Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 339/06

CLAIMANT: Colin James Wright

RESPONDENT: Extern Organisation

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is as follows:-

(1) The complaint of unfair dismissal was presented within the primary time-limit set out in Article 145(2)(a) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order").

(2) The sex discrimination complaint in respect of the claimant's dismissal was brought within the primary time-limit set out in Article 76(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976 ("the 1976 Order").

(3) The claimant complains in respect of various acts of bullying which allegedly occurred in connection with the disciplinary investigation and/or in connection with the disciplinary process. Those claims were not brought within the primary time-limit specified in Article 76 of the 1976 Order. However, it is nevertheless just and equitable (within the meaning of Article 76(5) of the 1976 Order) for an industrial tribunal to consider those claims.

(4) The claim of sex discrimination which is made in connection with the carrying out of the internal disciplinary appeal has been presented within the 1976 Order's primary time limit.

(5) None of the other claims was brought within the primary time-limit set out in the 1976 Order; in each instance, it is not just and equitable (within the meaning of Article 76(5) of the 1976 Order) for an industrial tribunal nevertheless to consider any of those claims. Accordingly, all those claims are dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Buggy

Appearances:

The claimant was represented by Ms Sally Greene of the Northern Ireland Public Service Alliance.

The respondent was represented by Mr P Rodgers, Barrister-at-Law, instructed by J Blair, Employment Law Solicitor.

REASONS

1. At the end of the hearing of this pre-hearing review, I issued my decision orally and then also gave oral reasons for that decision. I now provide written reasons for the decision, at the request of the respondent.
2. The claimant was employed by the respondent from February 1996 until December 2005. He was dismissed by the respondent in December 2005.

The claims

3. In these proceedings, the claimant makes two types of claims. First, he makes a complaint of unfair dismissal. Secondly, he makes various complaints of unlawful sex discrimination, contrary to the 1976 Order. Ms Greene has made it clear that all of the latter category of complaint consists of complaints of sex discrimination (as distinct from complaints of unlawful victimisation discrimination).
4. Having paid due regard to the evidence in this case and having paid due regard to the representations which have been made to me on both sides of the case, I have concluded that the various claims in these proceedings should be identified and categorised as follows:-

(1) A complaint of unfair dismissal. (This is "Claim 1").

(2) A claim that the claimant's dismissal constituted unlawful sex discrimination ("Claim 2").

(3) A claim that action taken by Ms Gemma Donnelly, in March 2004, in relation to a "supervision" issue, was action which constituted unlawful sex discrimination ("Claim 3").

(4) Allegations of various incidences of bullying which allegedly occurred in connection with the disciplinary investigation and disciplinary procedure (which led ultimately to the claimant's dismissal). According to the claimant, those incidents constituted acts of unlawful sex discrimination ("Claim 4").

(5) Claims that various alleged incidences of bullying, unconnected with the disciplinary investigation or with the disciplinary procedure (but allegedly arising because of the dispute which is at the heart of Claim 3) amounted to acts of unlawful sex discrimination ("Claim 5").

(6) A claim that the omission to investigate the claimant's complaint in respect of the matters mentioned at Claim 3 amounted to unlawful sex discrimination ("Claim 6").

(7) A claim that, because of the manner in which the disciplinary process was dealt with at appeals stage, the respondent subjected the claimant to unlawful sex discrimination ("Claim 7").

The statutory provisions

5. The time-limits in respect of a complaint of unfair dismissal are set out in Article 145(2) of the 1996 Order, in the following terms:-

"(2) subject to [a provision which is not relevant for present purposes], 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 considered 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".

6. The time limits in respect of complaints of sex discrimination are set out in Article 76 of the 1976 Order. The relevant primary time limit is set out in Article 76(1), in the following terms:-

"An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of –

(a) the period of three months beginning when the act complained of was done....".

Article 76(5) provides that a tribunal –

"….. may nevertheless 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".

Article 76(6) provides that, for the purposes of Article 76, any act extending over a period is to be treated as done at the end of that period, and

"(c) a deliberate omission should be treated as done when the person in question does an act inconsistent with during the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done".

7. Section 39(2) of the Interpretation Act (Northern Ireland) 1954 ("the 1954 Act") provides as follows:-

(2) Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period."

8. I received oral testimony from the claimant. I also received documentary evidence, in the form of a bundle of documents. I was also shown a copy of a letter dated 4 March 2005, which the respondent sent to the claimant.
9. I told the parties that I would pay regard only to those documents to which my attention was specifically drawn.

The facts

10. In respect of each of the claims, I have identified the relevant issues separately below.
11. At paragraph 13 to 18 below, I have set out findings of fact which are relevant to the issues which I have determined.
12. The acts which constitute the subject matter of Claim 3 occurred in March 2004.
13. The various acts which constitute the subject matter of Claim 5 allegedly occurred on various dates from March 2004 until the date of dismissal.
14. Claim 6 is about the omission of the respondent to investigate the allegation which the claimant had made about the acts which constitute the subject-matter of Claim 3.
15. If the respondent had been minded to carry out an investigation into that matter, such an investigation might reasonably have been expected to have carried out in November 2004 (when the claimant was back at work, having been off sick).
16. On 5 October 2004, the claimant wrote to Ms Joan Broder (Director of Youth Services of the respondent) in the following terms:-

"I am writing to you in relation to the package I asked Gemma Donnelly to give to you on 21/09/04. Having trusted that you have read it I would respectfully ask that you disregard all [information] in it.

At the time I put this package together I felt strongly that I had been wrongfully dealt with by both Gemma and to [an] extent Extern. On hindsight and having thought a lot on the issue I have come to realise that a lot of my frustrations came from my own inadequacies in both my professional and personal life. "It is easy to jump on the little things others do wrong in order to deflect from the things that are wrong in your own life".

I respect that as a Manager within Extern you may have to follow a procedure, though having brought no formal complaint in relation to this incident I would ask that this matter is closed.

I apologise for any [inconvenience] this matter has caused to you and indeed any other Extern employee".

17. From September 2004 to November 2004, the claimant was unfit for work because of a stress-related ailment. During that period, the respondent's occupational health advisor suggested that certain changes should be made to the claimant's working arrangements, with a view to addressing the stress problem. When the claimant became fit for work, in November 2004, the respondent was not ready to make those arrangements. Accordingly, he was suspended, apparently on health and safety grounds, from November 2004 until 4 March 2005.
18. On the latter date, he was suspended, pending the investigation of certain misconduct allegations. Such allegations were subsequently the subject of a disciplinary process. The disciplinary process culminated in the dismissal of the claimant in December 2005. On 2 February 2006, an internal appeal panel upheld the original dismissal decision. Although the letter of dismissal stated that the claimant's dismissal was to take effect on 19 December 2005, he did not receive that letter until 20 December 2005.

The law

19. The effect of Article 129 of the 1996 Order is that, in relation to an employee (like the claimant) whose contract of employment is terminated without notice, the "effective date of termination", for unfair dismissal legislation purposes, means the date on which the termination takes effect.
20. Paragraph 106 of Division T of "Harvey on Industrial Relations and Employment Law" ("Harvey") contains accurate guidance on the date on which "the act complained of was done" for the purposes of time limit provisions which are comparable to those which are contained in Article 76 (1) of the 1976 Order. As was noted by Harvey at that paragraph, where the act complained of is the refusal by employers to accept a grievance, time begins to run from the date on which the decision was communicated to the applicant, and not the date when the decision was made. Similarly, when a dismissal is alleged to be discriminatory, the operative date, from which time begins to run, is the date when a dismissal takes effect.
21. The time limit provisions, under the 1996 Order and under the 1976 Order have already been set out above. In my view, there is no material difference between the provisions of Article 76 of the 1976 Order and the time limit provisions in the principal discrimination enactments which are in force in England and Wales.
22. Under Article 76(5) of the 1976 Order, I have a broad discretion in deciding whether or not to extend the relevant primary time limit. In deciding whether or not to extend any relevant time limit, the central question is whether or not there can still be a fair hearing. However, other issues are of importance as well. In particular, I have to bear in mind the fact that the legislator has chosen to impose short primary time limits. That indicates a legislative policy that discrimination claims should be brought promptly. In deciding whether or not to extend the time limit, I am entitled and obliged to take account of the length of time which has elapsed from the date of the alleged discriminatory act to the date of presentation of the relevant claim. It is also appropriate that I should take careful note of the length of the period which has elapsed between the date on which the claimant first became aware, or could reasonably have become aware, of the fact that he had an arguable case, and the date on which the claim was presented. In considering whether to extend the time-limit, it is also appropriate to have regard to the matters listed in Section 33(3) of the Limitation Act 1980 (which is operative in England and Wales): See British Coal Corporation –v-Keeble [1997] IRLR 336.

The submissions

23. The submissions on behalf of the claimant can be summarised as follows. The claimant found it difficult to deal with the issues in this case, because of the stress which he had been suffering, stress which had caused the claimant to be unfit for work in the latter part of 2004. The respondent had not been prejudiced by the claimant's delay. The claimant had decided to take action, in relation to the various sex discrimination claims, only when he discovered that he was going to be dismissed; the claimant took the view that the decision to dismiss was prompted by the 2004 incident which constitutes the subject-matter of Claim 3. The respondent's omission to investigate the claimant's complaint in respect of Claim 3 should be regarded, for the purposes of the time-limit provisions, as a continuous act.
24. The submissions for the respondent can be summarised as follows. Claim 3 related to an act which had occurred long before the presentation of the originating application. The alleged bullying incidents which constitute the subject-matter of Claim 5 had never been adequately particularised; it was not clear what was being complained of in that connection. In relation to claims which were outside the primary time limit, the tribunal did have a broad discretion to extend the time limit. However, that was not an untrammelled discretion. It had been suggested, on behalf of the claimant, that he had omitted to take action in respect of sex discrimination complaints until he knew that he was going to lose his job; Any such reason for failing to act within the primary time-limit was a reason which could not constitute a proper basis for a plea for extension of the primary time-limit. Any admissions made on behalf of the respondent in the context of this review were admissions which applied only in the context of this Pre-Hearing Review.

The issues and my conclusions in respect of Claim1

25. The main issues in relation to Claim 1 (the unfair dismissal claim) are as follows. First, when did the dismissal take effect? Secondly, was the claim presented within the primary time limit?
26. I am satisfied that the dismissal took effect on the date upon which it was communicated to the claimant. That was 20 December 2005.
27. I am satisfied that the claim was presented within the primary time limit. It was presented on 20 March 2006.. That is precisely three months after 20 December 2005. The relevant period begins on 21 December, because of the effect of Section 39(2) of the 1954 Act. (See above).

The Issues and my conclusions in relation to Claim 2

28. The issues which arise in the context of Claim 2 (the claim that the dismissal constituted an act of unlawful sex discrimination) are the same as the issues which arise in the context of Claim 1.
29. I am satisfied that, for the purposes of Article 76 of the 1976 Order, the act complained of occurred on 20 December 2005. The latter date is left out of account in deciding whether or not the primary time limit has been met. (See above). Therefore the claim was presented within the primary time limit.

The Issues and my conclusions in respect of Claim 3

30. This was the claim in relation to the March 2004 incident involving Ms. Donnelly.
31. It was accepted on behalf of the claimant that Claim 3 had not been presented within the primary time limit. Therefore, I had to decide whether the time limit should be extended pursuant to Article 76(5).
32. I decided that it should not be extended. In arriving at that conclusion, I had regard to all the factors mentioned and referred to at paragraphs 22 above. I took particular account of the shortness of the time-limit, the lengthy delay, the fact that, in my view, the cogency of the evidence in relation to this claim would be affected by the delay, and the fact that there were, in my view, no good reasons for the delay beyond the point at which the claimant ceased to be unfit for work on medical grounds.

The issues and my conclusions on Claim 4

33. This is the claim in relation to alleged incidents of bullying (which are alleged to constitute unlawful acts of sex discrimination) in connection with the investigative and disciplinary process which culminated in the claimant's dismissal.
34. It was accepted on behalf of the claimant that these complaints were not presented within the primary time limit. Therefore, again, the central issue is whether it is just and equitable, pursuant to Article 76(5), to allow the claims to be presented in any event.

35. I have decided that the time limit should be extended in relation to the acts of discrimination which constitute Claim 4. In arriving at that conclusion, I have taken account of all the matters mentioned and referred to above (at paragraph 22). I have paid particular regard to the following considerations. First, I was satisfied that the fairness of the disciplinary process is a matter which will inevitably have to be considered, in any event, as part of any consideration of the unfair dismissal complaint, so the respondent will not be put to any substantial additional expense as a result of the decision to extend the time limit in relation to Claim 4. Secondly, the respondent knew, or should have known, that it would have to defend the fairness of the actions taken in the course of the investigative and disciplinary process, as part of its defence of the general fairness of the dismissal itself; therefore, the cogency of the relevant evidence is unlikely to be affected by the delay in presentation of this claim. Thirdly, I considered that it was understandable that the claimant would postpone the presentation of a sex discrimination complaint arising out of unfair dismissal procedural inadequacies until he knew whether or not he was actually going to be dismissed.

The issues and my conclusions on Claim 5

35. Claim 5 is about various incidents of alleged bullying, unconnected with the disciplinary process, which were alleged to constitute acts of unlawful sex discrimination.
36. This claim was obviously not brought within the primary time limit. The issue therefore was whether or not the primary time limit should be extended pursuant to Article 76(5).
37. From the evidence given in this case, I was not clear exactly what the relevant acts consisted of. The claimant's evidence was vague on those matters.
38. There was insufficient evidence before me to satisfy me that the acts falling within this category constituted a "continuing state of affairs". I have decided that acts falling within this category were presented outside the time limit, and that the time limit should not be extended.
39. In deciding not to extend the time limit, I took account of all the matters mentioned and referred to above (at paragraphs 22). I took particular account of the fact that I was satisfied that the cogency of the evidence was likely to be affected by the delay in presentation of the claim in respect of these particular acts. I also considered that the claimant's professed unwillingness to upset his employer (by presenting claims under this category) do not constitute a factor which could justify me in extending the time limit.

The issues and my conclusions on Claim 6

40. This claim is about the omission of the respondent to investigate the claimant's complaint regarding the actions which constitute the subject-matters of Claim 3.
41. Two issues arise in connection with Claim 6. First, when did the act complained of take place? In my view, the act complained of took place, at the latest, in November 2004, when the period expired within which the respondent might reasonably have been expected to do the omitted act, if it were minded to do that act.
42. Accordingly, it is clear that the primary time limit has not been met in respect of Claim 6.
43. The second issue is whether or not it is just and equitable to disapply the time limit pursuant to Article 76(5).
44. I have decided that it is not just and equitable to extend the time limit. In arriving at that conclusion, I have taken account of all the matters mentioned and referred to at paragraphs 22 above; I have taken particular account of the following matters. First, the claimant has not provided me with any adequate explanation for his delay in bringing proceedings in respect of this Claim. Secondly, the period of delay was lengthy. Thirdly, I considered that, in light of the claimant's letter to Ms Broder of October 2004, the respondent could reasonably have expected that closure had been attained in respect of the complaint about Ms.Donnelly's 2004 actions.

The Issues and conclusions in relation to Claim 7

45. As noted above, the acts complained of in respect of Claim 7 (allegations of unlawful sex discrimination in the context of the internal appeal stage of the internal disciplinary process) were clearly carried out during the first two months of 2006.
46. It was conceded on behalf of the respondent that Claim 7 had been carried out within the primary time limit (because all the relevant acts were carried out in the early part of 2006).

Chairman:

Date and place of hearing: 24 August 2006, Belfast

Date decision recorded in register and issued to parties: