Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REFS: 1206/06

1207/06

1208/06

1209/06

1210/06

1211/06

1212/06

1213/06

CLAIMANTS: John Milligan

Isobel Jean Greene

Sarah Valerie Reid

Anthony Power

Thomas Desmond Patterson

Joanna Faloon

Martin Joseph Henry

Finbar Thomas Robinson

RESPONDENT: Irlandus Circuits Ltd (in liquidation)

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimants' claims are lodged out of time, and that it was reasonably practicable for the claims to be lodged within time. The tribunal therefore has no jurisdiction to hear the claims.

Constitution of Tribunal:

Chairman: Mr P Kinney

Appearances:

The claimants, John Milligan, Sarah Valerie Reid, Anthony Power and Thomas Desmond Patterson appeared in person and represented themselves.

The claimants, Isobel Jean Greene, Joanne Faloon, Martin Joseph Henry and Finbar Thomas Robinson, did not appear, nor were they represented.

The respondent did not appear and was not represented.

1. Issues to be decided

(a) whether the tribunal has jurisdiction to consider each claimants' claim in relation to a protective award in view of the provisions of Article 217 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order) regarding the time limit for presenting such claims; and

(b) whether each claimant is entitled to present a claim in respect of unlawful deductions from wages and breach of contract in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 regarding the requirement to send a grievance in writing to the employer and to wait 28 days before presenting a claim to the tribunal.

Sources of evidence

2. The tribunal heard from each of the claimants present by way of evidence and their submissions.
3. The claimants, Isobel Jean Greene, Joanna Faloon, Martin Joseph Henry and Finbar Thomas Robinson, had each contacted the Office of Industrial Tribunals to state they would not be attending the hearing.
4. The respondent's solicitors, Elliott Duffy Garret, contacted the Office of Industrial Tribunals by letter dated 5 April 2007 stating that they would not be attending the hearing but asking the tribunal to consider its defence as set out in the response submitted in each matter.
5. The tribunal having decided to proceed, in accordance with Rule 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to dispose of the proceedings, also considered any information in its possession which had been made available to it by the parties and in particular by reference to the claim forms submitted by the claimants and the responses to each of the claimants' claims made by the respondent.

Facts found

6. Whilst there are some differences in detail in the claimants' cases there is no material difference on the essential facts.
7. The respondent company ceased business on 4 March 2005.
8. Approximately two weeks before this, the respondent notified the workforce that the business was closing. A series of meetings was organised between the employees, a representative of the respondent's business from it's accounts department, and a representative from Grant Thornton UK LLP.
9. Employees attended this meeting either singly or in groups of two or three. At the meeting the employees were asked for information about their employment including the date of commencement of employment and other contractual matters such as arrears of pay and holiday pay.
10. The employees were informed by the representative of Grant Thornton UK LLP that they wanted to ensure that each employee received what they were entitled to.
11. The respondent then entered into a CVA.
12. The last of the dismissals occurred on 4 March 2005.
13. Subsequent to 4 March 2005 the trade union, Amicus, brought a claim to the industrial tribunals seeking a protective award in respect of the dismissal of each of its members by the respondent alleging failure to consult.
14. By a decision of the industrial tribunals issued on 25 July 2006 a protective award was made in respect of each member of the union who had been engaged by the respondent.
15. None of the present claimants were members of the union at the relevant time.
16. The claimants became aware of the award from contact with their erstwhile colleagues who had received payment of the award in August 2006.
17. After enquiry as to what the payment was for, and on learning of the tribunal's decision, the present claimants presented the claims to the Office of the Industrial Tribunals at various dates in September 2006.
18. It was accepted by each of the claimants present at the hearing that their claims had not been brought within the statutory time limits.
19. There were close relations between the individual claimants and their union colleagues. It was a tight knit workforce who shared their working environment and approached issues on a common basis. Contact with union colleagues continued after the cessation of employment.
20. None of the claimants took any steps to seek advice regarding their rights at the relevant time for taking a claim or at any other time until they became aware of the protective award made in July 2006.

The law

21. An employer has a duty to consult representatives of employees about proposed redundancies as set out in Article 216 of the 1996 Order. If the employer fails to comply with the requirements of Article 216, Article 217 of the Order allows a complaint to be made to an industrial tribunal.
22. Such a complaint can be made by, amongst others, under Article 217(1)(d):-

"By any of the affected employees or by any of the employees who have been dismissed as 'redundant'."

23. The time limits for bringing such a claim were set out in Article 217(5) as follows:-

"(5) An industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –

(a) before the date on which the last of the dismissals to which the complaint relates takes effect, or

(b) during the period of three months beginning with that date, or

(c) within such further period as a tribunal consider reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented during that period of three months."

24. The tribunal was also asked to consider the issue of the statutory dispute resolution procedures introduced by the Employment (Northern Ireland) Order 2003. However these do not apply as the date of the last dismissal was 4 March 2005 and the new procedures came into effect from 3 April 2005.
25. The tribunal referred to Harvey on Industrial Relations and Employment Law and to the cases of Dedman v British Building & Engineering Appliances Limited [1974] ICR 53 and Walls Meat Company Limited v Khan [1978] ICR 52. Copies of the relevant extracts from Harvey were made available to the claimants.

Tribunal discretion

26. The tribunal has a discretion to extend the time for presenting a claim if the tribunal finds that it was not reasonably practicable to present the claim in time. The burden of proving this rests firmly on the claimant. The test is twofold. If the claimant succeeds in showing that it was not reasonably practicable to present the claim in time, the tribunal must then be satisfied that the time actually taken to lodge the claim is reasonable.
27. The question of what is or is not reasonably practicable is essentially one of fact and the tribunal should look at the circumstances of each case.

Tribunal's conclusions

28. The claimants' employment ceased on 4 March 2005. Their claims were not made until September 2006. It is clear and indeed is accepted by those claimants present at the hearing that all the claims are therefore outside the statutory time limit provided by Article 217 of the 1996 Order.
29. All the claimants, both those present at the hearing and those absent at the hearing but through their claim forms have expressed themselves ignorant of the right to make a claim for a protective award. Those present at the hearing indicated that their knowledge of the right to take a claim was when they became aware of the tribunal decision in relation to their union work colleagues delivered in July 2006.
30. Guidance on how to deal with a question of a claimant's expressed ignorance of his rights is found in both the Dedman and Walls Meat cases. Harvey at Paragraphs T197 – 205 quotes Scarman LJ in Dedman:-

"If the claimant is saying that he did not know of his rights, relevant questions would be:-

"What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he mislead or deceived? Should there prove to be an acceptable explanation of his continuing ignorance of his rights, it would be inappropriate to disregard it, relaying on the maxim 'ignorance of the law is not excuse'. The word 'practicable' is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance."

31. Harvey goes on to say at T207:-

"So, whilst a claimant's state of mind is to be taken into account, it is clear that his mere assertion of ignorance either as to the right to claim, or the time limit, or the procedure for making the claim, is not to be treated as conclusive."

32. The claimants accept that they took no steps whatsoever to establish their rights.
33. The tribunal does not accept that it is reasonable for the claimants to absolve themselves from all obligations shouldered by any employee whose contract of employment has come to an end, to consider his position and take all necessary actions for his own benefit. The claimants failed to seek or obtain independent or indeed any advice in regard to their entitlements.
34. In the circumstances of the closure of this business the claimants ought reasonably to have known of their rights or taken appropriate steps to establish those rights. Information was clearly available to them from the usual sources such as solicitors and Citizens Advice Bureau. The claimants showed by their actions in taking claims promptly on discovery of the tribunal's decision in July 2006 of an ability to obtain information when they thought it appropriate.
35. Information as to their rights was also available to the claimants from their union colleagues and the union representatives who clearly demonstrated their knowledge of the right to make a claim for protective award by virtue of the fact that they did so within the original statutory timeframe.
36. The fact that colleagues have received a protective award through the actions of a union undoubtedly creates an impression of unfairness in the minds of claimants. Why should one employee obtain a benefit which is not available to another? However the tribunal is tasked to establish whether, in light of the statutory framework and in all the circumstances of the case, the time limit allowed by law to lodge a claim with the Industrial Tribunal should be extended. The fact that someone else took action within the required statutory time limits and was ultimately successful is not sufficient, without more, to grant an extension of time in these claims.
37. The tribunal therefore finds that it was reasonably practicable for the claimants to have taken their claims within the statutory timeframe provided.
38. Even if not persuaded on this point the tribunal would not have accepted that the length of time it then took to lodge the claims was reasonable in all the circumstances. There was continuing contact between the claimants and their ex-colleagues. The claimants did not lodge their claims until some 15 months after the expiry of the original time limit. In all the circumstances of the case the tribunal would not have found that a reasonable period of time for asserting their rights.

Chairman:

Date and place of hearing: 1 – 2 May 2007, Belfast

Date decision recorded in register and issued to parties: