Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 149/06

CLAIMANT:

RESPONDENT:

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claim in relation to sex discrimination is hereby dismissed because the claimant's letter of 15 December 2005 makes no reference to alleged sex discrimination and so cannot be considered as a written grievance in relation to that allegation. The other complaints made by the claimant will now be listed for hearing.

Constitution of Tribunal:

Chairman: Mrs M Davey (Chairman sitting alone)

Appearances:

The claimant was represented by Mr B McCarthy of UNISON.

The respondent was represented by Mr C McGahon of CMG Consulting.

THE ISSUES

1. Whether the written grievance constitutes a grievance in relation to the alleged sex discrimination complaint.
2. If so, was the written grievance sent within the time limit set down in Article 19(4) of the Employment (Northern Ireland) Order 2003.
3. If not, whether the time limit can be extended.
4. Whether the complaint of sex discrimination has been presented within the specified time limit.
5. If not, is it just and equitable, in all the circumstances of the case, for an Industrial Tribunal to consider the claim despite the fact that it is out of time.

THE FACTS

In her claim form to the Tribunal the claimant alleged she had been spoken to and touched in a sexual manner at work. In addition she alleged that in July 2005 she had been instructed by the managing director by telephone to check his e-mails for orders and that she had found pornographic images on his computer. In her evidence to the Tribunal the claimant also alleged that on occasions the managing director had leant over her to see what was on her computer causing her to get up and offer him her chair because she felt he was invading her personal space. She could not specify when these incidents occurred but insisted that the last one happened in November 2005.

The claimant alleged she was too embarrassed to put her complaints about these sexual matters in writing as it would embarrass herself and the managing director's wife who also worked in the business. These matters were however raised orally at a disciplinary hearing which took place on 22 December 2005. However even after that meeting the claimant who resigned from her job sometime after the disciplinary hearing did not present a grievance in writing to the respondent in respect of the alleged sex discrimination aspect of her claim.

The claimant had the assistance of a trade union representative who appeared today as her representative throughout the disciplinary proceedings. Both the claimant and Mr McCarthy maintained they were unaware of the requirements of the statutory grievance procedures.

THE LAW

The relevant law is contained in Article 19(3) and (4) of the Employment (Northern Ireland) Order 2003 the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and the Industrial Tribunals Rules of Procedure 2005.

SUBMISSIONS

Mr McGahon contended that:-

(a) the sex discrimination aspect of the claim as set out in the claim form was a discreet act which took place in early July 2005 and was therefore out of time when the claim was presented to the Tribunal on 27 January 2006;

(b) that the statutory grievance procedure was not complied with in relation to the sex discrimination aspect of the claim;

(c) that the last minute presentation of the claimant's evidence of the respondent's alleged invasion of the claimant's personal space was barely credible and certainly was not sufficient to satisfy me that these matters could be regarded as an act of sex discrimination continuing over a period and that therefore the sex discrimination aspect of the claim was out of time. He further suggested that in the context of this case it would not be just and equitable to extend the time for presenting the complaint of sex discrimination;

(d) the statutory grievance procedure was not complied with in relation to the sex discrimination aspect of the claim.

Mr McCarthy contended that:-

(a) it was not practicable for the claimant to present a written grievance to the respondent in relation to the alleged sex discrimination matters because of the embarrassment factor to the claimant and the managing director's wife;

(b) the sex discrimination was a continuing act due to the incidents when the managing director lent over the claimant to access her computer.

REASONS

I do not accept the arguments advanced by and on behalf of the claimant that it was not practicable to complete the grievance procedure in relation to the alleged viewing of pornography in July 2005 because of the claimant's embarrassment and because of the husband and wife relationship of her employers. In coming to this conclusion I have taken into account that the claimant invited other staff to view the offending websites and so I concluded that the embarrassment factor to her could not have been as bad as she claimed.

In any event even if I were to accept that it was not practicable to put a grievance in writing because of the marital relationship between the managing director and his wife and the embarrassment which it would cause to his wife I am satisfied that once the allegation was made verbally on 22 December 2005 there was nothing to prevent the claimant putting her grievance in writing in relation to these matters and waiting 28 days prior to presenting her claim to the Tribunal.

In these circumstances where no grievance was presented in relation to the sex discrimination aspect of the case and where on the face of the claim form the last alleged act of discrimination on grounds of sex occurred some 6 months prior to the presentation of the claim form and where there are only the vaguest allegations of a continuing act I do not accept that it would be just and equitable to extend the time for a tribunal to consider the claim of unlawful discrimination on the grounds of sex. The claim of unlawful discrimination on the grounds of sex is therefore dismissed. The matter will now proceed to hearing on the other complaints contained in the claim form.

Chairman:

Date and place of hearing: 25 September 2006, Belfast.

Date decision recorded in register and issued to parties: