Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1995/07

CLAIMANT: Edwina Harland-Powell

RESPONDENT: Governing Body of South Eastern Regional College

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal does not have jurisdiction to entertain the claimant's complaint of unfair dismissal, as she did not present her complaint to the tribunal within the time limit, prescribed under the provisions of Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 (hereinafter "the 1996 Order") and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (hereinafter "the 2004 Dispute Resolution Regulations").

Constitution of Tribunal:

Chairman (sitting alone): Mr Cross

Appearances:

The claimant was represented by Mr Dooley Harte, of NIPSA.

The respondent was represented by Ms Rachel Richardson, Solicitor, of Judith Blair Employment Law Solicitor.

Facts

1. The agreed facts were that the claimant was dismissed by the respondent on 17 May 2007. She appealed this dismissal through the respondent's internal appeal process and the respondent held the appeal hearing on 22 June 2007. This appeal was unsuccessful and the claimant was so notified on 20 July 2007. The claimant made her application to the tribunal which was received on 15 November 2007. The claimant had sought the advice of her trade union in this matter and relied upon that advice as to time limits for her claim. The result of the appeal was sent to the claimant during the holiday period although the respondent's premises were manned, as were the offices of the trade union, although the official concerned with this case was on leave for part of the respondent's summer holiday.

The law

2. Under the provisions of Article 145(2) of the 1996 Order a tribunal shall not consider a complaint of unfair dismissal, unless it is presented to the tribunal: –

"145(2)

(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."

3. Clearly the complaint had been submitted to the tribunal well outside the time limit of three months from the agreed date of termination being 17 May 2007. However the claimant attempted to call into service, in support of her delayed application to the tribunal.

Regulation 15 of the 2004 Dispute Resolution Regulations. This Regulation provides, so far as is material to this case:-

"(1) Where a complaint is presented to a tribunal…..

and

(a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) 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."

4. Regulation 5(2) provides, that where an internal appeal procedure exists in an employment contract and the employee has taken advantage of that internal process, then that is deemed to satisfy the statutory rights that the employee has under the standard dismissal and disciplinary procedure set out in Schedule 1 of the Employment (Northern Ireland) Order 2003. Thus in this case the claimant exercised the internal appeal procedure that took the place of the Schedule 1 procedure.

Decision

5. The claimant brought her claim to the tribunal well outside the three month time limit allowed by the 1996 Order. The claimant is not entitled to the extension of time provided for under the 2004 Dispute Regulations, as the claimant was aware of the result of her appeal, well within the initial three month period laid down under the 1996 Order. That period would have expired on 16 August 2007. The claimant therefore had about three weeks to make the application to the tribunal. In other words she could not bring her case within the scope of Regulation 15(2) quoted above. The claimant's only chance of having the time limit extended, to allow a tribunal to consider her claim, would be if she could show, that it was not reasonably practical for her to submit it within the time laid down. The only reasons for the delay, that were mentioned to the tribunal, were the holiday of the trade union official dealing with the case and the fact that the claimant relied on advice from the union. There is a line of cases, starting with Dedman v British Building and Engineering Appliances [1973] IRLR 379, which establishes that the delay or mistake made by an advisor is to be ascribed to the claimant. In this case, unfortunately for the claimant, her advisors failed to appreciate the true position that exists between the 1996 Order and the 2004 Dispute Resolution Regulations. There was a reasonable time between the failure of the claimant's appeal and the end of the three month period, for the claimant to make her application to the tribunal. This case is therefore unlike the case of Ashcroft v Haberdashers' Aske's Boys School [2008] IRLR 375, where the period of time between the result of the appeal and the end of the initial three month period was only six hours. In that case the question of "reasonably practical" was a live issue.
6. The tribunal holds that the claimant's claim to the tribunal is brought out of time and that it was reasonably practical for the claimant to bring her complaint to the tribunal within the time allowed. Accordingly the tribunal has no jurisdiction to entertain the claimant's complaint.

Chairman:

Date and place of hearing: 17 April 2008, Belfast

Date decision recorded in register and issued to parties: