Industrial Tribunals Northern Ireland Decisions

 


O'Neill v Valence Technology BV (Preliminary Hearing Time Limit) [2002] NIIT 01909_00 (18 November 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 01909/00

APPLICANT: Alison O'Neill

RESPONDENTS: Valence Technology BV

DECISION OF THE INDUSTRIAL TRIBUNAL ON A PRELIMINARY HEARING

The unanimous determination of the Tribunal is that it has jurisdiction to entertain the Applicant's claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland ) Order 1996 regarding the time limit for presenting her claim. Otherwise, the Tribunal determines that it is unable to determine the other preliminary issues before it. Accordingly, the Tribunal directs that the matter should proceed to a substantive hearing, where the remaining preliminary issues will decided on foot of the adduction of evidence and submissions, and before the Tribunal determines any substantive issue of liability.

Appearances:

The applicant was represented by Mr Barry Mulqueen, of Counsel, instructed by Murty Toolan & Company, Solicitors.

The respondent was represented by Mr Ian Carroll, Engineering Employers' Federation.

1. THE CONTENTIONS OF THE PARTIES

i. By her Originating Application, presented on 1 August 2000, the Applicant complained that the Respondent discriminated against her on ground of her sex and unfairly dismissed her. At Section 13 of the Originating Application, the Applicant stated that from the time she notified her employer that she was pregnant she was treated less favourably than other employees. This maltreatment persisted throughout the course of her pregnancy and she was subjected to unfair treatment. Moreover, the Applicant complained that the Respondent did not grant her access to suitable working hours. She alleged that this treatment amounted to discrimination on grounds of her family status contrary to the Sex Discrimination (Northern Ireland) Order 1976 ["the 1976 Order"] and relevant European law and in particular the Equal Treatment Directive and the Pregnant Worker's Directive. She complained that she was put in a position where she was left with no alternative but to resign, and she therefore also claimed unfair dismissal. At Section 12 of the Originating Application, the Applicant alleged that the matter of which she was complaining happened on 23 May 2000 together with ongoing treatment, and that this was also the first date when she knew of the matter.

ii. By its Notice of Appearance, presented on 25 August 2000, the Respondent denied that the Applicant had been dismissed unfairly or constructively dismissed whether as alleged or at all, and in the alternative that any such dismissal was not unfair. Moreover, the Respondent denied any unlawful discrimination on the grounds of the Applicant's sex whether as alleged or at all.

iii. The Respondent requested a Preliminary Hearing as it takes the view that the Applicant's claim may be out of time. The matter was listed before the Industrial Tribunal on 18 November 2002 as a Preliminary Hearing to determine the following matters:-

(a) Was the application presented within the specified time limit?

(b) If not, is it just and equitable, in all the circumstances of the case, for an Industrial Tribunal to consider this complaint despite the fact that it is out of time?

(c) Whether the Tribunal has jurisdiction to entertain the Applicant's claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting her claim.

iv. Mr Carroll accepted at the outset of the hearing that the Applicant had resigned in June 2000, and the complaint of unfair dismissal – having been presented on 1 August 2000 – was therefore timeous.

v. Mr Mulqueen outlined to the Tribunal that the Applicant is a 27 year old single mother with a young daughter. She had worked for the Respondent in Mallusk as a Quality Technician. Between May 1998 and March 1999 the Applicant progressed well and enjoyed her work. She became pregnant on 3 March 1999. As she worked with hazardous substances, she informed the Respondent of her pregnancy. As the Applicant is a single mother, she asked her manager, Mr Kenneth Brown, to keep the news of her pregnancy a matter of confidence. However, she alleges that news of her pregnancy soon spread throughout the Respondent's workplace. The Applicant alleges that thereafter Mr Brown's attitude towards her changed. She alleges that he made offensive remarks about being a single mother, and that these offensive remarks continued on a regular basis from March to July 1999. The Applicant alleges she was made to feel very uncomfortable in the workplace, and that her overtime hours were reduced. Moreover, the Applicant alleges that Mr Brown made her do repetitive tasks. Arising from this, the Applicant lodged a formal complaint to Anne McLaughlin (her manager), but the Respondent did not deal with this complaint up until the time of her resignation in June 2000. This compelled the Applicant to write to the Respondent Chairman (Mr Dawson) in September 1999.

vi. Owing to illness, the Applicant could not return to work before Christmas 1999. She telephoned the Respondent to request tickets for the Christmas party, but was informed that she was not entitled to same because she was on sick leave. The Applicant alleges that she was not given the opportunity to apply for promotion in January 2000 as she was not informed that promotion was available to her. She alleges that her workstation was removed by Mr Brown in April 1999. The Applicant also complains that from February to May 2000, whilst on sick leave, she met the Respondent in respect of her return to work and flexible working hours. The last of these meetings occurred on 11 May 2000. By letter of 23 May 2000, the Respondent informed the Applicant that her request for flexible working hours could not be accommodated. The Applicant felt that this was the last straw, and alleges this was the last in a series of fundamental breaches of her contract of employment and likewise the last in a series of discriminatory acts. Mr Brown died in April 2000.

vii. The Applicant thus brings a case of unlawful sex discrimination contrary to Article 3(1) of the 1976 Order, and claims that the failure to provide her with information as to a promotion opportunity is contrary to Article 8 of the 1976 Order. Moreover, she claims that the failure to provide her with adequate childcare arrangements is indirect discrimination and she cites London Underground Limited v. Edwards^[1]. Mr Mulqueen submitted to us that the Respondent's actions and attitude caused a depressive illness, and that to further subject the Applicant to two days of examination and cross-examination on the preliminary matters before the Tribunal would duplicate the further trauma she might feel. His submission was that the claim was manifestly in time, and that the Tribunal should allow the complaint to proceed to a substantive hearing of the issues, where all matters could then be dealt with.

viii. Mr Carroll submitted that where a Tribunal is faced with a catalogue of complaints, it should examine each individual complaint to determine if there was, so to speak, "a common hand at the tiller". Were that the case, then there may be an ongoing act of discrimination. However, he contended that the Applicant's letter of dismissal of 6 June 2000 made reference to only one matter. If the Tribunal were to find that this was the only issue that influenced the Applicant to resign, then it is open to the Tribunal to exercise the just and equitable jurisdiction provided by Article 76(5) of the 1976 Order. Mr Carroll opened to the Tribunal the balancing exercise it must engage in exercising this statutory discretion^[2]. He submitted that, if a state of affairs prevails across a period of time, then the Tribunal may decide to exercise its statutory discretion. However, Mr Carroll contended that the Applicant's case could be parsed down to four separate complaints, viz:-

(i) pre-pregnancy discrimination;

(ii) a pregnancy-related discrimination complaint;

(iii) a maternity leave complaint; and

(iv) a post-pregnancy/ return to work complaint.

In this regard, Mr Carroll submitted that if the Tribunal formed the view that the Respondent operated a policy of unlawful sex discrimination, Article 76(6)(b) of the 1976 Order provided that "any act extending over a period shall be treated as done at the end of that period". In such circumstances, it would be open to the Tribunal to hold that the Applicant's complaints were presented in time. However, and this was his contention, if the Applicant's complaint is comprised of separate allegations, then all parts of her complaint are out of time with the exception of the unfair dismissal complaint and the alleged failure to provide her with flexible working hours.

THE PRELIMINARY DECISION OF THE TRIBUNAL

2. Having considered all the submissions, and all the references and case law cited, the Tribunal makes the following decision:-

i. The Tribunal notes Mr Carroll's concession at Paragraph 1(iv) above, and therefore answers the third preliminary question put to it at 1(iii) in the affirmative.

ii. The Tribunal has had regard to Harvey Volume 5:T 112 where it is noted that:-

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

iii. The Tribunal has also given extensive consideration to the wording of Article 76(5) of the 1976 Order, which provides:-

(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^[3], it considers that it is just and equitable to do so.

iv. Without hearing all the evidence in the case, and therefore making findings of fact on "all the circumstances of the case" the Tribunal determines that it is impossible for it to answer the first two preliminary questions posed it at Paragraph 1(iii) (a) and (b) above. Mindful of its statutory duty to provide all parties with a fair and expeditious hearing^[4], the Tribunal determines that the fairest and most equitable outcome of this preliminary hearing is to order that all the evidence and submissions should be heard in the case, and that the Tribunal hearing such evidence should then decide the preliminary questions (a) and (b) posed above before it proceeds to make any determination as to any substantive liability by the Respondent.

v. As this Tribunal has heard no evidence in this case, but has heard some of the detailed contentions, the Tribunal determines that it would be fairer to all the parties that the matter be re-listed before a freshly-constituted Tribunal.

vi. Mr Mulqueen indicated that the Applicant anticipates that she shall give evidence and call two other witnesses. Mr Carroll anticipates he will call a total of four witnesses. The Tribunal does not place any constraint on the length of time allowed to any party in this regard, but elicited this information in the hope that it may be of assistance to all the parties and to the Office of the Industrial Tribunals in the planning and listing of this case.

vii. Pursuant to its statutory powers under Rule 16 of Schedule 1 of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 1996 ["the 1996 Rules], the Tribunal sought the parties' attitude to a direction for the exchange of witness statements. The representatives were of the view that this would not be particularly helpful in the expedition of this complaint, and therefore the Tribunal has decided not to make any such direction.

viii. Subject to the powers of the President or the Vice President of the Industrial Tribunals as contained in Rule 5(1) of the 1996 Rules, the Tribunal recommends that the above complaint should be listed for five consecutive days.

ix. No further or other Order is made.

Chairman:

Date and Place of Hearing: 18 November 2002, Belfast

Date Decision Recorded in Register

And Issued to the Parties:

Note 1   [1995] ICR 574 and [1997] IRLR 157    [Back]

Note 2   See Harvey on Industrial Relations and Employment Law, Volume 5:T279    [Back]

Note 3   Emphasis added.    [Back]

Note 4   See Article 6 in Schedule 1 of the Human Rights Act 1998    [Back]