Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01226_11IT.html
Cite as: [2011] NIIT 1226_11IT, [2011] NIIT 01226_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1226/11

CLAIMANT: Roberta Feeney

RESPONDENT: WG Hamilton Chemists Ltd T/A WG Hamilton Chemist

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1) The claimant’s claim of unfair dismissal was presented to the tribunal out of time and the tribunal was 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.

(2) The tribunal therefore does not have jurisdiction to consider the claimant’s claim of unfair dismissal and it is therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr P Moore, of PM Associates.

The respondent was represented by Ms C Murphy, Solicitor, of Carson McDowell, Solicitors.

Reasons

1.1 The claimant presented a claim of unfair dismissal to the tribunal on 24 May 2011. The respondent presented to the tribunal a response to the claimant’s claim on 28 June 2011, in which it denied liability for the claimant’s claim but also raised the issue that the claim made by the claimant was outside the relevant three month time-limit for bringing such a claim, as set out in Article 145 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).

1.2 At a Case Management Discussion held on 8 September 2011, as set out in the Record of Proceedings, dated 8 September 2011, it was agreed the claimant was dismissed by the respondent on 5 February 2011, and that the claim of unfair dismissal made by the claimant was therefore out of time. In light of the foregoing, it was agreed that a pre-hearing review should be arranged to consider the following issue, namely:-

“Whether it was reasonably practicable for the claimant’s complaint to be presented within the three month time-limit, and if not, whether it was presented to the tribunal within such further period as the tribunal considers reasonable?”

2.1 Having heard oral evidence from the claimant and her husband, Michael Feeney, and after consideration of submissions by the representatives of the parties, I made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the issues referred to above.

2.2 The claimant, who had been diagnosed with hypertension since 2004, suffered from ongoing depression from in or about May 2009, due to family difficulties, which arose following the break-up of her son’s marriage in circumstances where her daughter-in-law also worked for the respondent. Despite her depression the claimant was able to continue to work at the respondent’s premises until her summary dismissal for gross misconduct on 5 February 2011, following a disciplinary hearing which was heard on 1 February 2011. The claimant was also able to attend the disciplinary hearing. Although she was not a member of a trade union, she was accompanied, as her chosen companion under the respondent’s disciplinary procedures, by Thomas Kielty, a Trade Union Official from the Amicus Trade Union, who was also the claimant’s brother-in-law. Mr Kielty was asked to attend in the above capacity because Michael Feeney, who had wished to attend and act as his wife’s representative, was not entitled to do so under the respondent’s disciplinary procedures.

2.3 The claimant appealed the said decision to dismiss her in a letter dated 7 February 2011. The letter of appeal, which set out in considerable detail the claimant’s case, was drafted for the claimant by Michael Feeney, on the basis of full instructions which were given to him by the claimant; which I noted she was clearly able to give her husband, despite her depression. The letter concluded, inter alia, by stating:-

“ … Based on these facts alone, I feel that the proper disciplinary procedure had not been followed and that I have been unfairly treated.”

The claimant then attended an appeal hearing on 22 February 2011. For the same reasons as set out above, the claimant was accompanied by Mr Kielty and not by Michael Feeney. There was no evidence that the claimant, due to her depression, was unable to take part in either the disciplinary hearing or the appeal hearing. By letter dated 28 February 2011, the claimant was informed that her appeal against dismissal had been unsuccessful. She was also informed, in the letter, this concluded the disciplinary appeal procedure and there was no further right of appeal.

2.4 I am satisfied that, although Michael Feeney was unable to attend either the disciplinary hearing and/or the appeal hearing, he, at all material times, in relation to this matter with the agreement of the claimant, was acting as her representative/ adviser and, in that capacity, he had written the letter of appeal. I am satisfied that, in the absence of Michael Feeney, for the reasons set out above, Mr Kielty, who did not give evidence to the tribunal, was asked to accompany the claimant to both hearings, as a personal favour, because he was the claimant’s brother-in-law but also because he was a trade union official, who was allowed to attend such a hearing under the procedures.

However, neither the claimant nor Michael Feeney, at any time, asked Mr Kielty to give any advice about what further steps, if any, should be taken by the claimant, following her said dismissal, given the failure to have the decision reversed on appeal and, in particular, in relation to any tribunal proceedings or the time-limits for bringing any such claim.

2.5 I am further satisfied that Michael Feeney, acting as the claimant’s representative/adviser was fully aware that the claimant was entitled, following her said dismissal, to bring proceedings in the tribunal for unfair dismissal. During the course of the evidence, it was stated by Michael Feeney, that, immediately after the conclusion of the appeal hearing during a conversation in the car park, Mr Kielty had repeated to him what he had said to the appeal panel during the course of the appeal hearing, which was the claimant was not ‘officially’ dismissed until the outcome of the appeal. In the absence of any evidence from Mr Kielty, it was not clear to me what he had meant by saying the claimant was not ‘officially dismissed’; but, in any event, I concluded this was not said, following any request for advice by the claimant and/or her husband about the date of the claimant’s dismissal and, in particular, about the time-limits for bringing any such proceedings following such dismissal.

2.6 Michael Feeney gave evidence to the tribunal that, immediately following the appeal hearing, on 22 February 2011, the claimant went into ‘deep, deep depression’. He said that he had concentrated, in the period after the appeal hearing, in trying to keep his family together, to support his son and grandchildren despite his son’s matrimonial difficulties, to care for his wife, as best he could, and to maintain his own employment, despite the above difficulties. Although, as set out above, at all times he was acting as the claimant’s representative/advisor in relation to these matters, he acknowledged that he took no steps, following the appeal hearing, to take any steps to enable him to proceed, on his wife’s behalf, with any tribunal claim for unfair dismissal or to ascertain what were the relevant time-limits for doing so. After the appeal he did not seek the advice of his brother-in-law, Mr Kielty, a trade union official, nor did he make any attempt to seek any other legal or other advice in relation to what he, at all times, considered was his wife’s unfair dismissal. Michael Feeney fairly accepted, as shown by the letter of appeal drafted by him, he had been given by his wife all the necessary and material fact to enable him to bring a claim for unfair dismissal, on behalf of his wife, who had left all these matters in his hands, subject to him obtaining from his wife her ‘formal’ authority/instruction to proceed. I am satisfied it was clearly his decision, as her representative/adviser, to take no further or other relevant action to pursue any claim of unfair dismissal on behalf of the claimant during the period following the appeal hearing, after he had decided to give priority to the other matters referred to above.

2.7 Whilst is was not disputed by the respondent’s representative, during the course of this hearing, that the claimant, throughout this period, was suffering from depression, there was no relevant evidence produced to the tribunal that, following the claimant’s appeal, she went into a ‘deep, deep depression’. Indeed, if there had been such a serious deterioration in her condition, the tribunal would have expected the GP’s notes and records to have reflected such a deterioration. The notes, in my judgment, did not show such a deterioration. Further, there was nothing, in the said medical records produced to the tribunal, to suggest that, following the disciplinary hearing and/or the appeal hearing and/or the period thereafter, the claimant was not in a position to give relevant authority/instructions to her husband, if he had wanted to obtain them, to proceed with a claim for unfair dismissal. The claimant’s General Practitioner did not give evidence to the tribunal. A report dated 23 September 2011, was produced in evidence by the claimant, which report the tribunal found most unsatisfactory and unhelpful. Whilst confirming the claimant’s depression since in or about May 2009, it gave no relevant details of any attendances during the period and, in particular, gave no indication of any serious deterioration in her condition, of the type described by Michael Feeney, following the appeal hearing and before the presentation of the claim on 24 May 2011. Further, it gave no details about the type of medication, which had been prescribed for the claimant, its effects, if any, and whether there had been any alteration in the level of medication during the said period and, if so, what was the change and the effect of same. I fully accept that during this period, Michael Feeney was asking the claimant’s General Practitioner to obtain a referral for the claimant, for her depression, to the Psychiatric Nurse at the Everton Centre; but I am not satisfied, in the absence of relevant medical evidence, as indicated above, that her ill-health was in such a state at this time that she could not give the formal authority/instructions to proceed, if she had been asked to do so by her husband, to whom she had entrusted the task of acting on her behalf in this matter. Further, there was no evidence produced to the tribunal from the Psychiatric Nurse, either oral or written, about the claimant’s medical condition at any relevant time; although it has to be noted he did not begin any treatment of the claimant, following a referral by the General Practitioner, until 24 May 2011 (the date of the presentation of the claim form).

2.8 On 16 May 2011, Michael Feeney approached the managing director of the firm where he worked, as he felt he was not coping with his work, given his wife’s health and the family pressures arising from the break-up of his son’s marriage, to which reference has been made above. Significantly, he did not go to the managing director of his firm to obtain guidance/help in relation to his wife’s claim for unfair dismissal, but in relation to his own problems in coping with his work. However, during the course of the discussion with the managing director, Michael Feeney referred to the dismissal of his wife. In light of what he was told, by Michael Feeney about his wife’s dismissal, the managing director told Michael Feeney to seek some advice about pursuing the matter; and, in particular, he put him in touch with Mr Pat Moore, the claimant’s representative at these proceedings. Michael Feeney, who until then had not taken any such action, immediately contacted Mr Moore on 16 May 2011, but he was unavailable to discuss the matter at that time. Mr Moore returned the claimant’s call on 17 May 2011. During the course of his telephone conversations with Mr Moore, Michael Feeney told Mr Moore that his wife had been dismissed on 28 February 2011, which he now accepts was not correct. Mr Moore agreed to forward a claim form to Michael Feeney to enable him to fill in the relevant details, Mr Moore also told him, in light of what he had been told about the dismissal date, to ensure that the claim form was presented to the tribunal on or before 27 May 2011. Mr Moore was not asked to present the claim form. Following receipt of the form from Mr Moore on 17 May 2011, Michael Feeney filled in the details of the claimant’s claim of unfair dismissal on or about 21/22 May 2011. He did so, without any input from the claimant herself, as he knew all the relevant details, as set out in the letter of appeal. However, despite filling in the form, he did not ask his wife for her formal authority/instruction to present the claim, until immediately following her first meeting with the Psychiatric Nurse on 24 May 2011. At that time he told his wife that he thought that, to bring a claim to the tribunal, was the only way to bring some form of closure for her in relation to her dismissal. In light of what he said the claimant readily gave him the necessary authority/instructions to present the claim form to the tribunal, which he had already filled in; and Michael Feeney did so on 24 May 2011, as set out previously.

3.1 It was agreed the claimant’s claim was out of time. The claimant was dismissed on 5 February 2011 and therefore, if the claimant was to bring the claim in time, she would have had to do so by on before 5 May 2011. In the circumstances, the claimant therefore sought an extension of time, pursuant to Article 145 of the 1996 Order.

3.2 Under 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 a 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.”

3.3 The claimant who seeks an extension of time, pursuant to Article 145(2)(b) of the 1996 Order has to establish two matters:-

“(a) was it reasonably practicable to present the claim in time; or

(b) if it was not, did the claimant bring the complaint within a further reasonable period?”

In the relation to the test of ‘reasonably practicable’, the Court of Appeal, in the case of Marks & Spencer v Williams-Ryan [2008] ICR 193 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 feasible’ for the complaint to be presented to the tribunal within the relevant three months.

However, it is well recognised that the test of ‘reasonably practicable’ is much narrower and harder for a claimant to establish than the test of ‘just and equitable’, which allows time to be extended in, for example, discrimination cases. The wider ‘just and equitable’ test is not what Parliament has provided under Article 145(2) of the 1996 Order; although it could have done so had it thought it appropriate. In the course of his judgment in the Palmer and Saunders case, May LJ referred to a number of factors which a tribunal should consider, amongst other things, but emphasised that these factors were not exhaustive but should form a useful starting point. These included:-

(a) the manner in which, and the reason for which, the employee was dismissed, including any internal ‘conciliatory appeal procedures’;

(b) the substantial cause of the employee’s failure to comply with the statutory time-limit;

(d) whether there had been any misrepresentation about any relevant matter by the employer to the employee;

(e) whether the employee was advised at any material time and, if so, by whom; the extent of the adviser’s knowledge of the facts of the case and the advice given to the employee.

In the case of Walls Meat Company Ltd v Khan [1979] ICR 52 other factors were suggested by Brandon LJ including physical impediment, such as illness, but emphasised that any such impediment must be an impediment which reasonably inhibits the performance of the relevant act, namely the presentation of the claim to the tribunal (see further Defer-Wyatt v Williams [2003] UKEAT/0270) This requires careful consideration of any evidence relating to the seriousness of the illness over the three month period, albeit the focus will be on the later part of that period (see Schultz v Esso Petroleum Ltd [1999] IRLR 488).

Where an employee has knowledge of his or her rights to claim unfair dismissal, there is an obligation on the employee to seek information or advice about the enforcement of those rights (see Trevelyans (Birmingham) Ltd v Norton [1991] IRLR 488). In this case, as set out above, the claimant entrusted that task to her husband. In a recent case, Reed in Partnership v Fraine [2011] UKEAT/0520, ignorance of the time-limits was not found to be reasonable, where a claimant was aware of her rights to claim, but made no further enquiries about how or when to do so. Michael Feeney knew of the rights of his wife, the claimant, to claim; but he took no steps to enquire about how or when to present the claim until 16 May 2011, which was already outside the relevant three month time-limit.

3.4 At the hearing of this pre-hearing review, Mr Moore, on behalf of the claimant, focused on the illness of the claimant, namely her depression, for the failure to present the claim in time. Whilst I accept the claimant was suffering from depression, I was not satisfied, in the absence of relevant medical evidence, that the claimant’s condition deteriorated, following the appeal hearing, to such an extent, that she was unable to give her husband, to whom she had entrusted the matter, the necessary formal authority/instruction to present her claim to the tribunal at any time during the relevant three month period, which expired, as set out above, on 5 May 2011. The claimant was able to attend the disciplinary hearing and the appeal hearing and there was no evidence that she was unable to take part in the said hearings. She was also able to give her husband, who at all material times acted as her representative/adviser, in relation to the matter, full instructions relating to her dismissal to enable him to write the letter of appeal. When he did fill in the claim form on or about 21/22 May 2011, he did not require to obtain any further instructions about the details of her claim. He only had to seek formal instruction/authority, which she was able to readily give him on 24 May 2011, when he asked for it. There was no suggestion her depression impeded him in obtaining that authority/instruction. I can fully understand, in the circumstances, Michael Feeney’s reluctance to take any further action until the outcome of the appeal was known, which happened upon receipt of the letter dated on or about 1 March 2011, informing the claimant that her appeal had been unsuccessful and that therefore she remained dismissed. Following notification of the unsuccessful appeal, Michael Feeney, had all the relevant facts, relating to the claimant’s dismissal, to enable him to pursue the matter on behalf of his wife. However, he made no attempt to seek advice from any relevant person and, in particular, to ascertain when any such claim had to be brought. He never sought, for example, to obtain any advice from his brother-in-law, who was a trade union official. Indeed, whenever he spoke to his managing director on 16 May 2011, which was already outside the relevant period in order to bring a claim, it was not to seek advice about his wife’s claim of unfair dismissal, but rather to discuss his own employment position. It was only, during the course of this conversation, that, indirectly, the circumstances of his wife’s dismissal came to be discussed and he was put in contact with Mr Moore. Having being put in touch with Mr Moore on 16/17 May 2011, Michael Feeney, without the necessity to obtain further information from his wife, was able, reasonably quickly thereafter, to fill in the relevant details on the claim form, which had been sent to him by Mr Moore, and to obtain his wife’s formal authority/instruction to proceed with the claim of unfair dismissal. In particular, there was no evidence to suggest that, due to the claimant’s medical condition, such authority/instruction could not have been given at any time following the notification of the successful appeal, if Michael Feeney had ever sought such authority/instruction from her. In my judgment, the claimant’s ill-health was not so serious that, at any material time, it was an impediment which reasonably prevented the claimant from bringing her claim in time. This was not, on the facts found by me, a case where there was relevant medical evidence as, for example, in the case of Abbey National PLC v Riddick [2004] UKEAT0369, relied on by Mr Moore, where the detailed medical evidence in that case had shown that the claimant’s medical condition had only recently improved, following the expiry of the relevant time-limit, to a level where the claimant, in that case, could initiate and/or take part in proceedings.

3.5 In the circumstances, I was therefore not satisfied that it was not reasonably practicable for the claimant’s claim 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 of unfair dismissal and it must therefore be dismissed.

Chairman:

Date and place of hearing: 17 October 2011, Belfast

Date decision recorded in register and issued to parties: