Fair Employment Tribunal Northern Ireland Decisions

THE FAIR EMPLOYMENT TRIBUNAL

 

CASE REF:   68/14FET

1513/14

 

 

 

CLAIMANT:            Patrick Carvill       

 

 

RESPONDENT:      Department of Culture, Arts & Leisure

                                       

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision is as follows:-

 

(1)      The claimant’s claims of unlawful sex discrimination and unlawful discrimination on grounds of political opinion were lodged out of time and it would not be just and equitable to extend the time limit in either claim.  Accordingly, the claims are dismissed.

 

(2)      In light of the decision made at (1) above, it is not necessary to consider the claimant’s application to amend his claim of discrimination on grounds of political opinion, and this application is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge McCaffrey

 

 

Appearances:

 

The claimant appeared in person and represented himself.

 

The respondent was represented by Mr Phillip McAteer, Barrister-at-Law, instructed by the Departmental Solicitors Office.

 

ISSUES

 

1.       This pre-hearing review was convened to deal with the following issues:-

 

          (1)      whether the claimant’s claim of sex discrimination and political opinion discrimination had been presented within the statutory time limit;

 

          (2)      if not, whether it would be just and equitable to extend the statutory time limit; and

 

          (3)      whether the claimant’s claim of political opinion discrimination should be amended to include a claim that the claimant was adversely affected (directly and/or indirectly) by the inclusion in the essential criteria for a post of a requirement for a personal commitment to certain principles “such that it is evidenced by personal contribution or advocacy in these fields”. 

 

FACTUAL BACKGROUND AND SUBMISSIONS

 

2.       The factual background in relation to this matter was not disputed and so I set out below a timeline of the events which occurred, followed by the submissions made by the parties. 

 

3.       The claimant had been a Board Member of Libraries NI on which he had served since April 2009.  He had served a full term of office and a temporary extension pending a competition for new Board Members.  He entered the competition for new Board Members run by the respondent and was advised in February 2014 that the Minister had decided not to reappoint him.  The timeline of events was as follows:-

 

6 February 2014         Ministerial decision made regarding appointments

24 February 2014       Letter to the claimant to advise of his non-appointment

12 March 2014           Public announcement of successful candidates

17 April 2014              Written Freedom of Information request sent by the claimant to the respondent

20 May 2014              Reply from the respondent to the claimant (received while he was on holiday)

23 July 2014               Claimant sought advice from the Equality Commission

27 July 2014               The claimant’s ET1 form was lodged

28 July 2014               The claimant’s ET1 form received at the Office of the Tribunals

 

4.       The claimant’s contention was that he had not been aware that there was a possibility of discrimination against him on grounds of gender and/or political opinion until the announcement was made of successful candidates.  He said that he had considered this matter for some time.  He was aware that if he raised a claim of discrimination that, given the appointments were made by the Minister herself and not by the Department, it may be seen as a personal attack on the Minister.  He asserted that as a retired senior civil servant he felt it was important that he act on the basis of solid information.  He therefore sought information in relation to previous competitions, to clarify the success rate of women as against men.  He was also concerned that the respondent was slow in replying to his request for information, which strengthened his view that there had been discrimination.  He argued that he only received information regarding the differential success rates as between men and women under cover of a letter of 20 May 2014.  His argument therefore was that his time limit began to run from that date.  His argument was that there had been delays in lodging his claim form for two reasons.  First, the reluctance and tardiness of DCAL in producing information and secondly, his general concern that he should not jump to conclusions on the basis of small numbers.  He asserted that this was a reasonable approach to take.

 

5.       In relation to his claim of discrimination on grounds of political opinion, the claimant indicated his assertion was that the appointment of District Councillors to the Board of Libraries NI was discrimination on grounds of political opinion.  He asserted that the Minister had shown unjustified preference by reserving a number of places for candidates from a District Council background (two out of three District Councillor candidates having been appointed), although he asserted that in his opinion these candidates did not have a genuine claim to having submitted a stronger application.  He asserted that this indicated discrimination on grounds of political opinion, namely that candidates such as himself who did not have a record of political activity or a specific political identity were disadvantaged.  The identity of the successful candidates was announced on 12 March 2012.  He asserted that the first date he had any grounds to suspect political discrimination was on or around 20 May when he received correspondence from DCAL in relation to the queries he had raised.  He argued that it would be just and equitable to extend the time limit for both claims and that if his application was late, it was largely because of the delays caused by DCAL.

 

6.       The claimant also argued that one of the criteria applied by the respondent was discriminatory on grounds of political opinion.  His reason for this was that one of the criteria for appointment was that candidates must demonstrate a commitment to the positive promotion of equality and social inclusion as well as the principles of anti-discrimination through personal contribution or advocacy in that field.  The claimant’s complaint in relation to this was that he believed that by requiring evidence of personal advocacy in that field, the respondent showed a preference towards candidates with whom she had general political empathy.  The claimant’s argument was that there was a distinction between being a fit person to implement anti-discrimination policies (which he done in his professional role) and feeling so strongly about those policies that an individual made a point of personal advocacy in that area.  When it was pointed out him that the claimant knew of these criteria in July 2013 when he had filled out the application form, the claimant’s reply was that he aware of the criteria but it was the interpretation of them which he disputed.  The claimant argued that he had only become aware in November 2014 of the type of interpretation being put on this particular criteria by the Department and what type of evidence was required by them when he received a response to further inquiries made of the Department.  It was on this basis that he sought to amend his claim in relation to his claim of political opinion discrimination.

 

7.       The respondent resisted all of the applications made by the claimant on the basis of the case law set out below.  Mr McAteer argued that any attempt by the claimant to seek an extension of time for the lodging of his initial claims was ill-founded.  It was his argument that time began to run from the date of the Minister’s decision not to appoint the claimant i.e. 6 February 2015.  Accordingly, the claim should have been lodged at the latest by 6 May 2015 and the claimant had failed to do this.  Mr McAteer argued that the claimant was aware of the identity of the successful candidates at the latest by 12 March 2014 when the public announcement was made.  The claimant had a suspicion in his mind that there had been unlawful discrimination at the latest by 17 April 2014 when he wrote to DCAL seeking further information.  He argued therefore that the claimant had the necessary information and had formed a belief that he had suffered unlawful discrimination by 17 April 2014 at the latest and could therefore had lodged his claim in time.  In relation to the application to amend the claim of discrimination on grounds of political opinion, Mr McAteer was concerned that the claimant was attempting to “restart the clock” by arguing that it was only in November 2014 he had received replies from the Department in relation to this issue regarding their interpretation of that specific criteria.  The claimant asserted that this was not the case, but that he was seeking to include this as part of his claim. 

 

THE RELEVANT LAW, REASONS AND DECISION

 

8.       The time limit for lodging claims in discrimination cases is generally three months from the alleged discriminatory act.  However the legislative provisions in relation to sex discrimination and discrimination on grounds of political opinion are slightly different and therefore it is appropriate to set out the legislation.

 

9.       In relation to sex discrimination, the relevant legislation is Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended).  This provides as follows:-

 

“76(1) An Industrial Tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of –

 

(a)       the period of three months beginning when the act complained of was done; or

 

(b)       in a case to which Article 82(9A) applies, the period of six months so beginning ... 

 

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

 

10.     In the case of discrimination on grounds of political opinion, the time limit is set out in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 which reads as follows:-

 

“46(1) Subject to paragraph (5) and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003, 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 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) A Court or 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.”

 

11.     In relation to the appropriate date from which time began to run, Mr McAteer referred me to the decision of the EAT in Virdi v Commissioner of the Metropolitan Police [2007] IRLR 24.  That decision by Mr Justice Elias indicates that where the act complained of is the refusal by employers to redress a grievance, time begins to run from the date on which the decision was made, not the date when it was communicated to the claimant.  In that case a decision had been made in relation to Mr Virdi’s grievance on 2 June and he was notified the following day, 3 June.  His application for unlawful discrimination was lodged one day out of time.  Mr Justice Elias ruled,

 

  “I can see there is much to be said for time not beginning to run until an employee is made aware of the decision which confers the cause of action.  But that is not how the legislation has been drafted; the question is when the act is done in the sense of completed and that cannot be equated with the date of communication... [My emphasis]   As desirable as it might be the time should not run until the employee knows that the detriment, it is difficult to see why, at least in a case where the grievance relates to a refusal to grant a benefit, the detriment is not suffered with a rejection of the grievance, whenever that is communicated and whether the employee knows of it or not ...”. 

 

          Mr McAteer relied on this decision.  However the relevant paragraphs of Harvey (Harvey on Industrial Relations and Employment Law Division P1 paragraph 106.01) make a distinction between the position in relation to refusal of a grievance and the failure to select or promote the claimant, which is the situation in this case.  Harvey states as follows:-

 

                    “Where a discrimination claim is based on the failure to select or promote the claimant, the date had to be determined by asking whether a cause of action has crystallised, rather than by focussing on whether the claimant felt that he had been discriminated against for, as EAT has pointed out, if the cause of action is not complete there will be no point in bringing proceedings (Clarke v Hampshire Electro-Plating Co Ltd [1991] IRLR 490)”.

 

12.     In this case, the claimant knew that he was not selected when he received the letter of 24 February 2014.  At that stage, he did not know who the successful candidates were and he received this information only when the public announcement was made on 12 March 2014.  On hearing of the people appointed, the claimant became concerned that he may have suffered sex discrimination at least.  He indicated he certainly, by the time he sent in his Freedom of Information request on 17 April 2014, the suspicion had certainly formed in his mind that there may have been discriminatory conduct on the part of the respondent.  It seems to me therefore that the cause of action crystallised when the respondent made the public announcement of successful candidates on 12 March 2014.  It was only at this stage that there was any information which might point to unlawful discrimination on grounds of either gender or political opinion.    In accordance with the EAT’s ruling in Clarke, it could only have been at that time that the cause of action was complete.  There would have been no point in bringing proceedings any earlier, because there were no apparent grounds for doing so.  I am therefore satisfied that time should begin to run in this case from 12 March 2014, when the claimant became aware of the identity of the successful candidates and knew of a number of women appointed, and the number of district councillors appointed.    This means that his claim should have been lodged by 12 June 2014 at the latest.  Instead, his claims were not lodged until 28 July 2014, approximately six weeks after the time limit.  The issue therefore is whether the time limit for lodging the claimant’s claims should be extended. 

 

13.     Mr McAteer also referred me to the decision of the Court of Appeal in England and Wales in Robertson v Bexley Community Centre t/a Leisure Link [2003] EWCA Civ 576.  In that case, Mr Robertson’s claim for race discrimination had been lodged out of time, and the tribunal at the first instance had decided against extending time under the “just and equitable” principle.  The Court of Appeal commented as follows:-

 

                    “It is also of importance to note that the time limits are exercised strictly in employment and industrial 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 failure to exercise the discretion.  Quite the reverse.  A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.  So, the exercise of discretion is the exception rather than the rule.  It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a tribunal’s refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view.”

 

14.     The discretion to grant an extension of time under the “just and equitable” formula has been held to be as wide as that given to the civil courts by Section 33 of the Limitation Act 1980 (and its Northern Ireland equivalent) to determine whether to extend time in personal injury actions (British Coal Corporation v Keeble [1997] IRLR 336).  The Court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regard to all other circumstances, in particular the length and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the parties sued had co-operated with any request for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.  While the Courts have held that it is not a legal requirement for a tribunal to go through such a list, it is relevant to ensure that the tribunal takes all significant factors into account in exercising its discretion. 

 

15.     In this case the claimant asserted (and I accept) that there would be no particular prejudice to the respondent in allowing these claims to proceed.  That argument certainly was not made by Mr McAteer.  The focus has rather been on the information which the claimant had at all relevant times and whether or not he could have lodged his claims in time.  I am satisfied that he could have lodged his claim within the relevant time limit.  The claimant is clearly a highly intelligent individual.  He is a retired senior civil servant and therefore may be expected to have had, if not knowledge of the relevant legislation, at least sufficient information at his disposal to seek out appropriate advice at an early stage.  Indeed in the course of his evidence to the tribunal, he said that he was sure that if he had sought legal advice from a solicitor at an early stage, he would have been advised to lodge proceedings on a protective basis.  The claimant argued that he did not want to proceed to lodge a claim without clear information on which to found it.  He felt that a retired senior civil servant such as himself bringing a claim which was effectively attacking the decision of an Assembly Minister would send a particular signal, and he was reluctant to bring such a claim without having what he considered to be clear evidence of unlawful discrimination.  While this may be commendable from one point of view, it does not unfortunately, assist the claimant in this situation.  There is no scope in the legislation for an extension of time because of possible public perception of the merits of a particular claim due to the identity of the claimant. 

 

16.     The claimant here had information as to the identity of the successful candidates by 12 March 2014.  By 17 April, when he wrote to DCAL, he clearly had concerns about the process, and whether there had been unlawful discrimination.  He could therefore have sought advice and lodged his claim well within the time limit I have identified of 12 June 2014.  Mr McAteer referred me to the decision of the EAT in Hunwicks v Royal Mail Group plc [2007] ALL ER (D) where it was held that the fact that the claimant might have been unaware of relevant time limits did not necessarily make it just and equitable to extend them, particularly where the claimant was a person with some intelligence and some education with access to legal advice.  The EAT ruled there that it would frequently be fair to hold claimants bound by time limits which they could, had they taken reasonable steps, have discovered.  Mr Carvill accepted that had he made enquiries he could have clarified the time limits at an earlier stage.  He also said, as I have set out above, that had he sought advice from a solicitor he would most likely have been advised to lodge proceedings sooner. 

 

17.     It appears to me that by 12 March 2014 or shortly thereafter, the claimant had sufficient information to ground a suspicion of unlawful discrimination on grounds of gender and political opinions.  Had he then taken the step of clarifying the time limits or seeking advice in relation to the matter, he could comfortably have lodged his claim within the three month time limit.  The claimant pointed to delays by the respondent in providing information under his FOI request, and there is no doubt that there was such a delay.  However a reply was received by 20 May, and although the claimant was abroad on that date, he did not suggest at the hearing that he could not have acted on the information received sooner that he actually did, which was in late July.  I do not consider delay by the respondent in this particular case is sufficient grounds to extend the time limit.  In all the circumstances I consider that it would not be just and equitable in these circumstances to extend the time limit either for the claimant’s sex discrimination claim or his claim of discrimination on grounds of political opinion.  Accordingly, the tribunal has no jurisdiction to deal with these matters and these claims are dismissed. 

 

18.     In light of my ruling in relation to the time limit issues, there is no need to consider the claimant’s application for amendment of his claim of discrimination on grounds of political opinion, and that matter, too, is dismissed.

 

 

 

 

Employment Judge:      

 

Date and place of hearing:         6 February 2015, Belfast.

 

Date decision recorded in register and issued to parties: