Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> MacManus v Flagship Media Group Ltd & Anor [2007] NIIT 364_06 (22 February 2007
URL: http://www.bailii.org/nie/cases/NIIT/2007/364_06.html
Cite as: [2007] NIIT 364_06, [2007] NIIT 364_6

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REFS: 364/06

647/06

CLAIMANTS: Elizabeth MacManus

Joanne Cronolly

RESPONDENTS: 1. Flagship Media Group Limited

2. Derek Carstairs

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is that the claims for sex discrimination against the second-named respondent were not presented within the specified time limit, laid down by Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (hereinafter called the 1976 Order). The claims against the second-named respondent do not fall within the extension of time limit provisions contained in Regulation 15 of the Employment (Northern Ireland ) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (hereinafter called "the Regulations").

However the tribunal considers that under the provisions of Article 76(5) of the 1976 Order, it is just and equitable in all the circumstances of the case, for an industrial tribunal to consider the complaints despite the fact that they are out of time.

Constitution of Tribunal:

Chairman (sitting alone): Mr Cross

Appearances:

The claimants were represented by Mr Upson, Solicitor, of Thompsons McClure, Solicitors.

The respondents were represented by Mr McGleenan, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The issues

The first-named claimant (hereinafter called "Ms MacManus") having left the employment of the first-named respondent (hereinafter called "Flagship") caused her solicitors to write to Flagship on 5 December 2005 enclosing a grievance to be dealt with under the modified grievance procedure set out in Chapter 2 of Part 1 of Schedule 1 of the Employment (Northern Ireland) Order 2003 (hereinafter called the 2003 Order). The letter was addressed to the Managing Director of Flagship, it referred to Ms MacManus as an "ex-employee of yours". The time limit within which the claim to the tribunal must be brought, under Regulation 15 of the Regulations, where the grievance procedure is commenced, is three months from the date on which the time limit would otherwise have expired. The claimant's employment ended on 27 September 2005, so that the time limit would have expired on 27 December 2005, if the grievance procedure had not had the effect of extending the time limit to 27 March 2006. Ms MacManus's application in respect of both respondents was received by the tribunals on 24 March 2006. This was within the time limit in respect of the claim against Flagship, with respect to which claim the grievance procedure came into play. However it would appear to be outside the time limit of only three months from the last alleged act of discrimination, in respect of the claim against the second-named respondent, where it was argued, the grievance procedure was not a precondition of the claim.

The case brought by the second-named claimant (hereinafter called "Ms Cronolly") is exactly the same as the MacManus case, save that the dates of termination of employment and application to invoke the grievance procedure and consequently the time limit dates, are different. However the underlying legal problem is the same, the claim against Flagship is in time but the claim against the second-named respondent is, on the face of it, outside the time limit of three months from the last alleged act of discrimination. The letter invoking the grievance procedure is in similar terms.

The issue to be decided is whether the grievance procedure should also be invoked against the second-named respondent (hereinafter called "Mr Carstairs"), in which case the time limit would be extended under the Regulations, or if the grievance procedure is not appropriate in respect of Mr Carstairs, then should the time limit, as it is not automatically extended under the Regulations, be extended under the just and equitable principal, laid down by the 1976 Order.

The law

Article 63 of the 1976 Order provides that a person who complains that he or she has been discriminated against because of his or her sex, may bring a complaint to an industrial tribunal. Article 76 of the 1976 Order lays down the time limit for bringing such a complaint to "the period of three months beginning when the act complained of was done".

Article 42 of the 1976 Order provides as follows:-

"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

The 2003, Order provides for grievance procedures to be invoked in certain cases, including complaints of Sex Discrimination, before complaints are presented to the industrial tribunals. The standard and (shorter) modified procedures are set out in Schedule 1 to the 2003 Order. This modified procedure provides for "the employee" to set out in writing his grievance and send it to "the employer". The "employer" is then required to respond to the grievance. There is no provision in the Schedule for a dispute between two employees, or for such to be referred to the grievance procedures.

Regulation 6 of the Regulations states, inter alia, that an employee must invoke the modified grievance procedure in a case where the employee is no longer employed by the employer. Regulation 15(1) of the Regulations provides that where the grievance procedure is invoked the time limit for presenting a complaint to a tribunal shall be "extended for a period of three months beginning with the day after the day on which it would otherwise have expired"

Two recent cases have assisted this tribunal. The first from the Scottish EAT, Bisset v Martins and Castlehill Housing Association (UKEATS 0022/06RN). In that case , which is similar to this case, Lady Smith held that the claims against each respondent were separate claims. The claimant intimated a grievance letter to the first respondent, the employer. The learned Judge asked, in relation to the claim against the second-named respondent, who, as in this case was a fellow employee of the claimant, "does that mean that the extension provisions of [the equivalent provision of the GB Regulations] apply so as to extend the time limit for presenting the claim by a further three months? My response is a resounding no." She goes on to give various reasons for this view. Some of these reasons found support from His Honour Judge Peter Clark in the case of London Borough of Lambeth & Others v Corlett in the English EAT (UKEAT /0396/06DA). The learned Judge said at paragraph 25, in discussing the Bisset case, "it was held that it is inconceivable that the grievance procedures were intended to operate as between employees. That is plainly correct."

Judge Clark in the Corlett case does not consider the point concerning the acts of the employee respondent being those of the employer, because in that case, as in this case, there was no grievance procedure taken against the fellow employee respondent and so the time limit would have remained at the original three months provided for in the 1976 Order.

In the Corlett case, Judge Clark referred the matter of an extension of time on the just and equitable ground back to the original tribunal for a decision. In arriving at its decision in this case this tribunal bore in mind the following matters in considering an extension on those grounds:-

1. Whether or not the respondent would be prejudiced by the delay.

2. The reason for the delay and its extent.

3. Whether the claimant had professional advice and if so, was the advice such as to cause a genuine mistake.

In considering whether it is just and equitable to extend the time limit for bringing a claim such as this one, the fact that a mistake has been made by a legal representative, should not be allowed to prevent the claim being heard. His Honour Judge J McMullan QC, in Chonan v Derby Law Centre [2004] IRLR 685, referred to the decision in an earlier case in the English Court of Appeal, which stated:-

"the failure by a legal advisor to enter proceedings in time should not be visited upon the claimant for otherwise the defendant would be in receipt of a windfall"

Steeds v Peverel Management Services Ltd [2001] All ER (D)370 (Mar) CA.

Decision of the tribunal

The tribunal is satisfied that, following the Bisset and Corlett decisions, the requirements of the 2003 Order and the Regulations, which require a claimant to first make a grievance under the laid down procedure, do not apply to disputes between employees of the same employer, but only to the listed claims between employee and employer. Consequently the time limit for the claims against the second-named respondent, Mr Carstairs, expired at the end of three months from the dates of the incidents of alleged discrimination. The claimants do not get the benefit of the three months additional time, allowed for the claim that was subject to the grievance procedure. The two claims against the second-named respondent, Mr Carstairs, are therefore out of time.

This being the decision of this tribunal the tribunal then turned its attention to its right to extend the time for bringing the claim, despite the expiry of the time limit, if the tribunal considered it to be just and equitable so to do.

The tribunal is satisfied that there is no prejudice to the respondents if this discretion is exercised in favour of the claimants. The cases revolve around the actions of the second-named respondent and will have to be investigated in the same manner whether or not Mr Carstairs is a respondent.

The reason for the delay and whether or not the claimants took legal advice are bound up together. The two claimants took the advice of Mr Upson's firm and Mr Upson was quite frank in telling the tribunal that he had considered that the extension of time would apply to the second-named respondent as well as to the first-named respondent. This advice, in the light of the cases referred to above, proved to be incorrect. For it now appears clear, from the authorities above in Great Britain, that the grievance procedures are not appropriate for disputes between employees of the same respondent. This tribunal is guided by the decisions of Lady Smith and Judge Clark and with due deference agree with the decisions in the cases referred to in Paragraph 8 above.

The Regulations are clearly designed to only apply to disputes between employee and employer and not to those between employees of the same employer.

This tribunal holds that the interplay between the Regulations and the introduction of the grievance procedure and the employment situation on the ground could lead an employee into confusion, as to what the time limits were. This is particularly so when one considers the further complication of the acts of the employee being deemed to be those of the employer. See Paragraph 5 above. A claimant could be confused and believe that the "other employee" respondent is automatically included in any enhanced period of limitation for commencing a tribunal claim.

Finally in this case the letter to the respondents seeking the institution of the grievance procedure, was addressed to the Managing Director of Flagship, who is the second respondent. Could the claimants claim that they had joined the first and second respondents in the grievance procedure despite the fact that the tribunal holds that the procedure does not apply to employee respondents?

For all these reasons the tribunal hold that it is just and equitable to extend the time limit for the claimants' applications to the tribunal and a tribunal should consider both complaints.

Chairman:

Date and place of hearing: 12 January 2007, Belfast

Date decision recorded in register and issued to parties: