Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/06113_09IT.html
Cite as: [2010] NIIT 06113_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6113/09

CLAIMANT: Amanda Logan

RESPONDENTS: 1. Northern Ireland Institute for the Disabled

2. Lorna Simms

3. Vi Long

4. Paul Orr

5. April Smyth

6. Tony Gregg

DECISION ON AN APPLICATION FOR REVIEW

The tribunal:-

(i) varies the second sentence of paragraph 6 (i) of the conclusions in the Decision issued on 29 April 2010 by inserting the words “28 November 2008”, instead of “29 November 2008”, and

(ii) confirms its Decision that the claimant’s claim of age discrimination is in time.

Constitution of Tribunal:

Chairman (sitting alone): Mr S A Crothers

Appearances:

The claimant and represented herself.

The respondents were represented by Mr P Broom, Solicitor of Wilson Nesbitt Solicitors.

1. The tribunal received correspondence from the respondents’ solicitor dated 12 May 2010 requesting a review of that part of its decision dated 29 April 2010 following a Pre-Hearing Review (“the Decision”), that the claimant’s claim of age discrimination is in time. The respondents’ solicitor sought a review under Rule 34 (3) (a) and (e) of the Industrial Tribunal Rules of Procedure 2005 (“the Rules”), that the decision should be reviewed as it had been wrongly made as a result of an administrative error and that the interests of justice required such a review in relation to the age discrimination complaint. The reference to Rule 34 (3) (a) related to paragraphs 6 (1) of the tribunal’s conclusions in the Decision referring to the claimant’s effective date of termination of her employment as being 29 November 2008, whereas the factual findings had referred to 28 November 2008. The tribunal explained to the respondents’ representative at a previous Case Management Discussion held on 8 June 2010, and again during the review hearing, that this was a typographical error. The tribunal therefore varies that part of the decision by substituting “28 November 2008”, for “29 November 2008” in paragraph 6 (1) of the conclusions.

2. The more substantive argument advanced by the respondents’ solicitor related to the tribunal’s conclusion in the Decision that the claimant’s age discrimination complaint was in time. The tribunal was referred to, and carefully considered the case of Joshi v Manchester Council UK EAT/0235/07/DA (“Joshi”) in relation to the time period of three months for presenting a claim to the tribunal in the age discrimination complaint. The essence of that decision is summarised by Judge McMullan in paragraph 22 of his judgement as follows:

“In short, the practitioner’s rule of thumb that the time for presentation of a claim is three months less a day after the relevant event means that when an extension of time is given pursuant to the 2002 Act and Regulations, the time limit is six months less a day”.

3. Following his analysis of Joshi, Mr Broom contended, for the purposes of the age discrimination complaint, that the normal time limit expired on

27 February 2009 and, taking into account the extension under Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“The 2004 Regulations”) the extended time limit expired on 28 May 2009. Alternatively, he contended that should the tribunal confirm that the normal time limit expired on 28 February 2009, then, under the Regulations the extended time limit expired on 31 May 2009. The claimant had presented her claim to the tribunal on 1 June 2009. Mr Broom also referred to Section 39 of the Interpretation Act (Northern Ireland) 1954 (“The Interpretation Act”) which states, inter alia:-

“(2) Where in an enactment a period of time is expressed to begin on, or to be reckoned from, particular day, that day shall not be included in the period.

(3) Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period …

(6) In an enactment - …

(c) a reference to a month shall be construed as a reference to a calendar month;”

4. The Interpretation Act applies to the Employment (Northern Ireland) Order 2003 (“The 2003 Order”). The 2004 Regulations are made under the 2003 Order. Furthermore the Interpretation Act applies to the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“The Age Regulations”).

5. It has long been accepted in this jurisdiction, based on the provisions of Section 39 of the Interpretation Act, that, as distinct from Great Britain, the three month time period relating, in this case to an age discrimination complaint, does not mean three months less a day. Therefore, and consistent with decisions in this jurisdiction, the tribunal is satisfied that its analysis of the time limits in the decision correct. However, should the Tribunal’s analysis be incorrect on this point, the tribunal is satisfied, based on the findings of fact in the Decision, that it would be appropriate to extend time under Article 48 (4) of the Age Regulations.

Chairman:

Date and place of hearing: 27 July 2010, Belfast.

Date decision issued to parties:

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