Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1261/07

CLAIMANT: Monika Billova

RESPONDENT: OCS Group UK Limited

DECISION ON A PRE HEARING REVIEW

The Tribunal finds that;-

1. the claimant satisfies the requirements to bring a claim under Article 140 of the Employment Rights (Northern Ireland) Order 1996 for unfair dismissal, and
2. the claimant's claim for unfair dismissal was presented out of time and accordingly is dismissed, and
3. the claimant's claim for sex discrimination may proceed to hearing.

Constitution of the Tribunal

Chairman (Sitting Alone): Mr B Greene

Appearances:

CLAIMANT BY: The claimant was represented by Mr A Stewart, of counsel, instructed by P Drinan Solicitors.

RESPONDENT: The respondent was represented by Ms R Best, of counsel, instructed by Weightmans LLP, solicitors of Liverpool.

Sources of Evidence

4. The Tribunal heard evidence from the claimant, with the assistance of interpreters Ms Andrea Beleva (29 February) and Mr Stefan Terek (12 March), and her solicitor, Ms Barbara Muldoon.  The respondent did not call any witnesses.  The Tribunal also had regard to the originating claim, the response, one bundle of agreed documents of 35 pages and a number of authorities handed in by the parties.

The Claim and Defence

5. The claimant claims that she suffered sex discrimination on account of her pregnancy and unfair dismissal.  The respondent denies the claimant's claims.  It further asserted that the claimant did not have the necessary qualifying period to bring a claim for unfair dismissal.

At a Case Management Discussion on 18 September 2007 it was ordered that a Pre-hearing Review be held to consider three issues as to whether the claimant had the necessary period of continuous employment to bring a claim for unfair dismissal and whether both her claims were brought within the required time limits and if not should time be extended to enable her to pursue her claims.

The Issues

6. A Pre-hearing Review  was listed to deal with the following issues;-

(1) Whether the claimant is disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 regarding a minimum period of continuous employment.

(2) Whether the claimant's claim for unfair dismissal has been presented within the time limits laid down in Article 145 of the Employment Rights (Northern Ireland) Order 1996.

(3) Whether the claimant's claim for discrimination on the grounds of sex was presented within the specified time limit.  If not, is it just and equitable, in all the circumstances of the case for any Industrial Tribunal to consider this claim despite the fact that it is out of time?

Amendment of Title

7. At the outset the respondent's title was amended, on consent, to OCS Group UK Limited.

At the outset also the respondent accepted that the claimant had the necessary period of continuous employment to bring a claim for unfair dismissal.  

Findings of Fact

8. (1) The respondent employed the claimant as a house keeper from 17 July 2006 27 January 2007 when she was dismissed.

(2) The claimant comes from Slovakia and does not speak English.

(3) The claimant became pregnant in September 2006.  She advised the respondent of her pregnancy in October or November 2006.  The baby was born on 3 May 2007, three weeks early.

(4) The claimant became aware that she was dismissed after she had received her P45 and discussed it with her supervisor, probably on 2 February 2007.

(5) At the time of her dismissal the claimant was off work owing to sickness. 

(6) The claimant consulted her solicitor on 2 March 2007 on her potential claims gave her instructions and left the solicitor to present her claim on her behalf.

(7) The claimant's claim was submitted on 7 June 2007, almost six weeks outside the three month time limit for bringing a claim for unfair dismissal and sex discrimination.

(8) The claimant's solicitor believed that she had six months to put in the claimant's claims.  She believed that the presentation of a written grievance on behalf of the claimant on 2 March 2007 had the effect of extending the primary three month time limit by a further three months for each claim i.e. to 26 July 2007.  She believed this extension would apply to the claimant's claim for unfair dismissal because a grievance had been presented in that claim even though it was not necessary.

(9) The claimant alleges that the respondent dismissed her because she was pregnant.

(10) In support of her claim of sex discrimination the claimant alleges that;-

(a) the respondent failed to carry out a risk assessment on her once it became aware that she was pregnant; and

(b) the respondent failed to address her complaint that she could not lift heavy weights by reason of her pregnancy; and

(c) the dismissal of the claimant was due to her pregnancy and that this amounts to an act of sex discrimination.

(11) At the end of the evidence the claimant's representative accepted that the claimant's claim for unfair dismissal was late and should be dismissed.

The Law

9. (1) An employee cannot bring a claim for unfair dismissal unless he has been continuously employed for one year (Article 140(1) Employment Rights (Northern Ireland) Order 1996).

(2) The one year of continuous employed does not apply where the reason or principal reason for dismissal relates to pregnancy (Article 140(3)(b) Employment Rights (Northern Ireland) Order 1996).

(3) A Tribunal cannot consider a claim for unfair dismissal unless it is brought within three months of the date of termination or within such further period as the Tribunal considers reasonable where it is satisfied that it was not reasonably practicable to present the complaint within the three months (Article 145 The Employment Rights (Northern Ireland) Order 1996).

(4) A Tribunal cannot consider a claim for discrimination on the ground of sex unless it is brought within three months from the date the act complained of was done but where the claim is out of time a Tribunal may consider it,  if in all the circumstances of the case, it considers it just and equitable to do so (Article 76(1) and (5) Sex Discrimination (Northern Ireland) Order 1976).

Application of the Law and Findings of Fact to the Issues

10. (1) At the outset of the hearing the respondent conceded that the claimant satisfied the continuous employment requirement to bring a claim for unfair dismissal as she is alleging that her dismissal was on the ground of her pregnancy.

Accordingly the claimant is not disqualified from bringing a claim for unfair dismissal by virtue of Article 140 of the Employment Rights (Northern Ireland) Order 1996 and the first issue is answered in the negative.

(2) The claimant's reason for not bringing her claim for unfair dismissal within the requisite three months is that she consulted her solicitor within that period and left it to her solicitor to present the claim.

The claimant's solicitor accepts that the reason for not presenting the claim in time was because of her erroneous belief that time was extended by three months because she had lodged a grievance.

The authorities are clear that any fault of a claimant's legal adviser, in relation to time limits, falls at the door of the claimant.  Accordingly it cannot be said that it was not reasonably practicable for the claimant to have presented her claim in time.  As a consequence the Tribunal does not have jurisdiction to consider the claimant's claim for unfair dismissal.  That claim is dismissed.  The claimant's representative very fairly accepted that the claim should be dismissed.

The second issue therefore is answered in the negative.

(3) The claimant makes three allegations of discrimination on the ground of sex that;-

(a) the respondent failed to carry out a risk assessment of her when it became aware that she was pregnant in October or November 2006; and

(b) the respondent failed to address her complaint that she could not lift heavy weights by reason of her pregnancy; and

(c) the respondent dismissed her by reason of her pregnancy.

(4) The claimant, through her solicitor, raised all these complaints with the respondent in writing by letter of 2 March 2007.  She has therefore satisfied the requirements of putting in writing a grievance to her employer (Article 19 The Employment (Northern Ireland) Order 2003).

(5) The claimant's complaints in relation to a risk assessment and about her difficulties lifting heavy weights applied throughout her pregnancy and therefore were ongoing at the date of dismissal on 27 January 2007.

(6) The claimant's claim was presented to the Office of the Tribunals on 7 June 2007.  The three months within which a claim is to be brought expired on 27 April 2007.  The claim is presented outside the three months.

By virtue of Regulation 15(3) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 the claimant gets the automatic extension of three months for the presentation of her claim.  Therefore the claimant's claims of sex discrimination because the respondent did not carry out a risk assessment or address her inability to lift heavy weights are in time and may proceed to hearing.

(7) The claimant's claim of sex discrimination in relation to her dismissal does not benefit from the automatic extension of three months and therefore this aspect of her claim is out of time (Lawrence v HM Prison Service [2007] IRLR 468 EAT).

(8) The claimant seeks to rely on the Tribunal's discretion on the 'just and equitable' basis to extend time to enable her to pursue her claim of dismissal as an act of sex discrimination.  

The factors that a Tribunal must have regard to in considering whether to extend time are summarised at Harvey T [279];-.

"…. The court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (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 co-operated with any requests for information; (d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and (e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corporation v Keeble [1997] IRLR 336 at para 8)".

(9) The length of the delay was 41 days.  The reason for the delay was a misunderstanding of the law by the claimant's solicitor.  There was no specific evidence before the Tribunal that the cogency of the evidence was adversely affected by reason of the delay.  Nor was there any evidence before the Tribunal that the respondent has not co-operated with any request for information.  The Claimant became aware of her dismissal on 2 February 2007 and had a consultation with her solicitor on 2 March 2007.  In the circumstances of this case the claimant could not be said not to have been prompt.  Other pertinent factors to be taken into account are the fact that the claimant is not from Northern Ireland, does not speak English, had to arrange for someone to accompany her to the solicitor to act as an interpreter and was pregnant.

The delay due to her solicitor's misunderstanding of the law is properly laid at the door of the claimant.  Incorrect legal advice to a claimant which resulted in a sex discrimination claim being presented late is not in itself a reason for not exercising the discretion to extend time (Hawkins v Ball and Barclay Bank plc [1996] IRLR 258 EAT).

In this case the claimant did all that she could to pursue her claim. She saw her solicitor two months before the expiry of the three months time limit.  Having consulted with her solicitor she left the solicitor to progress her claim.  The delay was due to the solicitor.  That delay was due to her mistaken belief that an extension of time would automatically be available to the claimant under Regulation 15 of the Dispute Resolution Regulations.

The Tribunal is satisfied that that mistake was a genuine mistake.  In addition that argument has been canvassed before the EAT (see Lawrence v H M Prison [2007] IRLR 468 and Mowels v Vox Displays Limited UKEAT/0122/07/RN).

In all the circumstances of the case the Tribunal is satisfied that the discretion to extend time on the just and equitable ground should be exercised to enable the claimant to claim sex discrimination in relation to her dismissal.

Accordingly the third clement before the Tribunal in relation to the claimant's claim of sex discrimination arising from her dismissal was not presented within the specified time limits but the Tribunal finds that it is just and equitable to extend time to the 7 June 2007 to enable the claimant to present her claim for consideration by the Tribunal.

(10) The Tribunal directs that the claimant's claim for sex discrimination can now proceed to hearing.

Chairman:

Date and place of hearing: 29 February, 4 and 12 March 2008 Belfast.

Date decision recorded and issued to parties: