Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 219/07

CLAIMANT: Naomi Armstrong

RESPONDENT: Western Education and Library Board

DECISION ON A PRE-HEARING REVIEW

The unanimous decision of the tribunal is that it was not reasonably practicable for the claimant to have lodged her claim within the three month time limit period and that the period within which the claimant did lodge her claim thereafter was reasonable and accordingly the tribunal has jurisdiction to hear the claim.

Constitution of tribunal:

Chairman (Sitting Alone): Ms Sheils

Appearances:

The claimant was represented by Mr Warnock, of counsel, instructed by Ferguson, Solicitors.

The respondent was represented by Mr Michael Brown, Solicitor, Chief Legal Advisor of the Education and Library Boards Legal Service.

Issue

1. The issue for the tribunal was whether the tribunal has jurisdiction to entertain the claimant's complaint in the view of the provisions of Article 145 (2) (a) and (b) of the Employment Rights (Northern Ireland) Order 1976 regarding the time limit for presenting her complaint of unfair dismissal.

Findings of Fact

2. The tribunal found the following facts. Where these were not agreed between the parties the tribunal found the facts on a balance of probabilities.

(1) the claimant worked for the Western Education and Library Board as a classroom assistant since 1995. During that time she worked in Jones Memorial Primary School.

(2) In September 2001 the claimant became responsible as a classroom assistant for a specific child, RB, who had special educational needs. The claimant remained this child's classroom assistant until June 2006 when the child transferred from Primary School to Grammar School.

(3) In June 2006 the claimant was standing in the staffroom chatting to other classroom assistants. The Principal, Mrs Isherwood, arrived into the staffroom and handed a letter to each of the classroom assistants. The claimant subsequently discovered that the letter invited applications for voluntary redundancy as the school's requirement for classroom assistants had fallen. However, as Mrs Isherwood handed her copy of the letter to the claimant Mrs Isherwood advised the claimant that in the event that there was no applications for voluntary redundancy that she the claimant would be the person to be made redundant.

(4) The claimant was aware that a child with special educational needs, LMcM, was due to start Jones Memorial Primary School in September 2007. The claimant had met the child and his parents when they had come to look around the school and she had been told by them then that the child would require a classroom assistant.

(5) The claimant contacted Mrs Isherwood and enquired about this child. Mrs Isherwood told the claimant that there had been no confirmation received by the school that this child would be starting in September 2007. Mrs Isherwood also confirmed that there would be no other classroom assistant's hours available.

(6) The claimant received a letter dated 6 July 2006 from the Western Education and Library Board. This letter advised the claimant that her redundancy would be "inevitable" in the absence of any applicants for voluntary redundancy.

(7) In a further letter dated 14 August 2006 from the Western Education and Library Board the claimant's redundancy was confirmed. This letter outlined a process whereby the claimant could make representations to the Board of Governors against her selection for redundancy. The claimant did not exercise her right to do this as she believed that her redundancy was valid.

(8) This letter informed the claimant that her redundancy would take affect on 31 August 2006 and this date was accepted by the parties as the claimant's effective date of termination.

(9) The claimant commenced a new temporary post in Jones Memorial in September 2006, working 15 hours per week. As a new post this post offered the claimant no continuity of service.

(10) During September 2006 the claimant became aware that the child, LMcM, had started primary one at Jones Memorial Primary School. However the child had been given a classroom assistant, BP, who was a student doing an NVQ. It was the claimant's understanding that as this classroom assistant was a student she was not being paid.

(11) In any event the claimant again contacted Mrs Isherwood and asked her if there were any hours available in respect of this pupil. Mrs Isherwood confirmed that there were no such available hours.

(12) On approximately 15 December 2007 a group of classroom assistants were in the staffroom discussing the fact that their salary had not been put into the bank on time. During this conversation the classroom assistant, BP, confirmed that she like the others had received her payslip but that her money had not gone into her bank account.

(13) The claimant was shocked and surprised to hear BP saying this as this was the first time the claimant was aware of the fact that this classroom assistant was being paid.

(14) The claimant indicated that this was the point at which she began to think her redundancy was not a valid redundancy. It was at this point that the claimant began to think that she could possibly have a legitimate complaint and possibly even have a claim.

(15) The claimant contacted her solicitor at once, before Christmas 2006. The claimant contacted her solicitor again on 4 January 2007. The claimant confirmed that there was no discussion about time limits in the first phone call to the solicitor but agreed that time limits were mentioned to her in the conversation in January 2007. In mid January, on approximately 15 January, the claimant had reason to query her salary and spoke to the school secretary about the matter. In their discussion the secretary gave the claimant sight of the timesheet on which was recorded all the hours of all the classroom assistants. It was at this stage that the claimant became aware of the fact that the classroom assistant, BP, was working 20 hours per week and being paid for them.

(16) The claimant immediately contacted her solicitor again as it was at this point the claimant realised the other classroom assistant was working and being paid for 20 hours per week and that therefore her redundancy had been unfair.

(17) The claimant lodged a claim to the Office of the Industrial Tribunals and the Fair Employment Tribunal for unfair dismissal on 26 January 2007. This was received by the Office on 30 January 2007. It was agreed by both parties that the statutory three months time limit for making such a claim, ie within three months of the effective date of termination, had expired by this stage.

The Law

3. A complaint to the Industrial Tribunal must be brought within the time constraints as provided for under Article 145 of the Employment Rights (Northern Ireland) Order 1996. This Article states at paragraph (2)

"… an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that three month period.

There are two aspects to Article 145 (2) (b). The tribunal can exercise its discretion to accept a claim presented after the three months time limit has lapsed on the basis that it would be just and equitable to do so. However the second aspect of Article 145 (2) (b) is that the claim, if presented after the three month time limit, must have been so presented within a reasonable period thereafter.

Case Law

4. The tribunal was referred to Harvey on Industrial Relations and Employment Law, Division T, Practice and Procedure and to the commentary on the extension of time for presentation of claims thereat. The tribunal was specifically referred to the cases of Wall's Meat Company Ltd (Appellants) -v- Khan [1978] IRLR 499, Machine Tool Industry Research Association -v- Simpson [1988] IRLR 212, Marks and Spencer Plc -v- Williams-Ryan [2005] IRLR 256.

The Tribunal's Conclusions

5. As with any exercise of its discretion the tribunal was mindful of its obligations to exercise it in accordance with the governing judicial principles as set out in the case of Selkent Bus Company -v- Moore [199] IRLR 661.

The Contentions of the Parties

6. The claimant's representative argued that it could not have been reasonably practicable for the claimant to have lodged her claim within three months of the effective date of termination as the claimant had simply not become aware of the facts in which she could build that claim within that period. The claimant's representative also contended that the claimant had thereafter lodged her claim within a reasonable time of her becoming aware of those facts on which she sought to rely to build her claim.
7. The respondent contended that the claimant had not acted within a reasonable time of her having formed the belief that she had a claim.
8. The tribunal considered the case law to which it was specifically directed and generally. The tribunal concluded on the common sense basis as urged by Lord Justice Shaw in the Wall's case that one of the essential conditions that must exist in order to render it reasonably practicable to present a claim in time is that the claimant must know that he has such a claim. It was accepted in this case that the claimant only became aware that her redundancy had not been genuine from the middle of December, approximately 15 December 2006. On the basis that this was when the claimant discovered the facts on which she could build a claim the question that remained for the tribunal was to decide whether the period thereafter within which the claimant lodged that claim was reasonable.
9. As the respondent's representative properly submitted the issue of whether the time within which the claim is lodged, after the expiry of the primary three month time limit, is reasonable is a question of fact for the tribunal. In this case the facts are that in mid December 2006 the claimant began to think that possibly her redundancy was not valid and, as a consequence of that possibility, she might possibly have a claim. The facts also show that it is not until mid January 2007 when the claimant becomes aware of the fact that the classroom assistant, BP, is not only receiving payment for the hours she is working but is in fact working the same number of hours that the claimant herself had been working prior to her redundancy. It is at this point that the claimant realised that she had a valid claim. The claimant lodged a claim within two weeks of the discovery by her of those facts. Accordingly the tribunal is of the view that the claimant did lodge her claim within a reasonable period of the discovery she made that confirmed her view that she had a potential claim.
10. In light of the above the tribunal concludes that it was not reasonably practicable for the claimant to have lodged her claim within the primary three month time limit period and that the period within which the claimant did lodge her claim was reasonable. Accordingly the tribunal has jurisdiction to hear the claim.

Chairman:

Date and place of hearing: 21 June 2007, Belfast.

Date decision recorded in register and issued to parties: