Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1042/05

CLAIMANT: William James Beggs

RESPONDENT: Northern Ireland Legal Services Commission

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal does have jurisdiction to consider the claimant's claim.

Constitution of Tribunal:

Chairman: Ms J Turkington (Chairman sitting alone)

Appearances:

The claimant was represented by Mr P Mackel of NIPSA.

The respondent was represented by Ms F Cassidy of Jones & Cassidy Solicitors.

The Chairman raised an issue at the outset of the hearing regarding whether it was appropriate for her to hear this case. Both parties confirmed that they had no objection to the Chairman hearing this case.

SOURCES OF EVIDENCE

1. The tribunal heard evidence from the claimant Mr William James Beggs, who was also cross-examined by the solicitor for the respondent. The respondent did not call any witnesses, but submitted a bundle of documents.

THE ISSUES

2. The issue to be determined at this pre-hearing review was "whether the tribunal has jurisdiction to consider the claimant's claim in view of the provisions of article 74 of the Employment Rights (NI) Order 1996 regarding the time limit for presenting his claim".

FACTS OF THE CASE

Having heard the evidence of the claimant and the submissions of both parties and considered the documents referred to by the parties, the tribunal found the following relevant facts:-

3. The claimant was employed by the Northern Ireland Legal Services Commission (formerly the Legal Aid Department) from 1986 to date.
4. The claimant lodged a claim against the respondent which was dated 7^th June 2005 and received by the Office of the Industrial Tribunals on 8^th June 2005 ("the first claim form").
5. In the first claim form, the claimant complained of "unfair/less favourable treatment due to my union activities, loss of professional reputation…….. which culminated at a Disciplinary Hearing against me on 8/3/05 and may still be continuing (see statement)." In the statement attached to the first claim form, the claimant stated "I am in the process of lodging an internal grievance with the Legal Services Commission in respect of disciplinary proceedings served on me on 8 February 2005 that led to a hearing on 8 March 2005".
6. The first claim form was rejected by the tribunal. By letter dated 21^st June addressed to the Claimant's then representative Mr Terry Thomas of NIPSA, the reasons were outlined as follows:-

"It is not clear that the claim includes all the relevant required information pursuant to Rule 3 (1) of [the Tribunal Rules of Procedure], namely

(1) whether or not the claimant has raised the subject matter of the claim in writing with the respondent at least 28 days prior to presenting the claim to the office of the Industrial Tribunals and, if not, why he has not done so as required under Rules 1 (4) (j) and (k) of the said Rules of Procedure

(2) the details of the claim, as required by Rule 1(4)(g) of the said Rules of Procedure, relating in particular to all relevant dates of all matters, the subject matter of the claim and details of the matters which are stated to be "may be still continuing".

7. The said letter further stated:-

"If the claimant wishes to continue with his claim you must provide this information and return the form ……to the tribunal office………quoting the pre-acceptance reference number".

8. The claimant has not, to date, sought a review of the decision to reject the first claim form.
9. The claimant then lodged a claim form which was dated 11^th July 2005 and received by the Office of the Industrial Tribunals on 11^th July 2005 ("the July claim form"). The July claim form was in exactly the same terms as the first claim form, save that the original signature and date of 7^th June was stroked out and the form was re-signed by the claimant and re-dated 11^th July 2005. The July claim form was accepted by the Office of the Industrial Tribunals and the claim was allocated case ref number 1042/05.
10. The respondent lodged a response form on 5^th August 2005. In its response form, the respondent contended that the claimant's claims were out of time and sought a jurisdiction hearing on this point. The respondent also indicated that it was then considering a grievance raised by the claimant.

CONTENTIONS OF THE PARTIES

11. Mr Mackel for the claimant submitted that the first claim form referred to at paragraph 4 above had been lodged on time and should have been accepted. The claimant had, in good faith, presented the claim form again in July and it was accepted. The claimant and his representative considered the letter from the tribunal dated 21^st June 2005 to be somewhat ambiguous as to whether the claimant was required to wait 28 days before re-submitting the claim. Generally, in Mr Mackel's view, the position of the claimant was very simple. The claimant had a right to bring a claim and, once his claim was accepted in July 2005, he reasonably expected to be allowed to continue with his claim.
12. Miss Cassidy for the respondent submitted that the July claim form was out of time under Article 74(2) of the Employment Rights (Northern Ireland) Order 1996 ("the Order"). She submitted that the issue for the tribunal was simply whether it was reasonably practicable for the claimant to have lodged the claim on time and she argued that it clearly was reasonably practicable for him to have done so since the first claim form was lodged in time. She further contended that, if the claimant considered that the first claim form should have been accepted, he could, and should, have applied for a review of that decision.

STATEMENT OF LAW

13. Pursuant to Article 74(1) of the Order, an employee may present a complaint to an

industrial tribunal on the ground that he has been subjected to a detriment by his

employer in contravention of Article 73. By Article 74(2), an industrial tribunal shall

not consider such a complaint unless it is presented-

"(a) before the end of the period of three months beginning with the date of the act

or failure to which the complaint relates ………………., 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".

14. The provisions of Article 74(2) are in the same terms as the equivalent provisions relating to claims of unfair dismissal. There has been extensive case law on the question whether or not it was reasonably practicable for a claim to have been presented in time. The leading authority on this question is the case of Palmer and Saunders v Southend-on-Sea Borough Council 1984 IRLR 119. In his judgment in this case, May LJ propounded a test of "reasonable feasibility". He explained his reasoning as follows:-

"………….to construe the words "reasonably practicable" as the equivalent of "reasonable" is to take a view that is too favourable to the employee. On the other hand, "reasonably practicable" means more than merely what is reasonably capable of physically being done…………… we think they mean something between these two. ……………….. to ask …….." was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?" - is the best approach to the correct application of the relevant subsection".

CONCLUSIONS

15. The issue before the tribunal relates to the July claim form which was accepted by the Office of the Industrial Tribunals. The focus of the claimant's claim set out in the July claim form relates to disciplinary proceedings against him which in the words used in the claim form "culminated at a disciplinary hearing ……….on 8^th March 2005." In so far as the claim relates to the disciplinary hearing on 8^th March 2005, the primary time limit under Article 74(2) of the Order expired on 8^th June 2005. Since the July claim form was not received by the Office of the Industrial Tribunals until 11^th July 2005, it is clear that this claim form, at least in so far as it relates to the said disciplinary proceedings, was lodged outside the primary time limit. In order to proceed with the claim, the claimant must satisfy the tribunal that it was not reasonably practicable for him to present the claim within the primary time limit of three months and, further, that the July claim was presented within such further period as is reasonable.
16. In this case, the first claim form was returned to the claimant's representative under cover of a letter from the Office of the Industrial Tribunals dated 21^st June 2005. In his evidence, the claimant stated that this was a very stressful period for him. He did not remember seeing this letter. His understanding was that his representative had been told that he should re-submit the claim form after a period. He waited whatever period he was told to wait by his representative and then, because his representative was on holiday, he re-submitted the form himself.
17. In considering these issues, the tribunal has approached the matter on the basis of the formulation of the relevant test set out in the Court of Appeal decision in the case of Palmer and Saunders referred to at paragraph 14 above. The circumstances of this case are somewhat unusual given the rejection of the first claim form. In these circumstances, the tribunal has concluded that it was not reasonably practicable, ie reasonably feasible, for the claimant to have lodged the July claim form within the primary time limit of 3 months from 8^th March 2005. The July claim form could not have been lodged by the claimant until the claimant had been notified by the Office of the Industrial Tribunals that the first claim form had been rejected.
18. The claimant received notification of the rejection of the first claim form by letter dated 21^st June 2005. The tribunal accepts the claimant's evidence that he understood he had to wait before re-submitting his claim. The July claim form was lodged with the Office of the Industrial Tribunals within 3 weeks of the claimant's representative receiving notification of rejection of the first claim form. The tribunal is therefore satisfied that the July claim form was lodged within a reasonable period after the expiry of the primary time limit of three months.
19. Accordingly, the tribunal has concluded that this case falls within Article 74(2) (b) of the Order and the tribunal therefore has jurisdiction to consider the claimant's claim.

Chairman:

Date and place of hearing: 11 May 2006, Belfast.

Date decision recorded in register and issued to parties: