Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 00193/08

CLAIMANT: Francis Blair

RESPONDENTS: 1. Armagh Planetarium

2. Dr T R Mason

DECISION ON PRE-HEARING REVIEW

The unanimous decision of the tribunal is that the claimant's claims were presented outside the requisite time-limits, the tribunal declines to extend time and the claimant's claims are therefore dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mr E Miller

Mr J McDonell

Appearances:

The claimant represented himself.

The respondents were represented by Mr I Carroll of Engineering Employers' Federation.

The Claim

1. The claimant's claim was for sex discrimination and age discrimination arising out of his failure to be appointed to a post with Armagh Planetarium following a recruitment exercise.

The Issues

2. The issues before the tribunal at the pre-hearing review were as follows:

(a) Whether the claimant's claim of discrimination on the grounds of sex was presented within the statutory time limits for bringing such claims contained in the Sex Discrimination (NI) Order 1976 as amended. If it was not presented within time, is it just and equitable in all the circumstances to extend time to enable the claimant to continue with his claim.

(b) Whether the claimant's claim of discrimination on the grounds of age was presented within the statutory time limit contained in Regulation 48 of the Equality (Age) Regulations (NI) 2006. If it was not presented in time is it just and equitable in all the circumstances to extend time to enable the claimant to continue with his claim.

Sources of Evidence

3. The tribunal heard evidence from the claimant and heard evidence from Dr McCrea for the respondent. The tribunal also had a bundle of documentation and authorities produced by the claimant and a bundle produced by the respondent which included the claimant's timekeeping notes and records.

Findings of Fact

4. The tribunal found the following facts relevant to the issues before it:

(1) The claimant applied for the post of Education Support Officer with the Armagh Planetarium in August 2007. On 20 September 2007 Armagh Planetarium sent a letter to the claimant advising that his application had been unsuccessful.

(2) The claimant had a very strong sense of grievance about being rejected for the post from the date he received the letter of 20 September. The claimant felt that he was over-qualified for the post and could not understand how anyone could have done better than he did in the interview process. He spoke to a few family and friends about his grievance.

(3) On 15 October 2007 the claimant wrote to the first respondent asking for reasons as to why his application failed.

(4) On 25 October 2007 the first respondent replied to that letter of enquiry as follows:

"Thank you for your letter of 15 October and apologies for the delay in replying to you. You asked for feedback about your unsuccessful application for the post here at the Planetarium. I can only say that on the day there were a lot of strong candidates and you did not match their abilities and qualification. In other words you did nothing "wrong", it was just that others did it better. I wish you well in your future applications for other posts."

(5) The claimant first felt that he had been discriminated against when he received the letter in October. He felt that something underhand had happened. He felt strongly that it could be age discrimination because he felt that people prefer younger people especially in a teaching role and he suspected that it was also because of his gender. He suspected it could be sex discrimination because he did not know who had got the job and his view was that the respondent's silence on who had got the job pointed towards a female having been appointed.

(6) The claimant has suffered for many years from a chronic medical condition in the form of asthma and severe rhinal problems. When the medical condition is in its acute phase, the claimant's breathing is adversely affected and he is affected by sneezing, coughing and a continual flow of mucus and watering of the eyes.

(7) The claimant's condition was severe from September/October 2007 to the extent that the claimant asked for his specialist's appointment, fixed for February 2008, to be brought forward to December 2007. The claimant attended the specialist on the 10 or 11 December and received a steroid injection which took two to three days to take effect and, in the claimant's words, 'reinvigorated' him and meant that he could function normally for a few weeks. It was then that he thought that he could do something about his rejection for the job.

(8) The claimant has an IT teaching qualification and has also studied for a law degree with the Open University.

(9) The claimant filled in two other job application forms for posts unrelated to these proceedings, in October 2007. It took him about a week to complete them because of his medical condition. He decided not to submit the completed applications.

(10) On the claimant's copy of the letter of 26 October 2007 from the respondent, the claimant wrote telephone numbers for ACAS the LRA, the Equality Commission and noted the LRA web site address. The claimant confirmed that he had received advice from some source around that time,

that is, the end of October 2007, on how to pursue a claim. He said however that his health took precedence so he did not pursue matters.

(11) The Equality Commission wrote to the claimant on 11 January 2008 referring to a conversation the claimant had had with them on that date. The letter mentioned the strict three-month time-limit and enclosed an information pack and claim form and some suggested wording to include in the claim form.

(12) The claimant filled in the IT1 claim form on 17 January 2008 and it was presented to the Office of the Industrial Tribunals on 21 January 2008. The claimant had rung the Tribunal Office before lodging the form in early January. The claimant said that he did not know about the three-month time-limit until he was told about it by the Equality Commission in their letter.

(13) Dr McCrea agreed that the claimant has had extensive medical problems over many years and indicated that in his view the claimant was managing his condition well in that he was able to study and achieve qualifications. His view was that his medical condition would not stop him filling out a claim form.

The Law

5. The claimant's claims for sex discrimination and age discrimination fall under the Sex Discrimination (Northern Ireland) Order 1976 as amended ("the Order") and The Employment Equality (Age Discrimination) Regulations (Northern Ireland) 2006 ("the Age Regulations") respectively. The time limit for presenting such claims is three months from the date the act complained of was done. Where a claim is presented outside that time-limit 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 (NI) Order 1976 and Article 48 (1) and (4) of the Employment Equality Age Regulations Northern Ireland 2006).
6. The Employment Appeal Tribunal, in the case of British Coal Corporation v Keeble 1997 IRLR 636, held that the discretion to grant an extension of time on just and equitable grounds is as wide as that given to the civil courts by the Limitation Act 1980. The equivalent legislation in the jurisdiction is the Limitation (Northern Ireland) Order 1989. At article 50(4) of that Order are outlined the matters which can be considered and these include the extent of the delay, the reasons for the delay, whether advice was sought and whether action was taken as a result and the effect of the delay on the cogency of the evidence.
7. The Court of Appeal in the case of Robertson v Bexley Community Centre 2003 IRLR 434 stated as follows in relation to the issue of extension of time limit.

"An employment tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider everything that it considers relevant. However time limits are exercised strictly in employment cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify the failure to exercise the discretion. On the contrary the tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule."

8. Harvey Division L paragraph 555 to 590 and Division T paragraph 102 to 106 were considered by the tribunal. Where a discrimination claim is based on a failure to select or promote the claimant the date is to be determined by asking whether a cause of action has crystallised rather than by focussing on whether the claimant felt that he had been discriminated against. The case of Clarke -v- Hampshire Electro Plating Company Ltd 1991 IRLR 430 EAT stipulates that it is a question of fact for the tribunal as to when the claim crystallised. The principle is that the date of the act of discrimination must be capable of determination by reference to the occurrence of an act or acts and not be dependent on the state of knowledge of the disadvantaged party. Any lack of knowledge of facts required to prove discrimination is one of the relevant factors for the exercise of the discretion to allow claims out of time on the basis of what is just and equitable.
9. The case of Hunwicks –v- Royal Mail Group Plc UK EAT/0003/07/ZT was an appeal against the refusal of a chairman to extend time in a disability discrimination case. The EAT refused to overturn the tribunal decision and Mr Justice Underhill stated: "It will frequently be fair to hold claimant's bound by time limits which they could had they taken reasonable steps have discovered". In the Hunwicks case it was agreed that the act of discrimination took place in January 2004 and as the claim form was lodged with the tribunal on 31 March 2006 it was outside the requisite time limit. The act of discrimination took place in January 2004 when the claimant was removed from a list of managers even though she did not know of her removal until 10 October 2005. The claim therefore crystallised in January 2004 and the tribunal chairman extended time to 9 January 2006 that is 3 months after the date the claimant became aware of her removal from the list but would not extend time beyond that date as she should have taken more steps to pursue her claim at that time.
10. The claimant relied very heavily on the Hunwicks case erroneously believingly that it meant that time could only run from the date on which a claimant became aware of the act of discrimination. The case actually underlines the point that the date of the act of discrimination can occur even when the claimant does not know about it and that knowledge of the alleged act of discrimination is relevant only to the issue of extension of time.
11. The claimant also relied on several tribunal decisions in the Northern Ireland Tribunals where time was extended in both unfair dismissal and discrimination claims. As explained by the chairman at the hearing, these cases illustrate the exercise of discretion and are not binding on this tribunal in relation to the exercise of the discretion in the circumstances of this particular case.

Conclusions

12. The tribunal has considered the factors outlined at Harvey T paragraph 279 which derived from British Coal Corporation -v- Keeble 1997 IRLR 336 and has reached the following conclusions.
13. Any discrimination claims crystallised on 20 September 2007 when the letter of rejection was sent to the claimant. The claimant does not need to know that he might have been discriminated against for time to start to run. The claimant's knowledge of a potential discrimination claim is however relevant to the issue of extending time.
14. The claimant in general did not act promptly in this matter. He waited four weeks following the receipt of the rejection letter to send his letter in October asking for reasons why he had been rejected. He was very clear in his evidence that he had a very strong sense of grievance from the moment the rejection letter was received by him and that, after receiving the letter in October, he was sure that discrimination had occurred. When the letter of 25 October 2007 was received by him, the claimant still had almost 8 weeks left to lodge his claim. The Tribunal is satisfied that the claimant, at the very least, knew that there were organisations which he could contact to find out how to proceed, at the end of October. Indeed the claimant's own evidence was that he probably contacted one or more of these organisations which were noted in his handwriting on the letter of 25 October 2007. Despite this the claimant did not proceed with filling out a claim form until after he received the information pack from the Equality Commission with their letter of 11 January 2008.
15. Given that any potential claims crystallised on 20 September 2007 the claimant had until 20 December 2007 to present his claim forms to OITFET. The claim forms were actually lodged on 21 January 2008, that is, just over one month outside the time limits in both the Order and the Age Regulations. The Tribunal is not convinced that there would be any effect on the cogency of the evidence occasioned by the delay of one month and is not convinced that this, of itself, would prejudice the respondents.
16. The claimant submitted that he did not know that there was a three-month time limit until he was told there was one by the Equality Commission in the letter of 11 January 2008. Ignorance of the time limit is not of itself grounds for extending time. In this regard the respondents' representative submitted that, as the claimant had studied for a law degree, this should weigh against him in the tribunal's deliberations on his knowledge of time limits and what he should do in relation to a claim. The tribunal does not regard this as a decisive factor in any way in relation to this matter. The fact that the claimant studied law over a few years does not, in this tribunal's view, make it any more likely that he would be aware of time limits in September 2007 in relation to discrimination claims. Whilst the tribunal does not regard the study of a law degree as, of itself, a reason for refusing to extend time the tribunal does take account of the fact that the claimant is clearly in general, an educated, articulate man who was well capable of presenting his case before us and was clearly capable of taking steps to find out where he should seek advice.
17. The tribunal now turns to the main plank in the claimant's submissions, namely, that his health prevented him from seeking advice and pursuing this matter and lodging the forms until January 2008. The tribunal is not persuaded by the claimant's arguments on this point having listened carefully to the evidence given by the claimant himself. The claimant confirmed in evidence that he was able to fill out two application forms in October 2007 when he was in the midst of an acute phase of his condition. This shows the tribunal that he was able to function to the degree necessary to enable him to telephone to seek advice on forms and fill them out and then post them in.
18. When the claimant received his steroid injections there was a period of at least five days before 20 December when he could have pursued the matter again by making phone calls, obtaining the forms and posting them in or having them delivered. The claimant confirmed that he was able to function normally in that period and said that the only reason he did not pursue the matter was because Christmas was approaching. The tribunal regards this as a weak reason for not pursuing a matter about which he had felt so strongly for so long.
19. The time limit for both claims therefore expired on 20 December 2007 and the tribunal finds that the claimant did not act promptly thereafter as he waited until 11 January to ring the Equality Commission and it took a further 9 days from the receipt of the letter from the Equality Commission for the claim to be presented.
20. In summary the tribunal finds that both claims were lodged outside the relevant time limits and the tribunal is not minded to exercise its discretion to extend time. The tribunal is very mindful of the fact that the Court of Appeal has advised that time limits are there to be adhered to and that extensions of time are the exception rather than the rule. The burden was on the claimant to persuade us to extend time and in the circumstances he has not discharged that burden.
21. The claimant's claims are therefore dismissed in their entirety.

Chairman:

Date and place of hearing: 12 August 2008, Belfast.

Date decision recorded in register and issued to parties: