Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 562/04

CLAIMANT: Mark Hughes

RESPONDENT: The Youth Justice Agency

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that although the claimant could present a claim to the tribunal in relation to his part-time status, he was out of time in doing so and it would not be just and equitable to extend time in all the circumstances of the case.

Constitution of tribunal:

Chairman (sitting alone): Mr S A Crothers

Appearances:

The claimant represented himself.

The respondent was represented by Ms N. Murnaghan, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

1. The issues before the tribunal were as follows:-

(i) Whether the claimant as a worker/employee within the meaning of Regulation 8(1) of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ("the Regulations") is entitled to present a complaint to an industrial tribunal in light of the fact that he was not a part time worker at the time of the presentation of his complaint to the tribunal.

(ii) If, pursuant to issue (i), the claimant is entitled to bring a complaint under the Regulations, the tribunal has jurisdiction to determine the claimant's complaints having regard to the time limits set out in Regulation 8(2) of the Regulations.

2. The tribunal heard evidence from the claimant and received documentation from both parties.
3. Having carefully analysed the evidence in relation to the issues before it the tribunal made the following findings of fact:-

(i) The claimant, a law graduate, who had undertaken Arbitration and Mediation Courses in 2003 and 2004 had been employed by the respondent since August 1992 as a Residential Social Worker (part-time). He was offered a full-time post as a Residential Social Worker in April 2003 and by correspondence dated 14 April 2003 to Ms Jill Brown Head of Finance with the respondent he stated, "I should like to accept your offer of full time employment with the Agency, subject to confirmation of a start date, I am required under my current employment contract, to work one month's notice.

Further to our subsequent conversation, could you advise me of, where on the spine scale the Agency propose to place me in light of my period of continuous employment, as a Residential Social Worker (p/t) since August 1992 and also of my accrued entitlement to annual leave.

I look forward to hearing from you and to starting in this new post.

Mark Hughes."

In further correspondence to Barbara Hamilton of the Youth Justice Agency dated 3 May 2003 the claimant states inter alia, "As a part time member of staff I am of course due certain entitlements under the Part Time Workers (prevention of less favourable treatment) Regulations 2000 and the "Council Directive" under which it is enacted". In further correspondence from Jill Brown in July 2003 to the claimant it is stated to him, "As you will be aware, since the establishment of the Youth Justice Agency all staff were transferred to the Northern Ireland Civil Service, appointed to the Department of Finance & Personnel (DFP) and seconded from that Department to the Northern Ireland Office (NIO). This is purely a technical arrangement to safeguard status as the Northern Ireland Civil Service and the connection with the DFP will be largely an administrative one.

The broad terms and conditions of employment particularly to all Agency staff remain unchanged by this transfer. The National Joint Council for Local Government Services (NJC Handbook) will remain as a guide to same." Although in his evidence the claimant stated that he was unaware of the time limits for presenting a claim under the Regulations until early 2004, under cross-examination he conceded that he was wrong in his original answer and the tribunal finds that he was aware of his rights and the time limits, from at least 3 May 2003.

His case was that as a part-time Residential Social Worker he should have been made a team leader in the period April 2003 to 6 June 2003 when he became a permanent employee. He asserted further rights in an e-mail to Ms Jill Brown on 3 June 2003. He claimed that given his courses in Arbitration and Mediation he was trying to resolve issues relating to his part-time employment in the period prior to the presentation of his claim on 2 March 2004. The claimant further succinctly summarises his position in correspondence to Ms Cathy Heaney dated 16 January 2004 wherein he states, "Unfortunately, it is also to you I have to write in respect of matters we have previously discussed vis-à-vis my accrued rights as a continuously employed member of part time staff from 1992 to 2003. These matters have a significant bearing on whether I have any probationary period to work out as a full time staff, to where on the spinal scale I am placed, given my continuous employment, my right to take up appropriate training, promotion and entitlement to additional leave.

Some of these matters I have already raised with the Agency when I accepted a move to the full time position in April last year. I would suggest that if the Agency has any difficulty in resolving these matters with me that we refer issues on which we differ to the Labour Relations Agency for mediation and hopefully a speedy resolution".

When asked in cross-examination as to why he had waited until 21 March 2006 to present his claim to the tribunal, the claimant stated that following a meeting with Ms Cathy Heaney, he had a further meeting with Mr Skitt and was awaiting a response from him before lodging a tribunal application which he did on 2 March 2004. However Mr Skitt did not reply to the claimant until 19 April 2004.

4. The law in relation to the issue before the tribunal is governed by the Regulations. Regulation 1(2) deals inter alia with the definition of "contract of employment", "employee", and "worker". The meaning of full time worker, part time worker and comparable full time worker is dealt with in Regulation 2.

In Regulation 5 - (1) states in relation to less favourable treatment of part time workers that:-

"A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full time worker -

(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) The right conferred by paragraph (1) applies only if -

(a) the treatment is on the ground that the worker is a part-time worker, and

(b) the treatment is not justified on objective grounds".

Regulation 8(2) and (3) deal with the time limits for complaints to tribunals.

5. The tribunal heard a brief submission by the claimant and more extensive submissions by Ms Murnaghan, first of all that the claimant as a permanent employee could not present a claim to the tribunal regarding issues when he was in part-time employment. Secondly, she submitted he was aware of the time limits in 2003 and although there was no prejudice to the respondent apart from the fact that a claim was made, it would not be just and equitable for the tribunal to extend the time for him to present his claim to the tribunal.
6. The tribunal, having considered the findings of fact in relation to the issues before it, together with the relevant law and the submissions by both parties concludes that although the claimant could present a tribunal claim in relation to his part time status, he was out of time in so doing and it would not be just and equitable in all of the circumstances of the case to consider his complaint. The claimant's claim is therefore dismissed.

Chairman:

Date and place of hearing: 22 March 2007, Belfast.

Date decision recorded in register and issued to parties: