Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/823_08IT.html
Cite as: [2009] NIIT 823_8IT, [2009] NIIT 823_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 823/08

CLAIMANT: Sharon O’Connor

RESPONDENTS: 1. South Eastern Regional College

2. Hay Group (Ireland) Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s claim for sex discrimination is not within time. The tribunal determines that it is just and equitable to grant the statutory extension of time under all of the circumstances.

Constitution of Tribunal:

Chairman (sitting alone): Mr J V Leonard

Appearances:

The claimant appeared in person and represented herself.

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

The second-named respondent was represented by Ms R Lundy, Solicitor, of Arthur Cox & Company, Solicitors.

Reasons

THE BACKGROUND AND THE ISSUE TO BE DETERMINED

By claim form dated 9 June 2008 and received by the Office of the Industrial Tribunals and the Fair Employment Tribunal (‘the Office’) on that date, the claimant claimed unlawful sex discrimination against the respondents. By responses respectively received by the Office on 21 July 2008 and 23 July 2008 both respondents contended amongst other matters that the claim was out of time.

The matter was arranged for a Case Management Discussion which proceeded, chaired by the Vice-President of the Tribunals, on 3 November 2008. Amongst other matters, the Vice-President expressed herself to be satisfied that the time-issue in the case was a discrete issue and that it would not be appropriate to deal with that as part of a full hearing. Thus, the matter was directed to proceed to a pre-hearing review and, as a consequence, the matter was listed before this tribunal on following issue:-

“Whether the claim for sex discrimination is within time and if not whether time should be extended on just and equitable grounds.”

At the outset of this hearing, the Chairman drew the attention of the parties to the statutory provisions enabling a Chairman sitting alone to determine such a preliminary issue by means of a pre-hearing review, those provisions being contained within Rule 18 of the Tribunals Rules of Procedure (2005). No objection was taken by any party that such a pre-hearing review was to proceed with the hearing and determination of the foregoing issue.

At the commencement of the hearing, the Chairman sought to establish from the parties whether or not it was accepted by all parties that the complaint of unlawful sex discrimination was indeed out of time. All parties present or represented, including materially the claimant, confirmed acceptance of the proposition that the claim was indeed out of time in accordance with the statutory provisions applicable to the bringing of sex discrimination claims in this jurisdiction (to which statutory provisions the tribunal will refer in a little more detail below). With that first part of the listed issue disposed of on the basis of common agreement, the tribunal had regard to the second part of the listed issue and determined that the single issue for determination by the tribunal was whether or not time for bringing the claim should be extended on just and equitable grounds.

The facts

The tribunal proceeded to hear oral evidence from the claimant and to examine the papers which were before the tribunal in the determination of this issue. On the basis of the evidence, the tribunal determined the following material facts, on the balance of probability:-

(a) The claimant’s claim which, as mentioned, was received by the Office on 9 June 2008, contained the following:-

“Details of Claim

I applied for the position of Chief Executive for the South East Regional College last year and was advised on 21/12/2007 that I failed to meet the short listing criteria. Last week 6/6/08 I learned the name of the successful candidate who is a male member of my peer network in local government whose current position would be of a similar nature and scale. On this basis I believe that I was unfairly treated in not being short-listed for interview and I believe that the reason is my sex contrary to the Sex Discrimination (Northern Ireland) Order 1976.”

(b) The claimant informed the tribunal that there were no issues of any nature which would have prevented her from lodging proceedings with the tribunal at any stage prior to the date upon which she did so (9 June 2008), save that she was unaware of information as to the identity of the successful appointee to the post to which she had applied.

(c) In examining the apparent facts in respect of the claimant’s application for the post of employment which concerns this case (‘the post’) it is noted that the claimant is an experienced and well-qualified person, who, at the material time, occupied the position or grade of ‘Director’ and who was employed by the first-named respondent, South Eastern Regional College. She applied for the post (being the position of ‘Chief Executive’ of South Eastern Regional College). The precise date of her application for the post was not entirely clear from the evidence. She awaited the prospect of being short-listed for interview for the post. The claimant was aware that there were professional acquaintances that had also applied for the post who were regarded by her as being well qualified; she was therefore anticipating that the selection process would be quite highly competitive.

(d) On or about 21 December 2007 the claimant (as the tribunal understands it both by e-mail and by letter) was informed that she had not been short-listed for interview for the post. She described her state of mind in respect of receipt of that news as being somewhat disappointed and surprised. However, as she informed the tribunal, she was comforted to an extent by the knowledge that there was a very capable field of candidates as potential appointees. She did nothing further at that stage to query or seek feedback concerning the fact that she had not been short-listed for the post. It also seems to have been the case (as she made clear to the tribunal) that thoughts of the impending Christmas break occupied her mind.

(e) Nothing further seems to have transpired of any material significance until the claimant found herself in attendance at a work meeting on or about Friday 6 June 2008. In her evidence to the tribunal the claimant had initially a little difficulty in recalling precisely what persons were in attendance at the meeting. However, after some further thought she named to the tribunal three individuals who appear to have been present. She stated that at least one of those individuals, in an informal conversation that took place immediately after the meeting had concluded, informed her of the identity of the person who it was understood by that stage had secured appointment to the post. That information however was not, it seems, officially confirmed at that stage, but nonetheless the claimant regarded the information as being accurate. Immediately she felt aggrieved upon receipt of this information. She thus understood the identity of the successful applicant for the post to be a male employee who, prior to this, had been ranked as a ‘Director’, the same grade or ranking that she occupied. The following Monday, 9 June 2008, she lodged her complaint with the Office.

(f) It seems that the motivation for the claimant lodging her claim was not the fact of the claimant’s non-short listing, but rather the information being imparted to her on 6 June 2008 that a person whom she understood to be equally well qualified as was she had secured appointment to the post, that person being male.

(g) The tribunal did not need to determine any other material facts for the purposes of reaching its determination in the case save to mention, for the purposes of this decision, that the claimant in her evidence to the tribunal professed herself, on account of the nature of her job and various aspects of training received by her, to be fully familiar with statutory time-limits for bringing such proceedings as discrimination cases. Indeed, although she somewhat played down the significance of this in her testimony to the tribunal, it seems that the claimant was reasonably familiar with some fundamental or basic aspects and principles of employment law and human resources. That fact indeed is, amongst other matters, evident from the claimant’s written submission to the tribunal (more of which below).

The law

The statutory provisions are contained in the Sex Discrimination (Northern Ireland) Order 1976, as amended. The following are the material provisions of Articles 63 and 76:-

Jurisdiction of industrial tribunals

63. (1) A complaint by any person (‘the complainant’) that another person (‘the respondent’) —

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant,

may be presented to an industrial tribunal.

Period within which proceedings to be brought

76. (1) An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of … the period of three months beginning when the act complained of was done… .

(2) - (4) – …

(5) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(6) For the purposes of this Article —

(a) where the inclusion of any term in a contract renders the making of the contract an unlawful act that act shall be treated as extending throughout the duration of the contract, and

(b) any act extending over a period shall be treated as done at the end of that period, and

(c) a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.

The tribunal’s determination of the issue

In any time issue pertaining to tribunal jurisdiction, the tribunal normally will look to the facts, the arguments and the statutory jurisdiction (materially as set out above in regard to this case) to determine as a first issue, whether the particular claim has been brought within time. In view of the concession on the part of the claimant that the claim is indeed out of time (having regard to Article 76(1)) that first issue does not require to be determined. It is sufficient to record that the tribunal does accept, on foot of the facts and the concession made, that the claim was brought out of time. The next issue is whether it is just and equitable to extend time under Article 76(5). The tribunal’s focus must be upon an identification of the act or acts of discrimination complained of and all of the circumstances of the case.

The submissions of the parties

In her submissions to the tribunal, the claimant produced a written document in the nature of a submission and also made oral submissions. The claimant thereby invited the tribunal to conclude that the non-short listing issue was of itself certainly an act of discrimination which could be in some way identified with reference to a particular point in time. However, time also ought properly to be seen as extended in order to connect that with the issue of the actual appointment of the male person to the post.

In submissions on behalf of the first-named respondent, counsel, Mr Hamill, invited the tribunal to focus on what was, he contended, a single act of alleged discrimination in the case. That alleged act related to the non-selection of the claimant for interview in contrast to other persons who were so selected. Mr Hamill contended that the tribunal ought to avoid the confusion which might otherwise have arisen on account of the claimant’s submission by connecting that alleged single act of alleged discrimination with the actual appointment of the (male) candidate. There was an inherent contradiction, Mr Hamill contended, in the claimant’s argument whereby, on the one hand, she made the concession that her claim was out of time (which it would possibly not have been if her non-appointment to the post had been an act of discrimination alleged), and, on the other hand, her contention that the act or acts of alleged discrimination extended to her non-appointment to the post. In view of the nature of the claim actually made by the claimant, counsel contended that the tribunal had to take the view that the non-selection (not non-appointment) was the issue. Time was deemed to run accordingly in respect of that alleged discrimination. The solicitor for the second-named respondent, Ms Lundy, also supported these arguments.

Counsel for the first-named respondent, Mr Hamill, then drew the tribunal’s attention to the case of Duffy v Belfast City Council (No.1) [5 September 1994 FET] which case is reported in abbreviated form in Fair Employment Case Law Religious and Political Discrimination in Employment (4^th Edition). Regrettably, the tribunal was unable to obtain or secure a full copy of that decision in Duffy but the tribunal did have some regard to the abbreviated report of that case as this appears in the foregoing publication.

In her written submission to the tribunal, the claimant had referred the tribunal to the Employment Appeal Tribunal case of Clarke v Hampshire Electroplating Co Ltd [1991] IRLR 490. That case of Clarke is referred to in the abbreviated report of the Duffy case mentioned above. For the first-named respondent, Mr Hamill recited the salient facts of Duffy where it appears that a Catholic man who had not been short-listed for a position with the respondent Council only took a complaint when he heard that two Protestant men had been short-listed in respect of whom Mr Duffy believed the two did not have any better supervisory experience than had he. Mr Duffy it seems lodged proceedings with the Fair Employment Tribunal some three months and ten days after he had been informed that he was not short-listed and only it seems on account of hearing the identity of the two men shortlisted. Mr Hamill submitted that the Fair Employment Tribunal in Duffy held that, in determining when the act complained of was done (for the purposes of time running in regard to the statutory time-limits), the question was whether the cause of action had crystallised and not whether the claimant felt he had suffered discrimination. Thus, Mr Hamill submitted, if a claimant complains of unlawful discrimination on grounds of religious belief arising out of a failure to short-list him or her for a post, the cause of action shall crystallise on the day he or she was treated less favourably than another person of a different religious belief.

In her written submission to the tribunal, the claimant referred to the case of Swithland Motors Plc v Clarke [1994] IRLR 275. In that case the Employment Appeal Tribunal in England held that an unlawful act of discrimination, by omitting to offer employment, cannot be committed until the alleged discriminator is in a position to offer such employment. In reply to that, Mr Hamill submitted that the tribunal ought properly to follow the case of Duffy and further, ought to regard the Swithland Motors case as being distinguishable for the reason that the issue in the present case was the non-short listing as opposed to the non-appointment of the claimant. That must be so, Mr Hamill contended, otherwise the claimant’s claim would have been argued by her as being within time; the position now endeavoured to be adopted by the claimant was inconsistent with the claim. As an aside indeed, the claim might have been seen as premature as there had been no official announcement of the appointment made at the date the claim was brought by the claimant.

In reply, the claimant contended that there had been, she conceded, a single act of discrimination (the non-short listing). In clarification to the tribunal she made clear that she did not seek to argue that there was any continuing course of discrimination ending with the non-appointment. However, she contended that despite the foregoing the tribunal ought properly to view matters in the context of the non-appointment and to have proper regard to when and how the information concerning the identity of the successful appointee came to her attention. She argued that she could not have brought proceedings before that information came to her attention.

The tribunal’s decision

In determining the matter, the tribunal noted the apparent reason for the claimant’s delay in bringing the claim. It was clear to the tribunal that the news being imparted to her of her non-short listing was not of itself sufficient to cause the claimant to make further enquiries, perhaps as would be commonly done nowadays by seeking formal or informal feedback from the selection committee. The claimant appears to have accepted the non-selection without demur. However, it was without doubt the news relating to the actual appointment and particularly the identity of the successful appointee which caused these proceedings to be pursued by her.

It is clear that there was no disabling factor (physical or otherwise) preventing the claimant, initially, from seeking further information perhaps either on foot of a formal statutory questionnaire or, as mentioned, by seeking appropriate feedback. Further to this, the claimant professed herself to be fully familiar with statutory time-limits for bringing such proceedings. As mentioned, although she somewhat played down the significance of this in her testimony to the tribunal, she was much more familiar with principles of employment law and general human resources issues than many other persons in the claimant’s position before these tribunals. That fact is quite evident from the claimant’s written submission to the tribunal where she advances legal argument of a rather technical nature based on various cited legal cases.

Thus, the claimant’s case rested on the contention that, whilst the claimant did concede that she was out of time, nonetheless the ‘just and equitable’ jurisdiction of the tribunal to extend time ought properly to be exercised for the reason that it was fair and just to extend time until the point when actual knowledge on the claimant’s part was gained concerning the identity of the successful appointee. The claimant contended, further, that she had acted very promptly once that actual knowledge and information was imparted to her. That latter point is really not in contention and the tribunal accepts that to be the case, without any difficulty.

The tribunal had regard to all of the facts and to the foregoing submissions. The tribunal notes the general law in regard to the ‘just and equitable’ extension of time in cases of unlawful discrimination. It has been held in many cases that where the statutory power exists (as it does in this case under Article 76(5) of the Sex Discrimination (Northern Ireland) Order 1976), the tribunal is given a wide measure of discretion to do what it thinks is just and equitable in all the circumstances of the case and to take into account anything deemed to be relevant. The onus, however, is always on a claimant to convince the tribunal that it is indeed just and equitable to extend time; extension is ‘the exception rather than the rule’ (see Robertson v Bexley Community Centre [2003] IRLR 434). In this regard, the tribunal has regard to a considerable volume of fairly well-settled general law in respect of ‘the just and equitable extension’, for example as is set out in Harvey, Division. T (Paragraphs 277 – 282). The tribunal, further, notes for example, that in the case of London Borough of Southwark v Afolabi [2003] IRLR 220 the Court of Appeal in England upheld a nine-year delay in the presentation of a claim of unlawful discrimination by the claimant in particular circumstances where the claimant had no reason to be placed in a position to discover the evidence of possible discrimination earlier than he did, and thereafter brought his claim with reasonable promptness. However, it must be said that Afolabi involved a rather unusual set of circumstances. Clearly, each case has to be assessed on its own particular facts and merits.

In contrast to the facts of Afolabi, in this case the claimant must have been aware, from the date the news of her non-short listing was confirmed to her that she had at the very least the capacity to make enquiry as to the reason for that non-short listing. Whether that enquiry might have been pursed by way of a formal statutory questionnaire under the Sex Discrimination (Northern Ireland) Order 1976 or by a more informal means of enquiry was entirely a matter for the claimant. If the claimant was not sufficiently aggrieved, surprised or concerned at her non-short listing as to cause due enquiry to be made, again that was a matter for her.

However, looking at all of this, the tribunal is inclined to follow the Duffy case (as reported) in that the tribunal regards the failure to short list the claimant as being a deliberate omission (see Article 76(6)(c) of the Sex Discrimination (Northern Ireland) Order 1976) that being an act or omission done, it must be presumed, by the selection committee or proper authority at the time of the preparation of the short listing. That act or omission (again it must be presumed hopefully with justification) was done a short time before the non-short listing information was imparted to the claimant. The claimant’s knowledge of the ‘act complained of’ (see Article 76(1) of the Sex Discrimination (Northern Ireland) Order 1976) was present from 21 December 2007 and onwards. Certainly, the claimant could have taken action at any time from that date onwards; she omitted to do so until 9 June 2008 and by that stage she was very approximately two and one half months out of time.

Is there any basis therefore for an extension of time on the basis of justice and equity? The settled law is set out in such cases as, for example, British Coal Corporation v Keeble [1997] IRLR 336. In that case the judgment of Mrs Justice Smith, at page 338, reads:-

“It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –

(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”

Thus, the tribunal is required to consider the prejudice which any party to proceedings might suffer as a result of the granting or the refusal of an extension of time. The issues properly to be considered include such issues as the length of time and the reasons for any delay and the extent to which the cogency of any evidence might be likely to be affected by the delay. In this regard, the tribunal has noted that Mr Hamill did not attempt to make any submission in respect of these factors or concerning the issue of possible prejudice (when expressly invited by the Chairman it must be noted), nor indeed did the Ms Lundy for the second-named respondent.

In the absence of any arguments on behalf of either of the respondents concerning any of the factors above-mentioned, the tribunal considers that the issue of delay will not have any particularly detrimental effect upon the cogency of the evidence. Certainly, once the factor which induced the claimant to bring the claim, the receipt of information concerning the identity of the successful party, was made known to her, the claimant acted swiftly in bringing the claim. The claimant did however fail to raise enquiry once her non-short listing had been confirmed. Her argument was that she had no real reason to do that; she was conscious that there was a field of strong candidates in opposition to her own application; she assumed that these persons had been short-listed rather than her. It was only when she discovered the identity of the successful candidate, whom she subjectively ranked equal to her in terms of potential suitability for the post, that she had cause to become very concerned and thereafter she forthwith issued these proceedings. All of this is not remarkable to the tribunal and the motivation is entirely apparent.

19. Taking everything into account, and being mindful of the broad discretion that is available to the tribunal and the context in which that discretion has to be exercised with due and proper regard being had to all of the facts and circumstances, the tribunal’s determination in this case is that it is proper to grant the extension of time. That decision is taken for the reason that, considering all of the circumstances of the matter including those which are mentioned above, the balance of detriment or prejudice in refusing the extension of time to the claimant is greater than the balance of detriment or prejudice that will be faced by the respondents in meeting the claim for unlawful sex discrimination. The tribunal also bears in mind the range of other factors appropriate for consideration (as mentioned in British Coal Corporation v Keeble and other cases). Accordingly the tribunal determines that it is just and equitable to grant the statutory extension of time under all of these circumstances. The matter may now proceed in accordance with the directions of the Vice-President made at the Case Management Discussion which was held on 3 November 2008.

Chairman:

Date and place of hearing: 21 January 2009, Belfast

Date decision recorded in register and issued to parties: