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THE INDUSTRIAL TRIBUNALS

CASE REF: 560/02

APPLICANT: Lorna Livingston

RESPONDENTS: 1. Police Service of Northern Ireland

2. D/Sgt Cargin

3. D/Insp McAuley

4. D/Chief Supt McVickers

5. ACC S Kincaid

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that

(a) The Applicant's complaint was not presented within the specified time limit; and

(b) It would not be just and equitable, in all the circumstances of the Applicant's case, for the Tribunal to consider this complaint despite the fact that it is out of time; and

Appearances:

The applicant was represented by Ms L Moran, of Counsel, instructed by J J McNally, Solicitors.

The first, third, fourth and fifth respondents were represented by Mr M Boyd, of Counsel, instructed by Crown Solicitor's Office.

The second respondent was represented by Mr P Coll, of Counsel, instructed by Bogue & McNulty, Solicitor.

THE TRIBUNAL FOUND THE FOLLOWING FACTS

i. By her Originating Application, presented on 25 February 2002, the Applicant complained that the Respondents discriminated against on ground of her sex. At section 12 of the Originating Application, the Applicant stated that the matters she was complaining of arose between January and October 2001, and that she first knew of these matters on 7 December 2001.

ii. At section 13 of Originating Application, the Applicant adumbrated her complaint in a set of facts which started in January/ February 2001. The Applicant set out a chronology of events which she alleged were tantamount to unlawful sex discrimination, and alleged these included a confrontation with the second Respondent on 22 October 2001. The Applicant alleged that she had been advised by her GP to report unfit for duty owing to work-related stress on 5 November 2001, and that on 7 December 2001, the fourth Respondent had officially informed her that he was concerned about the contents of a report compiled by the second Respondent and submitted to the fourth Respondent. The contents of the report, as discussed with the Applicant on 7 December 2001, distressed her.

iii. By 8 February 2002, she contacted the fourth Respondent again to see what had been done about the report, to be informed that no action had been taken to progress the matter by referring it to the fifth Respondent for his directions. The Applicant telephoned the fourth Respondent again on 15 February 2002, and the fourth Respondent said that he could not find the report but that when he did he would pass it to the fifth Respondent for his direction. She had written to the third and fourth Respondents again on 22 February 2002 formally requesting a copy of the report. Her Originating Application is signed and dated 18 February 2002 and 22 February 2002, and was presented on 25 February 2002. In its Notice of Appearance, presented on 22 March 2002, the first, third, fourth and fifth Respondents contended, inter alia, that the Applicant's complaint had been presented out of time. The matter was listed before the Industrial Tribunal on a Preliminary Hearing to consider the following;

(a) Was the application presented within the specified time limit; and

(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?

iv. The Applicant gave evidence to the Tribunal. The Applicant's last day at work in 2001 was 24 October 2001. She took annual leave from 25 October 2001 and reported unfit for duty on 5 November 2001, owing to work-related stress. This stress had been mounting in the preceding months, but it was the row with the second Respondent on 22 October 2001 that, in the Applicant's words, "broke the camel's back… I felt broken at that stage. I felt completely worn down". The second Respondent was her direct superior and manager. She felt that she could not cope any longer. She had not taken sick leave on 25 October 2001 to 5 November 2001 owing to pride. She had no contact with the second Respondent after 24 October 2001. The Applicant considered that the incident on 24 October 2001 was the last act of alleged discriminatory conduct against the second Respondent.

v. After 24 October 2001, the third Respondent had paid her a number of friendly visits to her home. These started at the end of November 2001, and on the first such visit, the third Respondent had told her of the existence and contents of a report he had seen. The author of the report was the second Respondent. The report was dated 24 October 2001. The Applicant did not know why the second Respondent would have initiated such a report about her on 24 October 2001, but felt that this was another example of his discriminatory conduct toward her. Although the third Respondent was the second Respondent's direct superior, he had not had access to the report, as it has been sent to the fourth Respondent. On 7 December 2001, the fourth Respondent had formally called at the Applicant's home. The fourth Respondent discussed the report, and said that he was concerned about its contents, since it queried the Applicant's mental status on 24 October 2001. The fourth Respondent said that he did not wish the Applicant to have a copy of it at that stage, and that he had referred the matter to the fifth Respondent for his direction as to how to progress the matters contained in the report. However, the fourth Respondent agreed that the Applicant should see the report in the fullness of time. The Applicant felt that she needed to see a copy of the report, and was "devastated" to learn of its existence. Her reaction was "God, what has he done?" Thereafter, it appears the Applicant felt that her reaction on 7 December 2001 to the news of the existence of the report would trigger some kind of internal investigation. With over 22 years experience in the Police, she had never initiated an internal complaint. The fourth Respondent asked the Applicant to trust him, and that he would revert to her before Christmas. The Applicant did not initiate any internal grievance before she presented her complaint on 25 February 2002.

vi. By January 2002, when the fourth Respondent was on leave until the end of that month, and when he had still not reverted to the Applicant, she consulted her solicitor. She was asked by her solicitor to write out a statement of her complaint. Her solicitor undertook to contact the Equality Commission with a view to securing funding for litigation against the Respondents. Although she is a police officer with more than 22 years experience, she had no knowledge of Industrial Tribunal time limits at that time, and was not advised of same by her solicitor. She was aware of the importance of time limits in legal cases generally, but took no steps to ascertain the time limits for Industrial Tribunal cases. However, the Applicant had also met with another advisor, Rosemary Craig, in January 2002. Rosemary Craig had experience in discrimination cases, and she advised the Applicant of the three month time limit for presenting a complaint. The Applicant's solicitor contacted her by letter in January 2002, and asked her to revert to him. The Applicant contacted the fourth Respondent by telephone on 8 February 2002. He said that nothing had been done in respect of the report whilst he had been on leave in January 2002. He said that he would again seek the fifth Respondent's direction on the matter. The Applicant contacted the fourth Respondent again on 15 February 2002. By the end of February 2002, the third Respondent unofficially provided the Applicant with a copy of the report. The Applicant reverted to her solicitor at the end of February 2002. She could not provide any reason for not reverting to her solicitor from the first consultation in early January until the second at the end of February 2002. She stated in evidence that she now realised it "was her own fault" for delaying 7-8 weeks in going back to her solicitor. The Applicant officially received a copy of the report in March 2002. Therefore, she did not have a copy of the report - officially or unofficially - when she presented her Originating Application on 25 February 2002. The Applicant joined the third to the fifth Respondents to her complaint because they had known of the existence of the report and had done nothing about it. However, she could not enlighten the Tribunal as to how this knowledge and consequent inactivity could be considered sex discrimination, when compared with a real or hypothetical comparator, pursuant to Article 3 of the Sex Discrimination (NI) Order 1976 [ "the 1976 Order"].

vii. The reason the Applicant gave for not presenting the complaint before 25 February 2002 was her ill health. There was no medical evidence before the Industrial Tribunal as to the severity of the Applicant's stress in the period from 5 November 2001 to 25 February 2002.

viii. The Applicant returned to work on 2 September 2002, in another unit.

ix. The parties' Counsel made submissions to the Tribunal as to the possible impact of Article 19 of the 1976 Order, particularly in respect of the dictum of the Court of Appeal in Liversidge v. Chief Constable of Bedfordshire Police [2002] IRLR 651. The Tribunal understands that a petition to appeal the Court of Appeal's decision in this case is currently before the House of Lords.

THE DECISION OF THE TRIBUNAL

Having considered all the evidence heard in this case, all the submissions, and all the references and case law cited, the Tribunal makes the following decision;

i. The Tribunal determines that – as the Applicant stated in section 12 of her Originating Application – the incidents of which she complains took place from January – 24 October 2001. By 24 October 2001, she considered herself "broken" and that 'the camel's back had been broken'. Therefore, applying Article 76(6) of the 1976 Order, the Tribunal determines that time started to run on 24 October 2001. Article 76(1) of the 1976 Order provides that a complaint must be presented to the Tribunal before the end of the period of three months beginning with the act complained of. Therefore, time expired for the presentation of the Applicant's complaint on 24 January 2002. Since the complaint was not presented until 25 February 2002, the Tribunal's determination of the first preliminary question at 1(iii) (a) above (was the application presented within the specified time limit) is that the complaint was not presented in time.

ii. The Tribunal emphasises that it is fully appraised of its statutory discretion to extend time for the presentation of a case, as provided by Article 76(5) of the 1976 Order. In particular, the Tribunal has considered this jurisdiction as it applies to the Applicant's particular case [Harvey Vol 5: T277- 278]. The Tribunal has engaged in the balancing exercise adumbrated in Harvey Vol 5: T 278, and has examined (a) the length of and 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 party sued had co-operated with any requests for information, (d) the promptness with which the applicant acted once she knew of the facts giving rise to the cause of the action; and (e) the steps taken by the Applicant to obtain appropriate professional advice once she knew of the possibility of taking an action – Berry v. Ravensbourne National Health Trust [1993] ICR 871, EAT.

iii. The Tribunal determines that the reasons the Applicant delayed in presenting her complaint were twofold; viz, (a) she was unwell at the time owing to work-related stress, and (b) she was seeking a report from the fourth Respondent. However, the Applicant's Originating Application clearly states that the matters she was complaining of ran from January to October, and that she was aware of these matters by 7 December 2002. There is no objective medical evidence before the Tribunal that the state of the Applicant's health from 7 December 2002 to 25 February 2002 was such as to prevent her from communicating with others about her complaint. On the contrary, the evidence is that she had had a number of visits from the third Respondent, had spoken to the fourth Respondent in person and by telephone, had communicated with her solicitor once and had spoken to Rosemary Craig about the matter, and had been apprised of the time limit for submitting a complaint. Most – if not all – of these various communications had taken place before the 24 January 2002, when the Applicant could have presented a timeous complaint. She could provide no explanation as to why she had delayed until 25 February 2002 to present the complaint, other than that she was awaiting the report of the second Respondent. However, she still had not received this report by the date of presentation of the complaint on 25 February 2002. In considering the length and reason for the delay [Harvey 5: T 279], the Tribunal is not satisfied that the report was vital to the timeous, or even late, presentation of the complaint.

iv. The Tribunal makes no determination as to how the cogency of the evidence is likely to be affected by the delay.

v. The Tribunal has considered the extent to which the Respondents co-operated with requests for information. There was a delay from 7 December 2002, when the fourth Respondent officially informed the Applicant of the existence of the offending report, to March 2002 when the report was provided, the Tribunal is satisfied that the fourth Respondent was on leave for most or all of January 2002. The Applicant unofficially received a copy of the report from the third Respondent at the end of February 2002. But by that stage, the complaint had been presented. It must ineluctably follow from this that there was no real reason why the Applicant could not have presented the report at any time before 24 January 2002. Actual possession of the report was not crucial to the time limits issue, and therefore the Tribunal is not swayed by the Respondents' delay in providing it to the Applicant.

vi. The Applicant did not act promptly after she considered herself "broken", or that the events of 22 October 2001 had "broken the camel's back". By 24 January 2002, she had consulted widely with the third and fourth Respondents and her solicitor. The Applicant was aware that her solicitor was to attempt to secure funding from the Equality Commission, and so must have been aware in early January 2002 of the potential for proceeding to litigation against the Respondents. Moreover, she also consulted Rosemary Craig. Despite all these communications, and the fact that the Applicant - as a very experienced Police officer - was generally aware of the importance of time limits in litigation, she could provide no explanation as to why she had failed to act promptly in ascertaining the applicable time limits from her solicitor, or from acting promptly in presenting a complaint once she had been so informed by Rosemary Craig. There is no compelling evidence before the Tribunal was to why the Applicant could not have presented a timeous complaint, or even why there had been a delay of more than one month (24 January – 25 February 2002) in presenting her complaint.

vii. The Applicant could provide no explanation as to why she had not reverted to her solicitor in January 2002.

viii. Therefore, in weighting and balancing all these considerations, the Tribunal determines that there is no evidence before it of any essential impediment or constraint to the timeous presentation of the complaint by 24 January 2002. Neither was there any essential development, impediment or constraint on the Applicant by 25 February 2002 which could have prevented her from presenting the complaint before that date. There was no concurrent internal grievance or appeal pending, nor was possession of the second Respondent's report crucial to timeous presentation.

ix. Having engaged in the balancing exercise outlined in Harvey 5: T 278-279, the Tribunal determines that it is not persuaded on the evidence that it should exercise the discretion afforded by Article 75(5) of the 1996 Order.

x. Having made the determination at 2(i) and (ix) above, the Tribunal now dismisses the Applicant's complaint. It is not, therefore, necessary to make any further determination in respect of Article 19 of the 1976 Order, or Liversidge v. Chief Constable of Bedfordshire Police [2002] IRLR 651.

xi. No further or other Order is made.

Chairman:

Date and Place of Hearing: 6 November 2002, Belfast

Date Decision Recorded in Register

and Issued to the Parties: