Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 1226/06; 1227/06; 1228/06; 1229/06; 1230/06; 1638/06

CLAIMANTS: Brigid Nolan

Pauline McCabe

Eileen Russell

Paula Barrett

Geraldine McAleenan

Theresa Fiorentini

RESPONDENT: Department for Social Development (SSA)

DECISION ON A PRE-HEARING REVIEW

The unanimous decision of the tribunal is that:-

(i) The claim of Theresa Fiorentini, having been withdrawn, is dismissed. [Case reference 1638/06].

(ii) The claims of Brigid Nolan, Pauline McCabe, Eileen Russell, Paula Barrett, and Geraldine McAleenan were presented outside the statutory time limit.

(iii) The tribunal considers it just and equitable to extend the time limit for presentation of the claims.

Constitution of Tribunal:

Chairman: Mr Travers (Sitting Alone)

Appearances:

The claimants were represented by Ms M Morgan of NIPSA.

The respondent was represented by Mr D Lunny, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

REASONS

ISSUES

1. This hearing was listed to deal with two questions:-

(i) Whether the claims had been presented within the statutory time limit.

(ii) If not, whether it is just and equitable to extend the time limit for presentation of the claims.

2. At the outset of the hearing it was agreed between the parties that the claims had been presented out of time. The only remaining issue for the tribunal to consider was whether it was just and equitable to extend the time limit for presentation of the claims.
3. The tribunal was informed that the claim presented by Theresa Fiorentini was withdrawn, it was therefore necessary to consider only the claims of the other five claimants.

FACTS

4. The claimants assert that they have been subjected to indirect discrimination on the grounds of their sex.
5. It was agreed between the parties that the time limit for presentation of the claims expired on 17 August 2006. The claims were not presented until 21 September 2006 and are therefore out of time.
6. The claims arise from the introduction of what is described as a term time capacity planning tool. Other employees of the respondent presented claims within the statutory time limit, and those claims are to be heard by the tribunal as a multiple from 18-21 June 2007.
7. The claimants are members of NIPSA. At all material times the claimants sought advice from, and relied upon the advice of, the chairperson of the local NIPSA branch ["the chairperson"].
8. By a letter dated 6^th July 2006, NIPSA informed branch representatives that, "they should now inform members wishing to lodge Industrial Tribunals [sic] that this needs to be done before 15 August 2006".
9. The local branch chairperson gave evidence to the tribunal. He acknowledged receipt of the letter dated 6 July 2006 but he stated that he had failed to inform the claimants of 15 August deadline for presentation of their claims.
10. On 20 July 2006, the chairperson e-mailed the claimants to discuss the progress of the grievance procedures and the possibility of presenting a claim to the tribunal. In that e-mail he made no mention of 15 August deadline.
11. The chairperson went on leave from 17 August until 11 September 2006. The full significance of the missed deadline was appreciated by him subsequently, and the chairperson assisted the claimants in presenting their claims on 21 September 2006.
12. An additional factor in the case of Brigid Nolan, was that, as a result of a terminal illness suffered by a member of her family, she was absent from work from 19 June 2006 until 21 August 2006. At that time her mind was understandably focussed on matters other than her potential claim against the respondent.

LAW

13. Article 76(5) of the Sex Discrimination (Northern Ireland) Order 1976 provides that a tribunal may extend the time limit for presentation of a claim on the grounds that, "in all the circumstances of the case, it considers it just and equitable to do so".
14. In the case of British Coal Corporation v Keeble [1997] IRLR 336, the Employment Appeal Tribunal considered the circumstances in which a tribunal might extend the time for presentation of the claim on the just and equitable ground. At paragraph 8, Smith J. referred with approval to the criteria applied by the courts when making decisions under the Limitation Act 1980:

"It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –

(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(c) the extent to which the party sued had cooperated with any requests for information;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."

15. The Limitation Act criteria set out above are a useful reminder of potentially relevant matters which a tribunal might consider, but they do not represent an exhaustive check-list of all the factors which a tribunal must consider in determining an application to extend time on the just and equitable ground. On such an application, the tribunal has a wide discretion.
16. The respondent referred the tribunal to the cases of Johnston and others v Chief Constable of the Royal Ulster Constabulary [1998] NI 188 and Fennell v University of Ulster [unreported]. In reaching its decision, the tribunal has taken both decisions into account.

CONCLUSION

17. In making a claim to the tribunal, the claimants reasonably relied upon the advice offered to them by the local branch chairperson of NIPSA. As was candidly admitted by the chairperson in evidence, he failed to pass on to the claimants the fact and the importance of the 15 August deadline. The tribunal finds that it was as a direct result of this failure that the claims were not presented in time.
18. Save for the fact of having to answer the claims, little prejudice would be suffered by the respondent if the time limit for presentation of the claims was extended. The respondent is due to respond to claims based on the same facts at the hearing which is due to take place from 18-21 June 2007.
19. The delay in presenting the claim was relatively short and the claimant's acted promptly as soon as they were made aware of the deadline. The cogency of any evidence to be called has not been affected by the delay.
20. In all the circumstances of the case, the tribunal considers it just and equitable to extend the time for presentation of the claims.

Chairman:

Date and place of hearing: 23 April 2007, Belfast.

Date decision recorded in register and issued to parties: