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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bradley v ICTS (UK) Ltd [2005] NIIT 925_05 (21 October 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2005/925_05.html
Cite as: [2005] NIIT 925_5, [2005] NIIT 925_05
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- Whether the tribunal has jurisdiction to entertain the claimant's claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his claim, and
- Whether the tribunal has jurisdiction to entertain the claimant's claim in view of the provisions of Article 7 of the Industrial Tribunals Extension Order (Northern Ireland) 1994 regarding the time limit for presenting his claim.
- The basic facts are that the claimant was employed by the respondent, at Belfast International Airport, from 1989 until 2005, when he was dismissed, without notice, for leaving a restricted zone at the airport, going landside, making contact with a passenger, and when returning to the restricted zone by-passing the metal detector. A disciplinary hearing was held and also an appeal hearing.
- No direct evidence was given by, or on behalf, of either party.
- Mr McBrien, who appeared for the claimant, submitted that it was not appropriate to deal with the issues at this stage. His arguments on the point concentrated solely on 1. above.
- This is a case, Mr McBrien submitted, that has to be dealt with "in the round". His reasoning is as follows. The respondent's case is that this is a case of gross misconduct that justified the respondent in summarily dismissing the claimant without notice on 10 March 2005. The case that the respondent is making is that 10 March 2005 is the starting date of the primary three month period for presenting a claim to an industrial tribunal and, therefore, after 10 June 2005 the primary three months had run out (the claim was presented on 17 June 2005). The respondent is saying that because gross misconduct is alleged against the claimant and the three months limitation period had expired when the claim was received by the Office of the Industrial Tribunals, issues such as notice and the merits of the claimant's case do not have to be considered. This is wrong, says Mr McBrien, because in a case where gross misconduct is alleged, the tribunal must investigate whether the label "gross misconduct" is justified, and if not, then the statutory notice period must be added to the date of the alleged dismissal, in this case 10 March 2005, thereby establishing the effective date of dismissal. In his client's case the effective date of dismissal would be twelve weeks beyond 10 March 2005, as he had commenced work with the respondent in 1989. It was agreed that the claimant had commenced work with the respondent on 2 June 1989.
- Mr McBrien referred the tribunal to C. [745] of Harvey on Industrial Relations and Employment Law ("Harvey".) where it is stated:
- Mr McBrien said that he was relying on that part of the above that is underlined. He provided the tribunal with a copy of the case referred, namely, Lanton Leisure -v- White and Gibson. That case, Mr McBrien submitted, dealt with:-
- Mrs Anderson, who appeared for the respondents, made the following submissions. The basic principle is that statutory notice can only be used to extend the effective date of termination for certain purposes, which, she submitted, are clearly set out in Article 129(2) of the Employment Rights (Northern Ireland) Order 1996. These are for the purposes of Articles 23(3), 140(1) and 153(1) of that Order, when the statutory notice period can be added, to extend the effective date of termination. She referred to C. [743] of Harvey where, after dealing with the equivalent statutory provision in Great Britain, it is stated,
- The Lanton Leisure case is about the Northern Ireland equivalent (Article 118 of the Employment Rights (Northern Ireland) Order 1996) of the statutory provision considered in that case (s. 55(5) of the Employment Protection (Consolidation Act 1978, as amended by Schedule 3 of the Employment Act 1982). She referred to paragraph 7 of the judgement in Lanton Leisure and submitted that, in other words, that case is saying that someone can not be deprived of the statutory extension to notice in order to avoid tribunal proceedings. Paragraph 7 says:
- Mrs Anderson said that it is agreed that the claimant was employed by the respondent from 2 June 1989 and, therefore, he has the qualifying period for unfair dismissal proceedings and, if he succeeds in his application to the tribunal, he has the period to calculate the basic award: there is no necessity to look at the question whether there was gross misconduct or not, because he does not have the need to have his effective date of termination extended by statutory notice period to bring proceedings. She contended that the effective date of termination was 10 March 2005 and, therefore, proceedings would have had to be commenced by 10 June 2005, in this jurisdiction.
- The tribunal, in coming to its conclusion, has taken account of all the submissions made on behalf of the parties.
- Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 (which shall hereinafter be referred to as "the Order") an employee has the right not to be unfairly dismissed.
- With certain exceptions, none of which apply in this case, an employee must have been employed by his or her employer for a continuous period of at least one year, ending with the effective date of termination in order to qualify to bring a claim, for unfair dismissal, before an industrial tribunal. Article 140(1) of the Order provides:
- The claimant was employed by the respondent since 1989 and, therefore, had the necessary qualifying period of employment to bring unfair dismissal proceedings in an industrial tribunal. But, Article 145(2)(a) of the Order provides that the tribunal does not have jurisdiction to consider a complaint for unfair dismissal unless the complaint is presented to the tribunal before the end of a period of three months beginning with the effective date of dismissal. The text of Article 145(2)(a), insofar as relevant, states:
- Article 129(1)(b) of the Order provides that, in respect of an employee whose contract of employment is terminated without notice (as in this case), the effective date of termination is the date the termination takes effect. Insofar as relevant Article 129(1)(b) provides as follows:
- The respondent claims that the claimant was dismissed on 10 March 2005. No notice was given. The tribunal, as will be seen later, finds that the claimant was dismissed on 10 March 2005.
- The claimant's claim was received at the Office of the Industrial Tribunals and the Fair Employment Tribunal on 17 June 2005 and is, therefore, on its face, out of time: that is to say it was not presented within three months of the effective date of termination, namely, 10 March 2005.
- The tribunal has to consider whether the notice period to which the claimant might have been entitled to receive under the Order, must be added to the date of dismissal (10 March 2005) in the circumstances of this case, namely, where the claimant had more than twelve years continuous service and was summarily dismissed on the grounds of gross misconduct.
- Article 118(1)(c) of the Order provides that where an employee has been employed by an employer for a continuous period of twelve years or more he or she is entitled to be given not less than twelve weeks' notice of termination of the contract of employment. Article 118(6) of the Order provides that this does not affect the right of either party to treat the contract of employment as terminable by reason of the conduct of the other party. So notwithstanding the notice requirements, it is open, for example, to an employer to dismiss an employee without notice on the grounds of misconduct. The text of Article 118(1)(c) and (6) is as follows:
- Article 129(2) and (3)(b) of the Order provides as follows:
- Article 118 does not, therefore, assist the claimant in that it only provides that in limited circumstances (set out above) for the effective date of termination to be deemed to be a date other than the date the dismissal took place. It does not extend the date of dismissal in this case, namely 10 March 2005, by twelve weeks.
- The Lanton Leisure case was concerned with provisions similar to Articles 118 and 129 of the Order. The tribunal considers that the case is not relevant to the issue to be decided. It is a case concerning the qualifying period of employment in order to claim unfair dismissal. The question was whether the tribunal was under a duty to enquire into the circumstances of the dismissal in order to establish whether the
- The tribunal, therefore, finds that it does not have, in the circumstances of this case, a duty to enquire into the circumstances of the dismissal. It would be a pointless exercise to do so as the statutory exceptions referred to earlier do not support the proposition advanced by Mr McBrien. The claimant had sufficient service to qualify for the right not to be unfairly dismissed, and there is no statutory provision that the tribunal has been made aware of that provides, in the claimant's circumstances, for the effective date of dismissal to be postponed to a later date than the actual date of dismissal on 10 March 2005.
- The substantive issues before the tribunal are set out above. In relation to these issues the parties agreed the following facts:
- A bundle of documents were provided to the tribunal by the respondent's representative and a copy provided to the claimant's representative. Mr McBrien informed the tribunal that the claimant agreed that the documents exist and agreed that "the respondents have put them to the tribunal". Mr McBrien did not allege that there were inaccuracies in the documents and accepted that they exist. He did not say that he objected to the tribunal making use of them. The tribunal will, therefore, have regard to them in reaching a decision.
- The tribunal is empowered to extend the three month period referred to, by such other period as the tribunal considers reasonable in cases where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three months. The relevant provisions are set out below.
- Mr McBrien made the following submissions. If the dismissal took place on 10 March 2005, then time expired on 10 June 2005. The tribunal has to decide whether it was reasonably practicable for the claimant to lodge the claim and whether or not to extend the time by one week to allow the claim in. If the internal appeals system were to be taken into account and the original dismissal letter (This is the letter of 10 March 2005, which the tribunal will refer to later.) was suspended until 30 March 2005 then the application would be in time and the tribunal would not have to consider whether it was necessary to extend time. There was a belief that there was three months from the expiry of the appeal in which to bring the application: this is the reason that the application was not lodged until 17 June 2005. As to the question of discretion and whether or not it should be exercised, if necessary, in the present circumstances the tribunal should take into account recent legislative developments about the use of internal procedures, namely, those that came into operation in October 2004 in England and since 3 April 2005 in Northern Ireland.
- Mrs Anderson made the following submissions. She said that the disciplinary hearing was held on 9 March 2005. There was a further meeting on 10 March 2005 at which dismissal "was given". There is a letter, dated 10 March 2005, to the claimant, contained in the bundle of documents which says, "you are summarily dismissed". She contended that the effective date of dismissal is 10 March 2005. The proceedings do not come within the legislative developments referred to by Mr McBrien because these did not come into operation, in Northern Ireland, until 3 April 2005. If the claimant received wrong advice, the maxim "Ignorance of the law is no defence" applies. In this case the late filing of the claim was a misunderstanding and this is no reason to extend time.
- The tribunal, in reaching its decision, has taken account of all the submissions made.
- The first matter for the tribunal to establish is when the claimant's employment ended, that is, the effective date of dismissal. As stated earlier, Article 129(1)(b) of the Order provides that the effective date of dismissal is the date when termination takes effect. In the bundle of documents there is a typed note of a meeting, held on 10 March 2005, the day after the disciplinary hearing, and attended by the claimant, where it is recorded:
- The bundle of papers includes a letter, dated 10 March 2005, addressed to the claimant in which it is stated, "As your actions amount to gross misconduct you are summarily dismissed and as such your not entitled to notice or pay in lieu of notice". The tribunal considers that, in view of the language used at the meeting on 10 March 2005, as recorded, and taking account of the letter referred to, the effective date of termination of the contract of employment was 10 March 2005. If the tribunal is wrong in concluding that the effective date of dismissal is 10 March 2005, it is satisfied that dismissal would have taken place not later than 12 March 2005, when the letter would, in tribunal's view, have been delivered in the ordinary course of the post. Even if dismissal had taken place on 12 March 2005 the claimant would be out of time for lodging an application with the tribunal. The claimant did not give evidence and so the tribunal has heard nothing to suggest that the letter of 10 March was received on a date later than 12 March 2005.
- The tribunal drew the attention of the parties to Paragraph 20.38 of the 13th Edition of Selwyn's Law of Employment, where it is stated,
- Referring to provisions such as those contained in Article 145(2)(b) of the Order and Article 7(c) of the 1994 Order, Harvey states at T. [187]:
- The reason that the claim was lodged late was because the claimant's solicitor considered that the appeal date was the starting point of the limitation period. The claimant had handed over conduct of the claim to his solicitor. It is clear that the effective date of termination is the starting date. The starting point is 10 March 2005 and, therefore, the claim should have been lodged on or before 10 June 2005. Even if the effective date of termination was 12 March, the claim would be out of time. In the first limb referred to by Harvey it is for the claimant to show that it was not reasonably practicable to present the claim in time. The claimant has failed to do so. In the tribunal's view, there was not some doubtful area of law involved in determining the effective date of dismissal in this case. Taking account of the factual situation and the submissions the tribunal considers that it would have been reasonably practicable for the claim to have been lodged in time. The tribunal, therefore, finds that it does not have jurisdiction to hear the claims made by the claimant against the respondent. There is no need to consider the second limb as the claimant has not succeeded on the first.
CASE REF: 925/05
CLAIMANT: Alexander Bradley
RESPONDENT: ICTS (UK) Ltd
The decision of the tribunal is that the claimant's claim was lodged out of time and there are no grounds for granting an extension of time: the tribunal, therefore, has no jurisdiction to hear the claims.
Constitution of Tribunal:
Chairman: Mr W Palmer
Appearances:
The claimant was represented by Mr McBrien Barrister-at-Law, instructed by Messrs Breslin McCormick, Solicitors.
The respondent was represented by Mrs Anderson of Peninsula Business Services Limited.
The Substantive Issues
The issues before the tribunal were:
Background Summary
Evidence
Mr McBrien's initial submissions
"The EDT [effective date of dismissal] will not be extended where the employee commits gross misconduct such as to justify the employer terminating the contract summarily. This is because in those circumstances no notice is required to be given under s.86 [of the Employment Rights Act 1996 - the equivalent to Article 118 of the Employment Rights (Northern Ireland) Order 1996]. However, the mere assertion by the employer that he is dismissing for gross misconduct will not suffice to exclude the operation of s.97(2) [of the Employment Rights Act 1996 - the equivalent to Article 129(2)
of the Employment Rights (Northern Ireland) Order 1996]. The employment tribunal can only refuse to extend the EDT after first establishing that there has in fact been conduct warranting termination without notice (Lanton Leisure -v- White and Gibson [IRLR 119, EAT). (Emphasis added).
1. Whether employees had sufficient qualifying periods of employment to qualify to claim unfair dismissal.
2. Whether the employer was cutting them off before they had accumulated sufficient service to claim that remedy.
3. Whether for the employer simply to claim that Mr White and Mr Gibson were dismissed for gross misconduct was sufficient to justify it.
He said that he accepted that this case "was at the other end of the spectrum" and factually different to the one under consideration by the tribunal, in that the Lanton Leisure case was considering whether ex-employees had sufficient continuous employment with the employer to bring a claim for unfair dismissal. His point was that in determining the effective date of termination the circumstances surrounding the dismissal had to be examined to establish whether or not the dismissal was a true summary dismissal and for that proposition he relied on the Lanton Leisure case. He suggested that whilst the tribunal may have the issues before it, it was not the appropriate time for determining the effective date of termination for the purposes of Article 145(2)(a) and (b) of the Employment Rights (Northern Ireland) Order 1996. He referred to Article 145(2)(a) and (b) of that Order and submitted that the tribunal is in a situation where it has to determine when time begins to run, namely, the effective date of termination. He then referred the tribunal to Article 129 of the Employment Rights (Northern Ireland) Order and suggested that under Article 129(1)(b) of that Order (which deals with termination of a contract of employment without notice) an examination of the facts is required to determine the effective date of termination: a full hearing would be required for this where witnesses would be called, relevant documents examined and there would be a full enquiry into all the circumstances of the case to establish whether the employer was justified in dismissing his client. He said that the respondent, in seeking a preliminary hearing of the matters before the tribunal, is seeking to short-circuit the matter and deprive the claimant of an actual hearing.
"However, it [the EDT] is not extended for the purpose of determining whether the employee has made his claim within the three month time limit.
Here the EDT is always calculated in accordance with s 97(1) [which is equivalent to Article 129(1) of the Employment Rights (Northern Ireland) Order 1996]."
"We agree with the Industrial Tribunal, and the submission by counsel for the respondents, that it is in fact necessary to find out by means of an enquiry on the merits whether there was in fact such conduct which would enable the employer to terminate without notice. If it were not so, it would mean that the employer could simply define a dismissal as 'gross misconduct' to avoid the provisions of s. 55(5) [of the Employment Protection (Consolidation) Act 1978]."
Tribunal on the Point
"Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of one year ending on the effective date of termination".
"(2) ..., an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal -
(a) before the end of the period of three months beginning with the effective date of termination …."
"(1) …, the effective date of termination -
(a) …
(b) in relation to an employee whose contract is terminated without notice, means the date on which the termination takes effect."
"(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more -
(a) …
(b) …
(c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more"
(6) This Article does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party."
"(2) where -
(a) the contract of employment is terminated by the employer,
and
(b) the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined in paragraph 1),
for the purposes of Articles 23(3), 140(1) and 153(1) the later date is the effective date of termination.
(3) In paragraph 2(b) ", the material date" means -
(a) …
(b) where no notice is given, the date when the contract of employment was terminated by the employer."
This means that an employee who is dismissed without notice:
1. May benefit from an increase in the calculation of a week's pay, where this has been increased by the Department during the statutory notice period (Article 23 (3)).
2. May be entitled to add the notice period in calculating his or her period of continuous employment in order to bring him or her up to the qualifying period for bringing a claim (Article 140(1)).
3. It could increase the amount of the basic award in an unfair dismissal case (Article 153(1)).
employees' conduct was such as would enable the employer to dismiss without notice. If the conduct was not such as would lead to summary dismissal, then the notice period could be added on to the actual periods of continuous employment for the purpose of qualifying for the right not to be unfairly dismissed.
The Substantive Issues
"The application, if filed late, was so filed because the claimant's solicitor believed that the claimant had three months to lodge a claim from 22 March 2005, the date the appeal was heard. The claimant had handed over conduct of his claim to his solicitor".
The claimant claims under two heads, namely, for unfair dismissal and for notice pay. In unfair dismissal cases, as previously stated, a claimant, under Article 145(2)(a) of the Order, must present his or her claim before a period of three months beginning with the effective date of termination of the contract of employment. With regard to notice pay, Article 7(a) of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (hereinafter referred to as "the 1994 Order") contains a provision to the same effect.
"(2) …, an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal -
(a) before the end of the period of three months, beginning with the effective date of termination, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months".
"An industrial tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented -
(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim; or(b) …,
(c) where the tribunal is satisfied that it was not reasonably practicable for the claim to be presented within whichever of these periods is applicable, within such other period as the tribunal considers reasonable".
Mr McBrien's submissions
Mrs Anderson's submissions
The tribunal's decision
"Alec I am bringing you in today to inform you of the decision of your disciplinary hearing held on 09/03/05. I have taken into consideration what you have said and have given this decision a lot of great thought. I am left with no alternative but to dismiss you. You have the right of appeal, which you should put in writing to the ICTS legal and compliance manager Paul Hunter. I will send you confirmation of this in writing".
"If an employee is dismissed, and pursues an appeal through the domestic procedures, there are two possibilities. If the procedure provides for an immediate dismissal, with the possibility of reinstatement should the appeal be successful, the EDT is the date of dismissal (J Sainsbury -v- Savage). If the procedure provides for suspension of the dismissal with a possibility of it being lifted following a successful appeal, the EDT is the date when the appeal was dismissed (Drage -v- Governors of Greenfield High School)".
The tribunal was not provided with either the contract of employment or the domestic appeal procedures and did not receive submissions on the cases referred to in the passage quoted.
"There are two limbs to this formula. First, the employee must show that it was not reasonably practicable to present his claim in time. The burden of proving this lies with the [claimant] (Porter -v- Bandridge [1978] IRLR 271, ICR 943, CA). Second, if he succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable".
This is the approach that the tribunal takes to the issue.
Chairman:
Date and place of hearing: 21 October 2005, Belfast.
Date decision recorded in register and issued to parties: