Industrial Tribunals Northern Ireland Decisions

 


McWhirter v Department of Health & Social Services and Public Safety & Anor (Application Out of Time) [2002] NIIT 888_02 (9 December 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 888/02

APPLICANT: Cathy McWhirter

RESPONDENTS: 1. Department of Health & Social Services and Public Safety

2. George Henry Harper Abbott

DECISION

The unanimous decision of the Tribunal is that the applicant's application was not presented within the specified time limit as set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 and further that it is not just and equitable in all the circumstances of the case for an Industrial Tribunal to consider the applicant's claim of discrimination on the grounds of sex despite the fact that it is out of time. The tribunal therefore has no jurisdiction to hear the applicant's claim of discrimination on the grounds of sex and it is dismissed.

Appearances:

The applicant was represented by Mr D O'Sullivan, Barrister-at-Law, instructed by Anderson Agnew & Company, Solicitors.

The first respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Ms O Murray, Solicitor, Department Solicitor's Office.

The second respondent was represented by Mr N Martin, Barrister-at-Law, instructed by J W McNinch & Son, Solicitors.

1. The application was listed to consider the following preliminary issue, namely:-

Whether the tribunal has jurisdiction to hear the application in view of the time limits as set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976.

2. At the outset of the hearing, Mr O'Sullivan indicated that, after full consideration of the issues to be determined by the tribunal and with full knowledge that it was for the applicant to satisfy the tribunal that the application was in time and, if not in time, that it would be just and equitable for the tribunal to consider the applicant's said claim despite the fact that it was out of time, that it had been decided after consultation with his Instructing Solicitors, the applicant would not attend the hearing to give evidence but he would rely on legal submissions to the tribunal. He said it had been decided that he would only seek an adjournment to enable him to call the applicant if the respondents disputed the applicant had been off work due to stress related illness from 20 June 2001 to 4 November 2002. In the event this was not disputed and the relevant sick absence record relating to the applicant was produced to the tribunal.

After some initial legal submissions, Mr O'Sullivan then sought an adjournment to enable him to call the applicant to give evidence. The representatives for the respondents objected to the application. It appeared the applicant was not available to come to the tribunal on the day of hearing as she was at work. In the course of legal submissions, Mr O'Sullivan accepted that although he had not been taken by surprise by the matters that the tribunal required to determine in relation to the said preliminary issue, which are well known and the subject of such legal authority, he would now wish to call the applicant. No reason was given for the change of heart from the earlier decision not to call the applicant as a witness.

It was not suggested that any new issues of fact had emerged which could not have been foreseen. There was no suggestion that the applicant was unfit to attend, she had not done so in light of the earlier decision taken by her legal representatives. The Notice of Hearing, indicating the time issue to be determined by the tribunal had been sent to the parties on 2 October 2002, giving the applicant and her legal representatives sufficient time to prepare for the said hearing and to consider what required to be proved. Mr O'Sullivan in making the application did not agree that if the tribunal agreed to his application that his client should be responsible for the costs thrown away by the said adjournment. The tribunal after considering the aforesaid matters, but in particular the fact that a decision had been taken prior to the hearing by the applicant's legal representatives, in full knowledge of the issue to be determined by the tribunal, not to bring her to the tribunal and if necessary call her as a witness and to deal with the issue by way of legal submission, decided in the exercise of its discretion to reject the application. The tribunal was also mindful of the prejudice to the respondents who were legally represented and present at the tribunal if the application was granted and the matter required to be adjourned.

3. The Originating Application was presented to the tribunal on 10 April 2002. In Paragraph 13 of the Originating Application, the applicant set out a series of events upon which she relied in alleging she had been unlawfully discriminated against, contrary to the Sex Discrimination (Northern Ireland) Order 1976. The last of the events described was stated to have occurred on 27 April 2001. In the tribunal's view, given the date of presentation of the application, if the date of the last alleged act was 27 April 2001, the said application was outside the three month time limits set out in Article 76 of the 1976 Order. Mr O'Sullivan submitted that the tribunal should not accept that 27 April 2001 was the last alleged act of discrimination relied on but rather should consider that his client was alleging there was ongoing/continuous acts of discrimination in that there was huge delay in carrying out an investigation into her complaints, the result of which she was only finally notified about on 4 September 2002. Mr O'Sullivan, when asked to show where on the face of the Originating Application the applicant alleged that she was relying on the investigation into her complaint and any delay in relation thereto as part of her application, referred to Sub-Paragraph 16 of the said series of events which referred, inter alia, to a series of conversations she had with a superior manager about the second respondent in 2000 and which concluded 'I felt my complaints to her were being ignored'. The tribunal could not accept that this statement, in the context of the Sub-Paragraph itself but also the other Sub-Paragraphs in Paragraph 13 of the application showed the applicant was relying on ongoing continuous discrimination beyond the events of 27 April 2001. If the applicant was relying on the investigation of her complaint, and/or any delay in relation to same, the tribunal considered it would have been specifically referred to on the face of the application. It was not. Ms Sharon Lindsay, Executive Officer in the Equal Opportunities Section of the first respondent, gave evidence that the applicant lodged her internal complaint by letter dated 5 August 2001 which was received on 6 August 2001. This letter, which sets out in some detail her complaints, was produced to the tribunal. If there had been any delay or difficulty with this process, as part of the matters to be relied on by the applicant, these matters would have clearly been able to be set out in the application, which was presented on 10 April 2002. In fact Ms Lindsay stated that no such complaint was made in the course of the investigation. In the circumstances the tribunal was satisfied that the Originating Application was out of time, the last alleged act of unlawful discrimination having taken place on or about 27 April 2001. Mr O'Sullivan attempted to rely on the dicta in the case of Littlewoods Organisation PLC v Traynor [1993] IRLR 154 in support of his contention that time was still running when the Originating Application was presented. He accepted that the facts of the case were very different to those in the present case and in particular there was no evidence or indeed allegation on the face of the application the first respondent had made promises of remedial measures, which had not been implemented before the presentation of the Originating Application.
4. It was then necessary for the tribunal, having considered that the application was out of time, to consider whether it would be just and equitable in all the circumstances of the case to consider the said application despite the fact that it was out of time. In relation to this, Mr O'Sullivan relied solely on the fact that she had made an internal complaint by letter dated 5 August 2001 but the final outcome of same was not notified to her until 4 September 2002. He could not explain why, if the fact of the outcome of the internal investigation was not known until 4 September 2002 the applicant had decided to present her Originating Application on 10 April 2002 whenever the investigation was still ongoing. It was clear that whilst the applicant had gone off work on 20 June 2001 with stress related illness she had been able to present a detailed complaint to the second respondent by letter dated 5 August 2001. Ms Lindsay further gave evidence that throughout the investigation which was dealt with by a retired Civil Servant, Mr Kennedy, the applicant was represented by her Union. She was able to attend an interview in relation to her complaint on 4 September 2001 and on 29 April 2002. At neither interview was there any complaint about delay in the process or that due to her illness she had any difficulty in taking part in the investigation. She, further did not suggest that that manner in which the investigation was being carried out was part of her complaint of sex discrimination. It further appeared from the evidence of Ms Lindsay that notes of each of the said interviews were prepared and the applicant was given an opportunity to amend them. Indeed on 9 October 2001 the applicant agreed the notes of the interview held on 4 September 2001 and again Ms Lindsay told the tribunal there was no suggestion that her ongoing illness was preventing her taking a full part in the investigation.

The tribunal accepted that an internal appeal may justify an out of time application under the just and equitable jurisdiction, but as was seen in the EAT case of Robinson  v  Post Office [2000] IRLR 104, as confirmed by the England Court of Appeal in Apelogan-Gabriels v London Borough of Lambeth [2001] EWCA Civ 1853 [2002] IRLR 116, the fact an internal appeal procedure is unexhausted delay in awaiting its outcome will not necessarily excuse an application otherwise out of time. It is merely one factor, nothing more, to be considered in the light of all the circumstances. The tribunal having considered the above circumstances and in particular in light of the various factors set out in Harvey on Industrial Relations and Employment Law L (559) was of the opinion it would not be just and equitable for the tribunal to consider the said complaint. The tribunal in so doing noted in particular that the applicant, albeit she was off sick from 20 June 2001, was able to bring a detailed internal complaint on 5 August 2001 and take a full part in the investigation of the said complaint and the interviews in connection therewith and at all material time had been advised by her Union representative in connection with same. There was no evidence before the tribunal that the applicant could not have presented her complaint to the tribunal within the three month period or at least before September 2001 or that she required to await the outcome of the internal complaint to enable her to do so.

5. Accordingly, therefore the tribunal is not satisfied it has jurisdiction to hear the applicant's said claim and it if therefore dismissed.

Chairman:

Date and place of hearing: 9 December 2002, Belfast

Date decision recorded in register and issued to parties: