Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 02239/97 SD

02319/97 SD

02404/97 SD

APPLICANTS: 1. Caroline Patricia Edmondson

2. Sharon Philomena Smyth

3. Olive Elizabeth McCauley

RESPONDENTS: 1. Michael Allen

2. Brian Burton

3. Chief Constable of the Royal Ulster Constabulary

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that each of the originating applications was not presented within the specified time limit, set out in Articles 76 of the Sex Discrimination (Northern Ireland) Order 1976; but that it is just and equitable, in all the circumstances of the case, for an industrial tribunal to consider the complaint of discrimination on the grounds of sex of each applicant, despite the fact each said originating application is out of time.

Appearances:

Applicant:

The applicants were represented by Ms L Askin, Barrister at Law, instructed by the Equality Commission.

Respondent:

The first respondent was represented by Mr D Flanagan, Barrister at Law, instructed by Edwards & Co, Solicitors.

The second respondent appeared in person and was unrepresented.

The third respondent was represented by Mr P Grant, Barrister at Law, instructed by the Crown Solicitor.

1. This matter came before the tribunal, by way of a preliminary hearing, to

consider, in relation to each originating application, the following issues, namely:-

(i) was the application presented within the specified time limit?

(ii) if not, is it just and equitable, in all circumstances of the case, for

an industrial tribunal to consider this complaint, despite the fact that it is out of time.

2. 1 Each of the applicants was a part-time reserve constable, who in 1995 was attached to Greyabbey Police Station, Co Down. In or around 1995, the first respondent was the station sergeant and the second respondent was one of the full-time regular police constables at the said station.
3. 2 On or about the 26 July 1995, the applicants were informed by the second respondent that the first respondent required them, as part of their duty, to take part in the fitness test in connection with a pilot scheme which he had been instructed to carry out for the introduction of fitness assessments; and which the first respondent had to have completed before he was due to be transferred to another police station, in or about August 1995.
4. 3 The applicants, not without some hesitation, agreed to take part in the test, which took place on the evening of 27 July 1995. A full-time regular constable at the station, Mark Kennedy, also took part in the test. The test commenced in the male changing rooms, where fitness equipment had been laid out. The test consisted of a series of timed exercises, supervised by the first respondent, and which included sit-ups on a bench, chest expansion exercises and cycling on a exercise bike. There was then a timed two mile run from outside the police station, which was monitored by the first respondent in a police car, accompanied by the second respondent. As part of the test, the applicants were also required to complete a questionnaire, which involved answering questions about general fitness but also questions which were of a personal nature. On completion, the questionnaires were handed to the first respondent who placed them in envelopes, addressed to the Occupational Health Unit of the third respondent. Both the first and second respondent were in uniform during the course of this test and, at all times, led the applicants to believe that the test was part of their duty for that evening. All the applicants completed the said fitness test, including the completion of the said questionnaire.
5. 4 Following her return in mid-August 1995 from her annual holiday, which had commenced immediately after completing the test, the second applicant became aware, from enquiries that she had made, that the test was not officially authorised, was not genuine and that in taking part she and the other applicants had been the victims of some sort of prank, involving both the first and second respondents. By late-August 1995 the second applicant had informed the other applicants of what she had discovered. All of the applicants were very embarrassed, hurt and upset that they had been required not only to take part in the test, to do the various exercises and fill out the questionnaire, but also to do so in such circumstances.
6. 5 In or about late August 1995/early September 1995, there were rumours circulating in the station that the test may have been videoed. The Applicants came to hear of the rumours and were concerned whether they might be true. About this time, the first applicant's husband, who is also a serving police officer in another station, informed the first applicant that he had heard from a fellow officer that the test had been videoed. This fellow police officer, who was stationed in Bangor, was at no time challenged about what he had said by the applicants or anyone on their behalf. It was suggested in evidence by the applicants that this officer had a reputation as a "station trickster" and therefore unreliable; though it did not appear to the tribunal that this in itself would have prevented him being asked questions to see if there was some basis for what he was saying. In any event, the third applicant decided to raise issue with the second respondent and asked him about the existence of a video of the test. The second respondent stated that there was no video of the test. The third applicant informed the other applicants of what she had been told by the second respondent and all were prepared to accept his denial, without further enquiry or action.
7. 6 Subsequently, in or about September/October 1995, a party was held in connection with the leaving, in or about August 1995, of the first respondent from Greyabbey Police Station. Initially, the applicants were reluctant to attend because of their continuing embarrassment and hurt over the events of 27 July 1995, but in the end all decided to attend the party. At the party, the second respondent carried, in full view of the applicants, envelopes similar to those in which they had placed their answers to the questionnaire. During the course of the party they became concerned, from comments the second respondent made in their presence about the envelopes he was holding, that some of their answers to the questionnaire, of a more personal nature, would be read out or in some way revealed at the party. However, before the end of the party, each applicant was handed one of the envelopes, which contained a paper hat on which there was a reference to the fitness test. The events of the party caused each of the applicants further upset, hurt and embarrassment.
8. 7 The applicants held various discussions from in or about mid August 1995 about the events of 27 July 1995 and how it had affected each of them; and again immediately following the events of the leaving party. But, on each occasion, they decided, in what the tribunal concluded had to have been, in essence, a joint decision, that none of them would take any steps to make any complaint, either internally or externally, in relation to what had happened in relation to the test and/or the leaving party. The tribunal is confident that, if at that time, any one of the applicants had decided to take any such steps that the other applicants would have taken similar steps. This was illustrated by their similar actions, following their discovery of the existence of a video of the test in 1997.
9. 8 On or about 30 March 1997, Easter Sunday, the second applicant was working at Portaferry Police Station with a Constable O'Neill. He asked the second applicant, in the course of conversation, whether she had been the person on the video. The second applicant thought he was referring to a video for a drugs operation on which they had both previously worked. It then became clear he was in fact referring to a video, which had been taken of the fitness test at Greyabbey Police Station. He clearly intimated to her that there was a video of the test; but, when he realised she was unaware of its existence, he tried to suggest to her that he had not seen it. Constable O'Neill did not give oral evidence to the tribunal. However, a statement, dated 8 April 1997 which he had made as part of an internal investigation, which was subsequently conducted by the third respondent, was adduced in evidence by the applicants without formal proof, with the consent of the respondents. This statement, inter alia, made it clear that a video had been taken of the fitness test and that Constable O'Neill had seen the first respondent showing it in Newtownards Police Station in or about October/November 1995. In the statement he also stated that he had been required, as part of the internal investigation, to try to recover the video from the first respondent at his home, but that the first respondent had maintained he could not find it and that it had been destroyed.
10. 9 After the second applicant had informed the other applicants of what she had been told by Constable O'Neill about the video, each of the applicants promptly commenced an internal grievance which resulted in the said internal investigation by the third respondent. When they realised from what Constable O'Neill had said about the tape that not only had a video of the test been taken but also it had been shown to and seen by other unidentified police officers the applicants contended to the Tribunal that this made what had taken place a far more serious and significant matter for them, which caused them further embarrassment, hurt and upset, and raised the seriousness of the whole matter to a higher level which they were no longer prepared to ignore, as they had done previously, as set out above. After obtaining legal advice, the applicants each presented originating applications to the tribunal in or about June 1997, complaining of sexual harassment/sex discrimination against the respondents.
11. .1 The first issue for the tribunal to consider was whether the applications had been presented within the specified time limit.
12. 2 Under Article 76 (1) of the Sex Discrimination (Northern Ireland) Order

1976:-

"An Industrial Tribunal shall not consider a complaint under Article 63, unless it is presented to the tribunal before the end of a period of three months beginning when the act complained of was done".

Under Article 76 (6) (b):-

"Any act extending over a period shall be treated as done at the end

of that period".

13. .3 The applicants' representative, Ms Askin, submitted that what had occurred was a continuing act of unlawful discrimination on the grounds of sex. The tribunal had no hesitation in accepting that the fitness test and the leaving party, with its reference to and association with the fitness test, were part of a continuing act of discrimination. The Tribunal is further prepared to hold that the taking of the video of the test itself, but also the showing of the video in October/November 1995 formed part of this continuing act of discrimination up until that date. In the view of the tribunal, all these said incidents of alleged unlawful discrimination were part of an ongoing situation/continuing state of discriminatory affairs linked to one another and were thereby sufficient to establish "an act extending over a period" (see Hendricks –v- Commissioner of Police for the Metropolis (2003) IRLR 97). However, there was no evidence before the tribunal that the video was shown after the above date. In these circumstance, the tribunal concluded that the relevant three-month time limit began to run from in or about October/November 1995. Ms Askin in a submission, which the tribunal could not accept, submitted that the relevant time limit ran not from October/November 1995, but from in or about Easter 1997 when the applicants ascertained from Constable O'Neill about the existence of the video of the test. Firstly, the tribunal could not accept, as submitted by Ms Askin, that the mere existence of the video, without more, could establish such a continuing act of unlawful discrimination. Secondly, even if the tribunal is wrong, there was no evidence, before he tribunal, of the existence of the video after it was shown, as described by Constable O'Neill, in October/November 1995.
14. .4 In these circumstances, the tribunal was satisfied that each of the said applications, having been presented, as aforesaid, in or around June 1997 were not presented within the specified time limit, as set out above.
15. 1 The second issue for the tribunal to consider was whether, in all the circumstances of the case, it was just and equitable for the tribunal to consider these complaints, despite the fact that they were out of time.
16. 2 The applicants each accepted in evidence to the tribunal that they knew, following their discovery in or about August 1995 that the fitness test, including the questionnaire, was not officially authorised, was not genuine and in taking part they had each been the victim of some sort of prank involving both the first and second respondents, they had a complaint of sexual harrassment/unlawful sex discrimination against the respondents. They similarly accepted that they also knew they had such a complaint, following the events of the leaving party. Ms Askin readily acknowledged that, if the applicants had brought a complaint to the tribunal at that time and had known about the video of the test, and/or that it had been shown this would clearly have formed part of any such complaint brought by the applicants.
17. 3 In considering this issue of whether time should be extended on "just and equitable grounds", the tribunal was conscious that it has a wide discretion (see further Harvey on Industrial Relations and Employment Law Volume 5, Part T, Paragraphs 277-290). It noted, in particular, the recent decision of Robertson -v- Bexley Community Centre T/A Leisure Link (2003) IRLR 434 in which it was held:-

"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 it considers relevant. However time limits are exercised strictly in employment cases. Where 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 failure to exercise their discretion. On the contrary, a 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."

18. 4 The tribunal was satisfied that no issue of specific prejudice arose for the respondents by reason of the fact that the complaints were out of time. The complaints of the applicants were able to be fully investigated by the respondent in or about April 1997 and the records, including all statements made, relating to that investigation are readily available. As was stated in the decision of the Northern Ireland Court of Appeal in the case of Charles Johnston and Others -v- Chief Constable of the RUC (1998) N.I. 188, the fact that there is no undue prejudice caused to a respondent does not mean that it is just and equitable to ignore the time limit. Indeed if specific prejudice had been established, given the length of time that has elapsed, the Tribunal would not have been persuaded to exercise its discretion in favour of the applicants.
19. 5 The tribunal found it necessary to examine closely why the applicants did not bring their applications within the prescribed time limits in relation to their complaints of unlawful discrimination concerning the fitness test and/or the leaving party, but yet promptly presented originating applications to the tribunal, whenever they heard through Constable O'Neill of the existence of the video and that it had been shown at Newtownards Police Station in or about October/November 1995.
20. 6 The tribunal, having heard the evidence of the applicants, was satisfied that each of the applicants in or about 1995 had sufficient knowledge of the internal complaints procedure of the third respondent. Indeed, this was amply demonstrated by the ease with which they all commenced their internal grievances after Easter 1997. Whilst, the tribunal could understand that since the first respondent was the station sergeant of Greyabbey Police Station and, in effect, the "line manager" of the applicants and the first respondent, that they would not have found it appropriate to make their internal complaint to him. However the first respondent left the station in or about August 1995. Although his successor was not fully in post until in or about September/October 1995, the tribunal does not accept that there was any reason for not making a complaint to his successor at that stage. In any event, the tribunal does not accept that there would have been any difficulty for the applicants, if they had wished to do so, to make at any time such an internal complaint to Inspectors or other officers of higher rank attached to Newtownards Police Station, which had overall responsibility for the operation of Greyabbey Police Station. The applicants, in evidence to the tribunal, made reference to a culture in the Police which was hostile to persons who made complaints; but were unable to support the reference with any relevant or cogent evidence. In addition, they referred to a fear of making a complaint because they depended, as reserve officers, on the support of regular officers in the carrying out of their duties. Again they were unable to provide any relevant or cogent evidence to support this fear or to give it some credence.

However, none of these matters were relevant in the tribunal's view, because the applicants did not decide to make any complaint, whether internal or external, in relation to the fitness test and/or the leaving party, because of any of the difficulties or concerns, as referred to above. If they had taken any action to complain at that time and any of these difficulties or concerns had arisen, clearly this would have been something the tribunal would have had to consider and take into account in relation to the exercise of the said discretion to extend time. But no such complaint was made by the Applicants. In this context, it also has to be remembered that the Sex Discrimination legislation makes specific provision for a complaint of victimisation and the exercise of the discretion cannot be a substitute for making a complaint of victimisation, where such a complaint is applicable. Thus issues relating to how to go about making a complaint and any difficulties and concerns relating to same were not relevant, as they just never arose.

21. 7 The tribunal is satisfied that, although the applicants knew they had such valid complaints concerning the fitness test and/or the leaving party they took a conscious decision not to take any further action, either internal or external. They had taken part in this unauthorised fitness test and thereby been the victim of a prank, all of which had caused them considerable embarrassment, hurt and upset; as had the events of the leaving party.

However they decided to take no further action, to put the said incidents behind them and to get on with their work; in particular each applicant did not wish to be seen as a person who could not take a joke. The tribunal accepted that prior to Easter 1997, following the conversation with Constable O'Neill, the applicants had no knowledge that a video of the test had been taken or that it had been shown to and seen by other identified officers. There had been rumours circulating, following the test, of such a video but the second respondent denied to the third applicant the existence of the video. The tribunal was not prepared to be critical of the applicants for accepting the word of the second respondent, who had been involved in the test itself, was a fellow serving police officer in the same station whom they had no reason to disbelieve and in circumstances where the applicants were anxious to put the matter behind them. It would have been possible to make enquiries of the fellow Police Officer in Bangor, but the tribunal can fully understand and accept why this was not done in light of their acceptance of the denial of the second respondent.

The tribunal accepted the applicants' contention to the tribunal that when they discovered, at or about Easter 1997, a video of the test had been taken, but also it had been shown to and seen by other unidentified police officers, that this made what had taken place a far more serious and significant matter for the applicants; whilst they had been prepared to take no further action with regard to the test and the leaving party, albeit these had caused them embarrassment, hurt and upset, the fact the video of the test had been taken and shown to and seen by other unidentified police officers, together with the further embarrassment, hurt and upset raised the seriousness of the whole matter to a much higher level, which they were no longer prepared to ignore. Indeed the tribunal noted that following the events of Easter 1997, each applicant promptly commenced an internal grievance; sought advice from a Solicitor in or about April 1997 and, following such advice the applicants presented their originating applications to the tribunal.

The tribunal is satisfied that if the applicants had known at any time prior to Easter 1997 that the video of the test and/or it had been seen and shown to other identified police officers, the applicants would immediately have taken steps to bring an internal grievance and commenced proceedings in the tribunal. They would not, in the view of the tribunal, have continued to take no further action, as they had done previously. For the reasons set out above the applicants, in the opinion of the tribunal are not to be faulted for making no further enquiries following the test and leaving party and prior to the events of Easter 1997.

22. 8 The tribunal were mindful of the dicta referred to above in the case of

Robertson –v- Bexley Community Centre T/A Leisure Link (2003) IRLR 434 and, in particular, that the exercise of discretion to extend time is the exception rather than the rule. However the Tribunal concluded that, in all the circumstances of the case it was just and equitable to extend time, having taken into account all the aforesaid matters but, in particular, the absence of prejudice and the fact that at the time of their original decision they did not know, in the circumstances as set out above, the full extent and nature of what had taken place and which only became known to them in or about Easter 1997.

23. The tribunal is therefore satisfied that each of the originating applications was not presented within the specified time limit, set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976; but that it is just and equitable in all the circumstances of the case for an industrial tribunal to consider the complaint of discrimination on the grounds of sex of each applicant, despite the fact that each said originating application is out of time.

Chairman: Neil Drennan QC

Date and place of hearing: 7 October 2003, 8 October 2003,

27 November 2003, 28 November 2003

Date decision recorded in register and issued to parties: