Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1384/08

CLAIMANT: Alan James Lowrie

RESPONDENTS: 1. Trivirix International

2. Department of Employment & Learning

DECISION

The tribunal determines that the claimant's claims for (i) breach of contract and (ii) a protective award were out of time when they were presented on 11 September 2008, and that it was reasonably practicable for the claimant to have presented his claims in time, which – at the latest – would have been on 30 September 2006. The claims presented on 11 September 2008 are thus considerably out of time, and shall not be considered by theTribunal, pursuant to either Article 7(c) of the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994 or Article 217(5) of the Employment Rights (NI) Order 1996. The tribunal dismisses these claims herewith with no further order and no order as to costs.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr M G O'Brien

Appearances:

The Claimant represented himself.

The first Respondent did not appear and was not represented.

Mr P Curran appeared for the second respondent.

Sources of Evidence

1. The claimant gave evidence.
2. Mr Curran made submissions for the second respondent.

Findings of Fact

3. By his claim, presented on 11 September 2008, the Claimant asserted he had been employed by the first respondent from May 2000 until 7 April 2006, and that he had been employed as a production team member for 37.5 hours per week earning £258.75 gross per week with a nett weekly pay of £210.00. At section 5.5 of the claim form, the claimant asserted he had not received any notice of the termination of his employment. The claimant was not a member of a trade union, nor was he an employee representative. The claimant also asserted that he had been re-employed at the end of April 2006 with a gross weekly pay of £257.41: £210.00 nett. At section 6.3 of the claim form the claimant stated that he had not raised the matter of his dismissal with the first respondent, and at section 6.4 of the form, the claimant set out that he had been unable to raise such a complaint as the first respondent "had gone into administration". At section 7.1 of the claim form, the claimant asserted that he was alleging breach of contract, and dilated on this at section 7.4 as follows;

I am claiming my 90 days notice as it was in our contract to give out 90 days notice if a redundancy came up.

4. The claimant's claim was sent to the first respondent on 17 October 2008, but first respondent did not enter a response.
5. The claimant lives in Newtownabbey. There is a Citizens' Advice Bureau in Newtownabbey.
6. Ms Patricia Baird for the second respondent wrote to the Secretary of the Office of the Industrial Tribunals by letter dated 24 October 2008, setting out that the first respondent is formally insolvent (pursuant to Article 228 of the Employment Rights (NI) Order 1996 ["the 1996 Order"]), and that on receiving an application from the Claimant 10 April 2006, the Department paid the Claimant £1633.52 redundancy payment: £842.48 notice pay: £186.84 holiday pay and that there was NIL arrears of pay owing. The letter sought the Office of Industrial Tribunals to treat this correspondence as a Response, and that the Department be thus joined as a respondent party to these proceedings. The Department was formally joined as a party to the proceedings by Order of the Tribunal dated 19 November 2008.
7. The first respondent became insolvent on 22 February 2006. On that date the claimant was informed with all the other Trivirix employees (over 100 in number), that he was to be made redundant. Prior to this, the claimant had had absolutely no prior notification of the impending threat of his redundancy.
8. The claimant was one of a small number of first respondent employees who were kept on in employment after 22 February 2006. The claimant assisted in the 'winding up' of the chattels of Trivirix, and thereafter the premises were completely closed in or about June 2006. The last of the first respondent's employees left when the premises were closed in June 2006. The claimant's effective date of termination of employment was 7 April 2006. The claimant was paid up to 7 April 2006 and received his lying week also on the termination of his employment. A firm of accountants, whom the claimant believes was Deloitte, acted as insolvency practitioners for the first respondent. These accountants wrote to the claimant and formally advised him of his redundancy. This correspondent was received after 22 February 2006, and advised the claimant of his right to claim Job Seekers' Allowance. Other than this correspondence, the claimant received no other information or advice from the first respondent as to his legal rights and entitlements.
9. The claimant was completely unaware of his right to claim a protective award within the period of three months of the 22 February 2008 or within three months of the last of the redundancies taking effect in or about June 2006. Had he known of his right to claim for a protective award, the claimant would have done so. In the days from 22 February – end of April 2006, the claimant was preoccupied with getting another job. After 7 April 2006 – 4/5 September 2008, the claimant was not in contact with any of his former colleagues in Trivirix. From 7 April 2006 until he was re-employed, the claimant did not claim any State Benefits or Job Seekers' Allowance.
10. The claimant was re-employed at the end of April 2006.
11. Some two and a half years later, on 4/5 September 2008 at 7pm, the claimant received a text from a former colleague, Ms Kim Wilson, to inform him that Ms Wilson had just come into the knowledge that former Trivirix employees could also have claimed a protective award. The claimant immediately telephoned the Labour Relations Agency, which posted him out a claim form to the Industrial Tribunal. The claimant completed this form and posted it on Tuesday 9 September 2008 by first class post. The claim was presented at the Office of the Industrial Tribunals on 11 September 2008.
12. Mr Curran stated that the question for the Tribunal was, therefore, whether the Claimant's claim was presented within time.

The Issues to be Decided

13. The issues in this case are as follows;

i) What is the nature of the claimant's claim?

ii) Whether the claimant's claim has been presented in time, and – if not;

iii) Whether it was not responsibly practicable for the claimant to have presented his claim in time; and if so

iv) Whether the claimant presented his claim within a reasonable time from the moment when he realised that he could make a claim.

Applicable Law

14. The Tribunal is regulated by the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005, as amended.
15. By Article 118(1) (b) of the 1996 Order, an employee is entitled to one week's notice for every year of continuous employment over two years up to a maximum of 12 weeks. Article 118(3) of the 1996 Order provides this notice requirement may be discharged by giving pay in lieu of notice.
16. Article 170 of the 1996 Order provides a redundant employee of more than two continuous year's service with the right to a redundancy payment.
17. By Article 180(2) (b) of the 1996 Order, the "relevant date" in respect of redundancy for an employee whose employment is terminated without notice is the date on which the termination takes effect.
18. The applicable law in respect of the employer's obligation to consult with representatives of employees is set out in Parts XIII of the 1996 Order. The applicable law regarding the insolvency of the employer is set out in Part XIV of the 1996 Order.
19. Article 216 of the 1996 Order provides that where an employer proposes to make 100 or more employees redundant at one establishment in Northern Ireland, that employer is under a duty to consult with the appropriate representatives of such employees at least 90 days before the first of the dismissals takes effect.
20. Article 217 of the 1996 Order provides that where the employer has not complied with the requirements of Article 216, a complaint may be presented to an Industrial Tribunal on that ground by either (a) the employee representatives affected, or (b) the trade union thus affected, or (c) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.
21. Article 217 (5) of the 1996 Order provides;

(5) - An industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal—

(a) before the date on which the last of the dismissals to which the complaint relates takes effect, or

(b) during the period of three months beginning with that date, or

(c) 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 during that period of three months.

22. Article 229 sets out the debts to which Part XIV of the 1996 applies, and which may be paid by the second respondent.
23. Article 227 of Part XIV of the 1996 Order sets out the obligations on the second Respondent where an insolvent employer has made employees redundant.
24. Article 229(1)(a) of the 1996 Order provides that the second Respondent may pay an employee made redundant by an insolvent employer any arrears of pay in respect of one or more (but not more than eight) weeks. Article 229(1) (b) of the 1996 Order provides that such debts also include pay in lieu of notice. Article 229(2) (d) provides that such a debt can also include remuneration under a protective award made under Article 217.
25. Article 230 of the 1996 Order sets out the provisions for establishing the appropriate date.
26. Article 233 of the 1996 Order provides;

Complaints to industrial tribunals

233.—(1) A person who has applied for a payment under Article 227 may present a complaint to an industrial tribunal—

(a) that the Department has failed to make any such

payment, or

(b) that any such payment made by the Department is less than the amount which should have been

paid.

(2)  An industrial tribunal shall not consider a complaint under paragraph (1) unless it is presented—

(a) before the end of the period of three months beginning with the date on which the decision of the Department on the application was communicated to the applicant, or

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

(3) Where an industrial tribunal finds that the Department ought to make a payment under Article 227, the tribunal shall—

(a) make a declaration to that effect, and

(b) declare the amount of any such payment which it finds the Department ought to make.

27. Article 2 of the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994 ["the 1994 Order"] confers upon the Tribunal the power to hear a claim for a breach of a contract of employment. Article 7(a) of the 1994 Order provides that such a claim for breach of contract must be brought within the period of three months beginning with the effective date of termination of the contract giving rise to the claim. Article 7(c) of the 1994 Order provides;

7.

…

(c) where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented [within the three months beginning with the effective date of termination of employment] within such further period as the Tribunal considers reasonable.

The Decision of the Tribunal

28. The Tribunal wishes to emphasise that – pursuant to Rule 27(6) of Schedule 1 to the 2005 Rules - it has considered, in full, the information contained in the claim and the second respondent's submissions.
29. Pursuant to Article 230 of the 1996 Order, the "appropriate date" is 22 February 2006, when the first respondent became insolvent.
30. Pursuant to Article 180 of the 1996 Order, the "relevant date" for the claimant is 7 April 2006, which is the effective date of termination of his contract of employment.
31. A skeleton workforce remained at the first respondent's premises until June 2006, when the premises were finally shut down.
32. On the relevant date, the claimant had been employed for more a continuous period of five years. Pursuant to Article 118 of the 1996 Order, the claimant was therefore entitled to five week's notice, or (by Article 118(3)) to five week's pay in lieu of such notice. It is clear from the letter from Ms Baird of the second respondent that this pay in lieu of notice, in the amount of £842.48, has been paid to the claimant by the second respondent.
33. The claimant had a right to a redundancy payment, pursuant to Article 170 of the 1996 Order. It is clear from the letter from Ms Baird of the second respondent, dated 24 October 2008, that this redundancy payment has been paid to the claimant by the second respondent on 10 April 2006 in the amount of £1633.32.
34. Pursuant to Articles 229 (1) (a) – (b), on or after the appropriate date the second respondent became liable to pay the claimant's arrears of pay (to an upper limit of 8 weeks). The claimant did not dispute that he had been paid his outstanding holiday pay of £186.84 and that there was a NIL amount owed him for arrears of pay. In fact the claimant was paid to 7 April 2006 and his lying week.
35. Since the Tribunal can discern no other justiciable claim, accordingly, the Tribunal determines that the claimant's claim relates only to the payment of a protective award, pursuant to Articles 216 – 217 of the 1996 Order. That is what the claimant stated at section 7 of the claim form. The claimant was confused as to whether this was claimed as a statutory right, pursuant to Articles 216 -217 of the 1996 Order, or by virtue of Article 2 of the 1994 Order.
36. Pursuant to Article 7 (a) of the 1994 Order, since the effective date of termination of employment was 7 April 2006, the claimant's claim for breach of contract should have been presented on or before

7 July 2006. It was not presented until 11 September 2008. Accordingly, on the breach of contract jurisdiction, it is out of time.

37. Pursuant to Article 217(5) of the 1996 Order, the last of the dismissals from the first Respondent took place sometime in June 2006, when the premises were completely closed. Accordingly, any claim by the claimant, because he was not a member of a union or an employee representative, pursuant to Article 217(1) (c) of the 1996 Order, should - by Article 217(5) (a) – (b) - have been presented at the very latest within three months of June 2006. That is, the claimant's claim should have been presented by 30 September 2006, at the very latest. It was not presented until 11 September 2008, almost two years later. On this construction also, the claim is manifestly out of time.
38. Pursuant to Article 217(5) (c) of the 1996 Order, the Tribunal enjoys a statutory discretion to extend time where it considers it was not reasonably practicable for the claimant to have presented the claim within time, and where it considers that the claimant acted reasonably when he realised the right to claim. It will be seen from the above that the legal test applicable under Article 217(5) (c) of the 1996 Order is identical to that provided by Article 7(c) of the 1994 Order. Accordingly, the Tribunal has considered the facts found against these two identical legal standards provided by law.
39. Harvey on Industrial Relations & Employment Law [Volume 5: T, paragraphs 187 and onwards] makes clear that the question of what is or is not reasonably practicable is essentially one of fact for the Industrial Tribunal to decide, and the appellate courts will be slow to interfere with the Tribunal's decision. In Wall's Meat Co Ltd v Khan [1979] ICR 52, Court of Appeal, Lord Denning said of the late claimant;

It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? 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 be 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 he must take the consequences.

40. The leading modern authority on the subject is the decision of the Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, [1984] ICR 372, Court of Appeal. In that case, May LJ, who gave the judgment of the Court, undertook a comprehensive review of the authorities, and concluded that the liberal construction was easier to state than to apply in practice. What he proposed was a test of 'reasonable feasibility'. He explained his reasoning as follows ([1984] ICR at 384, 385):

[W]e think that one can say that to construe the words "reasonably practicable" as the equivalent of "reasonable" is to take a view that is too favourable to the employee. On the other hand, "reasonably practicable" means more than merely what is reasonably capable physically of being done—different, for instance, from its construction in the context of the legislation relating to factories: compare Marshall v Gotham Co Ltd [1954] AC 360, HL. In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between these two. Perhaps to read the word "practicable" as the equivalent of "feasible" as Sir John Brightman did in [Singh v Post Office [1973] ICR 437, NIRC] and to ask colloquially and untrammelled by too much legal logic—"was it reasonably feasible to present the complaint to the [employment] tribunal within the relevant three months?"—is the best approach to the correct application of the relevant subsection.

41. When considering what is or is not feasible, the factors to be adjudicated upon are manifold, and depend on the circumstances of each case. In Palmer and Saunders, May LJ nevertheless listed a number of considerations, collated from the authorities, which might be investigated (see [1984] IRLR at 125, [1984] ICR at 385). These included;

i. the manner of, and reason for, the dismissal;

ii. whether the employer's conciliation machinery had been used;

iii. the substantial cause of the claimant's failure to comply with the time limit;

iv. whether there was any physical impediment preventing compliance, such as illness, or a postal strike;

v. whether, and if so when, the claimant knew of his rights;

vi. whether the employer had misrepresented any relevant matter to the employee;

vii. whether the claimant had been advised by anyone, and the nature of any advice given; and

viii. whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.

42. When considering whether or not a particular step is reasonably practicable or feasible, it is necessary for the Tribunal, as the Court of Appeal said in Schultz v Esso Petroleum Ltd [1999] IRLR 488, to answer this question 'against the background of the surrounding circumstances and the aim to be achieved'. Such surrounding circumstances have been narrowly interpreted by the Courts. So, for example, in London Underground Ltd v Noel [1999] IRLR 621, the Court of Appeal overturned a decision of an Industrial Tribunal which had held that an offer of alternative employment made by the

respondent employer before the expiry of the time limit, but withdrawn after it, constituted a 'special fact' rendering it not reasonably practicable to present an unfair dismissal claim in time. Although, as in Schultz, the Employment Appeal Tribunal had upheld the Tribunal's decision, the Court of Appeal held that it was entitled to consider whether the 'special fact' justified the finding. It held that it did not. The claimant knew all the facts necessary to make a complaint in time, and the fact of the offer and its subsequent withdrawal did not alter that position. The Court acknowledged that the result was hard on the claimant, and made the point that if the test had simply been one of reasonableness, she would have been entitled to succeed. But as the test remained one of reasonable practicability, this required a stricter interpretation.

43. Detailed guidance on how to deal with the question of a claimant's expressed ignorance of his rights is to be found in the judgments of Scarman LJ in the Dedman case ([1974] ICR at 64), and of Brandon LJ in the Walls' Meat case ([1979] ICR 52 at 60, 61). In Dedman, Scarman LJ indicated that practicability is not necessarily to be equated with knowledge, nor impracticability with lack of knowledge. If the claimant is saying that he did not know of his rights, relevant questions would be:

What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his rights, it would be inappropriate to disregard it, relying on the maxim "ignorance of the law is no excuse". The word "practicable" is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance.

44. In the Wall's Meat case, Brandon LJ dealt with the matter as follows:

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 or a postal strike; or the impediment may be mental, namely, the state of mind 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^[1]. 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".

45. Accordingly, as in the claimant's case, whilst a claimant's state of mind is to be taken into account, it is clear that his mere assertion of ignorance either as to the right to claim, or the time limit, or the procedure for making the claim, is not to be treated as conclusive. The objective nature of the enquiry is exemplified by Porter v Bandridge Ltd [1978] ICR 943, where the majority of the Court of Appeal approved an Employment Tribunal's finding that the claimant 'ought to have known' of his right to claim, even though he did not in fact know of it. A similar conclusion was reached in Avon County Council v Haywood-Hicks [1978] IRLR 118, where the Employment Appeal Tribunal overruled a decision of a Tribunal which had granted an employee the benefit of the escape clause despite his 'extraordinary' ignorance of his rights. As in Porter, the EAT held that 'this was a case where the employee ought to have known of his right even if he did not actually do so'. Moreover, as the courts have pointed out, with the widespread public knowledge of unfair dismissal rights, it is all the time becoming more difficult for an employee to plead such ignorance successfully (see, for example, Riley v Tesco Stores Ltd [1980] ICR 323 at 328, 329, 335). In deciding the claimant's case, this Tribunal has not confused what the claimant should have known with the more lenient attitude shown by the Court of Appeal in Marks & Spencer plc v Williams - Ryan [2005] IRLR 562. There the claimant knew of the right to claim for unfair dismissal, but was ignorant of the time limit. That ignorance was excused by a Tribunal on the grounds that the employer's post-termination advice to her as to her rights, whilst referring to the right to make a claim to an Employment Tribunal, did not mention the time limit, and was thus misleading, and that the claimant was under personal pressure to complete a teacher training course. The Tribunal duly gave her the benefit of the escape clause. The Court of Appeal considered the findings 'generous' to her but was not prepared to say that they were perverse (see paras 37–41). Williams-Ryan is distinguishable on the facts from the claimant's case. The claimant here was given no information whosoever on or after 22 February 2006 by the first respondent, save for the letter setting out her entitlements from the insolvency practitioners acting for Trivirix.
46. The cases so far considered have all concerned a claimant's state of knowledge of the right to make a claim for unfair dismissal. In Biggs v Somerset County Council [1996] IRLR 203, the issue before the Court of Appeal was whether the claimant could have known of her right to make a claim for unfair dismissal from her part time teaching job (from which she had been dismissed in 1976) when this right was not finally clarified until 1994, when the House of Lords ruled that the qualifying restrictions on part-time workers were unlawful under

European Community law (see R v Secretary of State for Employment, ex p Equal Opportunities Commission [1994] IRLR 176), and within three months of that decision, Mrs Biggs made a claim for compensation for unfair dismissal. However, the claim was dismissed on the ground that she was out of time, with both the EAT and the Court of Appeal ruling that it had been reasonably practicable for a claim to have been brought in 1976. The Court of Appeal reasoned that, in 1976, albeit very few people, including lawyers, understood the full impact of Article 141 of the Treaty of Rome 1957, it did not affect the just decision of the Court. Giving the main judgement of the Court, Neill LJ stated: 'it would be contrary to the principle of legal certainty to allow past transactions to be re-opened and limitation periods to be circumvented because the existing law at the relevant time had not yet been explained or had not been fully understood'. Moreover, the Court held that Mrs Biggs' 'mistake as to what her rights were' had been a mistake of law, not of fact, and so could not be relied on to justify reasonable impracticability. Moreover, he held, the phrase 'not reasonably practicable' was directed to 'difficulties faced by an individual claimant', such as illness, and, points to 'some temporary impediment or hindrance'. No other case has held that a mistake of law (i.e. ignorance of the law) was of itself the crucial factor. Harvey [Vol 5: T: 207.3] suggests that Biggs is an authority which turns on its own facts, and ought not to be regarded as undermining the careful reasoning set out in the established authorities on this aspect of the law. From Dedman and Wall's Meat v Khan to Palmer and Saunders and London International College v Sen [1993] IRLR 333 the Court of Appeal has accepted that it is the reasonableness of such ignorance or mistake that is in the end determinative of whether it is reasonably practicable to make a complaint in time.

47. It is clear from the Wall's Meat case that ignorance of law cannot, of itself and without more, found an arguable case that it was not reasonably practicable for the claimant to have presented his claim by 30 September 2006. The Tribunal, however, has considered the points enumerated in Palmer and Saunders. The manner in which the claimant was informed of the termination of his employment was lamentably short of the required minimum standards laid down in Article 216 of the 1996 Order. The claimant was, in effect, told on 22 February 2006 that his employment was almost at an end. That is very far short of good industrial relations practice. The first respondent used no conciliatory machinery or mechanisms, and no further information was provided the redundant employees, other than the statement of their entitlements which came from the first respondent's accountants. No other misstatement or misrepresentation of the claimant's rights by Trivirix can be found by the Tribunal. The cause of the claimant's failure to comply with the time limits, it seems to the Tribunal, was the fact that he was preoccupied with finding himself another job, which he did by the end of April 2006. Thus it is noted that

the claimant was re-employed by the end of April 2006, and was thus

able to function as an employee from that time forward. Albeit the claimant was not a member of a trade union, and was not an employee representative, the claimant did not consult any adviser as to his rights. There is a Citizens' Advice Bureau near where he lives in Newtownabbey. The claimant did not explain to the Tribunal if or why it would not have been reasonably feasible for him to have consulted sources of information that would have led him to the realisation that he had a right to claim breach of contract by 7 July 2006 or a protective award by 30 September 2006. There was no other physical impediment to the claimant claiming in time; no illness or postal strike or other obstacle has been found by the Tribunal. The failure to comply with Article 7(c) of the 2004 Order and/ or Article 217(5) of the 1996 Order is attributable solely to the fact the Claimant did not know of his rights under the provisions of Article 2 of the 1994 Order and/ or Articles 216-217 Order, and that he only found out about the potential to claim breach of contract and/or a protective award on 4/5 September 2008.

48. The Tribunal has not received any evidence, and has not made any finding, that the claimant was making a reasonable effort in the periods to either (i) 7 July 2006 and/or (ii) 4/5 September 2008 to establish what exactly his rights were. It is not that he was misadvised or misdirected on these matters; it is that he simply did not make any inquiry from anyone as to what his rights were upon the termination of his employment. When he did realise that he may have a right to make a claim for either breach of contract and/ or a protective award, that realisation was on foot of a text message from Ms Wilson on 4/5 September 2008 and not attributable to any proactive or reasonable step taken by the claimant to be informed as to his legal rights. The first such effort he made in this regard was the call to the Labour Relations Agency immediately after receiving the text from Ms Wilson on 4/5 September 2008. That is almost two years and two months after the expiry of time to make a claim for breach of contract, and almost two years after the expiry of time to make a claim for a protective award. That period of total inactivity to establish what he might, in law, do about his situation is, in the mind of the Tribunal, itself unreasonable (per Brandon LJ in Walls Meat, applied). Put another way, pursuant to Porter, the Tribunal determines it was reasonably practicable for the claimant to have taken practical pro-active steps to clarify in his mind what his rights in law might be, and then to have acted on this information with reasonable expedition. He was re-employed after the end of April 2006, which gave him until 7 July 2006 to make a timeous claim for breach of contract, and likewise there is no finding that would convince the Tribunal there was a real and reasonable hindrance to making a timeous claim for a protective award before 30 September 2006. Unlike the scenario in Biggs, there has been no change in or development of the law as it applies in Articles 216-217 in the period applicable to the claimant's case. As in London Underground, the Tribunal recognises that its decision is difficult for

the claimant. However, the legal authorities are quite clear; the claimant cannot rely on his lack of knowledge and his total and unreasonable inactivity for a period of circa two years when seeking to persuade the Tribunal to exercise the statutory discretion given it by Article 7(c) of the 1994 Order and Article 217(5) of the 1996 Order.

49. Accordingly, the Tribunal determines that it was reasonably practicable for the claimant to have presented his claim/s in time, which – at the latest – would have been on 7 July 2006 and/ or 30 September 2006. The claims presented on 11 September 2008 are thus considerably out of time, and shall not be considered by the Tribunal, pursuant to either Article 7(c) of the 1994 Order or Article 217(5) of the 1996 Order.
50. Since this is the determination of the Tribunal, the fourth issue set out at paragraph 13 above does not require to be decided by the Tribunal.
51. No other or further order was sought or is now made.

Chairman:

Date and Place of Hearing: 9 March 2009, Belfast

Date Decision Recorded in Register

And Issued to the Parties

Note 1   Emphasis added    [Back]