Industrial Tribunals Northern Ireland Decisions

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Cite as: [2002] NIIT 61_01, [2002] NIIT 61_1

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THE INDUSTRIAL TRIBUNALS

CASE REF: 61/01

62/01

APPLICANT: Mrs Sandra Henderson

RESPONDENTS: 1. Chiltern Inva-Dex Limited

2. Mr Harry Young

3. Mr Tommy Irwin

APPLICANT: Mrs Valerie C Walker

RESPONDENTS: 1. Chiltern Inva-Dex Limited

2. Tommy Irwin

3. Mark Metcalfe

DECISION OF THE TRIBUNAL ON A REVIEW HEARING

Extended Reasons:

These reasons are given in extended form, pursuant to Rule 10(4)(a) of Schedule 1 of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 1996 ["the 1996 Rules"].

The unanimous decision of the Tribunal is as follows;

(i) That, pursuant to Article 76(5) of the Sex Discrimination (NI) Order 1976 ["the 1976 Order"] it is just and equitable to extend time for the presentation of claims for unlawful sex discrimination to 30 October 2000; and that

(ii) Further, and in the alternative, pursuant to Rule 13(1) of Schedule 1 of the 1996 Rules, the Tribunal amends the Originating Applications to allow claims of unlawful sex discrimination.

Appearances:

The applicants were represented by Ms L Boal, of Counsel, instructed by John Ross & Co, Solicitors.

The respondents were represented by Mr O'Loan, Tughans Solicitors.

CHRONOLOGY OF THIS CASE SINCE 18 OCTOBER 2001

The review hearing before the Industrial Tribunal today was convened by the Tribunal pursuant to Rule 11(1) (e) of Schedule 1 of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 1996 because the Tribunal formed the view that the interests of justice required such a review hearing.

This matter initially was heard by the Tribunal on 18 October 2001 in Belfast. At that time, the Respondents were represented by Ms H O'Brien of the IRPC Group. By letter addressed to the representatives, dated 21 March 2001, the parties were invited to make further submissions to the Tribunal on particular points of law. This letter stated;

"If you wish to make further oral submissions to the Tribunal on any of these matters you should do so within 14 days of receipt of this letter. Please contact the Listing Officer of the Office of Industrial Tribunals with a list of suitable dates, and every effort will be made to find a mutually acceptable date when the matter can be relisted for hearing of same…"

By letter dated 4 April 2002 from Tughans Solicitors, the writer advised that that firm of solicitors had come on record two or three weeks after the hearing on 18 October 2001, and sought further time to take instructions from the Respondents. The letter advised that Tughans solicitors would wish to accept the invitation to make further oral submissions to the Tribunal. The Tribunal was not advised of this letter from Tughans solicitors, and thereafter issued a written decision on 29 May 2002.

By letter dated 30 May 2002, Tughans solicitors wrote to advise that that firm understood the matter was to be relisted for further oral submissions, and expressed "surprise indeed [that] it appears a Decision has been taken in our absence and despite our request that an oral hearing take place. We can only assume that this was in error and, in the circumstances, we would appreciate your immediate confirmation that the Decision will now be rescinded pending an oral hearing to determine the matters raised in your letter of 21 March 2001 (sic.).

The hearing before the Tribunal on 29 August 2002 was, therefore, convened to allow the Respondents' solicitor to make such oral submissions, and for the Tribunal to reconsider the Decision it had reached and promulgated on 29 May 2002.

THE SUBMISSIONS FOR THE RESPONDENTS

Mr O'Loan submitted that there was nothing in the Originating Applications that would sustain a complaint of unlawful sex discrimination. In particular, he submitted that in respect of Mrs Henderson's Originating Application, the assertion "Did you learn that pal?" could not be said to have a sexist connotation. Likewise, in Mrs Walker's complaint (with regard to Mr Irwin) Mr O'Loan submitted that there was nothing therein that could be said to necessarily bear a sexist meaning. The fact that Mrs Walker had stated on her complaint to the Industrial Tribunal that Mr Irwin had "…always wanted to be touching your arm or shoulder when he spoke to you" was, in Mr O'Loan's submission, not necessarily implying that there was a sexist element to such tactile behaviour, and Mrs Walker had originally made no assertion that she was complaining of unlawful sex discrimination. The complaint of unwelcome touching was, in Mr O'Loan's submission, made in the context of Mr Irwin's bullying nature, and bullying - without more – does not amount to sex discrimination because it is directed at a woman by a man.

Mr O'Loan sought to contest the Tribunal's Decision at paragraph 7(i), wherein the Tribunal decided that time started to run for the first Applicant from 18 May 2000 and from 19 May 2000 for the second. This meant that time for presentation of the Originating Applications expired on 18 August 2000 for the first Applicant and 19 August 2000 for the second Applicant. In Mr O'Loan's submission, the expression, "Did you learn that pal?" occurred on 5 April 2000, and therefore Mrs Henderson's application was 16 weeks out of time. In respect of the second Applicant, where she complained that Mr Irwin was "always" touching her arm, Mr O'Loan submitted that by that expression, Mrs Walker meant "often" and that "always" could not bear a literal meaning in the circumstances. Since these instances occurred before the dismissal, Mrs Walker's application was significantly out of time.

Turning to the case law cited, Mr O'Loan stated that in Hutchinson v. Westward Television Ltd [1977] IRLR 69, the Employment Appeal Tribunal upheld the decision of the Industrial Tribunal not to exercise its statutory discretion and allow a complaint of sex discrimination which was 10 days out of time. Moreover, the facts in the case of Berry v. Ravensbourne National Health Service Trust [1993] ICR 871, EAT were distinguishable from the Applicant's cases in that in Berry the complainant was not aware of the acts complained of until after the expiry of time allowed to hear her complaint, and she had then presented her complaint within three months of so becoming aware.

In Hawkins v. Ball & Barclays Bank [1996] IRLR 258, EAT, the Applicant received incorrect legal advice. Mr O'Loan argued that the Applicants here shared had instructed the same solicitor as had a third colleague, who had pleaded sex discrimination ab initio. Therefore, what the Applicants sought to argue was not incorrect legal advice but – in effect – inconsistent legal good practice. Inconsistent practice should not be enough to persuade the Tribunal to exercise its "just and equitable" statutory discretion under Article 76(5) of the Sex Discrimination (NI) Order 1976.

With regard to Harvey Vol 5: T331, Mr O'Loan stressed that the Tribunal should have regard to the length of the delay in the presentation of the Applicant's complaints, which he said was 16 weeks.

With regard to Harvey Vol 5: T312, Mr O'Loan submitted that the Tribunal should weight the potential hardship to the Applicants if the claims were incapable of amendment, against the potential hardship to the Respondents if they were (viz: delay, a longer hearing, increased costs, extended pleadings, exposure to greater financial costs on a successful outcome for the Applicants). Mr O'Loan helpfully referred the Tribunal to the balancing exercise it must engage in, as adumbrated in Harvey Vol 5: T279 – 280. The Tribunal must consider (i) the length and reasons for the delay, (ii) how the cogency of the evidence could be affected by the delay, (iii) increased costs and prejudice to the Respondents.

Finally, Mr O'Loan confirmed that Chiltern Inva-Dex is a limited company.

THE SUBMISSIONS FOR THE APPLICANTS

Ms Boal stated that she wished to stand by her earlier submissions. She stated that the Applicants did not seek to amend the facts as pleaded on their Originating Applications, but merely to add a new label to that already applied to the cases when first presented. The Tribunal should refrain from attempting to judge substantive matters, having not heard evidence in that regard.

On the issue of the time limits, Ms Boal argued that the Tribunal should extend time if it were satisfied that there was a prima facie on the papers. Ms Boal argued that the Tribunal should favour the Applicants when reviewing its Decision of 29 May 2002, in that the Applicants had not sought to plead new facts. It must therefore follow from this that the Respondent would not be automatically disadvantaged or prejudiced, since there was no reason to suspect that the case would take any longer to prepare or present to the Tribunal on the facts as they stood.

THE DECISION OF THE TRIBUNAL

The Tribunal has considered all these submissions, and all the references and case law cited. The Tribunal has also given consideration to the guidance given in Harvey Vol 5: T277, and T311 – 312.05. Tribunal makes the following decision;

i. The Tribunal expresses its regret to the parties that the letter from the Respondents' solicitors, Tughans & Co., dated 4 April 2002 was not placed before it, and that it made its Decision of 29 May 2002 without the benefit of further submissions from the Tughans & Co. The Tribunal cannot ascertain if this letter was ever received by the Office of Industrial Tribunals & the Fair Employment Tribunal.

ii. The name of the first named Respondent should be amended to read Chiltern Inva-Dex Limited.

iii. Turning to the merits of the submissions made by the representative before us on 29 August 2002, the Tribunal determines that Mr O'Loan's submissions (as set out in paragraph 6 above) are matters that should be tested at a substantive hearing of the Applicants' complaints. As Mr O'Loan submitted, the alleged remarks did not necessarily connote unlawful sexism. That this statement is correct, or otherwise, is something which a Tribunal can only determine – one way or another – at the end of a substantive hearing of all the evidence, and it would be wrong of this Tribunal to deny the Applicants the chance to argue these points at this stage of their complaints.

iv. Likewise, in respect of the first Applicant's complaint, the Tribunal has re-examined her Originating Application. It is clear to the Tribunal that the complaint, at section 13, adumbrates a sequence of events that starts in March 2000, and runs to 18 May 2000. This sequence includes the alleged act of unlawful sex discrimination on 5 April 2000, when Mr Irwin said, "Did you learn that pal?" Since the last act complained of allegedly occurred on 18 May 2000, the Tribunal has applied Article 76(6) of the 1976 Order, which provides that;

76(6) For the purposes of this Article –

(a) …..

(b) any act extending over a period shall be treated as done at the end of that period…

In applying this provision, the Tribunal determines that time began to run for the first Applicant on 18 May 2000. Likewise, in respect of the second Applicant, the Tribunal determines that it would be premature for the Tribunal to apply to her a meaning of what she meant when she stated in her Originating Application that Mr Irwin was "always" touching her arm, when the Tribunal has heard no evidence in this regard. Therefore, the Tribunal determines that it must affirm its Decision of 29 May 2002 (at paragraph 7(I)) in that the amendments sought on 30 October 2000 were over nine weeks out of time. The Tribunal also carefully reconsidered Harvey Vol 5: T312.01 & 312.02, as set out in paragraph 7(iv) of its Decision of 29 May 2002. On review, the Tribunals affirms its Decision (at paragraph7(v) of its Decision of 29 May 2002) that it would be just and equitable, pursuant to Article 76(5) of the 1976 Order, to allow time to be extended to 30 October 2000.

v. The Tribunal has carefully considered the parties' representations as outlined in paragraphs 11 and 14 above. The Tribunal does not accept that it must inevitably follow that there will be a significantly greater burden on the Respondents if the amendments sought on 30 October 2000 are allowed to stand. The Tribunal favours the submission of Ms Boal when she submits that the Applicants have not sought to plead new facts. That this is the case, the Tribunal cannot agreed with Mr O'Loan when he argued that there would necessarily be a longer hearing, extended pleadings or increased costs. The Tribunal has applied itself again to the balancing exercise as adumbrated in Harvey Vol 5: T279-280, and determines in favour of the Applicants in this regard on review.

vi. The Tribunal therefore affirms its Decision of 29 May 2002 on review by the Respondents.

vii. The Tribunal now Orders that this matter should now be relisted for a hearing on the substantive issues before a freshly-constituted Tribunal.

viii. No further or other Order is made.

Chairman

Date and place of hearing: 29 August 2002, Belfast

Date decision recorded in register and issued to parties: