Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/1044_11IT.html
Cite as: [2011] NIIT 1044_11IT, [2011] NIIT 01044_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1044/11

CLAIMANT: Paul Thompson

RESPONDENT: JMT Direct Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal has jurisdiction to consider the claimant’s claim of unfair dismissal. Although the claimant’s claim was not presented to the tribunal before the end of the period of three months ending with the effective date of termination, the claim was brought within a reasonable period thereafter in circumstances where the tribunal was satisfied it was not reasonably practicable for the complaint to be presented before the end of the said period of three months.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant did not appear but was represented by Mr R Thompson, the father of the claimant.

The respondent was represented by Ms P Rooney, Solicitor, of Tughans, Solicitors.

Reasons

1.1 The claimant presented of unfair dismissal to the tribunal on 27 April 2011. It was not disputed by the parties that the claimant was dismissed by the respondent on 24 January 2011; and that he had been notified of his appeal against dismissal by the respondent, by letter dated 16 February 2011. In the respondent’s response presented to the tribunal on 9 June 2011, the respondent claimed that the claimant’s claim was out of time, pursuant to the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’). The respondent subsequently made an application for the said time-issue to be determined at a pre-hearing review, which was granted by the tribunal.

1.2 As a consequence of the foregoing, this hearing was arranged to consider the following issue:-

“Whether the tribunal has jurisdiction to entertain the claimant’s complaint of unfair dismissal in view of the provisions of Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, if applicable, regarding the time-limit for presenting the said claim.”

1.3 It was not disputed by the parties that, in view of the date of the notification of the rejection of the claimant’s appeal against dismissal, as set out above, Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 had no application to the issue of time in this matter and did not require to be further considered by the tribunal.

1.4 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 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.”

1.5 It was not disputed at this hearing that, since the claimant was dismissed by the respondent on 24 January 2011, the relevant date for compliance with the said three month period set out in Article 145(2)(a) of the 1996 Order was 24 April 2011; albeit the claimant’s representative, who presented the claimant’s claim to the tribunal, as set out elsewhere in this decision, had wrongly believed that the said three month period ended on 23 April 2011. This would be the relevant date in Great Britain but not in Northern Ireland (see further Section 39 of the Interpretation Act (Northern Ireland) 1954). In the circumstances, therefore, since the claim had been presented to the tribunal on 27 April 2011 and this was outside the said three month period, the main focus of the hearing related to whether the time for presenting the claim could be extended, pursuant to the provisions of Article 145(2)(b) of the 1996 Order.

2.1 In considering the said time-issue in relation to the claimant’s claim of unfair dismissal, I made the following findings of fact, insofar as relevant and material:-

(a) Robert Thompson, the claimant’s father and his representative for the purposes of these proceedings, wrote out the details of the claimant’s claim on the claimant’s claim form by hand and he then made arrangements to have the claimant’s claim form presented to the tribunal on the claimant’s behalf. At all times material to this matter, Robert Thompson was aware of the three month time-limit for bringing a claim to the tribunal; but wrongly believed that the said period ended on 23 April 2011 and not 24 April 2011, as set out above. He was also aware of the ability for a claimant to present a claim to the tribunal online and/or by e-mail; although he could use a computer, he was not very good at such use and always preferred to write such documents by hand and then to make arrangements to have them posted, using Royal Mail.

(b) Aware of the necessity to comply with the three month time-limit, Robert Thompson decided to post the claim form using the Royal Mail’s Special Delivery Service. He went to this local post office at Rossdowney Park, Londonderry, on Thursday 21 April 2011. Good Friday, 22 April 2011, was the next day. Normally, the Special Delivery Service of Royal Mail guarantees delivery the next day; but this excludes, for example Bank Holidays, such as Good Friday and/or Easter Monday. Indeed, there were no deliveries or collections by Royal Mail on either Good Friday or Easter Monday. Although Mr Thompson did not recall whether he was told there would be no such deliveries on those days when he purchased the Special Delivery Service, he believed that it was likely that he was because he paid at the post office, not only the sum of £6.54 for the Special Delivery Service, but also an additional sum of £2.70 for Saturday delivery. Unknown to Mr Thompson, the tribunal has no postal delivery service on a Saturday, as it has no post-box for such a delivery. Further, the tribunal was closed for the Easter holidays, on Monday 25 April 2011 and Tuesday 26 April 2011. As a consequence of the foregoing, the claimant’s claim form, posted on 21 April 2011 by Special Delivery Service, was not able to be delivered by Royal Mail to the tribunal until Wednesday 27 April 2011. Mr Thompson contended, which I accept, that he had had a reasonable belief/ expectation that, by so posting it on Thursday 21 April 2011, the claim form would have been received by the tribunal by Saturday 23 April 2011 and therefore within the said three month period.

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

(a) that it was not reasonably practicable for the claim form to have been presented in time, and on this point, the onus is on him and requires him to show precisely why he did not present his complaint in time; and

(b) that it was then presented within a reasonable time.

In 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 & 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 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 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.

The principles applicable, where an application is posted immediately before the deadline, were fully reviewed by the Court of Appeal in Sealy v Consignia PLC [2002] EWCA Civ 878, Brooke LJ, with the concurrence of the other members of the court, set out guidance which can be summarised as follows:-

(i) A complaint is ‘presented’ when it arrives at the tribunal office.

(ii) If it is proved that it was impossible to present the complaint in time, for example because the office was locked and did not have a letterbox, it is possible to argue that it was not reasonably practicable for the complaint to be presented in time.

(iii) If the complaint is presented by post, it will be assumed, unless the contrary is proved, to have been received at the time that a letter would have been delivered in the ordinary course of post.

(iv) If the letter was sent by First Class post it is legitimate to assume that this would be the second day after it was posted (excluding Sundays, Bank Holidays, Christmas Day and Good Friday) [see further Coldridge v HM Prison Service [UKEAT/0728/04] Unreported. The above presumption is now embodied in the Rules of Procedure at Rule 60(2)(a) which provides that a document duly posted would arrive in the ordinary course of post].

(v) If the letter does not arrive at the expected time, but it is delayed in the post, a tribunal may conclude that it was not reasonably practicable to present it in time.

(vi) If the form is date stamped on a Monday by a tribunal office but the time-limit expired on the preceding Saturday or Sunday, and it is found by the tribunal that it was posted by First Class post not later than the Thursday, it will be open to the tribunal to find as a fact that it arrived on the Saturday (and thus was in time) or alternatively to extend time as a matter of discretion.

(vii) There is no room for any unusual subjective expectation by the claimant that a letter may arrive earlier than the second working day after it is posted. The test is objective.

(viii) If, despite being posted the day before the final day, the application arrives on the final day of the relevant period, it is in time.

To date, there has been no change to the Industrial Tribunal Rules of Procedure to expressly provide, where time for service expires on a non-working day, for time to be extended to the next working day, which is expressly provided in relation to appeals to the Employment Appeal Tribunal in Great Britain (see further the Coldridge case referred to above). In the case of Lancashire v DEK Printing Machines Ltd [UKEAT/623/99], a delay in the post was accepted as justifying an extension of time in a case where the Special Delivery Service was used but for some unknown reason, unlike the circumstances in the present case, delivery was not made on Christmas Eve, as had been expected, which would have allowed the claim to be on time.

Further, as set out in Harvey on Industrial Relations and Employment Law, Volume 3, Section P1, Paragraph 273:-

“Where a claimant is able to establish a reasonable expectation that the claim would arrive in time, and its arrival was only prevented by unexpected or unforeseen circumstances he does not have to explain why he waited until the end of the limitation period to present a claim (see Sealy v Consignia PLC [2002] EWCA Civ 878 at Paragraph 19 of judgment by Hart J). Conversely, if he is not able to show a reasonable expectation, then the whole of the three month period comes under scrutiny and he will have to explain why he left it so long to present his claim if he wants to get the benefit of the escape clause. In distinguishing between the two situations, it is important to bear in mind that the reasonable expectation results from the doing of an act ‘which in the ordinary event would result in a complaint being made within the specified period’. The unforeseen circumstances is only relevant in this context in explaining why the claim did not reach its destination in time … .”

3.2 In light of the above guidance and the facts as found by me, I was satisfied that the claimant’s representative, his father Robert Thompson, had a reasonable expectation/belief that by using the Special Delivery Service of the Royal Mail the claim form would have been presented to the tribunal in time, namely on Saturday 23 April 2011. This would have been within the relevant three month period. In the circumstances, I was satisfied that it was not necessary for me to consider any further why he had waited until the end of the limitation period to present his claim. I was satisfied that it was not therefore reasonably practicable for the complaint to be presented before the end of the three month period. I further accept that Mr Thompson did not know that the tribunal office was not able to accept deliveries by post on Saturday 23 April 2011, in circumstances where the tribunal does not have a post box for any such delivery. The claim form was delivered by Royal Mail on Wednesday 27 April 2011, which was the first day upon which such deliveries could be made, following the closure of the tribunal office for the Easter holiday on Monday 25 April 2011 and Tuesday 26 April 2011. In the circumstances, the claim form was presented within a reasonable time, pursuant to Article 145(2)(b) of the 1996 Order, after the end of the said three month period, on Sunday 24 April 2011.

3.3 Sunday 24 April 2011 was a day when the tribunal office was closed and it was not open again until Wednesday 27 April 2011, due to the Easter holiday. If it had been necessary to do so, I would have also been prepared to accept that, given that the time for service expired on a non-working day, that it was not reasonably practicable for the claim form to have been presented in time and that, by presenting the claim form on Wednesday 27 April 2011, the next working day, the claimant had presented his claim within a reasonable time thereafter.

4.1 The tribunal therefore has jurisdiction to consider the claimant’s claim of unfair dismissal.

Chairman:

Date and place of hearing: 17 August 2011, Belfast

Date decision recorded in register and issued to parties: