Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1628/07

CLAIMANT: Derek McDowell

RESPONDENT: Abbey National PLC

DECISION ON A PRE-HEARING REVIEW

It is the decision of the tribunal that it does not have jurisdiction to entertain the claim of the claimant as the claim was not presented within the specified time limit prescribed by Article 145 of the Employment Rights (Northern Ireland) Order 1996. It was reasonably practicable for the claim to have been presented within three months from the effective date of termination of the claimant's employment with the respondent.

By consent of the parties, the correct name of the respondent is that detailed above and the title of the proceedings is ordered to be amended accordingly.

Constitution of Tribunal:

Chairman (sitting alone): Ms M Sheehan

Appearances:

The claimant was represented by Mr N Phillips Barrister at Law, instructed by Ian Mallon, Solicitors.

The respondent was represented by Ms Alana Jones, Solicitor as agent, of DLA Pyper.

SOURCES OF EVIDENCE

1. The tribunal heard evidence from the claimant Mr McDowell and Mr Geoffrey Cox, Senior Human Resources consultant, from the respondent company. Additionally, it had an agreed bundle of documentation before it.

THE LEGAL ISSUE

2. At the outset of the tribunal hearing the parties confirmed any implied claim of breach of contract or unlawful deduction of wages was not being proceeded with. The only claim being proceeded with by the claimant was the claim of unfair dismissal. Accordingly the issue to be decided in this pre-hearing review is as follows:-

"Whether the tribunal has jurisdiction to entertain the claimant's complaint of unfair dismissal in view of the provisions of Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, if applicable, regarding the time limit for presenting the said complaint".

3. Essentially it fell to the tribunal to consider first whether or not the provisions of Regulation 15(2) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 applied to the letter forwarded by the claimant to the respondent in early July 2007. If those Regulations did not apply then the issue becomes, whether it was reasonably practicable for the claimant to submit his application to this tribunal before the expiry of three months from the effective date of dismissal, and if not whether the time period within which the application was submitted was a reasonable period.

THE RELEVANT LAW

4. The law applicable to the above issue is provided by Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. These are set out below:-

Complaints to industrial tribunal

145.(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to paragraph.

(3) an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the effective date of termination or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

Extension of time limits

15. (1) Where a complaint is presented to a tribunal under a jurisdiction listed in Schedule 2 or 3 or, as the case may be, under Article 38 of the Order of 1998, and –

(a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.

(2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.

(3) …

(5) In this regulation "the normal time limit" means –

(a) subject to sub-paragraph (b), the period within which a complaint under the relevant jurisdiction must be presented if there is to be no need for the tribunal, in order to be entitled to consider it to –

(i) exercise any discretion; or

(ii) make any determination as to whether it is required to consider the complaint, that the tribunal would have to exercise or make in order to consider a complaint presented outside that period; and

(b) in relation to claims brought under the Equal Pay Act (Northern Ireland) 1970, the period ending on the date on or before which proceedings must be instituted in accordance with section 2(4) of that Act.

5. Case Law considered

London Underground Ltd v Noel [1999] ICR

Walls Meat Co Ltd v Khan [1979] ICR 52

Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53

Palmer v Southend on Sea Borough Council [1984] ICR 372

Porter v Bainbridge Ltd [1978] ICR 372

Harris v Towergate [2007] UKEAT 0090/07/2103

Beven v Royal Bank of Scotland [2007] All ER 389

Riley v Tesco Stores Ltd [1980] ICR 323

Alliance & Leicester PLC v Kidd [2007] UKEAT 0078/07

London International College Ltd v Sen [1993] IRLR 35

FINDINGS OF FACT

6. The claimant was the subject of disciplinary investigation for alleged gross misconduct in February 2007. The claimant was notified in writing that he was to be suspended pending the conclusion of the investigation and with that correspondence a copy of the relevant disciplinary procedures was enclosed. A disciplinary hearing was held on 30 March 2007. At the end of the hearing the claimant was advised orally that he was to be summarily dismissed.
7. The claimant received on 4 April 2007 a letter, dated 3 April 2007, advising him that he was being summarily dismissed. It also advised him of his right of appeal and how that right could be exercised. The claimant indicated his wish to appeal by letter dated 12 April 2007.
8. The appeal hearing was held on 17 May 2007. At that hearing the claimant introduced new evidence concerning the actions of certain clients of the company in relation to their mortgage applications, which were the subject of the disciplinary action against him. The claimant also raised certain actions of another employee, who was his immediate line supervisor, regarding other mortgage applications, which were not the subject of the disciplinary proceedings against him. The appeal hearing was adjourned to allow the respondent company to make certain enquiries into the matters raised by the claimant. The appeal hearing reconvened on 7 June 2007. It was clear to the claimant that the respondent company had made enquiry with the clients he had referred them to at the earlier hearing. However the matters raised concerning his supervisor did not appear to have been investigated and were not mentioned at that reconvened appeal hearing.
9. The claimant had been represented at his disciplinary and appeal hearing by trade union representation. It was not in dispute that on both occasions he was told verbally the outcome of the hearing, which was then confirmed in writing. On 7 June 2007 he was told verbally that his appeal was unsuccessful. As a consequence he consulted a solicitor on 12 June 2007.
10. On or around 19 June 2007, the claimant received a letter dated 18 June 2007 advising him that the decision to dismiss him was upheld. The letter made no reference to the matters he had raised during the various disciplinary hearings concerning misconduct by his immediate line manager. The final sentence of the letter read "This decision is final".
11. On receipt of the letter dated 18 June 2007, the claimant consulted his solicitors again and forwarded to him a draft letter that the claimant intended to submit to the Chairman of the respondent company regarding the matters of alleged misconduct on the part of his line manager that he had raised earlier in his disciplinary and appeal procedures. It was not disputed by the respondent at hearing that these matters had been raised during the disciplinary and appeal procedure and that indications had been given to the claimant that they would be "looked into". However there is nothing in the claimant's letter dated 6 July requesting that the claimant's dismissal or decision on appeal be reversed should his allegations be proved to be correct. There was nothing in the respondent's contractual documentation to support a view that such reversal could occur.
12. The respondent after receipt of the letter dated 6 July 2007 appointed Geoff Cox, a senior human resource consultant, to investigate the allegations of misconduct made by the claimant against his line manager. Notification of this appointment was received by letter dated 10 July 2007 to the claimant. Mr Cox requested certain information from the claimant to pursue his investigation. The claimant did not respond to that letter immediately.
13. Sometime in early August 2007 the claimant and the respondent sent further letters to each other. An undated letter from the claimant was sent addressing the query raised in the letter dated 10 July 2007 from Mr Cox. Mr Cox's further letter was dated 9 August 2007 to the claimant. It appeared these letters might have crossed with each other as neither make reference to the other's most recent letter. A response was sent by the claimant to Mr Cox's letter dated 9 August 2007 in a letter dated 30 August 2007.
14. By letter dated 7 December 2007 the claimant was advised by the respondent they had investigated his allegations of misconduct against Sarah Stevenson and that the allegations had not been upheld. An explanation was also tendered for the investigation into his complaints of misconduct not having been completed prior to the completion of his disciplinary and appeal process.
15. The claimant's claim form submitted to the tribunal carried a date of 12 June 2007. This was the date he signed it while in his solicitor's office when he first consulted him after his unsuccessful appeal hearing. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the claim form until 31 August 2007. It was not disputed at hearing that the claimant's solicitors did not forward the form to the Office of the Industrial Tribunals and Fair Employment Tribunal until the end of August 2007.
16. In the claim form the claimant stated that his employment ended on 30 March 2007. He recorded he had put his complaint in writing to the respondent on 12 April 2007. This was the same date as his letter to the respondent indicating he wished to appeal the decision to dismiss him from his employment. The claimant had registered for jobseekers allowance from early April 2007.
17. At the commencement of the disciplinary process the claimant had been furnished with a copy of the respondent's disciplinary and appeal policy and procedure documentation. The claimant acknowledged that his trade union official had advised him with regard to a tribunal claim that he had three months from the time of dismissal. The claimant accepted that he had read the relevant paragraph in the policy documentation on outcome of Appeals, which was presented in the manner of questions and answers. The relevant portion read, "What if I feel that the matter is not resolved? You will not be able to take the matter any further and this will end the internal process".
18. It appears the sole and only reason for the claimant not submitting his claim form within the three month time limit from the date of his dismissal, namely on 30 March 2007, arose from consultations held with his solicitor. In light of the contractual documentation before the tribunal it is clear that the effective date of termination of the claimant's employment was 30 March 2007.
19. Both parties made submissions at the conclusion of the evidence. In brief the tribunal was referred to a number of cases and the relevant section of Harvey on Employment Law. The cases included Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, Harris v Towergate [2007] UKEAT 0090/07/2103, Beven v Royal Bank of Scotland [2007] All ER 389, Riley v Tesco Stores Ltd [1980] ICR 323, Alliance & Leicester PLC v Kidd [2007] UKEAT 0078/07 and Sayedd v Ford Motor Co Ltd [1979] IRLR 335.

CONCLUSIONS

20. The tribunal has had regard to the issues raised in the claim, the response, to the findings of fact made, and the representatives' submissions.
21. It is clear that the claimant's effective date of termination of employment was 30 March 2007. By Article 145(2) of the Employment Rights (Northern Ireland) Order 1996, his claim to the Industrial Tribunal should therefore have been presented by midnight on 30 June 2007. It was not presented by that deadline. It is therefore out of time by some two months when it was presented on 30 August 2007.
22. Notwithstanding the judicial discretion provided by Article 145(2)(b) of the 1996 Order, Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 allows this time to be extended in certain circumstances. By Regulation 15(1) of the 2004 Regulations time can be extended from 30 June to 30 September 2007. Regulation 15(2) provides that this extension can be granted where the claimant had reasonable ground for believing at the expiry of the deadline (in this case 30 June 2007) that a dismissal procedure was being followed in respect of the matter that included the substance of the tribunal complaint. Pursuant to Regulation 5(2)(c) of the Regulations such a procedure can include an appeal against a dismissal.
23. The claimant's appeal procedure was such a dismissal procedure. However by the deadline of 30 June 2007, it was not still ongoing. The letter dismissing the appeal and the respondent company's policy document made clear that the decision notified to the claimant orally on 7 June 2007 was "final".
24. The letter dated 6 July 2007, had been drafted prior to the end of June 2007 and forwarded by the claimant to his solicitors for their consideration. A reading of that letter can only conclude the letter discloses various complaints from the claimant as to the actions or misconduct of another employee of the company and the failure of those with whom he had raised the matters during his disciplinary and appeal hearings to investigate his complaints or advise him of the outcome of those complaints. The claimant had been dismissed for failing to abide by procedures, which were in place for all employees to ensure the company complied with the anti money laundering obligations imposed, by law and the financial regulatory bodies. The claimant's complaint against his line manager, Sarah Stevenson, involved allegations of breaches of the same anti money laundering procedures by her on other financial dealings but not those, which related to his dismissal. The relevant regulations refer to "reasonable grounds" for believing, when the time limit expires, that a dismissal or disciplinary procedure was being followed, which "included the substance of the tribunal complaint". The substance of his tribunal complaint was that while he had breached certain anti money laundering procedures, his actions did not warrant dismissal but more a final warning. This is substantially different to making allegations of similar misconduct by another member of staff particularly, as is the case here, where it is not alleged that the breach for which he was disciplined was as a result of instruction or knowledge on the part of that staff member. "Reasonable grounds" does not imply a subjective belief but instead there must be an objective standard, which is met to satisfy the legislation. In light of the clearly expressed contents of the letter dated 18 June 2007 and the contractual documentation available to the claimant, the tribunal is satisfied on the balance of probabilities that the claimant had little rational basis for his belief that an investigation was ongoing into matters that "included the substance of the tribunal complaint".
25. The power to disapply the three month statutory time limit from the effective date of termination of employment is, as was commented by Judge Waller LJ in the case of London Underground Ltd v Noel [1999] ICR 109 at p.117:-

"…very restricted. In particular, it is not to be exercised, for example, 'in all the circumstances,' nor even when it is 'just and reasonable' nor even where the Tribunal 'considers that there is good reason' for doing so. As Browne–Wilkinson J observed: 'The statutory test remains one of practicability … The statutory test is not satisfied just because it was reasonable not to do what could be done:' Bodha (Vishnudut) v Hampshire Area Health Authority [1982] ICR 200, 204."

26. Waller LJ, also in the London Underground case, emphasised that it is not just a question of considering what was reasonable but of considering what was reasonably practicable. At page 118, he said:

"…if this appeal must be allowed, it is hard on the employee. She, it seems to me, acted reasonably in not bringing her proceedings until after the offer of a new job was withdrawn. But the test is whether it was reasonably practicable for her to do so…";

and he goes on to refer to and rely on what was said by Brandon LJ, in the case of Wall's Meat Co. Ltd. v Khan [1979] ICR 52, at pp. 60–61:-

"The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him."

27. At page 119, Waller LJ also said:

"The authorities which have applied the 'mental impediment' concept support the view that the essential matter or matters about which the complainant must be mistaken or ignorant must relate to the right to bring a claim ..."

28. That was in the context of the "impediment" relied on in that case being that the claimant did not know during the three month period whether her claim was one that was worth bringing in financial terms.
29. The legislative provision on time limits for the submission of an application under consideration in Walls Meat Co Ltd was expressed in precisely the same terms as applies in this case. Lord Denning in Walls Meat Co Ltd, reiterated the statement he had formulated in Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, at paragraph D on page 56:-

"Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences".

30. The case of Palmer v Southend–on–Sea Borough Council [1984] ICR 372, was also referred to in the London Underground case, by Peter Gibson LJ. At page 114, he referred to it as being a distillation of the earlier authorities and quoted the well known passage in which May LJ refers to thinking that the words "reasonably practicable" meaning more than what is "reasonably capable physically of being done" (pages 384-5) and said:-

"Perhaps to read the word 'practicable' as the equivalent of 'feasible' as Sir John Brightman did in Singh v Post Office [1973 ] ICR 437 and to ask colloquially and untrammelled by too much legal logic – 'was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?' – is the best approach to the correct application of the relevant subsection."

31. The other "perhaps" that comes to mind is that it is perhaps difficult to discern how "reasonably feasible" adds anything to "reasonably practicable" since the word "practicable" means possible and possible is a synonym for feasible. The short point seems to be that the Courts have been astute to underline the need to be aware that the relevant test is not simply a matter of looking at what was possible but asking whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done.
32. It also requires to be borne in mind that the onus of establishing that it was not reasonably practicable to commence proceedings within the time limit lies on the claimant (Porter v Bainbridge Ltd [1978] ICR 372).
33. These were the principles that the Tribunal required to bear in mind when addressing the second issue identified at the outset of this case; namely, had the claimant established that it was not reasonably practicable for him to present his complaint timeously? The third question, if so, was the claim presented within a reasonable period thereafter arises only if the claimant succeeds on the previous question.
34. It is clear from the findings of fact that the claimant was dismissed on 30 March 2007. Throughout the three month period detailed in Article 145 of the Employment Rights (Northern Ireland) Order 1996, which expired on 30 June 2007, the claimant believed he had been unfairly dismissed. The claimant had a sense of injustice about having been dismissed and knew he had the right to claim for unfair dismissal. The claimant had sought assistance by 12 June 2007 from a solicitor once he was informed verbally on 7 June 2007 that his appeal against dismissal was unsuccessful. The claimant knew, again inferentially throughout, that any claim for unfair dismissal required to be made to the Employment Tribunal and signed the requisite form in his solicitor's office on 12 June 2007. There was no evidence placed before the tribunal that any physical impediment acted on the claimant to prevent him acting on his behalf. The claimant's belief that he had further time beyond 30 June 2007 appears to arise from discussions or consultations he held with his solicitor. The detail of these discussions or consultations were not disclosed or enquired into by the tribunal. It appeared to this tribunal the claimant's belief that his complaint regarding misconduct by other employees in the company could lead to his dismissal being rescinded appears to be based on nothing but assumption on his part. The claimant consulted his solicitor about the correspondence he intended to send the respondent company regarding his complaint about the misconduct of other staff members as a draft of the letter was faxed to his solicitors on 21 June 2007. Before the outcome of the investigation into the claimant's complaints recorded in the letter dated 6 July 2007 is notified to the claimant his form initiating his claim of unfair dismissal is sent to the Tribunal on 30 August 2007. The claimant's representative submitted to the tribunal that if the claimant believed by composing a letter to his employer that the matter was still being looked into, this could support the contention that it was not reasonably practicable for the claimant to submit his claim form while that investigation was ongoing. However no explanation was tendered at hearing as to why the claimant took the view in late August 2007 that there was no longer a "disciplinary or appeal" process ongoing in respect of matters which "included the substance of his tribunal complaint".
35. The tribunal considered carefully the review of relevant case law carried out by Mr Recorder Luba QC in Alliance & Leicester PLC v Ms L Kidd [UKEAT.0078.07/RN] whilst dealing with a situation, similar to the situation before this tribunal, determining reasonable impracticability where it may not be the claimant but perhaps his advisers who are at fault. In that case the Chairman was referred to many of the authorities mentioned to the tribunal in this case. In particular, London International College Ltd v Sen [1993] IRLR 35 was put forward as supporting the argument that a more modern or flexible approach to time limits could be adopted. While it is acknowledged that the authorities such as Dedman and Walls were pronounced some thirty years ago I see no reason to differ from Mr Recorder Luba's conclusion that while the Master of the Rolls in the Sen case may express in some passages some lack of comfort with the earlier authorities such as Dedman, Wall's and Riley v Tesco Stores Ltd [1980] ICR 323, there is nothing in the judgement of the Master of Rolls to undermine their impact save to recognise that there will be circumstances where, even after an adviser has been instructed, it may not be reasonably practicable for a complaint to be presented in time – such as where a sole adviser is taken ill for the requisite period or his office burned down.
36. For the avoidance of any doubt I wish to make clear that this tribunal has made no finding of fact as to the quality of advice or consultations that took place between the claimant and his solicitors. However I consider that I am bound by the case law set out above to hold that the claimant cannot rely on advice given to him by his solicitor as making it not reasonably practicable to bring his complaint in time. The placing with the tribunal before the end of June 2007 of the claimant's complaint of unfair dismissal, in light of the contents of the letter of 18 June 2007, would not have prevented the claimant still pursuing his complaint of misconduct on the part of other employees of the respondent company. It is still unclear to me, having heard the claimant, as to how he envisaged "two wrongs" would "right" his breach of the anti money laundering procedures. In all the circumstances of the facts of this case I consider it was reasonable to expect the claimant to submit his claim before 30 June 2007 and it was possible for the claimant to have done so. Accordingly the claimant has failed to establish that it was not reasonably practicable for him to present his complaint within the prescribed period detailed in Article 145 of the Employment Rights (Northern Ireland) Order 1996 and therefore the tribunal has no jurisdiction to entertain his claim for unfair dismissal.

Chairman:

Date and place of hearing: 28 February 2008, Belfast

Date decision recorded in register and issued to parties