Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/5715_09IT.html
Cite as: [2009] NIIT 5715_09IT, [2009] NIIT 5715_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 5715/09

CLAIMANT: Kenneth Ivan Vaughan

RESPONDENT: BC Plant JCB Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s claim is out of time, in circumstances where the time-limit for bringing his claim of unfair dismissal has not been extended, pursuant to Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and the tribunal is not satisfied it was not reasonably practicable for the complaint to have been presented to the tribunal in time, pursuant to the time-limits set out in Article 145 of the Employment Rights (Northern Ireland) Order 1996. The tribunal therefore does not have jurisdiction to consider the claimant’s claim and it is dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Reasons

1.1 Following a Case Management Discussion on 1 October 2009, as set out in the Record of Proceedings dated 2 October 2009, I ordered that this pre-hearing review be arranged to consider the following issue:-

“Whether the tribunal has jurisdiction to entertain the claimant’s claim, in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 and, if applicable, Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, regarding the time-limit for presenting his claim.”

2. The tribunal, after hearing evidence from the claimant and submissions by both the claimant and the respondent, found the following facts:-

(i) The claimant was employed by the respondent as a parts/store person in the Parts Department from on or about 28 July 2003.

(ii) By letter dated 20 January 2009, he was informed:-

“As your are aware the Parts Department has been experiencing a considerable downturn in business. After careful deliberation and much regret, the company has no alternative but to consider redundancy. We would be obliged if you would attend a meeting … on Thursday 22 January … .”

The claimant attended a meeting with the Parts and Service Manager on 22 January 2009 and was sent a letter on 23 January 2009 informing him that his employment was terminated on the grounds of redundancy on 23 January 2009. In the said letter, the claimant was informed of his right to appeal against the decision to make him redundant if he was not satisfied with it.

(iii) By letter dated 29 January 2009, the claimant lodged an appeal against the termination of his employment on the grounds of redundancy and the appeal was heard on 2 February 2009.

(iv) By letter dated 4 February 2009, the claimant was informed of the outcome of the said appeal in the following terms:-

“Further to the appeal meeting held on 2 February 2009 relating to the termination of your employment on the grounds of redundancy confirmed to you in our letter dated 23 January 2009, the company has now taken a decision on your appeal, namely that the original redundancy dismissal decision stands.

The reason for this decision is as follows:-

· The redundancy selection process has been fully investigated and your redundancy is due to the company experiencing a downturn in work in recent months.

You have now exercised your right of appeal and this decision is final.

… .”

(v) The claimant fairly and frankly acknowledged that, in the period following the failure of his appeal, although he was most unhappy with the decision by the respondent to terminate his employment on the grounds of redundancy, he was undecided whether or not to proceed further. He was aware that he had the right to bring a claim for unfair dismissal to an industrial tribunal arising from his said dismissal; but was not aware, at that time, of any time-limits in which any such claim had to be brought to the industrial tribunal. He took no further action to ascertain whether or not there were any such time-limits or about what further or other action he might take until a few days before 20 April 2009, when he made an appointment to go to see his local Citizens Advice Bureau in Lurgan. It is not possible to visit the Citizens Advice Bureau without an appointment, which can take, as in this case, a few days to arrange. In going to the Citizens Advice Bureau, he wished to find out, in particular, whether there was something more that he could do to find out about the selection criteria used in relation to his redundancy. He was not satisfied he had been given, at any meeting or in any correspondence, the details of the selection criteria, which were used by the respondent when he was selected for redundancy. At his discussion at the Citizens Advice Bureau, it was suggested to him that he should write to the respondent. He did so in a letter dated 20 April 2009, which was drafted for him by a member of staff at the Citizens Advice Bureau. The said letter stated as follows:-

“I am writing further to my dismissal on 23/01/09 and my appeal which was heard on 02/02/09.

I believe that my dismissal may have been unfair, as I was not given information regarding the selection criteria used by the company for the purposes of redundancy.

I would ask you now to forward a copy of the selection criteria used by the company in order that I may seek advice/ assistance with any future claim for unfair dismissal.

Please forward this information to my home address within the next 10 working days.”

The respondent replied by letter dated 23 April 2009, which stated, as follows:-

“Thank you for your letter dated 20 April 2009.

As you are aware you appealed the redundancy decision on 29 January 2009 and a hearing was heard on 2 February 2009.

Therefore you have no further right to appeal.”

(vi) Following receipt of the said letter, the claimant was dissatisfied with the said reply, as he considered it had not answered the specific request for information set out in his letter dated 20 April 2009. The claimant, having received the letter from the respondent on or about 24 April 2009, decided to make another appointment to attend at the Citizens Advice Bureau to discuss the reply from the respondent and to see what further action, if any, he should take, in light of the said reply. Following discussion at the Citizens Advice Bureau on 28 April 2009, which was the earliest appointment he could obtain, the claimant decided to bring a claim for unfair dismissal. He was provided with a claim form at the Citizens Advice Bureau, which he filled in on 28 April 2009. He then sent it to the tribunal on that day, who received it on 30 April 2009.

(vii) The claimant had no recollection of any discussion at either of his two meetings at the Citizens Advice Bureau about time-limits, in relation to bringing a claim for unfair dismissal. He accepted, in evidence, that, although it was possible there could have been some reference to time-limits, which he does not now recall, he believes that, if there had been any such reference, and it had been pointed out to him it was necessary for him to take any action in order to comply with any such time-limits, he would have done so at that time.

(viii) The claimant frankly acknowledged that there was no reason why he had not brought his claim of unfair dismissal to the tribunal prior to 30 April 2009, other than the fact that, during this period, he had been turning over in his mind whether he should do something about what he always believed to be an unfair dismissal; and it was only, following the failure of the respondent in its letter dated 23 April 2009 to properly answer his letter dated 20 April 2009, when the respondent failed to provide him with a copy of the selection criteria used by the company for the purposes of making him redundant, that he decided to bring his claim of unfair dismissal, following his discussion at the Citizens Advice Bureau on 28 April 2009.

3.1 Under the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), Article 145(2) provides:-

“ … an industrial tribunal shall not consider a complaint (of unfair dismissal) 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.”

3.2 Under Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 it is provided:-

“(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) … 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 a disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of Regulation 5(2)), was being following in respect of matters that consisted of or included the substance of the tribunal complaint.”

4.1 There was no dispute that the claimant’s claim of unfair dismissal was a jurisdiction listed in Schedule 2 or 3 of the Employment (Northern Ireland) Order 2003.

There was also no dispute that the effective date of termination of the claimant’s employment with the respondent was on 23 January 2009. The normal time-limit for presenting his claim of unfair dismissal was therefore 23 April 2009. The claimant presented his claim of unfair dismissal to the tribunal on 30 April 2009 and had therefore presented his claim outside the normal time-limit.

4.2 Pursuant to Article 145(2) of the 1996 Order, as set out above, the time-limit may be extended. A claimant who seeks an extension of time, pursuant to the said Article, has to establish two matters:-

(a) that it was not reasonably practicable for the claim form to have been presented in time and, on this point, the onus is on him and requires him to show precisely why he did not present his complaint in time; and

(b) that it was then presented within a ‘reasonable time’.

In relation to the test of ‘reasonably practicable’ the Court of Appeal in the case of Marks & Spencer v Williams/Ryan [2005] IRLR 562 has indicated that the said words should be given a liberal interpretation in favour of the employee and in the case of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, the Court of Appeal interpreted ‘reasonably practicable’ to mean ‘was it reasonably feasible’ for the complaint to have been presented in time.

Ignorance or mistaken belief by a claim will not be reasonable, and there can be no finding that it was not ‘reasonably practicable’ for a complaint to have been in time, if a claimant has not made such enquiries, as he reasonably should have done. (See further Walls Meat Ltd v Khan [1978] IRLR 499.) The claimant, as set out above, at all times knew of his right to make a claim of unfair dismissal to an industrial tribunal, but it does not appear that he made any enquiries in relation to relevant time-limits; and there is no evidence to suggest that he was given any wrong information in relation to time-limits, when he had his meetings with the Citizens Advice Bureau. Indeed, I have concluded that there was no discussion, at the time of those meetings, in relation to such matters. There is no doubt that the test of ‘reasonable practicability’ has to be contrasted with the test of ‘just and equitable’, which allows time to be extended in discrimination cases. The test of ‘reasonable practicability’ is much narrower and harder for a claimant to establish.

If the claimant had delayed presenting the claim, pending the outcome of an internal appeal procedure, I might have been persuaded, subject to the precise circumstances, that it was not ‘reasonably practicable’ to commence proceedings within the primary three month time-limit and to thereby allow the claimant an extension of time to present the claim (see Ashcroft v Haberdashers-Aske’s Boys’ School [2008 IRLR 375. There was no doubt, as the claimant accepted in evidence, he had been given the result of the appeal in the letter dated 4 February 2009.

In the light of the foregoing, I reluctantly came to the conclusion that, although I had considerable sympathy for the claimant, there was no evidence before me which persuaded me that it was not ‘reasonably practicable’ for the claimant’s claim to have been presented to the tribunal within the normal three month time-limit. In those circumstances, it was not necessary for me to consider further whether the time within which the complaint was in fact presented was reasonable. The claim was therefore presented out of time and the tribunal therefore does not have jurisdiction to consider the claimant’s claim, subject to consideration of the matters set out in the following paragraph.

5.1 Before concluding this matter, I considered that it was necessary for me, given that the issue to be determined was a matter of jurisdiction for the tribunal, whether the provisions of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 were applicable and, in particular, whether the normal three month time-limit had been extended by a period of three months, pursuant to the said Regulations. Clearly if it had been, then the claimant’s claim would have been presented in time and the tribunal would have jurisdiction to consider the claimant’s claim.

5.2 In the case of Remploy Ltd v Shaw [2009] UKEAT/0452/08 the Employment Appeal Tribunal confirmed that Regulation 15 is directly applicable only when the claimant reasonably believes, up to the expiry of the three month deadline, that a disciplinary or dismissal procedure is ongoing. The deadline is then extended to six months. However, it has no application except to give the one-off extension from three to six months. Thus, if a claimant had the requisite belief at the relevant time, an extension of three months would automatically be provided for. In this particular case, if such a belief could be shown, then the claimant’s claim would be in time and the tribunal would have jurisdiction to consider the claimant’s claim of unfair dismissal.

“(34) Regulation 15 encourages that to happen but it is of utility only once. It provides an extension of time from three to six months in an unfair dismissal case. It does nothing more. It does not depend on there being a procedure actually in place, but only the ‘reasonable belief’ that it is in the mind of the employee, see Towergate London Market Ltd v Harris [2008] ICR 1200, the Court of Appeal by a majority upholding, my judgment, reversing the employment tribunal in that appeal.

(35) It is limited to a moment in time, ie at the time the primary limitation period expires. If the claimant has that reasonable belief she gets an extension of three months in which to bring the claim. … .”

In the case of Towergate London Market Ltd, Keene LJ when considering the correct approach to interpretation of Regulation 15 said:-

“39 … there can be no doubt that that requires an employment tribunal to ask itself two questions:-

First, did the complainant have such a belief?

Secondly, were there reasonable grounds for that belief?

What is patently not the test, is whether, as a matter of fact, such a procedure was being followed.”

In the recent case of Eagles v Rugged Systems Ltd [2009] UKEAT/0018/09 the Employment Appeal Tribunal concluded that a claimant was entitled to rely on the ongoing negotiations over a compromise agreement as a dismissal procedure. It held that a dispute about a dismissal can include a dispute about compensation for it. It therefore held that a compromise agreement under the 1996 Order (which is in similar terms under the 1996 Act in Great Britain) is a (statutory) procedure about a dismissal designed to resolve a dispute without issuing a claim, within the meaning of Shergold v Fieldway Medical Centre [2006] ICR 304.

5.3 All the above authorities, have also made clear that Regulation 15 refers to dismissal or disciplinary procedures, whether statutory or otherwise [tribunal’s emphasis]. The addition of these words would therefore appear to allow a broader interpretation to be given to Regulation 15. (See Eagles v Rugged Systems Ltd.)

5.4 Once again, the 2003 Order and the 2004 Regulations have given rise to considerable difficulties of interpretation. The claimant is unrepresented and I can fully sympathise with his inability to make any meaningful submissions to the tribunal in relation to the application of Regulation 15 to the circumstances of his case. These provisions are complex, as acknowledged by His Honour Judge McMullan in the Eagles case when he referred to Underhill P’s memorable condemnation of these Regulations as rebarbative, a gastronomic image reflected in his judgment in Cambridge and Peterborough Foundation NHS Trust v Crouchman [2009] UKEAT/0108/09 as a ‘pig’s breakfast’.

5.5 I could find no evidence to suggest that the claimant, at the relevant time, namely the expiry of the normal three month time-limit, had the necessary belief that a disciplinary or dismissal procedure, statutory or otherwise, was being followed in respect of his claim of unfair dismissal. The appeal from his dismissal was over, as he acknowledged, in evidence, following receipt of the letter from the respondent dated 4 February 2009 when his appeal was rejected and he was told that, having exercised his right of appeal, the decision was final. It was not disputed that, under the respondent’s dismissal procedures, there was no further right of appeal. At the time of the expiry of the normal time-limit, the claimant had sought, in his letter of 20 April 2009, a copy of the selection criteria used by the respondent in order that he might seek advice/assistance with any future claim for unfair dismissal. Indeed, he gave 10 days to the respondent to reply. The respondent replied by its letter dated 23 April 2009, which the claimant received on or about 24 April 2009 – which was in fact after the expiration of the normal time-limit, as set out above. In that letter, the respondent failed to provide the information sought and merely referred to the conclusion of the appeal procedure and the absence of any further appeal. Whilst I can understand why the claimant wished to see the selection criteria used by the respondent, as this would have helped him to determine, as he admitted in evidence, whether to proceed further with his claim of unfair dismissal to an industrial tribunal, I am not satisfied, that in sending the letter, he believed or had reasonable grounds for believing a dismissal procedure, statutory or otherwise, was being followed. He was merely seeking this further information in order to decide what further or other action to take. In my judgment, to be a procedure would have required something more than merely sending a letter in the above circumstances, albeit with the expectation of a reply. This has to be contrasted with the situation in the Eagles case of the ongoing negotiations for the purposes of a ‘compromise agreement’.

5.6 I did consider whether the claimant could gain assistance from the provisions of Article 124 of the Employment Rights (Northern Ireland) Order 1996, which enables a claimant to ask for a written statement of reasons for dismissal. Firstly, I am not satisfied that the letter of 20 April 2009 was such a request, even giving the term a liberal interpretation. It might be argued that the reasons for the dismissal, for the purposes of Article 124 of the 1996 Order had already been given by the respondent in its letter of 4 February 2009, following the unsuccessful appeal. However, even if it was a request for reasons for the dismissal, in my judgment, the provisions of Article 124, albeit statutory, cannot be considered a dismissal procedure. It is a totally separate procedure. The entitlement to such a statement and the remedy for any failure to provide such a statement are contained in a separate part of the 1996 Order and, in particular, are not contained in Part XI of the 1996 Order, which deals with the right not to be unfairly dismissed. In particular, the remedy for failure to provide such a statement is compensation of two weeks pay. This remedy is for the failure to provide the reasons for dismissal not for the dismissal itself. Further, the failure to provide such a statement has no bearing on the dismissal and/or the fairness of the dismissal; and is not part of a procedure, statutory or otherwise, designed to avoid a dispute, relating to a dismissal, being brought before the industrial tribunal for determination, such as the statutory provisions relating to Step 1 meetings, appeals and/or any compromise agreement.

6. So in conclusion, I decided that the claimant was not entitled to rely on Regulation 15 of the 2004 Regulations and the normal time-limit therefore had not been extended. The claim, having been presented on 30 April 2009 was therefore out of time.

7. In light of the foregoing, the tribunal therefore does not have jurisdiction to consider the claimant’s claim and it must be dismissed.

Chairman:

Date and place of hearing: 7 October 2009, Belfast

Date decision recorded in register and issued to parties: