Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/5883_09IT.html
Cite as: [2009] NIIT 5883_9IT, [2009] NIIT 5883_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 5883/09

CLAIMANT: Amanda Joyce O’Neill

RESPONDENT: HPJ Retail Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claim was lodged out of time and it was reasonably practicable to lodge the claim in time and the tribunal therefore does not have jurisdiction to determine the claim. The claim is therefore dismissed.

Constitution of Tribunal:

Vice President (sitting alone): Mrs P Smyth

Appearances:

The claimant appeared in person, assisted by her father.

The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Knights, Solicitors LLP.

Reasons

1. The issue to be determined is:-

“Whether the claim was lodged in time and, if not, whether time should be extended on the ground that it was not reasonably practicable to lodge the claim in time.”

2. The tribunal heard evidence from the claimant only. It was accepted by both parties that the claimant was dismissed without notice on 4 February 2009, and the claim was lodged on 26 May 2009. The claimant further accepted that the claim was lodged outside the three month statutory period, which expired on 4 May 2009. The claimant contended that it was not reasonably practicable to lodge the claim within the three month period, and that time should be extended until 26 May 2009.

3. The tribunal found the following facts proved on a balance of probabilities:-

(3.1) The claimant contacted the Citizens Advice Bureau after her dismissal on 4 February 2009 in order to seek advice. She was advised to lodge an appeal and although she did so, it was unsuccessful.

(3.2) The claimant did not seek further advice from the Citizens Advice Bureau when she was informed that her appeal was unsuccessful.

(3.3) The claimant contended that the reason she did not seek further advice about her position was because of personal circumstances relating to her mother. The tribunal accepts that on 26 January 2009, prior to the claimant’s dismissal, her mother was taken into hospital with a suspected brain tumour. The claimant’s mother remained in hospital for a month and upon her release she required the care of her family.

(3.4) Due to the claimant’s mother’s health situation, the claimant’s parents applied for a Housing Executive transfer to a more suitable property. At the beginning of April 2009 the family got the keys to a new property which required complete redecoration and refurnishing. The original family home also had to have furnishings removed as a matter of urgency to enable new tenants to move in.

(3.5) Essentially the claimant’s explanation for the late claim form is that she was helping to care for her sick mother and assisting with the domestic arrangements.

(3.6) Under cross-examination by Mr McEvoy, the claimant asserted that the reason she did not return to the Citizens Advice Bureau for advice after her unsuccessful appeal was because her father, who had attended with her on the first occasion, had since returned to work, and she did not have time to go back herself. The claimant accepted that she did not think of telephoning the Citizens Advice Bureau because ‘trying to find time to sort out a tribunal was not on [her] mind’ due to her home situation.

(3.7) The claimant accepted that on the first occasion that she sought advice from the Citizens Advice Bureau, a tribunal had been mentioned but she insisted that it had only been mentioned briefly and the main focus of the discussion was the appeal procedure. She contended that time-limits for a tribunal claim had never been discussed.

(3.8) The claimant did contact the Office of the Tribunals at the end of April 2009 and asked for a claim pack to be sent out. Mr McEvoy suggested to the claimant that the information booklet enclosed with the pack clearly explains the three month time-limit for lodging proceedings. The claimant conceded that she did not read all of the information and, in particular, did not read any information regarding time-limits.

(3.9) It was also pointed out to the claimant that her claim form is dated 21 May 2009 and yet it was not received until 26 May 2009.

4. The law

(4.1) Where it is accepted that a claim is out of time, the onus is on the claimant to show that it was not reasonably practicable to present her claim in time. If she succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. The test of ‘reasonable practicability’ has been explained as meaning ‘was it reasonably feasible to present the complaint to the [industrial] tribunal within the relevant three months”?

(4.2) In cases where a claimant expresses ignorance of her rights, it is clear that the tribunal must ask ‘what were her opportunities for finding out that she had rights’? Did she take them? If not, why not? Was she misled or deceived? Should there be an acceptable explanation of this continuing ignorance of the existence of her 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 this ignorance. (Dedman v British Building and Engineering Appliances Ltd [1974] 1AUER 520.)

(4.3) In Walls Meat Co Ltd v Khan [1978] IRLR 459 the Court of Appeal stated:-

“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. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitor or the professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”

(4.4) These cases demonstrate that whilst a claimant’s state of mind is to be taken into account, her mere assertion of ignorance as to the time-limit, is not to be treated as conclusive. The tribunal must consider the issue objectively.

5. The tribunal’s conclusion

(5.1) The tribunal does not consider that the claimant’s expressed lack of knowledge regarding the time-limit for presenting her claim is reasonable. Although it is accepted that the claimant was dealing with a very stressful home situation, this situation existed at the time of the claimant’s dismissal and yet she had the presence of mind to seek advice about her position from the Citizens Advice Bureau. Even if it is correct that the claimant was only given advice about pursuing an appeal and although a tribunal was mentioned, time-limits were not, there was no impediment to the claimant seeking further advice once her appeal was unsuccessful.

(5.2) The claimant clearly knew where to obtain advice and a mere telephone call would have been sufficient to ensure that she had all necessary information to bring a claim within time.

(5.3) The fact that the claimant was busy helping to care for her mother and refurbishing a new home does not constitute an impediment which would justify the tribunal concluding that it was not reasonably practicable to lodge the claim in time. Even after contacting the Office of the Tribunals and obtaining a claim pack, no acceptable explanation was given for failing to lodge the claim until five days after it had been completed and signed. The information regarding time-limits was in the documentation accompanying the claim form and the fact that the claimant chose not to read all of the information provided to her does not entitle her to rely on ignorance of her rights.

(5.4) For the above reasons the tribunal does not have jurisdiction to determine the claim, and it is therefore dismissed.

Vice President:

Date and place of hearing: 8 October 2009, Belfast

Date decision recorded in register and issued to parties:

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