Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01413_10IT.html
Cite as: [2011] NIIT 01413_10IT, [2011] NIIT 1413_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1413/10

1800/10

CLAIMANTS: 1. Daphne Leahy

2. Kathleen Anne Doyle

RESPONDENTS: 1. The Department of Finance and Personnel

2. The Department of Social Development

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that their equal pay claims are dismissed and that it does not have jurisdiction to hear the claimants’ claims for disability discrimination as they have not brought their claims within the statutory time limits. The claims are therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr B Greene

Appearances:

The claimants appeared in person.

The respondents were represented by Miss Jackie Simpson, of counsel, instructed by the Departmental Solicitors Office.

Mr Kieran Bannon of NIPSA was also in attendance.

SOURCES OF EVIDENCE

1. The tribunal heard from both claimants. The respondents did not adduce any oral evidence. The tribunal received a bundle of documents amounting to 214 pages. The tribunal also heard a submission from, Kieran Bannon of NIPSA in relation to the third pre-hearing review issue

THE CLAIM AND DEFENCE

2. Both claimants claimed discrimination on the basis of equal pay and disability. The respondents disputed the claimants’ claims in their entirety. The respondents also asserted that the claims were outside the statutory time limits and should not be accepted on that basis and in addition that they had not complied with the statutory grievance procedures.

3. On 19 October 2010 at a Case Management Discussion the tribunal directed that a
Pre-hearing Review be listed for 28 January 2011.

THE ISSUES

4. The issues to be determined at the Pre-hearing Review were:-

(1) Whether the tribunal has jurisdiction to hear the claimants’ claims in respect of equal pay and disability discrimination in light of the statutory time limits applicable thereto.

(2) Whether the tribunal has jurisdiction to hear and determine the claimants’ claims in respect of equal pay and disability discrimination in light of the requirements to comply with the statutory grievance procedures.

(3) Whether the claimants’ applications to join NIPSA as a respondent to the proceedings should be granted.

In the course of the hearing both claimants withdrew their claims for equal pay. Accordingly those elements of the Pre-hearing Review issues in relation to equal pay no longer require to be considered.

FINDINGS OF FACT

5. (1) The first claimant presented her claim for disability discrimination on 18 May 2010. The second claimant presented her claim for disability discrimination on 19 July 2010.

(2) The first claimant was employed by the second respondent and paid by the first respondent from 21 April 1975 until 31 January 2007 when she retired on ill health grounds. The ill health retirement arose because the claimant considered herself to be unfit for work and actively pursued retirement on ill health grounds despite resistance from the second respondent.

(3) The second claimant was employed from 1 January 1968 until 12 June 2008 by the second respondent and paid by the first respondent. She retired on ill health grounds on 12 June 2008. She actively sought retirement on medical grounds as she considered herself unfit to continue in work.

(4) Both claimants were members of the NIPSA trade union at all material times.

(5) In or about February 2009 the NIPSA trade union concluded a settlement with the first respondent in relation to an equal pay claim brought by a number of civil servants. The settlement applied to grades of civil servants who had been employed up to August 2008.

(6) Both claimants, as members of the trade union, assumed that they would be covered by any discussions and settlement in relation to an equal pay claim between NIPSA and the first respondent.

(7) In or about December 2009 the first claimant became aware, through a conversation with a former colleague, that she was not covered by the settlement agreement of the equal pay claim between the first respondent and NIPSA. On foot of that she wrote to Mr Eddie McGrady MLA. The letter of 17 December 2009, was passed onto her employer, the second respondent, and also to the first respondent. In the letter she complained about not being part of the equal pay settlement. She added in her letter:-

“• They regrettably failed to deliver any such equality/actively discriminating against the several hundred Civil Servants who by reason of age or ill health retired during the period 2003-2008, and who failed to pursue any equal pay claim against their employer within six months of leaving or retiring.”

(8) The first claimant then lodged a claim for equal pay and disability discrimination on 29 December 2009. The claim was rejected as the claimant had not waited 28 days from the lodging of her grievance to the presentation of her claim form. Initially the claimant sought a review of the decision not to accept her claim form. However at the hearing of the application for review the claimant withdrew her claim for a review. Accordingly the rejection of her claim was affirmed. Thereafter the first claimant presented a new claim to the Office of the Tribunals on 18 May 2010 in which she made a claim for equal pay and disability discrimination arising from the same facts as in her previous claim.

(9) The second claimant became aware in December 2009 also that she was not covered by the equal pay settlement. She then discussed the matter with the first claimant.

(10) On 2 March 2010 the second claimant wrote to Mr John McKernan, Corporate HR with the first respondent, about her equal pay claim and stated that she was making an equal pay claim and seeking certain information from the first respondent. In the letter she did not mention disability discrimination. Subsequently on 11 May 2010 the second claimant wrote another letter to Mr McKernan in which she asked that her case for equal pay be looked at under the terms of the Disability Discrimination Act as amended. She then presented a claim for equal pay and disability discrimination on19 July 2010.

(11) Arising from their retirement on ill health grounds both claimants were under the care of Dr McCleery, Consultant Psychiatrist, in connection with mental health issues. They continue to be under the care of Dr McCleery and the Community Mental Health Services.

(12) Both claimants discussed their potential claims with each other and prepared their own claim forms without the benefit of legal advice but clearly with some assistance as to the nature of equal pay claims and disability discrimination claims and the appropriate time limits for bringing such claims.

(13) Both claimants state that they only became aware of the disability discrimination in or about December 2009 when they found out that they were not covered by the equal pay settlement negotiated between the first respondent and NIPSA. Both claimants argued that the refusal of the first and second respondents to include them in the equal pay settlement arose because of their dismissal and their dismissal itself arose by reason of their disability and that this amounted to disability discrimination. They further argued, that as they only became aware of that when they found out in December 2009 that they were not covered by the settlement, that time should only begin to run from December 2009 for the purposes of the Disability Discrimination Act.

THE LAW

6. (1) A tribunal shall not consider a complaint of disability discrimination unless it is presented before the end of the period of three months beginning when the act complained of was done (Schedule 3, 3(1) Disability Discrimination Act 1995, as amended.

(2) A tribunal may consider a complaint which is out of time, if in all the circumstances of the case, it considers it just and equitable to do so (Schedule 3, 3(2) Disability Discrimination Act 1995, as amended).

(3) Where a complaint of disability discrimination is made after the three month period and the complainant has complied with the applicable statutory grievance procedure the three month period for lodging a claim is extended for a period of three months (Regulation 15(1) (b) and (3) (b) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004).

(4) An employee bringing a claim for disability discrimination must present a grievance in writing to the employer and wait at least 28 days before presenting his claim to an industrial tribunal (Article 19 of the Employment (Northern Ireland) Order 2003).

(5) A complainant satisfies the requirements of lodging a grievance with his employer if the employer, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised (Canary Wharf Management Limited – v- EDEBI [2006] IRLR 416).

(6) Article 19(2) of the Employment (Northern Ireland) Order 2003, which prevents an employee from presenting a complaint to an employment tribunal where Step 1 or the Statutory Grievance Procedure was not complied with until, “… more than one month after the end of the original time limit for making the complaint”, does not have the effect of displacing the tribunal’s discretion to extend time in discrimination cases on just and equitable grounds (Bupa Care Homes Limited – v – Cann [2006] IRLR 248).

(7) The discretion to grant an extension of time under the ‘just and equitable’ formula has been held to be as wide as that given to the civil courts by Section 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal Corporation – v- Keeble [1997] IRLR 336, DPP – v – Marshall [1998] ICR 518). Under that section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular:

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

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

the extent to which the parties sued have cooperated with any request for information;

the promptness with which the claimant acted once he/she knew of the facts giving rise to the cause of action; and

the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

However, although, in the exercise of the discretion under the ‘just and equitable’ formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’, (Southark London Borough - v - Afolabi [2003] ICR 800, at paragraph 33).

(8) An employee is not required to present a grievance where the act complained of is the dismissal of the employee (Schedule 1, 1(5) (b), the Industrial Tribunals (Constitution and Rules for Procedure) Regulations (Northern Ireland) 2005).

(9) The use of the statutory grievance procedure is not required where the discrimination claim relates to the claimant’s dismissal (Lawrence v HM Prison Service [2007] IRLR 468).

APPLICATION OF THE LAW AND THE FINDINGS OF FACTS TO THE ISSUES

7. (1) Both claimants abandoned their claims under the Equal Pay Act and therefore it is unnecessary for the tribunal to consider those aspects of the preliminary issues in relation to equal pay. Accordingly the claimants’ equal pay claims are dismissed.

(2) For the purposes of the disability discrimination claim the tribunal treated both applicants as being under a disability, although the respondents indicated that should this matter progress that may well be in dispute.

(3) Both claimants stated that the discrimination occurred by reason of their dismissals. For the purposes of a disability discrimination claim the last possible date on which the second respondent could discriminate against either claimant was on the date of their dismissals, 31 January 2007 and 12 June 2008.

(4) As the discrimination claims arise from the dismissal of the claimants the statutory grievance procedure does not apply and neither claimant gets the extension of time associated with the presentation of a grievance.

(5) The remaining part of the second preliminary issue is therefore answered in the affirmative.

(6) In order that their claims proceed further both claimants need the exercise of the tribunal’s discretion in their favour.

(7) The first claimant’s claim is late by three years three and a half months. The second claimant’s claim is late by two years and one month.

(8) The claimants reasons for the delay are;-

(a) They assumed they were part of the group on behalf of whom NIPSA was negotiating.

Their health was such that they could not bring the claims earlier.

(9) The claimants do not refer to any specific reason for the delay from December 2009 until 18 May 2010 and 19 July 2010 when the first and second claimants respectively presented their claims.

Both claimants presented their evidence with honesty and sincerity.

Clearly both claimants have suffered from medical conditions for a considerable period of time. However despite those difficulties they were able to pursue their grievances with their former employer and launch claims before the tribunal personally. I am not satisfied that their medical conditions explain the delay in making their claims.

Neither claimant adduced evidence to explain why they assumed they would be included in the negotiations between NIPSA and first respondent, nor what steps they took to update themselves on developments or the progress of the negotiation. Nor was any evidence adduced to show when persons in the claimants’ position ceased to be covered by the negotiations between NIPSA and the first respondent, if they were ever included in the negotiations.

Even if the tribunal were to accept that the claimants were not aware of their disability claim until December 2009 neither claimant pursued the lodging of their claims with the degree of expedition that is required. The first claimant withdrew her first claim on 26 February 2010 and it was not until 18 May 2010 that she lodged her second claim. The first claimant did not provide a persuasive explanation as to why she could not have presented the claim earlier.

The second claimant did not lodge her claim until 19 July 2010. Neither did she provide a persuasive explanation why it took her almost seven months to bring her claim from when she became aware that she was not covered by the agreement between NIPSA and the first respondent.

In the circumstances the tribunal is not persuaded that it is just and equitable to exercise its discretion to extend time to enable the claimants to proceed with their claims. Accordingly the remaining part of the first pre-hearing review issue is answered in the negative. The tribunal therefore dismisses the claimants’ claims for disability discrimination.

The third pre-hearing review issue is also answered in the negative. The potential joinder of NIPSA, as a respondent only relates to the equal pay claim and when it was withdrawn the potential joinder of NIPSA ceases to be relevant to the claimants’ claims.

Chairman:

Date and place of hearing: 28 January and 18 February 2011

Date decision recorded in register and issued to parties: