Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/00125_10IT.html
Cite as: [2010] NIIT 125_10IT, [2010] NIIT 00125_10IT

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 125/10 FET

CLAIMANT: Lynsey Anne Houston-Mailey

RESPONDENTS: 1. Ballykelly Primary School

2. Western Education and Library Board

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claimant’s claim has not been presented within the specified time-limit and that it is not just and equitable, in all the circumstances of the case, to consider this complaint despite the fact that it is out of time.

Constitution of Tribunal:

Chairman (sitting alone): Mr Duncan Buchanan

Appearances:

Neither the claimant nor her representative on record appeared.

The respondents were represented by Ms A Finnegan, Barrister-at-Law, instructed by Education & Library Board’s Solicitors.

1. By a claim form presented to the Tribunal on 2 September 2010 the claimant alleged that she had been discriminated against by the respondents on the grounds of religious belief and/or political opinion when she was dismissed from her teaching post at Ballykelly Primary School on 31 August 2009 on the ground of redundancy. (She did not have the necessary continuity of employment to bring an unfair dismissal claim.)

2. The respondents contended that her claim was out of time, and following a Case Management Discussion on 11 January 2011, the matter was listed for a pre-hearing review on the following issues:-

(i) Was the application presented within the specified time-limit?

(ii) If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this complaint despite the fact that it was out of time?

3(i) Neither the claimant nor her representative on record attended the hearing. Her representative, Mr Cubitt, appears to be a local councillor in Limavady. They did not communicate with the Office of the Tribunals to state they would not be attending or to provide any reason for non-attendance. A Notice of Hearing for a listing on 7 February 2011 was sent to each of them on 18 January 2011, and prior to that on 4 January 2011 the claimant’s representative had been in contact with the respondents’ solicitors requesting discovery.

It is for the claimant to make her case, but in considering this matter I have had regard to the contents of her claim form.

(ii) I find the facts set out in the following paragraphs.

4. The claimant’s employment was terminated on 31 August 2009. She was one of four teachers (all Protestant) made redundant on that date. As this was an alleged discriminatory dismissal, which she did not appeal at the time, she cannot avail of the extension of time provisions contained in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, and the normal time-limit for bringing a complaint in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 applies. Looking at Article 46 on the most favourable basis to the claimant, her claim became time-barred after six months, ie on 28 February 2010.

This claim is therefore at least six months out of time.

5. In her claim form the claimant stated, at Paragraph 7.3, that she first knew of the matter about which she was complaining on 31 March 2009, and that she realised that she had been discriminated against in late July 2010, following a decision of the Tribunal issued earlier that month, in which one of the other three teachers who had been made redundant at the same time as her succeeded in a claim of religious discrimination against the same respondents.

6. There is, however, apart from the contents of the claim form, no other evidence from the claimant before me. It is clear that at the time the redundancy exercise was controversial, and the other three teachers brought claims. In addition to the one which succeeded at hearing the other two were ultimately settled. The claimant is a member of the Ulster Teachers’ Union (‘UTU’), which backed the claim which went to a full hearing. Additionally the UTU representative was active in the period following the announcement of the redundancies in making representations to the school’s Staffing Committee, its Board of Governors, and the Western Board. If the other claimants could start proceedings in time, then it is difficult to see why the claimant could not also have done so.

7. I am conscious of the fact that the ‘just and equitable’ rule found in discrimination law is not as strict as the ‘reasonably practicable’ ground for extending time found in relation to other employment rights. However, time-limits should be observed unless there is good reason to the contrary.

There is no material before me which provides any basis for the exercise of my discretion to extend time, and I decline to do so.

The Tribunal therefore has no jurisdiction to hear this claim and I dismiss it.

8. The respondents’ counsel had previously indicated, at the Case Management Discussion held on 11 January 2011, that if the claimant were unsuccessful in her claim, the respondents would be asking for costs against her. For understandable, pragmatic reasons, they decided not to pursue the issue of costs. This works out as a generous decision on their part from the point of view of the claimant, and she and her representative should be most grateful and consider themselves lucky. As far as the application to extend time was concerned, it was devoid of merit.

Chairman:

Date and place of hearing: 7 February 2011, Belfast

Date decision recorded in register and issued to parties:

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