Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 360/07

CLAIMANT: Lesley Steer

RESPONDENTS: 1. The Queen's University of Belfast

2. Mr Sean McGuickin

3. Mr Paul Browne

DECISION ON A PRE-HEARING REVIEW

The tribunal has concluded that the claim was presented outside the specified time limit and further, that in all the circumstances of the case it is not just and equitable for the tribunal to consider the claim. The tribunal has further concluded that it does not have jurisdiction to entertain the claimant's claim of discrimination on the grounds of age, nor does it have jurisdiction to entertain the claimant's claim of a breach of Section 75 of the Northern Ireland Act 1998.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr T Browne

Appearances:

The claimant did not appear and was not represented.

The respondents were represented by Mr Adam Brett of L'Estrange and Brett, Solicitors.

Issues

The issues required to be determined by the tribunal were as follows:-

(1) Was the claim presented within the three months time limit specified by Regulation 48(1) of the Employment Equality (Age) Regulations (Northern Ireland) 2006, and, if not, was it just and equitable, in all the circumstances of the case, for the tribunal to consider the claim despite the fact that it is out of time.

(2) The tribunal is further required to determine if it had jurisdiction to entertain the claimant's claim of discrimination on the grounds of age under the 2006 Regulations.

(3) The tribunal also had to consider whether it has jurisdiction to entertain the claimant's claim of a breach of Section 75 the Northern Ireland Act of 1998.

Facts, Findings and Conclusions

In determining the issues, the tribunal had regard to the written material and the oral submissions before it.

1. The claimant is employed as a Secretary/PA with some administrative duties by the first respondent in its Department of Applied Plant Science. She expects to retire at the age of 65, her 65^th birthday being on 14 May 2008. By virtue of a regrading structure carried out by the first respondent which came into operation on 21 April 2005 the claimant would not reach the top of her employment scale until 1 August 2007. The new pay scale requires that in order to qualify for her full final salary scheme, lump sum and pension benefits, she would have to be in that post for a full twelve months.
2. The claimant states in her claim to the tribunal that she became aware of this situation on 31 May 2005. The claimant's claim to the industrial tribunal was received in the Tribunal's Office on 8 March 2007. The Employment Equality (Age) Regulations (Northern Ireland) 2006 ("the 2006 Regulations") came into effect on 1 October 2006, and are not retrospective. Regulation 48 of the 2006 Regulations states -

(1) an industrial tribunal shall not consider a complaint under Regulation 41 (jurisdiction of industrial tribunals) unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done. Regulation 48 also provides however that a "tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so".

3. It is the respondent's contention that, since in any event the Regulations came into effect on 1 October 2006, the act complained of, whether or not it was discriminatory, was not unlawful at the time it occurred in May 2005.
4. The respondents also informed the tribunal that a letter had been sent to the claimant in September 2007, explaining that, whilst she would attain the usual retirement age of 65 on 14 May 2008, that is, short of the twelve months required to achieve the top of her salary scale, the first respondent's policy is that persons attaining retirement age in the calendar year are not required by the first respondent to retire until the beginning of the new academic year, namely 30 September. This, on the argument of the respondents would therefore mean that the claimant does in fact attain the top of her salary scale within the required period of time.
5. Given that the 2006 Regulations only came into effect on 1 October 2006 and are not retrospective, on a mathematical calculation, the claimant's claim, lodged in March 2007, would appear on the face of it to be considerably out of time. I have considered the alternative possibilities on this point, namely whether the policy then in place could be regarded as a continuing act and also whether if the lodging of the claim was outside the three months permitted time there is an argument on just and equitable grounds for the tribunal to consider the claim.
6. With regard to the "continuing act" as possibly applying to this case, I have had regard to the case of Sougrin -v- Haringey Health Authority [1991] UK EAT 586/90. I have concluded from my reading of that case and from consideration of Harvey on Employment Law 11, page 557 that the implementation of this policy was a single act by the first respondent rather than being a continuing act or a policy.
7. The tribunal has a wide discretion to permit the extension of time on just and equitable grounds. In order to extend the time allowed on those grounds however, the tribunal must be satisfied that it has good reason to do so. The claimant did not appear, she was not represented, and there are no representations made by her in the claim form which could assist me in concluding that it would be just and equitable in all the circumstances of this case for the tribunal to consider the claim.
8. Even if I had been satisfied that the implementation of this policy by the first respondent was in fact a continuing act, and thereby applying to it the provisions of the grievance procedure, under which the time to lodge a claim is extended, there is no indication that between 1 October 2006, when the Regulations came into force and 8 March, when the claimant's application form was received in the Tribunal's Office, that there was any activity by the claimant which could bring her within the regime of the Dispute Resolution Regulations.
9. I therefore conclude that the act complained of was a single act, which occurred in April 2005, and I further conclude that any discriminatory effect of that act was not at that time unlawful. As referred to earlier, I do not regard that act as being a continuing act, therefore, even with the inception of the 2006 Regulations on 1 October 2006, the lodging of this claim in March 2007 was significantly out of time. It also is my conclusion that the claim does that not fall within the provisions of Regulation 48(2), which deals with cases under the Dispute Resolution Regulations, for the reasons stated above.
10. Having discounted the application to this case of the 2006 Regulations, there is nothing which has been brought to my attention which in all the circumstances of this case would make it just and equitable to consider the claim.
11. I have also considered the provisions of Section 75 of Northern Ireland Act 1998, upon which the claimant also relies. I have also considered the provisions of Schedule 9 of the 1998 Act. It is my view that because the claimant's complaint is presently under investigation by the Equality Commission the tribunal has no jurisdiction to hear the complaint as there is no statutory jurisdiction to the tribunal but there is one to the Equality Commission.
12. In addition to my findings that the claimant's case must fail because it is out of time, ironically I consider that it might also be premature. This is based upon the fact that at the time of the tribunal hearing, the first respondent was not yet under any obligation by virtue of the 2006 Regulations even to notify the claimant of the intended date of her retirement or to inform her of her right to request to work longer. Consequently, the claimant had not invoked her right to request to stay longer, and therefore the first respondent, under its duty to consider such a request, had not yet indicated that it was minded to refuse such a request, such refusal being a trigger for any potential action by the claimant.
13. For the above reasons, the claimant's claim must fail in its entirety and is dismissed.

Chairman:

Date and place of hearing: 24 October 2007, Belfast.

Date decision recorded in register and issued to parties: