Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Yankov v Board of Governors of St Malac... North Eastern Education and Li... Board of Governors of St Malac... [2014] NIFET 00102_13FET (24 September 2014)
URL: http://www.bailii.org/nie/cases/NIFET/2014/102_13FET.html
Cite as: [2014] NIFET 102_13FET, [2014] NIFET 00102_13FET
[New search] [Printable RTF version] [Help]
FAIR EMPLOYMENT TRIBUNAL
CASE REF: 102/13 FET
1739/13
CLAIMANT: Mr Diyan Yankov
RESPONDENTS: 1. Board of Governors of St Malachy’s Primary School Coleraine
2. North Eastern Education and Library Board
DECISION
The decision of the Tribunal is that the claimant’s claims of unfair dismissal and discrimination on grounds of race and religious belief are dismissed for want of jurisdiction as the claims were presented outside the relevant time limits
Constitution of Tribunal:
Employment Judge: Mrs Ó Murray
Members: Mr A Burnside
Mrs T Madden
Appearances:
The claimant represented himself.
The respondents were represented by Mr M McEvoy, Barrister-at-Law instructed by the Education and Library Boards Solicitors.
The Claim
1. The claimant claimed unfair dismissal in relation to the termination of his temporary contract on 21 June 2013. The claimant also claimed discrimination on grounds of race and religious belief in relation to his non-appointment to a permanent post on 22 May 2013.
Sources of Evidence
2. The Tribunal heard the claimant’s evidence in-chief and heard the cross-examination on the time point. The Tribunal had regard to the submissions of the parties in relation to the time point and had regard to the documentation to which it was referred.
The Law
3. The time limit for presenting the race discrimination claim is three months from the date the act complained of was done. Where a claim is presented outside that time-limit a tribunal may consider it if, in all the circumstances of the case, it considers it just and equitable to do. The claim of discrimination on grounds of religion 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).
4. 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 and the effect of the delay on the cogency of the evidence.
5. 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 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.”
6. 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).
7. Under the Employment Rights (Northern Ireland) Order 1996 (ERO) the claimant has the right not to be unfairly dismissed (Article 126). In relation to time limits for such a claim the ERO provides at Article 145(2) that the claim must be presented:
“(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 was not reasonably practicable for the complaint to be presented before the end of that period of three months.”
Findings of Fact and Conclusions
8. The following decision was delivered orally at the hearing.
9. We have heard all of the claimant’s evidence in relation to his claim and we have heard the cross examination on the time point only as, in line with the overriding objective we have decided to deal with the jurisdiction point on time limits first.
10. We find the following facts relevant to the jurisdiction point.
11. The claimant was employed from 3 January 2012 to 21 June 2013 on a temporary contract which was terminated with notice. The 21 June 2013 was the date of expiry of the notice period. The effective date of termination (EDT) in relation to the unfair dismissal claim is therefore 21 June 2013. The respondent agrees with this date.
12. The claimant therefore had until 21 September 2013 to present his unfair discrimination claim to the tribunal. The claim was presented to the tribunal on 27 September 2013 and was therefore six days late.
13. The claimant has told us that his reasons for not lodging the claim within the time limit were because he was awaiting the appeal outcome, he was not sure what to do and because he was not familiar with Northern Ireland law. The appeal outcome letter was dated 1 July 2013 and it is our finding that the claimant would have received that within a day or two of that date.
14. We are not persuaded that the reasons given by the claimant show that it was not reasonably practicable for him to present his unfair dismissal claim within the time limit. We therefore decline to extend time and consequently we have no jurisdiction to entertain the claim. The unfair dismissal claim is therefore dismissed.
15. We turn now to the discrimination claims. The claimant’s claim is that he was discriminated against on two grounds, firstly, because of his race in that he is Bulgarian and the successful candidate was from Northern Ireland, and, secondly, on grounds of his religious belief in that he is Orthodox Christian.
16. The act of discrimination was his non-appointment to the permanent post. The claimant was told on 22 May 2013 that he had not been appointed to the post. The relevant date is therefore 22 May 2013 and the three month time limit runs from that date.
17. The claimant had until 22 August 2013 to present his claim. The claim form was presented on 27 September 2013 and was therefore approximately seven weeks late.
18. It is for the claimant to persuade us to extend the time limit on just and equitable grounds.
19. The claimant’s reasons for being late relate principally to the following:
(1) That he was awaiting the outcome of the appeal. That appeal decision was in the letter of 1 July 2013 which we find the claimant received within a day or two of that date.
(2) That his solicitor was trying to get information and documentation from the respondent.
(3) That he was not sure what to do.
(4) That he was told by his second solicitor that he had until the end of September to lodge his claim.
20. Using the guidance in relation to these matters as set out in previous case law we find the following matters relevant in this case.
(1) The claimant took advice from his first solicitor in June 2013 (see letter of 13 June 2013) and it is clear that he was contemplating tribunal proceedings on grounds of race and religion at that stage.
(2) Correspondence from the second solicitor from July 2013 shows that tribunal proceedings were in mind from that stage and the correspondence indicates the type of proceedings to include discrimination on grounds of race and religion.
(3) The claimant told us that the second solicitor spoke to him mid-September 2013 about lodging a claim and the fees implications of that and the claimant decided he could no longer afford to retain his solicitor.
(4) We do not accept the claimant’s evidence that the solicitor said to him that the end of September was the deadline for his claim form as our assessment of the solicitor’s correspondence together with the solicitor’s conversation mid-September with the claimant, indicates to us that there was awareness that mid-September was important in relation to lodging a claim.
(5) The claimant accepted that he waited for a further six to seven days following his conversation with the solicitor in mid-September, before presenting his claim form to the tribunal.
(6) The claimant said that he sought advice from another source that is the Equality Commission during that six or seven day period and was again told of the three month time limit.
(7) The claimant accepted that he found the tribunal claim form online but, rather than completing it online, he filled it in on 24 September 2013 and posted it second class post so that it arrived with the tribunal office on 27 September 2013.
21. It was for the claimant to attend carefully to the time limits and to ensure that he acted promptly throughout the relevant period.
22. The case law is clear that time limits are there to be adhered to and the burden is on the claimant to persuade the tribunal to extend time.
23. We are not persuaded that it is just and equitable to extend time in the circumstances of this case.
24. There is no issue of the cogency of the evidence being adversely affected by any delay in this case. The issues rather relate to firstly the reasons the claimant has given for the delay in this case, secondly the extent of advice sought by him and thirdly whether he acted promptly to protect his position.
25. The claimant has given us no good reason for the delay and no good reason for not acting promptly to protect his position, armed as he was with advice from two solicitors and the Equality Commission.
26. In relation to whether the respondent cooperated with requests for information, we regard their caution about releasing documents to the claimant’s solicitor as reasonable, given that no proceedings had actually been lodged with the tribunal at that stage.
27. We therefore decline to extend time and the claimant’s claims for discrimination are dismissed.
Employment Judge:
Date and place of hearing: 30 June 2014, Belfast.
Date decision recorded in register and issued to parties: