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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Vitkauskas v Northern Ireland Transport Hol... [2012] NIIT 01234_11IT (27 January 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/01234_11IT.html
Cite as: [2012] NIIT 1234_11IT, [2012] NIIT 01234_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1234/11
CLAIMANT: Algimantas Vitkauskas
RESPONDENT: Northern Ireland Transport Holding Company
DECISION ON A PRE-HEARING REVIEW
(A) The claimant’s claim of unfair dismissal is dismissed because it was not presented within the relevant primary time-limit and within such further period thereafter as I consider to be reasonable.
(B) The claimant’s claim of discriminatory dismissal (under the Race Relations Order) is dismissed because it was not presented within the primary time-limit provided for in Article 65(1) of the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”) and it is not just and equitable, pursuant to Article 65(7) of that Order, nevertheless to consider that complaint.
(C) Each of the claimant’s claims of discriminatory detrimental treatment, brought under the 1997 Order, is dismissed because each such complaint was not presented within the primary time-limit and it is not just and equitable, pursuant to Article 65(7) of the 1997 Order, nevertheless to consider it.
(D) The claimant’s annual leave claims (his claims in respect of annual leave which have been brought under the unlawful deduction of wages legislation and pursuant to the jurisdiction of industrial tribunals in respect of breach of contract claims) have been brought within the appropriate secondary statutory time-limits.
(E) The claimant’s application for leave to amend his claim form, so as to include claims under the Disability Discrimination Act 1995 (“the 1995 Act”), is refused.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
The claimant was represented by Dr Dmitri Silin.
The respondent was represented by Ms R Penny, Solicitor.
REASONS
1. The claimant is an ethnic Russian, who was brought up in the Ukraine.
2. I am satisfied that the claimant is far from being fluent in English, and has actually a very limited knowledge of the English language.
3. He was employed by the respondent employer (“the Employer”), in a manual occupation, from November 2008 until March 2010.
4. At that point, the claimant was sacked by the Employer, ostensibly because of misconduct.
The actual and contemplated claims
5. In these proceedings, the claimant asserts that misconduct was not the true reason for the dismissal. He says that his dismissal was an act of racism on the part of the Employer.
6. The claimant makes two complaints in relation to the dismissal.
7. The claimant says that it was an unfair dismissal, contrary to the unfair dismissals legislation (mainly because of the alleged racism and alleged disability discrimination).
8. Secondly, he complains that it was a racially discriminatory dismissal.
9. In addition, the claimant has asked me to grant him leave to amend his claim form so as to include a claim that the dismissal also constituted an act of disability discrimination, contrary to the Disability Discrimination Act 1995 (“the 1995 Act”).
10. The claimant also complains in respect of aspects of the disciplinary process (such as alleged failure to provide adequate translation of disciplinary allegations), which, he asserts, constitute unlawful racist discriminatory treatment, contrary to the 1997 Order.
11. In his claim form, the claimant also complains in respect of an alleged failure to provide him with holiday pay entitlements (in relation to accrued holiday leave as at the date of dismissal). That complaint constitutes both a claim for unlawful deduction of wages and a breach of contract claim. The unlawful deduction of wages claim is made pursuant to Article 55 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).
12. The claimant also wishes to apply for leave to amend his claim form so as to include a claim of disability discrimination in relation to an alleged refusal in the part of the Employer to grant him sick leave on circumstances in which he was genuinely sick.
The evidence
13. I saw an agreed bundle of documents, and also some miscellaneous documents.
14. I received oral testimony from the claimant’s GP, Dr Enda Cullen. In a letter dated 5 August 2011, Dr Cullen has provided a detailed medical opinion in relation to the claimant. He supplemented that opinion during the course of his oral testimony. I regarded the written opinion and that oral testimony as being clear and persuasive.
15. On the claimant’s side of the case, I received oral testimony from the claimant himself and from Dr Silin (the claimant’s representative).
16. On the respondent’s side of the case, I received oral testimony from Ms Catherine Burns and Mr Wilson Walker.
The scope of this Pre-Hearing Review
17. Although the claimant was dismissed with effect from March 2010, his claim form in these proceedings was not submitted until 24 May 2011.
18. Against that background, this pre-hearing review was concerned with time-limit issues, in respect of the unfair dismissal claim, the racially discriminatory dismissal claim, the racially discriminatory detrimental treatment claim, and the claims in respect of annual leave.
19. In addition, the claimant had sought leave to amend his claim form, to the extent indicated above, so as to include disability discrimination claims. Those applications for leave to amend were opposed by the Employer. Accordingly, this pre-hearing review also dealt with those applications for leave to amend.
20. I think it will be convenient first to deal with the time-limit issues before going on to deal with the amendment application issues.
The two types of time-limit and the relevant issues
21. The claimant’s disciplinary hearing took place on 4 March 2010. However, he was not informed of the outcome of that hearing (which was that he was being dismissed) until 11 March 2010.
22. Accordingly he was dismissed only with effect from 11 March 2010, and the latter date was the effective date of termination of his employment. He had the right to pursue an internal appeal against his dismissal, but did not do so.
23. Article 145(2) of the 1996 Order provides that an industrial tribunal is not entitled to 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”.
24. In relation to unlawful deduction of wages claims and breach of contract claims, the provisions in respect of time-limits are, in substance, identical to the provisions of Article 145(2) of the 1996 Order.
25. Accordingly, the main issues, in the context of the unfair dismissal and annual leave time-limit provisions, are as follows:
(1) Was it reasonably practicable for the complaint to be presented before the end of the primary time-limit (of three months)?
(2) If not, was it presented within such further period as I consider to be reasonable?
26. Article 65 of the 1997 Order provides for the time-limits within which proceedings for racial discrimination are to be brought.
27. Article 65(1) provides that an industrial tribunal cannot consider such a complaint unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done. (That is the primary time-limit in respect of racial discrimination complaints).
28. However, Article 65(7) goes on to provide what amounts to a secondary time-limit.
29. Article 65(7) provides as follows:
“(7) A … tribunal may nevertheless consider any such complaint … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so”.
30. Provision in respect of time-limits in respect of disability discrimination claims is made in section 25 and Schedule 3 of the 1995 Act. That Act’s time-limit provisions are, in all material respects, identical to the time-limit provisions of the 1997 Order.
31. Accordingly, in the context of each of the racial discrimination claims which the claimant has set out in his claim form, and in the context of each of the disability discrimination claims which he would now like to bring, the key issue is as follows: Even though the relevant complaint has not been brought, or will not have been brought, within the relevant primary time-limit, does this tribunal, in all the circumstances of the case, consider that it is nevertheless just and equitable to consider that complaint?
Reasonably practicable?
32. Above, I have already identified the two key issues which have to be determined in respect of the unfair dismissal and annual leave claims.
33. The first of those issues is the reasonable practicability issue.
34. I am satisfied that it was not reasonably practicable for the claimant to make his unfair dismissal claim, or his unlawful deduction of wages claim, or his breach of contract claim, within the relevant primary time-limit of three months. I have arrived at that conclusion against the following background, and for the following reasons.
35. I am satisfied that the claimant has very limited academic educational attainments. He is in a strange country. He has a very limited grasp of the English language. As has been made clear by Dr Cullen, and as is clear from his medical record, throughout the period of each of the relevant primary time-limits, he had substantial and relevant health difficulties, both in terms of physical health and in terms of mental health.
36. It is true that Dr Cullen, during the course of his oral testimony, expressed the view that the main reason for the claimant’s failures to claim in time was ignorance of the law. However, that ignorance was affected, in my view, to a very substantial extent by the combination of the circumstances outlined in the last paragraph above.
“Within such further period as the tribunal considers reasonable...”
37. As has already been noted above, the situation is as follows. If an unfair dismissal, unlawful deduction of wages or breach of contract claim has not been presented within the relevant primary time-limit, and if the tribunal is satisfied (as indeed I am satisfied) that it was not reasonably practicable for the complaint to be presented within that time-limit, the next issue is whether or not the claim has been presented “within such further period as the tribunal considers reasonable”. That is the issue which I next intend to address.
38. In the context of this issue, the applicable legal principles can be summarised as follows. First, although I have the discretion in relation to this matter, I do not have the right, in all circumstances, to allow an extension of time, regardless of how late a claim has been presented. Secondly, in exercising my discretion in relation to this aspect of the matter, I must have regard to the strong public interest in claims being brought promptly, against a background where the primary time-limit is one of three months. Thirdly, in this context, it is not just the claimant’s difficulties that have to be considered: an extension of time may well be unreasonable if the relevant employer were to face difficulties of substance (because of the delay in presenting the claim), in dealing with the claim.
39. Having applied those principles to the circumstances of this case, I have decided that the further period of delay (the period of delay which elapsed after the expiry of the primary time-limit) was unreasonable in relation to the unfair dismissal claim, but was reasonable in relation to the unlawful deduction of wages claim and in relation to the breach of contract claim.
40. The unfair dismissal claim is in substance based on the contention that the dismissal was discriminatory, in that it was caused by racism and by disability discrimination. The issues which arise in relation to such assertions are fact-sensitive. Consideration of such an assertion will inevitably involve detailed questions as to who said and did what, when, to whom, and in what context. In my view, after such a lengthy period of delay, the Employer will find it much more difficult to investigate and ascertain facts, as compared with the difficulties which it would have faced if the claim had been brought within (say) six months of the dismissal.
41. However, the difficulties of investigation and evidence, which I have identified above in the context of the unfair dismissal claim, do not in my view exist within the context of any defence on the part of the employer, to the claimant’s claim that he is due accrued holiday pay entitlements which have not been paid to him. (The respondent’s records are likely to be helpful, and indeed perhaps determinative, in the context of that claim).
42. That is why I have decided that the series of additional delay (the period of delay beyond the primary time-limit period) was reasonable in the context of the unlawful deduction wages claim and in the context of the breach of contract claim.
Is it, or would it be, just and equitable to extend time?
43. As already noted above, the “just and equitable” question is the key question in the context of the discrimination time-limit issues.
44. The applicable principles, in relation to this question, can be summarised as follows.
45. In both the 1997 order and in the 1995 act, the primary time-limit, for presenting a claim of discrimination, is a very short period of three months. In deciding the ”just and equitable” question, I have to have regard to the consideration that the legislator has prescribed very short primary time-limits, which indicate a legislative policy that discrimination proceedings should be begun quickly.
46. According to settled case law, it is clear that, in considering whether to allow a “just and equitable” extension to a discrimination case time-limit, it is appropriate to consider the criteria which are applied in the context of deciding upon extensions of time in respect of personal injury cases. In Northern Ireland, those criteria are to be found in legislation which, in all respects which are material in the present context, is cast in terms which are identical to the provisions of section 33 of the Limitation Act 1980 (which applies in Great Britain).
47. Section 33(1) makes reference to the provisions of that act which contain the primary time-limits and then provides as follows:
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -
(a) the provisions of [the relevant primary time-limits] prejudice the plaintiff ... and
(b) any decision of the court under this sub-section would prejudice the defendant ...
the court may direct that those provisions shall not apply to that action, or shall not apply to any specified cause of action to which the action relates.”
48. Accordingly, the effect of section 33(1) is that a court has the discretionary power to disapply a relevant primary limitation time-limit if, but only if, it is satisfied that it would be “equitable” to do so (having regard to the degree to which the relevant primary time-limit prejudices the plaintiff and to the degree to which the disapplication of the time-limit would prejudice the defendant).
49. Sub-section (3) of section 33 provides as follows:
“(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to -
(a) the length of, and the reasons for the delay on the part of the plaintiff;
(b) the extent of which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the [primary time-limits];
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent at which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
50. It seems to me to be clear law that the exercise of the discretion under section 33 of the 1980 Act is not reserved for the occasional hard case, or for cases of an unusual nature. Instead, the relevant provisions give courts a wider general discretion to extend time. (That is one of the points to emerge from Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327, to which Dr Silin drew my attention.)
51. In passing, I should also draw attention to the fact that Dr Silin also referred me to the case of Carter v London Underground Ltd [2009] UKEAT/0292/08. I note that Carter is authority for the proposition that the operation of the dispute resolution legislation does not in any way limit the discretion of a tribunal within the context of a “just and equitable” extension determination. (For the avoidance of any doubt, I confirm that I fully accept the correctness of that proposition).
52. In resolving an application
under section 33, a court has to make a decision which will have the
inevitable effect of either depriving the defendant of an accrued
statute-barred defence, or of stifling the claimant’s action against the
defendant. In choosing between those two outcomes, the court has to be guided
by what appears to it to be equitable, which means what appears to it to be
fair, and it must have regard to all the circumstances of the case and, in
particular, should have regard to the six matters listed in
sub-section (3) of section 33.
53. The potential prejudice to a claimant, if the primary limitation provisions are to be operated, and the prejudice to a defendant, if those provisions are to be disapplied, tend to be equal and opposite. Against that background, the extent of any effect (of the delay) upon a particular respondent’s ability to defend the claim is often regarded, in the context of section 33, as being of paramount importance.
54. I think it will be helpful if I use the section 33(3) list of factors as a handy “checklist”. In the following paragraphs, I will note issues which arise in the context of the factors on that checklist.
55. The length of the delay in the part of the claimant was very considerable: factor (a). The reasons for that delay were good reasons also factor (a).
56. Those reasons were as follows. I consider that the matters which made it impracticable for the claimant to claim within the primary unfair dismissal time-limit were matters which constituted substantial impediments, in the context of the claimant presenting his discrimination claims, throughout the period from the date of dismissal to the date on which these proceedings were begun.
57. I consider that the evidence adduced or likely to be adduced the respondent is likely to be less cogent than it would have been if each relevant claim had been brought within the relevant primary time-limit: factor (b).
58. I consider that the conduct of the respondent, after the dismissal, has no relevance, either way, in the context of deciding whether or not to extend the time-limit: factor (c).
59. As already noted above, I consider that the claimant’s poor state of health to have been a considerable impediment, in relation to the timely pursuit of the discrimination claims, throughout the period from the date of dismissal to the date on which these proceedings began: factor (d).
60. I note that the claimant has not acted promptly in bringing, or seeking to bring, the relevant discrimination claims. However, there was good reason for that failure (which consisted of the claimant’s limited education attainments, the fact that he is a stranger to this country, the fact that he has a limited knowledge of English, and the poor state of his health): factor (e).
61. I note that the claimant had regular contact with solicitors throughout much of the period of delay, but that the contact with those solicitors was not made in relation to the pursuit of his employment rights: factor (f).
62. Against that background, and having considered all of those factors, I have concluded that it is not just and equitable to extend the racial discrimination time-limits and that it would not have been just and equitable to extend the disability discrimination time-limits (if the disability discrimination claims had been included in the claim form as originally presented).
63. In arriving at the latter conclusion, I have been much influenced by the effect of the delay upon the defendant’s ability to effectively investigate and defend the discrimination claims.
64. I am satisfied that the various claims of discrimination are fact-sensitive and that the evidence which would have to be considered in the context of those claims would include evidence as to who said, did what, to whom, when, and in what context. I am satisfied that the difficulty which the respondent would face in investigating and presenting evidence in relation to those matters would be much increased, by reason of the delay, as compared to difficulties which they would have faced if the case had been brought within (say) six months.
The amendment application
65. As already noted above, in this pre-hearing review, the claimant also seeks leave to amend his claim form so as to include claims of disability discrimination (both in respect of the claimant’s dismissal and in respect of an alleged failure to allow him sick leave on one particular occasion).
66. As already noted above, I have decided that if those intended disability discrimination claims had been included within the claim form as originally presented in these proceedings, it would not have been just and equitable to have extended the time limit, so as to allow those claims to be litigated.
67. Against that background, I have decided not to grant leave to amend the claim forms so as to include the disability discrimination claims.
68. I fully realise that the circumstance that a statutory time-limit has elapsed is not a factor which, in itself, in all circumstances, provides an adequate basis for refusing to grant leave to amend.
69. Instead, what is required is for a tribunal, in considering an amendment application, to have regard to all the circumstances and, in particular, to have regard to the relative degree of prejudice to the claimant (if the application for leave to amend is refused) and to the respondent (if the application for leave to amend is accepted).
70. However, in considering these relative degrees of prejudice, the question of whether the respondent’s ability to effectively defend itself has been diminished, because of the delay in presenting the claim, is a question which is of considerable importance. Accordingly, I have had particular regard to that matter in considering the application for leave to amend.
71. As already noted above, I have concluded that the respondent’s ability to efficiently defend itself against the disability discrimination claims, at this point, would be substantially diminished (in comparison to the ability it would have had to do so if the claims had been relatively promptly made).
72. In refusing the application for leave to amend, I have also had regard to the lengthy period of delay which has elapsed, even though that delay is not the claimant’s fault.
73. Against that background, and for those reasons, I have refused the application for leave to amend.
Chairman:
Date and place of hearing: 29 November 2011 and 19 December 2011, Belfast.
Date decision recorded in register and issued to parties: