Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLogan v McParland Bros t/a Canal Court Hotel [2007] NIIT 876_06 (18 January 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/876_06.html
Cite as: [2007] NIIT 876_06, [2007] NIIT 876_6
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 876/06
CLAIMANT: Michelle McLogan
RESPONDENT: McParland Bros t/a Canal Court Hotel
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that:-
The claim was presented in breach of the requirements of Article 19 of the Employment (Northern Ireland) Order 2003. Consequently the claim is not accepted by the tribunal.
The claim was in any event presented out of time.
The tribunal would not consider it just and equitable to extend the time for presentation of the claim.
The tribunal does not have jurisdiction to hear the claim.
Constitution of Tribunal:
Chairman: Mr Travers sitting alone
Appearances:
The claimant was represented by Mr Keith Hollywood of Newry and Mourne Citizens Advice Bureau
The respondent was represented by Mr Fearghal O'Connor, Solicitor, of Elizabeth O'Connor Solicitors, Newry
REASONS
ISSUES
This case was listed for a pre-hearing review to determine one issue:-
Whether the tribunal has jurisdiction to hear the claim in view of the time limits as set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976.
The claimant's case is put on the basis of alleged discriminatory conduct that occurred while she was at work during her pregnancy. She went on maternity leave on 9th December 2005 but her claim was not presented to the tribunal until 14th July 2006. The claimant is out of time. She seeks to persuade the tribunal that, in all the circumstances of the case, it is just and equitable to extend the time for presentation of the claim.
During the course of the hearing, the respondent challenged the document relied upon by the claimant as a written statement of grievance. It was submitted that the document did not in fact amount to a written grievance. Consequently the tribunal has considered whether or not the claim should be accepted for determination by the tribunal in view of the provisions of Article 19 of the Employment (Northern Ireland) Order 2003.
FACTS
The following facts represent the conclusions of the tribunal on the balance of probabilities. In making these findings the tribunal has considered all the evidence, information and submissions presented to it.
The substance of the complaint to the tribunal is an allegation that when the claimant was at work during her pregnancy, the respondent was in breach of it's duty to carry out a risk assessment under The Management of Health and Safety at Work Regulations 1999. It is said that this represented discrimination on the grounds of the claimant's sex.
In fact the regulations cited in the claim, the correspondence, and all documentation and submissions presented to the tribunal, apply only in Great Britain. When considering this matter, the tribunal has treated all such references to the 1999 regulations as references to the equivalent provisions applicable within this jurisdiction, namely The Management of Health and Safety at Work Regulations (Northern Ireland) 2000 [“MHSWR”].
The claimant commenced employment at the respondent's hotel on 06/11/00.
In or around April 2005, the claimant informed the general manager of the hotel that she was expecting her first child. The claimant worked throughout the pregnancy until 3rd December 2005 when she took sick leave on the grounds of stress. The period of sick leave continued until 9th December 2005 when the claimant's maternity leave began as scheduled.
Prior to taking maternity leave, the claimant was unhappy about a number of matters relating to her working conditions during her pregnancy. As a result of these concerns, the claimant attended the citizens advice bureau [“CAB”] on 1st November 2005 to seek advice. At the CAB she saw Mr Hollywood who represented her at the pre-hearing review.
The upshot of the meeting at the CAB was that Mr Hollywood wrote to the general manager of the hotel in the following terms:
“We have been approached by Michelle McLogan an employee of yours about her maternity rights.
Please find enclosed a copy of her maternity rights which I am sure you are already well aware of.
I would ask that you address all her rights enclosed applying to her as I have asked her to return to us immediately upon you failing to afford her these rights.”
It is argued on behalf of the claimant that this letter, when read with the document enclosed with it, represented a written statement of grievance within the terms of the statutory dispute resolution provisions.
The document enclosed with the letter had been downloaded from a database. This document was headed “Rights before the birth: key rights”. The document ran to just over five pages and comprised twenty-seven paragraphs of text. Only five of the paragraphs fell under the heading “Risk Assessment”. These paragraphs refer to the Management of Health and Safety at Work Regulations 1999. There is a brief summary set out, which includes an employer's obligation to have in place an assessment of the health and safety risks presented to a pregnant employee in the workplace. The summary refers to the steps an employer might take to reduce any identified risks.
Neither the letter sent by the CAB, nor the accompanying document, contain any specific allegations that the respondent has breached any of the claimant's rights set out therein.
Attached to the claim form is a copy of the attendance note made by Mr Hollywood when he saw the claimant on 01/11/05. The note records that the claimant complained that: she was not being afforded her statutory maternity rights; she had to work night shifts; she did not have sufficient breaks; she was required to lift and carry heavy books; she did not have suitable seating; and her employer appeared unhappy about her taking time off to see the midwife.
The note also records the advice given by Mr Hollywood to the claimant about the complaints. It then goes on to record, “The adviser advised the client to come straight back if her employer denies her any of these statutory rights…The adviser further advised that to [sic] document every comment or action that she is unhappy about and the names of any witnesses and to return to the bureau.”
The claimant told the tribunal that when she saw Mr Hollywood she had no intention of presenting a tribunal claim, she just wanted her last 5 weeks before maternity leave to be pleasant. She wanted to let the respondent know about her rights in the workplace as an employee who was expecting a child. The claimant said that she asked Mr Hollywood to frame a letter setting out her rights, as opposed to setting out a grievance. She felt that the respondent was not recognising that she was pregnant and she wanted it to do so. The claimant felt that there were problems that the respondent was not addressing. She said that at the time when she saw Mr Hollywood she was aware that she had a grievance but she did not want to send a grievance letter.
When the hotel's general manager saw the letter, she spoke to the claimant. During the course of that conversation the claimant spoke of a number of the matters which troubled her concerning her treatment as an employee who was pregnant. The claimant also spoke of the risk assessment which should be in place, or carried out, pursuant to the MHSWR.
The tribunal heard from the general manager who said that the major complaint raised was the claimant's sense of the pressure of work on her. The manager's response to the question of the risk assessment was that she would look at it and come back to her. In fact, the manager acknowledged that she never did “look at it”. She told the tribunal that this was due to pressure of work, and that after 3-4 weeks the claimant “was gone”.
On the claimant's case, which is contested by the respondent, nothing very much changed in the respondent's treatment of her prior to going on maternity leave. Indeed, she alleges that on 2nd December 2005 she was required to work a shift from 7am-3.30pm without a break. The next day she went on sick leave and did not return to work before commencing maternity leave on 9th December 2005.
Despite Mr Hollywood's advice “to come straight back” to him in the event that the respondent failed to respect her statutory rights, the claimant did not do so.
On 21st December 2005, the claimant sought advice on the matter from what she described as “a local employment solicitor”. Prior to seeing the solicitor, the claimant set out her complaints in a 4 page letter so that the solicitor would have a clear summary of the history and matters which were the subject of complaint.
The tribunal has been shown this letter. It is an impressive document. Set out in the letter is a thorough account of the allegations raised against the respondent in respect of the treatment of the claimant while she was pregnant. The document refers to allegations relating to: the absence of a health and safety risk assessment in respect of a pregnant worker; the imposition of inappropriate manual handling tasks; breach of the Display Screen Equipment Regulations; breach of Working Time Regulations; work related stress as a result of the respondent's attitude; and an unsupportive attitude to the claimant's appointments with her midwife.
The advice given to the claimant was discouraging. The solicitor told the claimant that it would be very expensive to go to the tribunal and that it was, “basically a he said/she said case”. The solicitor told the claimant that, “If I were you, I'd concentrate on having the baby.”
Unsurprisingly, following that encounter the claimant and her husband felt demoralised. The tenor of the solicitor's comments appeared unremittingly negative. The solicitor did not say that there was no arguable case to be brought, but the way in which the solicitor communicated her advice gave no encouragement to the claimant to present a tribunal claim. The time limits for presenting such a claim were discussed, and the claimant understood that she had until February 2006 to make a claim. On the basis of the solicitor's advice, the claimant decided not to do so.
The claimant was due to return to work on 19th June 2006 but says that she felt unable to do so. She wrote a letter of resignation on that date stating, “Following the manner in which I was treated whilst heavily pregnant by [the general manager and one of the owners] in the last few months of employment I feel the only resolution is to resign.” The claimant set out a number of matters which she alleged had not been dealt with properly including, “lack of a pregnant workers risk assessment”.
On 22nd June 2006 she attended the CAB again. On this occasion she was not seeking employment advice. The claimant wished to know about her entitlement to benefits. Purely by chance, she happened to see Mr Hollywood. It was the first time she had seen him since 1st November 2005.
The claimant had not taken Mr Hollywood's advice to return to him in the event of continuing problems. Understandably, Mr Hollywood was curious to learn about what had happened since November. It was as a result of this discussion that the claim was presented to the tribunal on 14th July 2006. The CAB did not write to the respondent prior to presenting the tribunal claim.
No claim for constructive dismissal is raised on the claim form. During the course of the hearing the tribunal sought clarification as to the way in which the claimant put her case. Mr Hollywood explained that the claim was founded on an allegation of discriminatory conduct in consequence of an alleged breach of the obligation arising under the MHSWR to carry out an assessment of the risks in the workplace to the health and safety of a pregnant employee. The other specific acts of alleged discriminatory conduct set out in the claim form all occurred prior to maternity leave commencing on 9th December 2005.
At paragraph 5.5 of the claim form, it is stated that the claimant's complaint was set out in writing and sent to the respondent on 01/11/05. Paragraph 3.5 of the response form denies that the substance of the claim was raised by the claimant in writing under a grievance procedure.
In the claim form and at the hearing the claimant's case for an extension of time for presentation of the claim was put on the grounds that she acted on bad advice from her solicitor.
LAW
In this case the tribunal has considered the law relating to:-
Written statements of grievance
The time limit for presentation of this claim and the circumstances in which the time limit can be extended
Requirement for a grievance prior to presenting a tribunal claim
The provisions of the Employment (Northern Ireland) Order 2003 apply to claims made in respect of alleged breaches of the Sex Discrimination (Northern Ireland) Order 1976 [“SDO”].
A claim in respect of sex discrimination shall not be admissible before the tribunal unless the claimant has set out the grievance in writing and sent a copy of it to the employer not less than 28 days before presentation of the tribunal claim.
The question of compliance with this requirement may be reviewed by a tribunal chairman at any time in the proceedings when the issue is raised.
The relevant statutory and procedural provisions are set out at paragraphs 33 to 36 below.
There are limited circumstances in which the requirement to set out the grievance in writing does not apply. Those circumstances have not arisen in this case and so the relevant provisions have not been set out in this decision.
Article 19 of the Employment (Northern Ireland) Order 2003 provides that:-
“(2) An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –
it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 applies, and
the requirement has not been complied with.
(3) An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –
it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 has been complied with, and
less than 28 days have passed since the day on which the requirement was complied with.”
“(6) An industrial tribunal shall be prevented from considering a complaint presented in breach of paragraphs (2) to (4), but only if –
the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or
the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under Article 9 of the Industrial Tribunals Order (industrial tribunal procedure regulations)”
Paragraph 6 of Schedule 1 of the Employment (Northern Ireland) Order 2003 provides that:-
“The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”
Rules 3(1)(c) and 3(8) of Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 are as follows:-
“3(1) The Secretary shall not accept or register the claim (or a relevant part of it) if it is clear to him that one or more of the following circumstances applies –
Article 19 of the Employment Order (complaints about grievances: industrial tribunals) applies to the claim or part of it and the claim has been presented to the tribunal in breach of paragraphs (2) to (4) of that Article.”
“3(8) A decision to accept or not to accept a claim shall not bind any future tribunal or chairman where any of the issues listed in paragraph (1) fall to be determined later in the proceedings.”
Meaning of grievance
The definition of “grievance” for the purposes of the Employment (Northern Ireland) Order 2003 is set out at regulation 2(1) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 [“EODRR”].
Grievance “means a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him”.
An appropriately drafted resignation letter is capable of fulfilling the requirement of a written statement of grievance – see regulation 2(2) EODRR and paragraph 31 of Shergold v Fieldway Medical Centre [2006] IRLR 76 per Burton J., President of the Employment Appeal Tribunal in England and Wales.
It is the substance of the writing that is important. It is not necessary to make it plain in the writing that it is a grievance or an invocation of the grievance procedure – see Shergold at paragraph 33.
A written statement of grievance is not a mere formality. An employer can face punitive consequences if it does not take the appropriate action upon receipt of the grievance. The question of whether or not a document fulfils the requirement of a written statement of grievance is not to be approached in a highly technical way, but it is important that the document should allow an employer to know where it stands. At paragraph 28 of Shergold Burton J. stated:
“Of course an employee…must set something out in writing, because otherwise employers will not necessarily appreciate that there is a grievance to deal with, but they are not required to set it out in technical detail, certainly so far as the standard procedure is concerned. The danger is obvious that the kind of pernickety criticism of the form or content of the “writing” exemplified here can result in an employee being barred from the judgement seat entirely, as occurred here. It is, of course, equally important form the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate that there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate when they must fulfil their obligations under the [statute equivalent to the Employment (Northern Ireland) Order 2003] and the 2004 Regulations”.
The decision in Shergold was considered and approved by the Employment Appeal Tribunal in Canary Wharf Management v Edebi [2006] 416. At paragraph 31 the President, Elias J. observed:
“If the statement cannot in context fairly be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it.”
Extension of time for presentation of claim
This claim for sex discrimination should have been presented to the tribunal before the end of three months beginning when the act complained of was done – see SDO, article 76(1)(a).
The statutory dispute resolution procedures apply to a claim in respect of sex discrimination. If a valid written statement of grievance is sent within the normal 3 month time limit, the period for presentation of the claim is extended to 6 months beginning when the act complained of was done – see EODRR, regulations 15(1) and 15(3).
In the event that the claim is not presented within the extended 6 month time limit, the claimant has to fall back upon the tribunal's power to extend the normal 3 month limit on the grounds that, “in all the circumstances of the case, it considers it just and equitable to do so” – see SDO, article 76(5).
In the case of British Coal Corporation v Keeble [1997] IRLR 336, the Employment Appeal Tribunal considered the circumstances in which a tribunal might extend the time for presentation of the claim on the just and equitable ground. At paragraph 8, Smith J. referred with approval to the criteria applied by the courts when making decisions under the Limitation Act 1980:
“It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –
(a) the length of and reasons for the delay;
(b) the extent to which the cogency of the evidence is likely to be affected by the delay;
(c) the extent to which the party sued had cooperated with any requests for information;
(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;
(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”
At paragraph 23 of the British Coal Corporation case, Smith J. went on to indicate that one of the matters the tribunal can take into account is whether the delay in presentation of a claim was caused by a mistake of law as a result of the advice of a professional advisor.
“It seems to us that if the only reason for a long delay is a wholly understandable misapprehension of the law, that must have been a matter which Parliament intended the tribunal to take into account when considering 'all the circumstances of the case”.
The claimant also referred the tribunal to the case of Hawkins v (1) Ball and (2) Barclays Bank Plc [1996] IRLR 258. At paragraph 28, Keene J. sitting in the Employment Appeal Tribunal stated:
“We cannot say that the obtaining of incorrect legal advice is irrelevant to a decision on what is just and equitable in all the circumstances. The obtaining of incorrect legal advice may well constitute a reason for a delay which has occurred and in those circumstances it is potentially relevant. We can see no reason to limit the width of the broad discretion given to an industrial tribunal by the statute in that particular respect.”
CONCLUSION
Grievance
During the course of the hearing it became clear that there was an issue as to whether or not the CAB letter of 1st November 2005 fulfilled the requirement for a written statement of grievance to be sent to the employer.
In submissions, both parties addressed the question of whether the CAB letter did amount to a written statement of grievance. Both parties representatives were given access to authorities including the Canary Wharf case. The claimant maintained that the letter was a valid written statement of grievance, the respondent took the opposite position.
Despite the valiant efforts of Mr Hollywood to persuade it to the contrary, the tribunal is not satisfied that the CAB letter meets the requirements of the Employment (Northern Ireland) Order 2003.
At it's most basic, a grievance, “means a complaint [my emphasis] by an employee about action which his employer has taken or is contemplating taking in relation to him” [reg. 2(1) EODDR]. In the tribunal's opinion, the CAB letter cannot be said to raise a complaint, even when it is read in an unsophisticated and untechnical way.
The form of the CAB letter is a product of the claimant's intentions at the time it was written. She told the tribunal that she did not wish Mr Hollywood to raise a grievance letter; she wanted him simply to let the respondent know about her rights. The CAB letter did just that. The enclosure sent with the letter sets out a variety of rights. The claim alleges that some, but not all, of the rights listed in the enclosure have been breached.
The letter does not, however, make a complaint that any of the claimant's rights have been breached. On the contrary, it asks that the respondent should, “address all her rights enclosed applying to her as I have asked her to return to us immediately upon you failing [my emphasis] to afford her these rights”. In other words, no allegation was made that there had been a breach of her rights at the date of the letter. It was simply made clear that, if a breach of her rights did occur, the claimant would return to the CAB and it was implied that further action would be taken.
The fact that a conversation took place between the claimant and the hotel manager after the letter was sent, cannot assist the claimant in this context. The statutory requirement is clear. An employee must set out a grievance in writing.
It is not enough that the letter sets out a menu of rights. This claim is founded on an allegation of sex discrimination by reason of the treatment of the claimant while pregnant. In particular, the claimant alleges that the respondent has failed to meet it's obligations under the MHSWR. The CAB letter does not allude to any of these allegations. It should have done. The letter does not fulfil the statutory requirement for a written statement of grievance.
The tribunal has considered whether any other correspondence sent by, or on behalf of, the claimant might fulfil the statutory requirement.
No further letters were sent by the CAB to the respondent prior to the presentation of the claim.
The tribunal has seen two documents prepared by the claimant. The first is the letter/statement prepared before the claimant's meeting with her solicitor in December 2005. This document sets out the claimant's grievance but was not sent to the respondent and so it cannot fulfil the statutory requirement.
The second document prepared by the claimant is her letter of resignation dated 19th June 2006. This summarised the claimant's grievance and was sent to the respondent. The tribunal is satisfied that this letter does meet the requirement set out in paragraph 6 of Schedule 1 of the Employment (Northern Ireland) Order 2003.
Unfortunately for the claimant, that is not the end of the matter. Article 19(3) of the Employment (Northern Ireland) Order 2003 forbids an employee from presenting a tribunal claim less than 28 days after the written statement of grievance has been sent to the employer.
The letter of resignation was dated 19th June 2006, and the claim was presented to the tribunal on 14th July 2006. The claim was presented 25 days after the grievance was sent to the respondent. It was 4 days too soon. By reason of Article 19(6) of the Employment (Northern Ireland) Order 2003, the tribunal is prevented from considering the claim.
The tribunal must look again at the question of whether or not the claim should be accepted for consideration by the tribunal.
Article 19 of the Employment (Northern Ireland) Order 2003 drives the tribunal to the unavoidable conclusion that it should not accept the claim. The tribunal has no power to override the terms of the statute.
Extension of time for presentation of the claim
This pre-hearing review was listed originally to deal with the question of extension of the normal time limit for presentation of a claim for sex discrimination. Both parties have addressed the tribunal on the issue. Accordingly, the tribunal has considered the question of whether it would have been just and equitable to extend the time for presentation of the claim if the claimant had complied with Article 19.
The claim has been put on the basis of the treatment of the claimant while she was at work during her pregnancy. The time for presenting her claim to the tribunal started running, at the very latest, when she commenced maternity leave on 9th December 2005. The normal 3 month time limit for presentation of the claim therefore expired in March 2006.
The claimant did not send a written grievance to the respondent prior to the expiry of the normal time limit, accordingly there is no question of an automatic 3 month extension of that time limit pursuant to the EODRR. Even if such an extension had been granted, the claim would still be out of time.
The claim was finally presented to the tribunal on 14th July 2006, just over 4 months after the expiry of the normal time limit. The claimant seeks to persuade the tribunal that it is just and equitable to extend the time limit to the date of presentation of the claim.
The basis of the claim for an extension of time is that the claimant was the recipient of bad advice from the solicitor she saw on 21st December 2005. At paragraph 8.4 of the claim form it is stated that the claimant, “requests that this late application be accepted on the grounds that she acted on incorrect advice from her solicitor”. The claimant relies on the decisions in the cases of Hawkins and British Coal Corporation.
Neither of those cases state that prior erroneous legal advice must lead to the grant of an extension of time for presentation of a tribunal claim. Both cases make it clear that such a state of affairs is a factor, sometimes a very persuasive one, to be taken into account when the tribunal makes it is decision.
On the basis of the claimant's evidence, it is not possible for the tribunal to be satisfied that the solicitor advised the claimant incorrectly as to the law. The tribunal has heard no evidence as to the precise nature of any alleged incorrect or mistaken statement of the law. It is quite clear that the tenor of the solicitor's advice was discouraging, but that fact of itself is not an indication of bad legal advice.
The claimant first received advice from the CAB in November 2005. Mr Hollywood informed the claimant of her legal rights, and he told her to come straight back to see him if the problems persisted. The claimant chose not to do so. If she had taken Mr Hollywood's advice and returned to see him, even after seeing the solicitor, it is unlikely that this claim would have been presented outside the 3 month time limit. The claimant in presenting this claim in July 2006, has accessed legal advice which was available to her as long ago as November 2005.
The tribunal is satisfied that, by the end of 2005, the claimant knew of her legal rights as an expectant working mother. She was also aware that restrictive time limits apply to the presentation of a tribunal claim. Despite this, she took no further steps to progress her claims against the respondent.
The burden of satisfying the tribunal that an extension of time would be just and equitable rests with the claimant. The claimant has failed to discharge that burden.
Chairman:
Date and place of hearing: 17th November 2006 at Belfast
Date decision recorded in register and issued to parties:
IT