Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 785/05

CLAIMANT: John Thomas Burton

RESPONDENTS: 1. Northern Health & Social Services Board

2. Stuart MacDonnell

3. Dr Sloan Harper

4. General Medical Council

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claim has not been presented within the time limits set out at Paragraph 3 of Schedule 3 of the Disability Discrimination Act 1995 and it would not be just and equitable in all the circumstances of the case to consider the claim, which is now dismissed.

Constitution of the Tribunal:

Chairman (sitting alone) : Mr James V Leonard

Appearances:

The claimant appeared and represented himself.

The first, second and third-named respondents were represented by

Mr S Crothers, Solicitor, Brangam, Bagnall, Solicitors.

The fourth-named respondent was represented by Mr P Broom, Solicitor, of Cleaver, Fulton Rankin, Solicitors.

REASONS

1. The tribunal conducted the pre-hearing review in accordance with Rule 18 contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The tribunal heard oral evidence from the claimant and had before it a bundle of documents running to some 197 pages submitted in evidence by the claimant without objection on the part of the respondents' representative. The tribunal also considered a number of additional documents placed before it without objection and a skeleton argument submitted by the claimant and, further, the oral submissions on behalf of the respective parties.
2. In this case, the claimant lodged with the Office of Tribunals an originating claim which contended that the respondents' treatment of the claimant consisted of unlawful direct and indirect discrimination against him and victimisation contrary to the Disability Discrimination Act 1995, as amended. The claimant contended that he had been subjected to treatment which amounted to a detriment and had been subjected to unlawful harassment on the ground of his disability contrary to the Disability Discrimination Act 1995, as amended, and European law. Responses were lodged to this claim by the respondents which disputed the allegations of unlawful discrimination and which also contended that the claimant's application was out of time and requested a preliminary hearing on that latter issue.
3. The matter was listed for a pre-hearing review. Following a Case Management Discussion held on 1 December 2005, by Order dated 1 December 2005 a Chairman of Tribunals directed that the pre-hearing review ought to go ahead on 2 December 2005 on the following preliminary issues:-

"(1) whether the claim has been brought within the time limits set out at Paragraph 3 of Schedule 3 of the Disability Discrimination Act 1995; and

(2) if not, whether it would be just and equitable in all the circumstances of the case to consider the claim although it was presented out of time;

(3) whether the claimant can bring a claim to the tribunal against the General Medical Council in view of the provisions of Schedule 59 (sic) of the Disability Discrimination Act; and

(4) if so, whether the claim has been brought within the time limits set out at Paragraph 3 of Schedule 3 of the Disability Discrimination Act 1995."

THE ISSUES

4. At the outset of the hearing, the claimant stated that he wished to withdraw his complaint against the fourth-named respondent, the General Medical Council. That respondent's representative indicated that he had no objections to that application and that no further order would be sought if a tribunal were to accede to that request. The claimant then indicated to the tribunal that he did concede that his complaint of disability discrimination was out of time. On foot of that concession on the claimant's part, the parties were in agreement that the tribunal ought properly to determine the single issue second-mentioned above, whether it would be just and equitable in all the circumstances of the case to consider the claim of disability discrimination although it was presented out of time. Accordingly the tribunal had to hear and determine that issue.

THE TRIBUNAL'S FINDINGS

5. On foot of such evidence as was before it, the tribunal made the following material findings of fact:-

(a) The claimant, who was a qualified Medical Practitioner of some considerable experience, retired from General Practice as a Physician in August 2000 in order to undertake a full-time course in the study of law. In 1993, the claimant had had a medical episode arising from which the claimant contended that he had a recognised disability under the Disability Discrimination Act 1995.

(b) In respect of the circumstances surrounding the foregoing medical episode, the claimant had voluntarily entered into particular restrictive arrangements and undertakings with the General Medical Council.

(c) In November 2004 the Northern Health & Social Services Board ('the Board') invited applications from suitably qualified medical practitioners for appointment to a panel of General Practitioners with a special interest in primary care quality issue work to provide support to medical practices. Applications enclosing a Curriculum Vitae were invited to be received by 3 December 2004. The claimant made an initial inquiry by letter of 24 November 2004 and he was invited to apply by a letter of 1 December 2004 from the Assistant Director of Primary Care Delivery and the response date was extended to 8 December 2004 to facilitate the claimant.

(d) By a facsimile transmission of 6 December 2004 the claimant submitted an application including his Curriculum Vitae.

(e) By letter of 17 December 2004 the Assistant Director of Primary Care, Mrs J Barkley, wrote to the claimant stating that having reviewed the application against the criteria applicable it was the Board's view that the claimant was not eligible to be appointed to the panel. The letter referred to particular restrictions which caused the claimant to be ineligible as far as the Board was concerned.

(f) Following a course of correspondence between the claimant and various parties, including the General Medical Council and senior officials of the Board, by letter of 9 March 2005 the Board's Chief Executive, Mr MacDonnell, wrote to the claimant stating reasons why the application had been refused and indicating that the view had been taken that the Board had acted correctly and that the Board had done everything which was reasonable to resolve and to address the issues which had been raised by the claimant. The suggestion was made in Mr MacDonnell's letter that the matter could be referred to the Ombudsman if the claimant remained dissatisfied. The claimant then entered into further correspondence with the Board's solicitors, Messrs Brangam Bagnall & Company.

(g) The claimant personally encountered a rather stressful period which subsisted from 24 February 2005, when his mother was admitted to hospital with a serious illness, until that illness ultimately resulted in the claimant's mother's death on 9 April 2005. The claimant gave evidence to the tribunal, which the tribunal did fully accept, that he was rather preoccupied with that unfortunate situation around that period of time. However, apart from that rather unfortunate situation in which the claimant found himself, there was no evidence that the claimant was suffering from any significant physical or mental illness of such a nature or degree as would have caused a severe or significant impediment or obstacle to the claimant presenting an application to the tribunal in a proper and a timely fashion.

(h) By a claim dated 9 May 2005 and received by the Office of Tribunals on 13 May 2005, the claimant lodged his complaint with the tribunal.

(i) The tribunal noted that the claimant had studied for and had gained a Bachelor of Legal Science Degree, with Honours, from Queen's University Belfast in 2003 and that had been followed by the claimant studying for and gaining an LL.M. Master of Laws in Human Rights soon thereafter. The claimant did concede before the tribunal that he was familiar with the statutory time limitations applicable in this matter.

(j) The tribunal did not need to determine any other material findings of fact for the purpose of its determination in this case.

THE APPLICABLE LAW

6. The claimant contended that he had been subjected to unlawful discrimination on grounds of disability contrary to the Disability Discrimination Act 1995. Schedule 3 of the Disability Discrimination Act 1995 deals with enforcement and procedure. Schedule 3 (3) of the said 1995 Act provides as follows:-

3. -(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.

THE SUBMISSIONS

7. The tribunal considered the submissions of the respective parties and noted the contention on the part of the first, second and third respondents' representatives that the tribunal ought properly to follow the decision of the Employment Appeal Tribunal in England in the case of Robinson v Post Office [2000] IRLR 804. In that case the claimant presented a complaint which was taken to be a claim of both unfair dismissal and of disability discrimination. The tribunal at the first instance dismissed both claims on the grounds that they were outside the statutory time limit. As far as the disability discrimination claim was concerned the tribunal held it would not be just and equitable to extend time. The claimant, Mr Robinson, had been following an internal appeal procedure. The Employment Appeal Tribunal in Robinson held that the tribunal at first instance had not erred in finding that it was not just and equitable to extend the time limit for presenting the disability discrimination complaint in respect of the dismissal, notwithstanding that the complaint was out of time, because the claimant was pursuing an internal appeal against dismissal. It was commented in Robinson that Parliament deliberately had not provided that the running of time should be delayed until the end of the domestic processes. The pursuance of an internal appeal was just one factor to put into the balance when deciding whether or not it would be just and equitable to extend time.
8. The claimant in oral submissions and in his skeleton argument raised three points which he requested the tribunal to consider. Firstly, he queried whether any prejudice had been suffered by the respondent. Secondly, he contended that he had taken the attitude that the matter was under active consideration between himself and the respondents up until 9 March 2005 when the Chief Executive sent the final letter to him. Thirdly, he invited the tribunal to consider whether or not it should be inclined to exercise its discretion in a particular fashion in view of his disability.
9. For the first, second and third respondents, Mr Crothers argued that the case of Robinson was on all fours with the facts of this case to a material extent. He reiterated the view that had been taken by the Employment Appeal Tribunal in that case and encouraged the tribunal to follow that.
10. The claimant chose not to make any oral submissions.

THE TRIBUNAL'S DECISION

11. The tribunal considered the submissions and the skeleton argument and the documentation and evidence that was before it in reaching a determination. The facts of the matter are that the claimant applied for but was confirmed as being unsuccessful in respect of admission to a particular panel of medical practitioners. The initial rejection of his application was communicated to him on 17 December 2004 by the Board. Thereafter the claimant entered into lengthy correspondence with a number of parties. Then by letter dated 9 March 2005 from the Board's Chief Executive the claimant was informed of the view taken by the Board that it had done everything to address the issues raised by the claimant and that if the claimant remained dissatisfied he might consider contacting the Ombudsman.
12. When directly questioned by the tribunal chairman at one point in the proceedings as to why there was a delay from shortly after 9 March 2005 when the claimant had received the correspondence from the Chief Executive until 13 May 2005 when his complaint was lodged with the Office of Tribunals, the claimant was unable to provide any explanation at all for that delay. In fairness, however, the tribunal was conscious of the claimant's mother's illness, distressing as it must have been.
13. As the claimant conceded that he was fully familiar with time limits, the tribunal thus considered whether or not there was any substantial physical or psychological impediment which might have prevented the claimant from lodging his complaint within the statutory time limitation or soon after the expiry thereof.
14. The act of discrimination complained of was the failure to appoint the claimant to the panel. The claimant was first notified of that on or about 18 December 2004. All internal avenues of redress were fully closed to the claimant by 9 March 2005. There was no compelling evidence that the tribunal heard that at the material time the claimant was suffering from any disabling illness or impediment such as would have prevented the timely lodgement of a complaint. The tribunal did note the unfortunate circumstances surrounding the claimant's late mother's illness and subsequent death throughout the period from late February and through the month of March into early April 2005. However, in general terms the tribunal determines that there was nothing of significance preventing the claimant from lodging a complaint.
15. As the claimant did concede that he was fully conversant with the statutory time limitations, the only conclusion that the tribunal can draw from this is that the claimant deliberately chose a course of action which involved his corresponding with a number of other bodies and persons including senior officials of the Board and of the General Medical Council rather than pursuing his rights before the tribunal. He was of course quite free to make that choice. However the unfortunate consequence of this is that his complaint is out of time, as the claimant has conceded.
16. In deciding whether or not it would be just and equitable to extend time, the tribunal did consider a number of authorities including the case of Robinson v Post Office referred to above. There is a considerable body of legal authority dealing with the issue of "just and equitable extension of time" in respect of cases of unlawful discrimination. The facts of some of the authorities are distinguishable in certain respects from the facts of this case but the principles underlying the authorities have evolved to make the current position quite clear. The case of Robinson v Post Office has received the approval of the Court of Appeal in England in Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116. The tribunal follows the position therein stated that a delay by an applicant invoking an internal grievance or disciplinary appeal procedure prior to commencing tribunal proceedings might justify an extension of time in certain specific circumstances. However that is merely one factor which must be weighed in the balance along with such others as might be present.
17. The tribunal is particularly struck by the fact that the claimant is a clearly highly educated and intelligent man who, indeed, has made it his business following a lengthy career in medicine to undertake the study of law to the extent of obtaining a Master of Laws Degree in the field of Human Rights. The tribunal is satisfied that there was no significant factor preventing the lodgement of the tribunal claim in time save that a conscious view had been taken by the claimant to follow a specific course of correspondence in an endeavour further to resolve the position. Much of that course of correspondence could not be said to constitute the following of a formal appeals procedure. Even if one were to give the claimant the benefit of the doubt, which the tribunal would be extremely reluctant to do on the facts, there is an unexplained delay which subsists from 9 March 2005, when the claimant was sent the entirely unambiguous statement of the Board's position by way of the letter of 9 March 2005 from the Board's Chief Executive, until 13 May 2005 when the application was finally received by the Office of Tribunals.
18. When looking at the exercise of the tribunal's discretion, the potential prejudice to both parties must be considered. The claimant expressly invited the tribunal to do so in his skeleton argument. The balance of advantage and of prejudice in the refusing of or in granting of the "just and equitable" extension must be looked at in all the circumstances of the case. It was mentioned in the case of Robinson v Post Office in the judgement of Mr Justice Lindsay that the Employment Appeal Tribunal could only conclude that Parliament had quite deliberately not provided that the running of time should be delayed until the end of the domestic processes. Whilst there are some distinctions between the process followed by the claimant in this case and in the Robinson case, looking at the process quite consciously chosen to be pursued by the claimant as an alternative to the timely issue of proceedings before this tribunal, and the further and unexplained delay once the position was made entirely clear to the claimant, the tribunal feels without doubt that the discretion must be exercised against the claimant and in favour of the respondent on the particular facts of this case.
19. That being the case the tribunal does not believe that it is just and equitable to extend time and the single preliminary issue is determined on that basis.
20. The decision of the tribunal is that the claim has not been brought within the time limits set out at paragraph 3 of Schedule 3 of the Disability Discrimination Act 1995 and it would not be just and equitable in all the circumstances of the case to consider the claim although it was presented out of time.

Chairman:

Date and place of hearing: 2 December 2005, Belfast

Date decision recorded in register and issued to parties: