Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 148/07

CLAIMANT: Alison Davina Forget

RESPONDENTS: 1. Dams Northern Ireland Ltd

2. Dams International Ltd

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is as follows:-

The claim that on the 22 November 2005 the claimant was discriminated against on the ground of sex was not presented within the specified time limit and it is not just and equitable in all the circumstances of the case for an industrial tribunal to consider the claim.

The claim that on the 22 November 2005 the claimant was treated less favourably or suffered a detriment on the grounds of her part time worker status was not presented within the specified time limit and it is not just and equitable in all the circumstances of the case for an industrial tribunal to consider the claim.

Constitution of the Tribunal

Chairman: Ms F Oliver

Appearances:

The claimant appeared in person and represented herself.

The respondent was represented by Ms Michele Mc Ginley of EEF Northern Ireland.

Sources of Evidence

The tribunal heard evidence from the claimant. The tribunal also received a bundle of correspondence containing letters, e-mails and memos dating from 22 November 2005 to 23 August 2007.

The Issue

Was the claim that on 22 November 2005 the claimant was discriminated against on the grounds of sex or treated less favourably on the grounds of her part time worker status presented within the specified time limit and if not is it just and equitable in all the circumstances of the case for an industrial tribunal to consider the claim.

The Relevant Statutory Provisions

a) An industrial tribunal shall not consider a complaint of sex discrimination unless it is presented to the tribunal before the end of the period of three months beginning with when the act complained of was done. (Article 76 (1)(a) of the Sex Discrimination (Northern Ireland) Order 1976).

b) 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 (5) of the Sex Discrimination (Northern Ireland) Order 1976).

c) An industrial tribunal shall not consider a complaint of less favourable treatment or detriment on the grounds of part time worker status unless it is presented before the end of the period of three months beginning with the date of the less favourable treatment or detriment to which the complaint relates (Regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000).

d) 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.

e) An employee bringing a claim of sex discrimination or less favourable treatment or detriment on the grounds of part time worker status must present a grievance in writing to the employer and wait at least 28 days before presenting his claim to an industrial tribunal. (Article 19 of the Employment (Northern Ireland) Order 2003).

f) Where a complaint of sex discrimination or less favourable treatment or detriment on the grounds of part time worker status is made after the three month period and the complainant has complied with the applicable statutory grievance procedure the three month period for lodging a claim is extended for a period of three months. (Regulation 15(1)(b), and (3)(b) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004).

Analysis of the Evidence

There was very little conflict in the factual evidence provided.

Findings of Fact

The claimant was employed as a credit controller by the respondents from 10 February 2003 until her dismissal on 30 November 2006.

On 22 November 2005 an incident occurred at work which the claimant considered amounted to unlawful discrimination on the grounds of her sex and her status as a part time worker.

The claimant obtained advice from the Equality Commission on 25 November 2005 and sent a grievance letter dated 27 November 2005 to the respondent.

At that time the claimant intended to pursue a claim in the Industrial Tribunal if she did not receive a satisfactory response.

The claimant was off work from 20 February 2006 until 7 August 2006 as a result of ill health.

The claimant was aware of the initial time limits for submitting a claim to the industrial tribunal.

It is accepted by both parties that the initial time limit for submitting a claim ended six months after the 22 November 2005.

The claimant states that she was unaware, when the initial time limit expired, that she could ask for time to be extended.

The claimant returned to work on 7 August 2006.

The Submissions

The claimant states that she intended to pursue a claim in the industrial tribunal as a result of the incident on 22 November 2005. However, she was advised to try and resolve the issue with her employer and she tried to do this. By 9 February 2006, it was clear that the matter was still a source of concern. The claimant states that she was unwell at this time and she was off work due to sickness from 20 February 2006. As a result of this she did not have the energy to pursue her claim.

When she returned to better health, she thought the time limit had expired and she did not know she could lodge a claim and ask the tribunal to consider an extension. The claimant was clear in her submission to the tribunal that she wants the tribunal to consider the incident on 22 November 2005 as a separate claim of discrimination and not just as the beginning of a series of events which culminated in her dismissal.

The respondent argues that the claimant had ample time to submit a claim for the incident on 22 November 2005 and she chose not to do so. She was well aware of her rights and knew where to seek advice because she had done so in the past. There are no new facts which have come to light in respect of the incident on the 22 November 2005. The claimant will not be prejudiced because she will still be able to raise the incident as part of the claim arising out of her dismissal on 30 November 2006. There would be prejudice to the respondent as there have been changes in personnel and some individuals have left.

The Law

In deciding whether or not to extend the time-limit, a central question is whether or not there can still be a fair hearing. However, other issues are of relevance 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 or act of less favourable treatment to the date of presentation of the relevant claim. 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.

Conclusions

I am satisfied that the claim was not presented within the time limit provided for in Article 76 (1)(a) of the Sex Discrimination (Northern Ireland) Order 1976 Order or Regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000) and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

I am not satisfied that it is just and equitable for a tribunal to consider the claim under Article 76 (5) of the Sex Discrimination (Northern Ireland) Order 1976 or Regulation 8 (3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000), in the light of the circumstances, and because of the reasons, outlined in the following paragraphs.

It was accepted by both parties that the initial time limit expired six months after the 22 November 2005.

I accept that the claimant may not have been aware of the tribunal's power to extend time. However, the claimant should have made efforts to ensure that she knew her rights. The claimant has demonstrated that she knew where to obtain advice and she had contacted the Equality Commission on at least two occasions. The claimant also contacted the Labour Relations Agency.

When the claimant returned to work in August 2006, she was well enough to carry out her job and could reasonably be expected to obtain any further advice which she needed in relation to the incident on 22 November 2005.

The claimant accepted that it was her own fault for not submitting a claim in time.

The claimant had a period of at least five months from 7 August 2006 to 11 January 2007 when she was well enough to submit a claim and chose not to do so.

In all the circumstances of this claim I do not believe it is just and equitable to extend time and the claim in respect of the incident on 22 November 2005 is dismissed.

Chairman:

Date and place of hearing: 31 August 2007, Belfast.

Date decision recorded in register and issued to parties: