Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 183/07

CLAIMANT: Scott Abram

RESPONDENTS: 1. Yellow Pages Sales Limited

2. Tim McVicker

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal does not have jurisdiction to consider the claimant's complaint of race discrimination. The claimant did not raise a grievance with the first-named respondent and present his complaint with the first-named respondent within the statutory time limit. It is not just and equitable, in all the circumstances of the case, to extend the time limit for presenting that complaint.

Constitution of Tribunal:

Chairman (sitting alone): Mr D Buchanan

Appearances:

The claimant appeared in person.

Written submissions were received on behalf of the respondents from their solicitors, Eversheds LLP. These submissions had been copied to the claimant in advance of the hearing.

1. This case was listed for a pre-hearing review to determine the following issues:-

(i) whether the claimant [had] raised a grievance with the first-named respondent and presented his complaint of race discrimination to the tribunal within the statutory time limit; and

(ii) if not, whether the tribunal has jurisdiction to consider [that complaint].

2. The claimant also has a claim of constructive dismissal arising out of the same circumstances. No issue is taken with regard to the tribunal's jurisdiction in respect of that complaint.
3. The tribunal finds the following facts:-

(i) The claimant was employed by the first-named respondent as a Telesales Consultant. He started work on 3 May 2005.

(ii) In May 2006 he was subjected to disciplinary proceedings following an alleged incident of sectarian behaviour in the workplace.

On 23 May 2006, following a disciplinary hearing, he received a final written warning. He alleges that in issuing this final written warning, the first-named respondent subjected him to less favourable treatment on the grounds of race.

(iii) He resigned from his employment on 4 July 2006, alleging constructive dismissal.

(iv) He submitted a grievance to the first-named respondent on 28 August 2006.

(v) On 31 October 2006, he presented his claim to the industrial tribunal alleging race discrimination and constructive dismissal.

4.	(i)	The claimant's claim of race discrimination in relation to the act complained of on 23 May 2006 was presented outside the three month time limit laid down by Article 65(1)(a) of the Race Relations (Northern Ireland) Order 1997, which provides that a complaint to the tribunal must be made before the end of the period of three months beginning when the act complained of was done.
	(ii)	The claimant cannot avail of the provisions relating to the extension of time limits laid down in Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. Under Regulation 15(3)(b), the normal time limit for presenting a complaint of race discrimination (as in this case) is extended for a period of three months beginning on the day after the day on which it would otherwise have expired where the employee presents a complaint to the tribunal, but has sent a statement setting out his grievance to the employer within that normal time limit.
	(iii)	Here, the normal time limit expired on 23 August 2006, but the claimant had neither presented his claim within that period, nor had he submitted his grievance by that date.
5.	(i)	On the face of it therefore the complaint of race discrimination is out of time. However, the first-named respondent's representatives' submissions proceed on the basis that the tribunal may still consider a claim in the circumstances set out at Paragraph 4(iii) if, in all the circumstances of the case, it considers it just and equitable to do so. Presumably they have in mind BUPA Care Homes (BNH) Ltd v McCann; Spillett v Tesco Stores Ltd [2006] IRLR 248 where it was held that non-compliance with the corresponding provisions in Great Britain (Section 32(4) of the Employment Act 2002, and the Employment Act 2002 (Dispute Resolutions) Regulations 2004) was not an absolute bar to bringing proceedings, as these provisions were not to be regarded as having repealed, by implication, the tribunal's discretion to hear complaints brought out of time.
	(ii)	In considering whether or not to extend the time limit, the tribunal accepts that time limits exist for a purpose and should be observed unless there is good reason not to do so. It also accepts that the 'just and equitable' rule, which applies principally in cases of alleged discrimination, is wider than the 'reasonably practicable' rule which is found elsewhere in employment law. (See : Mills and Another v Marshall [1998] IRLR 494 EAT.)
	(iii)	More specifically, the tribunal should take into account the following factors in deciding whether or not to extend time:-

(a) the prejudice which each party would suffer as a result of granting or refusing an extension;

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

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

(d) the extent to which the party in default had co-operated with any requests for information;

(e) the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action; and

(f) the steps taken by the claimant to obtain appropriate professional advice once he knew of the possibility of taking action.

(See generally : Harvey, Volume 5, T279.)

6.	(i)	In this case, the claimant, at the disciplinary hearing against him on 23 May 2006, made his own managers aware of a racist comment, which he claimed had been directed against him, as a Scottish person. The date of this incident – which appears to have been an isolated incident – is not clear, but clearly it predated 23 May 2006. The claimant stated that he felt it would have been unfair to lodge a formal written grievance in May 2006, as this would not have allowed his employer sufficient time to carry out a proper investigation. The employer did not, according to the claimant, reply to his grievance (which was ultimately lodged on 28 August 2006) until 11 October 2006, and he submitted his claim on 31 October 2006.
	(ii)	In the period between 4 July 2006, when he resigned, and 31 October 2006 he took legal advice on two occasions.
7.	(i)	In this case, it seems to me that extending the time limit would not prejudice either party. There remains a claim of constructive dismissal based on essentially the same facts. Equally, the cogency of the evidence is unlikely to be affected.
	(ii)	The proceedings are still at an early stage, so the extent to which the claimant has not co-operated with any request for information does not arise on the facts.
	(iii)	As against this I cannot overlook the fact that the claimant had the benefit of legal advice on two occasions. He was aware of the full facts from the outset and could easily have sent his grievance within the normal time limit, and consequently presented his claim of race discrimination within the extended time limit. The fact that he felt his treatment at the hands of his employer justified him in terminating his employment on 4 July 2006 should have caused him to act more promptly in asserting his rights.
	(iv)	I do not consider it just and equitable to extend the time limit for presenting the claim of race discrimination. The tribunal does not therefore have jurisdiction to determine that complaint.
	(v)	The claimant's other complaint of constructive dismissal will be listed for hearing in due course.

Chairman:

Date and place of hearing: 1 August 2007, Belfast

Date decision recorded in register and issued to parties: