Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 832/05

CLAIMANT: Samuel Johnston Shaw

RESPONDENT: Queen's University of Belfast

INTERIM DECISION

I hereby determine that the claimant's claim of unlawful discrimination on the grounds of disability was presented in time and, even if it were not in time, I am satisfied it would be just and equitable to consider it despite it being presented out of time.

Constitution of Tribunal:

Chairman: Mrs M Davey

Appearances:

The claimant appeared in person.

The respondent was represented by Mrs R Carson, the respondent's Legal Services Officer.

1. The issue for determination in this case is whether the claim was presented within the specified time limit and, if not, is it just and equitable in all the circumstances of the case to consider this claim despite the fact that it is out of time.
2. The applicable law is contained in paragraph 3 of Schedule 3 of the Disability Discrimination Act 1995.

Paragraph 3 of Schedule 3 reads:-

(1) An industrial tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(3)

(4)

(5) For the purposes of sub-paragraph (1) –

(a) where an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;

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

(c) a deliberate omission shall be treated as done when the person in question decided upon it.

The Facts

3. Information was conveyed to the claimant by Gary Mack, the respondent's Estate Manager, in the garden of the Vice Chancellor's house in August 2004 about proposed changes to the claimant's pay structure. He received an undated pro forma letter from Gary Mack offering the new contractual employment conditions.
4. On 14 September 2004 the claimant suffered a heart attack and was hospitalised. The claimant signed the pro forma on 27 September 2004 indicating that he did not accept the new conditions. He did not receive the increase in wages which other workers received. The claimant subsequently had a malignant melanoma removed from his eye on 19 November 2004. After both these serious operations he was warned by the medical profession to avoid all stressful situations for a period of at least six months.
5. Shortly after the end of the six month period recommended by his medical advisors, the claimant raised the issue of the proposed amended conditions to his contract of employment with the respondent. On 7 April 2005 the claimant wrote to the Estate Manager setting out the reasons for his objection to the new terms and complaining that he was being paid considerably less than his colleagues and pointing out that he could not accept the new conditions because of his previous known disability.
6. The claimant regarded this as a written letter of grievance under the statutory grievance procedure under the Employment (Northern Ireland) Order 2003. He subsequently presented a claim to the tribunal alleging unlawful discrimination on the grounds of disability on 23 May 2005. This claim referred to the respondent's failure to make reasonable adjustments to accommodate the claimant's pre-existing medical condition, of which the respondent was aware with regard to the new terms and conditions of employment.

Conclusions

7. In the circumstances, and bearing in mind paragraph 3(3) of Schedule 3, I am satisfied that, as the alleged act of discrimination is attributable to terms in the claimant's contract, his claim is in time because it is to be treated as extending throughout the contract.
8. Even if I am wrong in this and the claim could be regarded as presented outside the time limit laid down, I am satisfied, bearing in mind the claimant's pre-existing and additional medical conditions throughout the period from September to April, that it would be just and equitable to consider the claim despite it being presented outside the time limit.
9. This claim will now proceed to hearing on the substantive question of whether the claimant was unlawfully discriminated against on the grounds of his disability, the respondent having accepted that the claimant had a disability for the purposes of the Disability Discrimination Act 1995.

Chairman:

Date and place of hearing: 25 November 2005, Belfast

Date decision recorded in register and issued to parties: