Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REF: 93/19FET

 

CLAIMANT:              Alan McAlister

 

 

RESPONDENT:      Business Services Organisation

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that it has jurisdiction to determine the claimant’s claim.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):       Employment Judge Bell

 

 

Appearances:

 

The claimant was represented by Ms Briggs, Barrister- at- Law, instructed by RJW Law.

 

The respondent was represented by Ms Kelly, Solicitor from Directorate of Legal Services.

 

 

Background

 

1.            The claimant presented a claim to the office of the tribunals on 13 February 2019 complaining of discrimination on grounds of religious belief/ political opinion in relation to the award of a Senior Solutions Architect post to another employee, the claimant having attended an interview for the post but that the process was significantly flawed, panel not mixed, his marks negatively adjusted and his subsequent grievance and information requests inappropriately handled.  He identified the matter about which he was complaining as having happened on 3 January 2019 and the discrimination as being ongoing.

 

2.            The respondent in its response resisted the claimant’s claims and contended that the claimant appeared to be referring to an interview process which took place in April 2018 for which all six applicants were unsuccessful and the claimant notified on 31 May 2018 that he had been unsuccessful.  The post was re-advertised on 19 June 2018 and claimant did not re-apply.  The respondent contended that the claim was accordingly presented outside the statutory time limit, that it was not just and equitable to extend time and sought a pre-hearing review to address this.

 

 

 

 

 

Issues

 

3.            At a Case Management Discussion on 18 June 2019 in response to the respondent’s request a Pre-Hearing Review was ordered to take place to determine:-

 

a.        Whether the claimant’s claim for religious discrimination pursuant to the Fair Employment and Treatment Order (Northern Ireland) 1998 (as amended) has been presented within the statutory time limit, pursuant to Regulation 46 of the said Order.

 

b.        If not, is it just and equitable to extend time in all the circumstances?

 

Procedure and Evidence

 

4.            An agreed bundle of documentation and written submissions for both parties were produced, these were supplemented with oral submissions and sworn evidence provided by the claimant.

 

Contentions

 

5.            The Respondent’s contentions were in summary:-

 

5.1       That there is a clear succinct knock out time point suitable for determination at PHR without the need for evidence.

 

5.2       The relevant act was a single one of not promoting the claimant in the first promotions process, this occurred at the latest by 31 May 2018 when the claimant was notified he was unsuccessful.  No candidate was appointed in the first process, including the ultimately successful candidate.  The claimant’s case is entirely separate from the later recruitment process and decision made in it.  The claimant did not apply for the later recruitment process from which the successful candidate was appointed, thus breaking any link.  The complaint and information seeking processes relied upon thereafter as continuing acts/ a discriminatory state of affairs, were not discriminatory or linked (the Chairperson of the panel not being responsible for the complaints process or alleged delays therein) and were a consequence rather than a continuation of any failure to promote the claimant.  Time accordingly runs at the latest from 31 May 2018. 

 

5.3       If presented outside the primary time limit, that it is clearly not just and equitable to extend time given that the claimant was familiar with information technology, he had the knowledge and ability to navigate other complicated processes -  accordingly he had the ability to research time limits for lodging a claim; he knew he had been unsuccessful at interview and had raised concerns about the promotion process from an early stage - thus he knew of the facts giving rise to his cause of action, but did not act promptly to seek advice and present his claim.  Accordingly his ignorance was not genuine or reasonable given his resources and knowledge.  Furthermore to allow his claim to proceed would cause prejudice to the respondent, the delay threatening witnesses’ recall and quality of available evidence.  The respondent submitted the delay was now more than one year and it would be even longer by the time the matter would be heard.  Ms Kelly considered that it was not appropriate to go into the merits of the claim at this stage as a factor for consideration in the exercise of the discretion to extend time as that would involve getting into evidence.

 

6.         The respondent referred to Harvey on Industrial Relations and Employment Law P1, 1.F. (5) (C) [106.01], [117] and P1, 1.g.(3) [279.02] and the following authorities:-

 

Clarke v Hampshire Electro-Plating C Ltd [1991] IRLR 490, [1992] ICR 312, EAT;

 

Barclays Bank plc v Kapur [1989] IRLR 387 at 392;

 

Aimes v Inner London Education Authority [1977] 2 ALL ER 100, [1977] ICR 308, EAT;

 

Basildon Academies Trust v Polius – Curran UKEAT/0055/15 (23 June 2015, unreported);

 

Sougrin v Hairngey Health Authority [1992] IRLR 416, [1992] ICR 650, CA;

 

Owusu v London Fire and Civil Defence Authority [1995] IRLR 574;

 

Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686, [2003] IRLR 96;

 

Robertson v Bexley Community Centre 2003 IRLR 434;

 

British Coal Corporation v Keeble [1997] IRLR 33; 6

 

Apelogun- Gabriels v London Borough of Lambeth [2001] EWCA Civ 1853, [2002] IRLR 116;

 

Edomobi v La Retraite RC Girls School UKEAT/0180/16 (15 November 2016, unreported);

 

Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0305/13 (18 February 2014, unreported).

 

7.         The Claimant’s contentions were in summary:-

 

7.1       This is a complicated case in which the claimant relies upon there being a continuing state of discriminatory affairs based upon acts linked by a common person, the Chairperson of the panel of the promotion process, and whom the respondent acknowledged in its response that the claimant’s information requests had been referred to, and that it would be necessary to hear evidence before a decision to strike out could be made.

 

7.2       It would not be appropriate for the primary time point to be dealt with at this early stage if the tribunal were minded to accede to the respondent’s application to strike out the claim as being out of time, but would be safe, having taken evidence  from the claimant, to determine the claim as in time, or just and equitable to extend time,  but that Ms Briggs was neutral should the tribunal wish to do so at this stage or leave the determination to be made at the substantive hearing with the additional benefit of the respondent’s witnesses cross examination.

 

7.3       In any event were it to be found that the claim was presented outside of the primary time limit that it is clearly just and equitable to extend time, in particular because:

 

                                i.              The claimant was unaware of the selection panel’s make up until 3 January 2019, and he acted promptly thereafter to submit his claim without delay.

 

                               ii.              Delay in handling of claimant’s grievance and non-provision of information by respondent frustrated the claimant’s attempts to discover information directly relevant to his claim in a timely and prompt manner.

 

                              iii.              The respondent acknowledges its delay.

 

                              iv.              The claimant was without legal advice until August 2019.

 

                               v.              The only prejudice to the respondent is prejudice simpliciter such that they have to meet a claim otherwise defeated by limitation.

 

                              vi.              Without stating the claimant’s case in full prior to discovery and evidence, at this juncture there appears to be a prima facie meritorious case based upon the following:-

 

1)           The claimant’s interview notes suggest the claimant had passed the interview, scored 61, and was ranked ahead of the ultimately successful candidate.

 

2)           The respondent has subsequently stated, in a possible provision of incorrect information, that the pass mark for the claimant’s interview was 65.

 

3)           The ultimately successful candidate, a Catholic, was appointed to the post.

 

4)           The three ‘official’ panel members appear to have been Catholic.

 

5)           The respondent has subsequently stated that there were four Panel members including the external assessor, who was Protestant, despite elsewhere contending that there were three.

 

6)           The respondent has failed to provide information, discovery and documentation requested by the claimant adequately, promptly, or at all, suggesting a culture of secrecy, or the deliberate evasion of scrutiny, of the interview process.

 

7)           Evidence proposed to be given by the claimant as to the actions of the panel chairperson for example the distribution of Sinn Fein calendars and remark that there ‘was no pass mark’ at the claimant’s interview.

 

8.         The claimant referred to Harvey on Industrial Relations and Employment Law [822], [831], [118.01], Tolley’s Employment Handbook [14.7], and the following authorities:-

 

Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686, [2003] IRLR 96;

 

Hutchinson v Westward Television Ltd [1977] IRLR 69;

 

CC of Linconshire Police v Caston [2009] EWCA Civ 1298;

 

British Coal Corpn v Keeble [1997] IRLR 336;

 

DPP V Marshall [1998] ICR 518;

 

Bahous v Pizza Express Restaurant Ltd (2012) 945 IDS;

 

Southward London Borough v Afolabi [2003] EWCA Civ 15;

 

Robinson v Post Office [2000] IRLR 804;

 

Apelogun- Gabriels v London Borough of Lambeth [2001] EWCA Civ 1853;

 

Aniagwu v Hackney London Borough Council [1999] IRLR 303 EAT.

 

Relevant Facts

 

9.         The claimant who is employed by the respondent was one of six applicants who applied for and was shortlisted for the post of Senior Solutions Architect (Grade C) advertised by the respondent to close on 23 March 2018.

 

10.       The claimant raised concerns on 16 March 2018 by email regarding shortlisting criteria used for the post, one of which he considered to use a non-quantitative measure which did not provide a consistent, even or fair approach to applicants.

 

11.       The claimant was interviewed for the post on 12 April 2018.

 

12.       The claimant was notified by email issued on 31 May 2018 that he was unsuccessful in his application.

 

13.       On 5 June 2018 the respondent re-advertised the post, closing on 19 June 2018.

 

14.       The claimant did not re-apply for the post.

 

15.       In or around 5 September 2019 the claimant became aware that Mr Wills had been selected for the Senior Solutions Architect post.  Mr Wills is of a different perceived religion to the claimant. 

 

16.       Mr Wills was one of the six unsuccessful applicants in the previous process.

 

17.       The claimant then embarked upon an extensive exercise (using Subject Access Requests and Freedom of Information requests) to seek information in relation to his interview and application process and raised a grievance in relation to inadequacies therein.  His requests included:-

 

17.1    On 5 September 2018:-

 

·                The pass score used for his interview round, this was provided on 8 March 2019 when it was stated to be 65.

 

·                His score from interview.

 

·                The pass mark for the second interview round for the same post, this has not been provided.

 

17.2    On 3 October 2018:-

 

·                His interview notes, these were provided on 12 October 2018 and contained a handwritten note appearing to indicate a score of 61, that the claimant had achieved a pass and had been ranked first ahead of Mr Wills.  They also appeared to show a negative adjustment made to the claimant’s marks.

 

·                Details of how the scoring and questions were in line with recruitment and selection policy.  The respondent replied on 6 December 2018 referring the claimant to the applicable policy.

 

·                The dates when panel members at interview last completed their BSO selection training, the respondent on 6 December 2018 confirmed specific dates for two panel members but that it was unable to do so for the third panel member.

 

17.3    On 6 October 2018:  A copy of the Variation Order made (to vary the make-up of the Panel against policy).  The respondent replied on 6 December 2018 that no such order had been made.

 

17.4    On 7 December 2018:  Confirmation that the three panel members contained a Religious mix ‘as per the policy noted in your response’.  The claimant in doing so set out that it was with regret that he had to request this information following an expression of dissatisfaction as to the handling of his requests for pass marks of the interview rounds, panel member training and regarding an interview question.  The claimant received the respondent’s response (dated 7 January 2019) on 11 March 2019 which stated the panel was comprised of four members, to include an assessor, and that there was a religious mix.

 

18.       On 30 October 2018 the claimant raised a grievance outlining flaws in the recruitment for the post relating to criteria used; changes made to the time stated to be given for the presentation; the evident reduction of his scoring by some panel members; his requests for pass scores for both interview rounds and his pass score, following which, when not answered, he submitted Subject Access Requests and Freedom of Information requests for a copy of the questions with his answers and scoring; details of how the scoring was in line with policy; dates of panel members last training; and subsequently a request for the Variation Order because the panel was not constituted in line with policy.  The claimant set out ‘I have concerns over the role of Mark Lee as external assessor given he asked and scored questions, the panels training in recruitment and selection and the religious constitution of the panel.’  The claimant was advised that the matter should be dealt with as a complaint which he questioned but again set out on 26 November 2018 in correspondence considered flaws and concerns he held in relation to recruitment for the post.  The claimant actively sought a response thereafter on 7, 8, 15 and 18 January 2019, and 21 February 2019.  The respondent responded on 8 March 2018.

 

19.       The claimant in November 2018 raised complaints with the Information Commissioner (ICO) in relation to delayed and inadequate responses by the respondent to Freedom of Information requests made by him.  The complaint remains under external investigation by the ICO.

 

20.       On 3 January 2019 the claimant when discussing with his manager the failure of the respondent to adequately or promptly respond to both his Freedom of Information  requests and his internal complaint was first advised that the panel was not balance in its religious make up, being all Catholic and that the successful candidate was also Catholic.

 

21.       The claimant thereafter sought the advice of the Equality Commission, following receipt of which he promptly presented his claim to the office of the tribunals.  The claimant’s claim was presented on 13 February 2019.

 

22.       On 21 March 2019 following a formal review of the claimant’s complaint and process the respondent acknowledged a number of failures both administratively and organisationally in respect of the claimant’s complaint and separate requests, especially in relation to their failure to respond to his correspondence in adequate time.

 

23.       The claimant is an educated and intelligent man who has access to Information technology.  He currently holds a senior level post by way of a Project Manager Position in Band 8A and has been seconded to higher level of responsibility as a Programme Manager at Band 8B.

 

24.       The claimant was self-represented and without legal advisors until August 2019.

 

Relevant Law

 

25.       The  primary time limit for presenting a claim of discrimination under the Fair Employment and Treatment (NI) Order 1998 (as amended) 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.  The Tribunal may nevertheless consider a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.  Any act extending over a period shall be treated as done at the end of the period (Article 46).

 

26.       The Court of Appeal (GB) in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 concluded that the burden of proof is on the claimant when alleging that separate incidents amounted to a single act “extending over a period”, to prove that the separate alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminating state of affairs.  In determining whether there was an act extending over a period rather than a succession of unconnected or isolated specific acts (from each of which time would begin to run) the focus of the tribunal should be on the substance of the complaints and whether this constituted an ongoing situation or a continuing state of affairs.

 

27.       Where a discrimination claim is based on a failure to select or promote the claimant the date is 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.  (Harvey on Industrial Relations and Employment Law, Division PI, 1. F. (5) (c) [106.01])

 

28.       The EAT in the case of Clarke -v- Hampshire Electro Plating Company Ltd 1991 IRLR 430 stipulates that it is a question of fact for the tribunal as to when the claim crystallised.  The principle is that the date of the act of discrimination must be capable of determination by reference to the occurrence of an act or acts and not be dependent on the state of knowledge of the disadvantaged party.  Any lack of knowledge of facts required to prove discrimination is one of the relevant factors for the exercise of the discretion to allow claims out of time on the basis of what is just and equitable. 

 

29.       In determining the existence of a continuing act it is important to distinguish between the continuance of the discriminatory act itself (e.g. the schemes and practices), and the continuance of the consequences of a discriminatory act, for it is only in the former case that the act will be treated as extending over a period (Barclays Bank plc v Kapur [1989] IRLR 387 AT 392).  In Amies v Inner London Education Authority [1977] 2 All ER 100, [1977] ICR 308, EAT it was not sufficient to show that the consequences of the discriminatory act continued; what mattered was whether the act itself continued.  In Basildon Academies Trust v Polius- Curran UKEAT/0055/15 (23 June 2015, unreported) the appointment of a man to a teaching post in a school in preference to the claimant was held to be a one-off act with continuing consequences, and neither the fact that the claimant continually complained about it nor the fact that the employers failed to regularise it in accordance with their own recruitment process, converted it to a continuing act.  (Harvey P1, 1.F. (5) (c) [116]).

 

30.       In Sougrin v Hairngey Health Authority [1992] IRLR 416, [1992] the EAT and Court of Appeal held that the claimant’s failure to obtain a higher grade on an internal appeal and her loss of pay could not be construed as a continuing act of discrimination as there was no discriminatory policy, but was merely the consequence of the internal appeal decision.

 

31.       In Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 the EAT found that the failure of the employers to promote or short list the claimant constituted specific one-off instances and so his complaint in respect of them was time barred, whereas his allegations of repeated failure to upgrade him or allow him to act up amounted to prima facie a continuing act ‘in the form of maintaining a practice which, when followed or applied, excluded him from regrading or opportunities to act up.’ 

 

32.       The onus is on the claimant in each case to establish that it would be appropriate for the tribunal to exercise its discretion to extend time on the just and equitable ground.

 

33.       In the case of Robertson v Bexley Community Centre 2003 IRLR 434 Auld LJ  stated in relation to the issue of extension of time limits:-

 

“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.”

 

34.       In Chief Constable of Lincolnshire Police v Caston  [2009] EWCA Civ 1298,  [2010] IRLR 327 Sedley LJ dismissed any suggestion that the comments of Auld LJ in Robertson  were to be read as encouraging tribunals to exercise their discretion in a restrictive manner, setting out therein:-

 

“there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised’ (para 31).  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 judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it” (para 32). 

 

35.       In Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0305/13 Langstaff J stated that a claimant could not hope to satisfy that burden unless he provided an answer to the following two questions:-

 

“The first question in deciding whether to extend time is why the primary time limit has not been met; and insofar as it is distinct, the second is the reason why after the expiry of the primary time limit, the claim was not brought sooner than it was.”

 

36.       The words ‘in all the circumstances of the case’ refer to circumstances relating to why the claim was late.  The tribunal can take into account a wide range of factors in determining whether it is just and equitable on the facts to allow an out of time claim to proceed.  It does not have to consider the full circumstances of the case (Hutchinson v Westward Television Ltd 1977 ICR 279, EAT), although may do so as a factor in its decision making if it considers it necessary. 

 

37.       In British Coal Corporation v Keeble [1997] IRLR 336, the EAT stated that the tribunal in considering the exercise of its discretion to extend time on the ‘just and equitable’ ground, should have regard to the prejudice which each party would suffer as a result of either granting or refusing an extension and to have regard to all the other circumstances of the case, in particular:

 

(a)       the length of and the reasons for the delay;

 

(b)       the extent to which the cogency of the evidence is likely to be affected by the delay;

 

(c)        the extent to which the parties sued had co-operated with any requests for information;

 

(d)       the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and

 

(e)       the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

 

38.       Whilst a useful guide, the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account (London Borough of Southwark v Afolabi 2003 ICR 800).

 

39.       The assertion of ignorance of the right to make a claim must be genuine and the ignorance, – whether of the right to make a claim at all, or the procedure for making it, or the time within which it must be made – must be reasonable.  It is not enough, in a case where ignorance is relied upon, for a tribunal to conclude that a claimant has not acted reasonably and promptly without specifically addressing the alleged lack of knowledge (Harvey Division PI 1. G. (3) para [297.02]).  As a matter of law both kinds of knowledge, knowledge of the facts that could potentially give rise to a claim, and knowledge of the existence of a legal right to pursue compensation in respect of those facts are relevant and should be taken into account.

 

40.       Delay caused by a claimant awaiting the completion of an internal grievance procedure may justify an extension of the time limit but it is only one factor to be considered in any particular case, as are the principle of legal certainty and finality in litigation, and likewise the extent of the delay.

 

41.       Overall the tribunal should adopt a multi-factorial approach and that no single factor alone is determinative on principle as to whether the discretion to extend time should be exercised under the just and equitable formula. 

 

Application of Law to Relevant Facts

 

42.       The substance of the claimant’s complaint is the respondent’s omission to appoint him to the post of Senior Solutions Architect, the appointment of Mr Wills to that post and the subsequent failures to properly handle the claimant’s grievance and information requests.

 

43.       The claimant contends a continuing state of discriminatory affairs linked by the same panel Chairperson and supported by acknowledgement that the claimant’s information requests were also forwarded to the panel Chairperson albeit that he was not the person who signed replies then sent to the claimant.

 

44.       In my view the relevant act is the act of not selecting the claimant for the post sought and the appointment of Mr Wills thereafter.  I agree that the matters complained of relating to the handling of the grievance and information requests thereafter appear to be a consequence of the omission to promote the claimant rather than further unlawful linked discriminatory acts giving rise to a continuing state of discriminatory affairs.  I however disagree that any link with the later recruitment process which resulted in the appointment of Mr Wills was clearly broken by the claimant not applying for it or that process entirely separate and irrelevant.  The claimant’s discrimination claim is in essence that because of religious belief he was treated less favourably in the earlier recruitment exercise, in which he considers he met the pass mark and was the best candidate, but was not selected, than Mr Wills in the later recruitment exercise who the respondent did proceed to select for the post, key to which is comparability. 

 

45.       A cause of action crystallises when all the necessary elements for a claim are complete, that is, when all the facts the claimant must prove to win the specific cause of action exist.  As such I disagree that the cause of action would have crystallised when the claimant was interviewed in April 2018 or when informed on 31 May 2018 that he had been unsuccessful but of the view that it would have crystallised when there was a comparison by way of a successful applicant in the later recruitment exercise.  The claimant became aware of Mr Wills’ selection on or around 5 September 2018, this is what appears to have triggered the claimant’s grievance and information requests.  The date of the act of discrimination is not dependant on the state of knowledge of the disadvantaged party, as in whether he felt at that time he had been discriminated against, this instead being a factor relevant to the exercise of the discretion to extend time on the basis of what is just and equitable.

 

46.       Accordingly I consider that the primary time limit for presentation of the claim would have expired three months thereafter, in early December 2018.  The claimant however presented his claim some two months later in February 2019 so the tribunal must next consider:-

 

Why the primary time limit was not met; and insofar as it is distinct, why after the expiry of the primary time limit the claim was not brought sooner than it was?

 

47.       The claimant’s explanation is that information he possessed up until 3 January 2019 had not allowed him to reach the conclusion that his treatment was a matter of discrimination and whilst he believed the recruitment process to have been flawed he had not however believed it to have been discriminatory.  The claimant in ‘working through’ the respondent’s recruitment policy and raising various queries thereon in October 2018 raised an Freedom of Information request as to the religious make-up of the panel, to which the respondent did not respond.  The claimant assumed in the interim that his selection panel would have been correctly balanced and only upon discussion with his manager as to handling of his information requests and complaint was first made aware that his selection panel had not been balanced and of the successful candidate’s perceived religion.  It was only combining this information with the other matters he believed that he had uncovered by way of an adjustment of his marks, his attainment of the requisite pass mark and his ranking as the best candidate but not being offered the post, that led him to first conclude at that point that he had suffered discrimination on grounds of religious belief.  The claimant promptly thereafter sought advice from the Equality Commission and presented his complaint on 13 February 2019.

 

Was the claimant’s assertion of ignorance of the right to make a claim genuine and that ignorance reasonable?

 

48.       I consider set in the context of failures acknowledged by the respondent in dealing with the claimant’s requests for information and the nature of the various requests made that the claimant genuinely did not know the nature of the detriment suffered and did not consider himself to have been subjected to religious discrimination up until early January 2019.  I accept that whilst the claimant queried the religious mix of the panel in late October 2018 that this was just one of a number of possible concerns in his mind and am of the view that it was reasonable for the claimant not to have considered himself to have been subjected to religious discrimination, or to have had a cause of action likely to succeed until that point (in January 2019).

 

49.       I disagree with the respondent’s assessment of the claimant’s delay as being over a year.  I consider the claimant’s presentation of his claim was little over two months delayed at most from expiry after the primary three month time limit and unlikely to significantly affect the quality of evidence that would otherwise have been available.

 

50.       I consider that the length of the claimant’s delay was relatively short,  his reasons for it were genuine and reasonable, that the cogency of the evidence is unlikely to be affected by the delay, that the respondent was not co‑operative with the claimant’s requests for information, that the claimant acted promptly to seek advice from the Equality Commission once he knew of the facts giving rise to the cause of action and that he promptly presented his claim thereafter when he knew the possibility of taking action.  I am persuaded based upon these factors alone without the addition of case merits raised by the claimant that overall the balance of prejudice would clearly be greater to the claimant in not allowing the claim to proceed to be determined and that it is in all the circumstances just and equitable to extend time.

 

 Conclusion

 

51.       The claimant’s claim was presented outside the primary time limit for presentation thereof but in all the circumstances of the case it is just and equitable nevertheless to consider the claim out of time.  The tribunal accordingly has jurisdiction to determine the claimants’ claim.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 19 September 2019, Belfast.

 

 

Date decision recorded in register and issued to parties: