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THE INDUSTRIAL TRIBUNALS

CASE REF NO: 482/02

APPLICANT: Stephen A Smyth

RESPONDENTS: 1. Graham White

2. Ulster Bank Ltd

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the Tribunal is that the applicant's originating application was presented outside the statutory time limits and the Tribunal does not consider it should exercise its discretion and extend the time limits. The originating application is dismissed.

APPEARANCES:

APPLICANT: The applicant appeared and gave evidence.

RESPONDENTS: Mr G Grainger, Barrister-at-Law, instructed by Jones & Cassidy, Solicitors.

The Tribunal decided to determine two preliminary issues in relation to whether the application was outside the statutory time limits and, if so, whether it was just and equitable in all the circumstances of the case to consider the complaint despite the fact it was out of time. The Tribunal did not consider the third issue which was in relation to its jurisdiction for a claim in relation to sexual orientation.

Dr Stirling, who was the applicant's General Practitioner since 1987, gave evidence which was based on a report that he had written in May 2002. Unfortunately he did not have his notes and records with him in relation to the medication that he had given the applicant but the Tribunal accepted that the applicant had had a long history of depression and anxiety related problems and that he had been on anti-depressants and been referred to psychologists and psycho-analysts since 1987. It was agreed that the applicant had been suspended from his employment in June 2000 and at that time he

commenced on a very strong tranquilliser to manage his symptoms. According to the GP's report he remained on this from June to December 2000 when it was replaced by an anti-depressant and a minor tranquilliser. The Tribunal did not have the names of these drugs. His GP stated that the applicant is still on Prozac but that he is in a much better state of health at the time of this hearing than he was in June 2000.

The applicant submitted an application to the Tribunal on 14 February 2002 having complained of his suspension from work in June 2000. The Tribunal would have expected an application to be lodged by September 2000 and so his claim is quite considerably outside the statutory time limits. The applicant gave evidence and stated that he started a grievance in May 2000 in relation to an annual assessment that had been made. He was suspended on 9 June 2000 and the Irish Bank Officials' Association became involved in his case. It was pursued through to a disciplinary hearing on 30 April 2001. This hearing was arranged after medical reports had been sought on behalf of the applicant by the company. They had arranged to have reports from his own psychiatrist and they had asked him to go to a psychiatrist of their choosing. The Bank Officials' Association had also asked for the hearing to continue.

The applicant's case was that he could not make any decisions about his future but he went ahead with the disciplinary hearing because he could answer questions that were put to him. In his evidence he stated that he reacted to a situation and acted on instructions from the Irish Bank Officials' Association although he never commenced anything himself. He agreed that he followed a plan of action set out by Mr McCrum, his clinical psychologist, and to quote his own words he moved at 'one step at a time'.

It was put to the applicant that he applied for a job in July 2001 and was interviewed. He wrote for the application form, he filled it in and he went to an interview. He obtained the position with Easyjet at Belfast International Airport and has worked there ever since becoming full-time from mid 2002. The applicant also agreed that he went to see solicitors Wilson and Nesbitt in December 2001. He also was seeking advice and assistance from gay organisations, he had contacted the Equality Commission and the Tribunal accepted that the applicant had written a long well reasoned letter to the Royal Bank of Scotland on 25 January 2002 where he was putting forward his case. He also had written to the respondent on 30 April 2001 offering his resignation and asking permission to remove his personal belongings from Willowbrook at a time that was convenient to the bank. This action of resignation seems to have been as a result of the disciplinary hearing on Thursday 26 April 2001 where the applicant was represented by his trade union.

The Tribunal has considered all the evidence given to it by the applicant and his medical adviser. The Tribunal has also considered the reports furnished by the various psychiatrists who were advising the bank and the applicant in this period. Whilst the applicant stated to the Tribunal that he was only in a position to answer questions and not to take active steps, the Tribunal is quite satisfied that the applicant is an intelligent man who throughout these proceedings was able to give instructions to his trade union up until April 2001, and from then onwards he pursued various courses of action which do not equate with someone who was only able to answer questions. He went to see a

solicitor, he went to see the Equality Commission, he contacted gay organisations, he was able to apply for a job, fill in an application form, attend an interview and obtain a position at the airport. These are all steps undertaken by someone with a desire to continue with his life and also with the progress of his grievance against the bank. At no time during the disciplinary hearing did the applicant or his representative ask for an adjournment because he was unwell. The Tribunal also accept that the applicant had been taking anti-depressants throughout the last 15 years or so and it was the anti-depressants that enabled him to function and go to work and generally carry on his day-to-day activities. Whilst there had been a major tranquilliser used from June 2000 until December 2000 the applicant had been able to come off that major tranquilliser and had continued to live his life on anti-depressants and a minor tranquilliser for a period from then.

The Tribunal is aware that the applicant is an intelligent man and he was aware of a three month time limit. The Tribunal questions what the applicant did in relation to presenting an originating application during the latter part of 2001. Looking at all the dates during which he was given advice and informed of a three-month time limit there is no reasonable explanation put forward for the delay during that period until 14 February 2002. If an application is outside the statutory time limit, and this one is considerably outside the statutory time limit, then the Tribunal must look to see what reasons are put forward for every month or week of delay in presenting this application. The Tribunal does not accept that during the latter part of 2001 or early 2002 the applicant was suffering from a condition to the extent that would have explained the delay in presenting the originating application. Accordingly the Tribunal does not consider that this is a case in which it should exercise its discretion and extend the time limit and the originating application is dismissed.

____________________________________

M P PRICE

Vice President

Date and place of hearing: 17 January 2003, Belfast

Date decision recorded in register and issued to parties: