Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 80/06

CLAIMANT: Dawn Vivienne Hartley

RESPONDENTS: 1. Beverley Joy Layard

2. Eric Robert Layard

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is:-

(1) The correct respondent in the case is Beverley Joy Layard.

(2) The claimant's claim for breach of contract was made outside the statutory time limit and the tribunal is not satisfied that it was not reasonably practicable for the claim to be presented within that time limit.

(3) The claimant's claim for breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 is outside the statutory time limit prescribed by those Regulations and the tribunal is not satisfied that it is just and equitable, in all the circumstances of the case, to consider the complaint.

The tribunal has no jurisdiction to hear the claimant's claims.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimant did not appear and was not represented.

The respondents were represented by Eric Robert Layard, the second-named respondent.

The issues

1. The issues for the tribunal to determine at this pre-hearing review were:-

(i) who is the correct respondent; and

(ii) whether the claims are within time and if not whether time should be extended.

Matters considered

2. The claimant did not appear and was not represented, but the tribunal was informed that the claimant had phoned the office on the morning of the hearing requesting a postponement. She stated in that telephone conversation that she was in Tenerife and had had no contact from the tribunal. Her son was looking after her mail in Northern Ireland and nothing had arrived from the tribunal. However she went onto advise the office that her son had only informed her the previous night of the hearing and that she was requesting a postponement.
3. The respondents were both represented by the second-named respondent, Doctor Eric Layard. He opposed the application for adjournment, and made submissions to the tribunal. He pointed out that Notice of this pre-hearing review had been sent to the parties on 21 February 2007, some two months previously. Doctor Layard was a General Practitioner in a single-handed practice and had to employ locum cover when he was attending the tribunal. He had spent both time and money in attending at the tribunal for this hearing. He also pointed out the inconsistency in the message from the claimant in alleging that she had received no contact from the tribunal about the hearing but asserted that her son had informed her the previous night thus prompting her telephone call to the tribunal that morning.
4. The tribunal found that the claimant had been properly notified of the hearing and in the absence of an adequate explanation from the claimant for her absence the hearing would proceed.

Sources of evidence

5. The tribunal heard from Doctor Layard, second-named respondent, and considered documents and correspondence produced by him. The tribunal, having decided to proceed in accordance with Rule 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the 'Rules') to dispose of the proceedings also considered any information in its possession which had been made available to it by the parties, including the claimant and in particular by reference to the claim form submitted by the claimant and the response to the respondents' counterclaim for breach of contract.

Facts found

6. The claimant commenced employment to look after the first-named respondent on 15 February 2005.
7. She was employed as a Care Assistant for the first-named respondent who is a quadriplegic with severely restricted mobility. The first-named respondent received money from the Ulster Community and Hospitals Trust under their direct payment scheme arrangement to enable her to make her own support arrangements, to include the employment and managing of her personal care assistant.
8. The first-named respondent carried employer's liability insurance from Fish Insurance in her own name.
9. The payments made to the Carers, including the claimant, were made on the basis of timesheet returns completed by the Carers which were then furnished by the first-named respondent to the Trust for each quarter period in question.
10. The second-named respondent is the father of the first-named respondent. His involvement with the claimant was limited to assisting his daughter administratively because of her disability. The second-named respondent would have dealt with the first-named respondent's banking arrangements.
11. At no time did the second-named respondent pay the wages of the claimant from his own account.
12. There is contradictory evidence on the date of which the employment terminated. In her claim form, the claimant states that her employment terminated on 30 September 2005. The claim form was lodged at the Office of Industrial Tribunals on 30 December 2005.
13. However in the claimant's response to the first-named respondent's counterclaim for breach of contract she states at Paragraph 4 of her response headed 'employment details' that employment ended on 29 September 2005.
14. The second-named respondent gave evidence that the claimant's employment with his daughter effectively ended on 20 August 2005. On 21 August 2005 the claimant went to South Africa and did not return until approximately 12 September 2005. On her return she stayed in the family home (as she had done since commencing employment in February 2005) and continued to work in other jobs but did not do any further work for the first-named respondent.
15. The tribunal was impressed by the evidence of Doctor Layard which was both credible and cogent. The tribunal finds on the balance of probabilities that it prefers the evidence of the second-named respondent and finds that the employment of the claimant ceased on 20 August 2005.

The law

16. Article 7(a) of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 requires a breach of contract claim in respect of an employee's contract to be presented to the Office of the Tribunals within three months of the effective date of termination of the contract giving rise to the claim. Article 7(c) provides that where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented in time then it may allow such further time as the tribunal considers reasonable.
17. Regulation 8(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 requires a complaint under the Regulations to be presented to the Office of Industrial Tribunals before the end of a period of three months beginning with the date of the less favourable treatment or detriment which the complaint relates. Regulation 8(3) provides that a tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers it is just and equitable to do so.

Conclusions

18. The first issue for determination by the tribunal is the identification of the correct respondent. On the basis of the facts found by the tribunal it is clear that the correct respondent in this case is the first-named respondent, Miss Beverley Layard. She had in place appropriate funding from the Ulster Community and Hospitals Trust, received that funding and completed the relevant audit requirements of the Trust. She maintained employer's liability insurance in relation to her Carers and the second-named respondent's role was clearly that of assisting the first-named respondent administratively in discharging her obligations. The tribunal therefore finds that the correct respondent is the first-named respondent and dismisses the second-named respondent from the proceedings.

Time issues

19. The tribunal had already indicated that there was conflicting evidence before it relating to the effective date of termination of the claimant's contract of employment. The tribunal prefers the evidence of the second-named respondent and finds that the correct date of termination is 20 August 2005. The claimant's own evidence on the claim form and on the response to the counterclaim is ambiguous as it gives two conflicting dates for the termination of employment, only one of which would have brought the claimant's claim within the statutory timeframe.
20. The tribunal therefore finds that the claim for breach of contract and the claim for breach of the Part-time Workers Regulations were outside the time limits allowed.
21. The tribunal then must consider the differing tests for whether or not it is appropriate to use the tribunal's discretion to extend the time for either claim.

Breach of contract

22. The test for extending the time for the claimant's claim for breach of contract is whether the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented in time.
23. The general intention of the legislation is that claims should be presented promptly. The tribunal should consider all the circumstances of the case. What is reasonably practicable is a question of fact. The onus of proving that presentation in time was not reasonably practicable rests on the claimant. It is for the claimant to show precisely why the complaint was not presented on time.
24. There is no information before the tribunal in this case to explain why the claim was not made in time. There is therefore no basis upon which the tribunal can make any other determination, in the absence of explanation from the claimant, than that it was reasonably practicable for the claimant to have presented her complaint within the statutory time limit.

The Part-time Workers Regulations

25. There is a different statutory test for the tribunal's discretion in relation to a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000. Under those Regulations, a tribunal may consider a 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.
26. Under this test, tribunals have a wide discretion to extend time, but again time limits are exercised strictly. There is no presumption that a tribunal ought to exercise its discretion to extend time unless it can justify not doing so. On the contrary it is for the claimant to convince the tribunal that it is just and equitable to extend the time limits. Again in the absence of any material evidence or submissions from the claimant by way of explanation, the tribunal sees no basis on which it would be entitled to hold that an extension of time can, in all the circumstances of the case, be just and equitable. On the information before the tribunal and on the facts found, the tribunal finds that it would not be just and equitable to grant an extension of time.
27. The tribunal therefore decides that the complaints of the claimant are out of time and accordingly the tribunal dismisses the complaints of the claimant without further Order.

Chairman:

Date and place of hearing: 19 April 2007, Belfast

Date decision recorded in register and issued to parties: