’s evidence that the first time he saw Mr OB’s statement from JL’s case, was on 15 November 2012. I reject the Ms Murnaghan’s suggestion that Mr Baird somehow colluded with JL. I accept that the claimant did not know the details of the terms of the agreement between JL and the respondent and had no knowledge of Mr OB’s evidence in JL’s case before 15 November 2012.

23. The difficulty for the claimant in this application is that the only connection between the proceedings which were under possible review and the new evidence was in relation to the general credibility of Mr OB. There was nothing to stop the claimant launching proceedings immediately he became aware of the information which led him to believe he had been a victim of discrimination. Mr Baird was clear in his evidence that the reason he waited to lodge proceedings was that he was awaiting the outcome of the review application. However the best possible outcome from the review application was an Order that there would be a hearing on the issue of reinstatement or re-engagement. Even a successful review would not have dealt with the discrimination claim. At no stage was there a request for an amendment to proceedings to include a FETO claim nor could any review hearing have dealt with any FETO claim as it did not form part of the proceedings which had been determined.

24. I have assessed this matter using the factors outlined in the Keeble case. The claimant has given a reason for the delay in his knowledge of a possible claim and once the claimant became aware of the possibility of claiming on 15 November he took prompt steps to obtain legal advice. However the claimant did not act promptly in issuing proceedings as he waited for almost three months before presenting his claim form. The reason given, namely waiting for the outcome of the review of the unfair dismissal claim, is not a sufficiently strong reason in all the circumstances, to persuade me to exercise my discretion to extend time. It was clear in the hearing before me that, if the claimant had been reinstated or re-engaged, he would not have pursued a claim for the alleged discrimination. I therefore accept Ms Murnaghan’s submission that this application appears to be an attempt to get around what the claimant regards as the unfavourable result on remedy in his unfair dismissal claim.

25. In addition I find that the period between the alleged date of the act of discrimination (May 2010) and the presentation of the claimant form (February 2013) has meant that the delay would have some (albeit limited) adverse effect on the cogency of the evidence. Mr Ferrity submitted that I would require specific evidence to that effect. In a case where there is a two-and-a-half year gap between the alleged act of discrimination and the presentation of the claimant, I find that it is open to me to find that the cogency of the evidence would be adversely affected to some degree especially as the claimant seemed to want to refer also to alleged acts in 2000 in support of his claim.

26. Mr Ferrity’s submissions were firstly, that the task I have to perform is to see whether there is any good reason not to extend time, and secondly, that it is for the respondent to demonstrate some prejudice if the claimant were to proceed. I reject these submissions as to accept them would mean a reversal of the burden of proof which is firmly on the claimant to persuade me to extend time.

27. Mr Baird clearly felt very strongly that there was evidence of discrimination against him when he saw the statement of Mr OB on 15 November 2012. He has given insufficiently strong reasons in all the circumstances for the delay in the lodgement of proceedings for a further three months.

28. The connection which the claimant sought to make between his unfair dismissal proceedings which had been determined and the discrimination claim is tangential at best. The claimant clearly felt very strongly that there was a claim of discrimination and in these circumstances (particularly as quite a period of time had elapsed from the date of the act complained of) I would have expected him to move more promptly to assert his rights, and to protect his position, by lodging a discrimination claim as the outcome of the review could never have dealt with the alleged discrimination.

29. The burden is on the claimant to persuade me to extend time on just and equitable grounds and in all the circumstances he has not persuaded me to do so.

30. The claimant’s claims are therefore dismissed.

Chairman:

Date and place of hearing: 21 June 2013, Belfast.

Date decision record ed in register and issued to parties: