Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/01659_11IT.html
Cite as: [2012] NIIT 1659_11IT, [2012] NIIT 01659_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 1659/11

1717/11

CLAIMANT: Desmond Walsh

RESPONDENTS: 1. Identity & Passport Service

2. Jane Carwardine

3. Paul Luffman

4. Una Hackett

5. Julie Cosgrove

6. Home Office

DECISION

The decision of the tribunal is that:-

(i) the tribunal ordered, by consent, that the claims of the claimant against the second, third, fourth, fifth and sixth respondents are dismissed, pursuant to Rule 10(1)(k) of the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005;

(ii) the tribunal does not have jurisdiction to entertain the claimant’s claims of breach of contract against the first respondent in circumstances where, although it was satisfied that it was not reasonably practicable for the complaint to have been presented to the tribunal in time, the claims were not then presented in a reasonable time thereafter, pursuant to Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994; and

(iii) the claimant’s claims are therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondents were represented by Mr A Sands, Barrister-at-Law, instructed by Crown Solicitor’s Office.

Reasons

1.1 At the outset of the hearing, it was agreed, and I so ordered, that the claimant’s claim against the second, third, fourth, fifth and sixth respondents be dismissed, pursuant to Rule 10(1)(k) of the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’), on the grounds that the said respondents were no longer directly interested in the claims by the claimant of breach of contract, where it was agreed the contract was made by the claimant with the first respondent (‘hereinafter referred to as the respondent’).

1.2 The claimant presented a claim to the tribunal of breach of contract on 19 July 2011, pursuant to the tribunal’s contract jurisdiction set out in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (‘the 1994 Order’). He presented a further claim of breach of contract pursuant to the 1994 Order on 29 July 2011. The respondent presented a response to each of the said claims by the claimant in which the respondent denied any liability. In addition, in the said responses, the respondent contended that the tribunal did not have jurisdiction to entertain the claimant’s said claims of breach of contract on the grounds that the said claims were presented out of time, pursuant to Article 7 of the 1994 Order (see later).

1.3 At a Case Management Discussion on 7 December 2011, as set out in the Record of Proceedings dated 12 December 2011, the President of the Tribunals identified the following issues, which required to be determined by the tribunal, in respect of the claimant’s said claims set out in the above-entitled proceedings, namely:-

(1) Whether the claimant was entitled to have his lump sum determined under the Voluntary Early Retirement Scheme (‘VER’), which the respondent said came into force on 17 January 2011 and post-dated the claimant’s termination of employment.

(2) If so, the amount that the claimant was entitled to.

(3) Whether the claimant had any contractual right to be paid additional payments in respect of interest and an apology or some ‘reasonable’ compensation for hurt or injured feelings arising out of the respondent’s initial decision to refuse to take the claimant’s previous service with the Northern Ireland Civil Service into account when determining his lump sum payment and, if so, the amount.

1.4 At the outset of the substantive hearing, the claimant confirmed that his only claim in respect of the issue identified at (3) above was compensation for injury to feelings. Further, the respondent’s representative submitted that there was an issue of jurisdiction relating to time in respect of the claimant’s said claims, which had not been referred to in the Record of Proceedings, as set out above. The claimant did not dispute that the issue of jurisdiction relating to time had been raised by the respondent in its said responses to the claimant’s claims and which therefore also required to be determined by the tribunal. After I had referred the claimant to the relevant test in relation to the issues of time, as set out in Article 7 of the 1994 Order, the claimant informed me that he was in a position to deal with these issues, and, in particular, he did not require a postponement of the said hearing in the circumstances.

2.1 I heard oral evidence on all the said issues from the claimant and, on behalf of the respondent, from Una Hackett (HR Business Partner, Northern Ireland and Scotland) and Jane Carwardine (Executive Director of Human Resources). The parties provided to the tribunal an agreed bundle of documents, which was augmented by documents introduced by the claimant, by consent, during the course of the hearing. Both the claimant and Mr Sands made oral submissions at the conclusion of the hearing in relation to all issues, including the said jurisdictional issue relating to time.

2.2 Under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (‘the 1994 Order’), it is provided, insofar as relevant and material, to the said time-issue, as follows:-

“7 An industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented –

(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim; or

…

(c) where the tribunal is satisfied it was not reasonably practicable for the complaint to be presented … within such further period as the tribunal considers reasonable.”

The above test of reasonably practicable is the same as the test to be found in Article 145 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), in relation to the time within which a claim for unfair dismissal must be brought. In these circumstances, I was satisfied the considerable case law, which has developed in relation to the proper interpretation of Article 145 of the 1996 Order also applied to the proper interpretation of Article 7 of the 1994 Order.

2.3 There was no dispute that the claimant’s contract of employment with the respondent ended on 30 November 2010, when he resigned. Therefore, the claims of the claimant were out of time, unless he could persuade the tribunal to exercise its discretion to extend time, pursuant to Article 7(c) of the 1994 Order.

The said three month period, under Article 7(a) of the 1994 Order, would normally therefore have ended on 28 February 2011, subject to whether the claimant was entitled to any extension of time, if any, under Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).

Article 15 of the 2004 Regulations provides:-

“(1) Where a complaint is presented to a tribunal under a jurisdiction listed in Schedule 2 or 3 … and –

…

(b) either of the grievance procedures is the applicable statutory procedure in the circumstances specified in Paragraph (3) apply,

the normal time-limit for presenting the complaint is extended for a period of three month beginning with the day after the day on which it would otherwise have expired.

(3) The circumstances referred to in Paragraph (1)(b) are that the employee presents a complaint to the tribunal –

…

(b) after the expiry of the normal time-limit or presenting the complaint, having complied with Paragraph 6 or 9 of Schedule 1 in relation to his grievance within the normal time-limit.

…

(5) In this Regulation ‘the normal time-limit’ means –

(a) … the period within which a complaint under the relevant jurisdiction must be presented if there is to be no need for the tribunal, in order to be entitled to consider it to –

(i) exercise any discretion; or

(ii) make any determination as to whether it is required to consider the complaint, that the tribunal would have to exercise or make an order to consider a complaint presented outside that period.”

2.4 Thus, the normal time-limit to be extended does not include, for this purpose, any extension of time that the tribunal might otherwise grant under the ‘reasonably practicably’ provisions under Article 7 of the 1994 Order, referred to previously. This is consistent with Government guidance issued at the time of the introduction of the statutory procedures that the existing discretion to extend time was unaffected by Regulation 15 of the 2004 Regulations (see further Spillett v Tesco Stores and BUPA Care Homes Ltd v Cann [2006] IRLR 248).

There was no dispute that breach of contract was a jurisdiction listed in Schedule 2 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’). Equally, it was not disputed, as confirmed in the respondent’s response form, that the claimant had raised his grievance in accordance with Paragraph 6 of the 2003 Order and it was agreed this was done before 3 April 2011.

In the case of Remploy v Shaw [2009] UKEAT/0452/08, HH McMullan QC confirmed in the Employment Appeal Tribunal, in the course of his judgment (see in particular Paragraphs 34 – 35) that Regulation 15 provides an extension of three months “but it is of utility only once and limited to a moment in time, ie at the time the primary limitation expires”.

Therefore, if Regulation 15 applied (see later) to the claimant’s claims of breach of contract, the claimant’s limitation period did not end until 28 May 2011 (ie a one-off extension of three months from 28 February 2011).

However, whether Regulation 15 applied to the claimant’s claim depended on the provisions of the Employment Act 2011 (‘the 2011 Act’), which, in essence, abolished the statutory grievance procedures, but not the statutory disciplinary and dismissal procedures, from 3 April 2011. The relevant provisions of the Act came into operation on that date; but subject to the transitional provisions made pursuant to the 2011 Act.

Under the Employment Act (Northern Ireland) 2011 (Commencement No 1, Transitional Provisions and Savings) Order (Northern Ireland) 2011 (‘the Transitional Provisions’) Schedule 1 provided that the statutory grievance procedures continued to apply if the action about which the employee complained (by complying with Step 1 of the grievance procedures or presenting a tribunal complaint) occurred wholly before 3 April 2011.

In this case, since the claimant had raised a grievance about the said breaches of his contract of employment before 2 April 2011, I was satisfied that he was entitled to the one-off extension of three months to 28 May 2011, pursuant to Regulation 15 of the 2004 Regulations. By way of contrast, it is of interest to note that, under the Transitional Provisions, where the statutory disciplinary and dismissal procedures apply, the extension under Regulation 15 of the 2004 Regulations does not apply in any circumstances after the commencement of the 2011 Act on 3 April 2011.

2.5 The claimant, who seeks an extension of time, pursuant to Article 7 of the 1994 Order, 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 [2005] IRLR 562, has indicated 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’.

2.6 Where a claimant satisfies the tribunal that it was not reasonably practicable to present his claim in time, a tribunal must then consider whether it was presented within a reasonable time thereafter. In the case of Walls Meat Co Ltd v Khan [1978] IRLR 499, the Court of Appeal said this was very much a matter for the tribunal, which must nevertheless exercise its discretion reasonably and with due regard to the circumstances of the delay. But as stated in Westward Circuits Ltd v Read [1973] ICR 301 – this does not give carte blanche to a tribunal to entertain a claim, however late it is presented.

In a recent decision Underhill P, in the case of Cullinane v Balfour Beatty Engineering Services Ltd [2011] UKEAT/537/10, made clear the question whether a period is reasonable is not the same as asking whether the claimant acted reasonably ‘still less is it equivalent to the question whether it would be just and equitable to extend time’; instead it requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted ‘having regard to the strong’ public interest in claims being brought promptly, and against a background where the primary time-limit is three months.

Subject to the foregoing, it has to be recognised, each case very much depends on its own facts.

2.7 It was not disputed by the parties that pursuant to the terms of the 1994 Order, subject to the jurisdictional issue in relation to time, the tribunal had jurisdiction to consider and determine the claimant’s claims relating to alleged breaches of his contract of employment with the respondent. The claimant would also have been able to bring his claims for breach of contract in the County Court; but he decided to bring his claims in the tribunal, pursuant to its contract jurisdiction under the 1994 Order.

3.1 For the purposes of determining the said issues in this matter, as set out above, I made the following findings of fact, as set out in the following sub-paragraphs, insofar as relevant and material.

3.2 The claimant was employed with the respondent as a part-time member of staff from in or about November 2007. He had previously been employed with the Northern Ireland Civil Service (‘NICS‘) for in or about 12 years.

In or about 2010 the respondent entered into consultation with its employees in relation to the restructuring of its operations in Northern Ireland. As part of that restructuring the claimant applied for ‘Voluntary Early Release’ (‘VER’). Although the claimant’s contract with the respondent stated, inter alia:-

“His previous service within the Northern Ireland Civil Service counts as part of your continuous employment.”

It was determined in or about November 2010 by the then Director of Human Resources in the Home Office, Mr Hague, who had responsibility for such matters for the respondent, that the claimant’s previous employment with NICS would not count for the purposes of reckonable service under the terms of the VER Scheme (referred to hereafter as the first VER Scheme).

The claimant challenged the decision not to count his previous service with the Northern Ireland Civil Service, by way of a grievance in an e-mail dated 7 November 2010. However, the claimant also notified the respondent, despite the said decision, that he was terminating his employment with the respondent under the first VER Scheme, with effect from 30 November 2011 – stating:-

“He felt he could not longer work for an organisation that he considered treated its staff with contempt.”

3.3 An investigation of the said grievance was carried out by Paul Luffman, the then Head of Engagement Diversity & Inclusion with the respondent, who then reported his conclusions to Jane Carwardine, who was the Executive Director of Human Resources and Organisational Development of the respondent. Mr Luffman’s conclusions on the grievance, with the approval of Ms Carwardine, were then referred back to the Director of Human Resources in the Home Office, Mr Hague, who reversed his earlier decision. On or about 14 February 2011, the claimant was informed that his previous service with the Northern Ireland Civil Service (‘NICS’) would now be recognised.

3.4 It is not necessary to consider further the reasons for this decision, save to note that there was no dispute that the claimant subsequently received all additional sums now due to him under the first VER Scheme, with the inclusion of his previous NICS service. Therefore the only remaining claim for breach of contract, arising out of the first VER Scheme, which the tribunal required to determine, subject to the initial jurisdictional issue in relation to time, related to whether the claimant was contractually entitled to a claim for injury to feelings arising out of the initial decision to refuse to include his previous service with NICS.

3.5 In view of the tribunal’s decision in this matter on the jurisdictional issue, it was not necessary to consider this claim for injury to feelings further and for the tribunal to make any determination on the said claim. However, in this context, and in light of the submissions made by the claimant and the respondent’s representative, it may be appropriate to note that in a claim for breach of contract of employment (ie a wrongful dismissal claim) it has long been established that compensation for injury to an employee’s feelings, his distress, social discredit or loss of reputation are not normally awarded (see further Chitty on Contracts 30^th Edition Paragraph 39 – 196; Johnson v Unisys [2001] UKHL 13; and Edwards v Chesterfield Royal Hospital NHS Foundation Trust and Others [2011] UKSC 58, where in unfair dismissal claims the manner of dismissal does not give rise to any award of compensation). Further, generally, in any claim for breach of any contract, an award for injury to feelings is not generally recoverable save in exceptional cases, such as ‘holiday cases’.

3.6 On or about 17 January 2011 a second VER Scheme (‘second VER Scheme’) came into operation, which, in essence, was more generous than the first VER Scheme, under which the claimant had terminated his employment with the respondent. The claimant sought to claim that, although he had terminated his employment with the respondent on 30 November 2011, as set out previously, under the first VER Scheme, he was entitled to have his lump sum determined under the second VER Scheme, not the first VER Scheme. Indeed it was agreed, during the course of this hearing, but not prior to then, that the difference between the first VER Scheme and the second VER Scheme, for the claimant, amounted to some £9,500.

3.7 The claimant met with Paul Luffman on 10 March 2011 to discuss his grievance in relation to the second VER Scheme, as referred to above. Three other female employees of the respondent had also raised similar grievances in relation to the second VER Scheme and whose grievances were also the subject-matter of this meeting. However, in this context, it has to be noted that, unlike the claimant, these employees, had not terminated their contracts of employment with the respondent on 30 November 2010; but each had continued to be in employment with the respondent upon the introduction of the second VER Scheme in January 2011.

3.8 It is apparent from the copy minutes of that meeting, that Paul Luffman was clearly very sympathetic to the claimant’s grievance; but also the similar grievances of the other said employees; albeit with the important caveat he recognised the claimant, unlike the other employees, had left the respondent’s employment in November 2010 and before the introduction of the second VER Scheme. However, from these copy minutes, and read as a whole, I am satisfied that, although various options were discussed by Paul Luffman, with the claimant, no agreement was entered into by him for the respondent to have the claimant’s lump sum determined under the second VER Scheme and/or, in particular, for the respondent to make a compensation payment to the claimant, as a solution to his grievance. There was nothing, in my opinion, in the nature of any firm final offer, with all relevant details of any such compensation payment, made by Mr Luffman to the claimant; nor was there anything in the nature of a final binding agreement made by the claimant with Mr Luffman. I accept, however, that Mr Luffman did make reference, as one such option, the possibility [my emphasis] of the respondent making a compensation payment by the respondent as a solution to the claimant’s grievance.

Indeed, in particular, it was clear, from the minutes, that relevant figures for any compensation payment had not been calculated for any proposed possible compensation payment, which, if it was to be progressed, would then have to be considered and agreed by both parties before any agreement could be finalised. There were also no other relevant details about the terms of any such offer, which would have had to be agreed before the agreement could be finalised. At best, I am satisfied there were discussions about possible options for a compensation package, which subject to further discussion on the terms/details of any such package, both Mr Luffman and the claimant were willing to progress in the hope of final agreement. I also note from the minutes that, in the course of the discussions, Mr Luffman certainly led the claimant to believe “he had a reasonable level of authority” for what he was proposing. Indeed this was consistent with what Mr Luffman had said in an e-mail dated 7 March 2011, prior to the meeting, with the claimant where he had assured the claimant he had the necessary authorisation to reach an agreement with the claimant on compensation.

3.9 Unfortunately, Mr Luffman shortly after the meeting went on sick leave and did not return to employment with the respondent; leaving himself subsequently on a VER package. As a result, the minutes of the meeting were not immediately sent to the claimant for approval by him. However a copy of the minutes was sent to the claimant on 28 April 2011 and at no time, prior to this hearing, did he seek to challenge the contents of those minutes. During the course of this hearing, however, he sought to suggest the discussions had gone much further than set out in the copy minutes and referred to above, and contended what had been discussed amounted to a firm agreement between him and Mr Luffman. He also said the absence of figures, in the minutes, was not material, as these could be easily worked out. I believe, if there had been a firm agreement, as suggested by the claimant, he would have expressly challenged the minutes and referred to such matters. The minutes were prepared by Ms Cathy Gibbons and I am satisfied she would have had no reason not to accurately reflect what was said at the meeting. The delay in sending them to the claimant arose because Mr Luffman went on sick leave shortly after the meeting and it was only when Ms Carwardine was made aware of them by Ms Gibbons, some weeks later, that copy of the minutes was sent to the claimant by Ms Carwardine in a letter dated 28 April 2011. I am satisfied that, in the circumstances, there was nothing untoward in the delay and the copy minutes accurately reflect what took place at the meeting and were not altered in any way, as suggested by the claimant. I am therefore not satisfied the minutes reflect and/or constitute any binding agreement made between the claimant and Mr Luffman.

3.10 In a letter, dated 28 April 2011, Ms Carwardine confirmed to the claimant that Mr Luffman had “no authority to make any legally binding offers regarding anything financial relating to compensation or making up any difference between the schemes”. She also confirmed any such compensation payment would be ‘ex gratia’ in that it would be above and beyond any contractual entitlement the claimant might have to payment and in such circumstances would require the express approval of HM Treasury before the first respondent was empowered to make the payments referred to by Mr Luffman. Importantly, but subject to the foregoing, Ms Carwardine also confirmed she wished to continue to pursue the possibility of obtaining an ex gratia compensatory payment to cover the difference between the two schemes as part of a compromise agreement settlement and she would be seeking HM Treasury approval. She stressed she could not guarantee success in view of the strict rules governing the granting of such payments.

Therefore, from the letter dated 28 April 2011, the claimant knew that the respondent did not accept that anything said by Mr Luffman, at the meeting on 10 March 2011, was authorised and/or had given rise to any contractual entitlement and that if any offer was to be made to him, following HM Treasury approval, it would be made on an ex gratia basis and not based on any legal entitlement. However, Ms Carwardine did inform the claimant she was prepared to pursue the possibility of such a payment; albeit success was not guaranteed.

3.11 In view of the tribunal’s decision in this matter on the jurisdictional issue, it was not necessary to consider this contractual issue further. However, in light of the submissions made by the claimant and the respondent’s representative, it may be appropriate to note that, even if I had been satisfied an agreement had been entered into between Mr Luffman and the claimant, I would not have been satisfied Mr Luffman, in the circumstances, had the relevant and necessary authority to enter into such a contract.

I am satisfied that, under the arrangements/normal written procedures and practices under which the respondent operated, if such an ex gratia payment was to be paid by the respondent, it required to obtain HM Treasury approval. Indeed, I am satisfied no such approval was given by HM Treasury (see later) to anyone in the respondent, including Mr Luffman, for any compensation payment to be made by the respondent to the claimant on an ex gratia basis, or otherwise. Thus, if Mr Luffman had entered into such an agreement, which I do not accept, he did not have the usual authority to do so. Further, I am not satisfied Mr Luffman had ostensible authority to enter into such a contract, whatever he may have stated in his e-mail dated 7 March 2011 or at the meeting on 10 March 2011 about having the necessary authority. Mr Luffman at all times was a Crown Servant and, in order to establish such authority, it would have to be established the respondent, as Principal, held Mr Luffman out as its agent with the said authority. Mr Luffman was never given such authority and the fact he attended in Belfast, as Head of Engagement, Diversity and Inclusion to investigate the grievance, was not sufficient to establish such authority, in light of the said arrangements and normal written procedures and practices (see further Chitty on Contracts 30^th Edition Paragraphs 10-010-10-012). In view of my decision in this matter, but also my finding no contract was entered into, I do not consider it necessary to set out in any fuller detail the arrangements/formal written procedures and practices of the respondent referred to above.

3.12 It is correct to note that the discussions referred to by Ms Carwardine were protracted and went on for some time with HM Treasury. It was not until a series of e-mails, concluding on 21 June 2011 from Ms Una Hackett, HR Business Partner, for Northern Ireland/Scotland for the respondent, that it became apparent that approval had been given by HM Treasury for the respondent to make an ex gratia offer of compensation to the other female employees in relation to the difference between the first VER Scheme and the second VER Scheme. The terms of the offer, after the calculation of the precise sums, had then to be set out by the respondent, to each of them, which terms were later accepted by each of them. However, the said correspondence also revealed no such ex gratia offer was to be made to the claimant, as he readily recognised in a sarcastic response he made to Ms Hackett by e-mail on 21 June 2011. HM Treasury did not give approval for any similar offer to be made to the claimant, because he had terminated his employment on 30 November 2010 and before the second VER Scheme commenced. In any event, it must also be noted that the said offers to the other female employees were, as set out above, ex gratia and were not based on any legal entitlement. As the claimant accepted in evidence, at the date of his e-mail on 21 June 2011, if not before, he knew that negotiations/discussions were at an end and if he wished to pursue the matter he would have to do it by tribunal proceedings or by bringing claims in the High Court/County Court for breach of contract. He did not seek any advice about time-limits in relation to any such proceedings.

3.13 By letter dated 28 July 2011, Ms Carwardine confirmed that no such ex gratia offer of compensation in relation to the difference between the two schemes was to be made to the claimant. By this stage, as set out above, the claimant had commenced his first tribunal proceedings.

3.14 In the letter dated 28 July 2011, Ms Carwardine acknowledged that this matter had taken a long time to resolve and she empathised with how he might still be feeling. She also informed the claimant she regretted the issue had proved so complex and time-consuming and apologised for any convenience and upset caused to the claimant. Indeed, in the course of her evidence she accepted the matter could have been better handled by the respondent itself, but, in particular, Mr Luffman and how, as a result, the claimant had been left in some doubt for some time about the eventual outcome of his grievance about the second VER Scheme; and, in particular, until in or about 21 June 2011.

3.15 The claimant acknowledged in evidence he knew by 21 June 2011 it was necessary to bring these proceedings; and sought to explain the delay by the fact he was unrepresented and in view of the respondent’s delay and the whole long drawn out process, which he had found very stressful, he had not been able to bring his tribunal proceedings earlier.

4.1 For the reasons stated previously, I was satisfied that the claimant was entitled to the one-off extension of time in which to bring his claim until 28 May 2011, pursuant to Regulation 15 of the 2004 Regulations. It is clear, as set out in Ms Carwardine’s letter of 28 April 2011 that, following the meeting with Mr Luffman on 10 March 2011, that she was seeking to pursue the possibility of an ex gratia compensatory payment to be paid to the claimant. Whether such a possible payment would be paid was not in the claimant’s hands; but rather it involved Ms Carwardine seeking to obtain, inter alia, HM Treasury approval; albeit she could not guarantee success. In these circumstances, I am satisfied that it was not reasonably practicable for the claimant to present his claim until 21 June 2011 when, in essence, he had been told, by Ms Carwardine in her letter of 28 April 2011, to await for a response from the respondent whether or not such approval was forthcoming. This was not known until on or about 21 June 2011 when Ms Hackett confirmed in her e-mail of that date, that no such offer of ex gratia payment was to be made by the respondent. The claimant then did not bring his first claim until 19 July 2011.

The claimant is unrepresented and it is to be noted that Ms Carwardine acknowledged in her letter of 28 July 2011 the length of time it had taken by the respondent to resolve the matter, not least the period from her earlier letter on 28 April 2011 until Ms Hackett’s e-mail on 21 June 2011. She also acknowledged the complexity of the matter. The issue therefore for me to determine was whether the period between 21 June 2011 and 19 July 2011 was reasonable, not whether the claimant acted reasonably (see further Cullinane v Balfour Beatty Engineering Services Ltd). Although the claimant was unrepresented, I concluded he could have brought his proceedings to the tribunal much earlier than he did. The contract of employment ended on 30 November 2010. He had already had had the extension of time pursuant to the 2004 Regulations and the further extension, as set out above. By 21 June 2011 he knew that no payment was forthcoming from the respondent and he would have to bring proceedings. I do not consider that a further period of approximately four weeks before bringing the proceedings was reasonable in the circumstances. The claimant did not provide any good reason, considered objectively, why he did not proceed earlier during this four week period. He had all the relevant information by 21 June 2011.

I acknowledge he was unrepresented and clearly found the process stressful. However, by 21 June 2011 he had all relevant material upon which to bring his claims. There was no relevant medical evidence to support any further delay and it is apparent the claimant, at all material times, was able to communicate about this matter by e-mail. Indeed his claims were presented online. In the circumstances, I am not satisfied by the delaying bringing the proceedings, for the further period from 21 June 2011 to 19 July 2011, the claimant brought the proceedings within a reasonable time.

The tribunal therefore does not have jurisdiction to hear the claimant’s claims and they must be dismissed.

5.1 I am conscious that the tribunal, although it has determined these claims on the preliminary jurisdictional issues on time, the tribunal was required to consider all issues during the hearing and to make relevant findings of fact.

In light of the foregoing and the detailed submissions made by the claimant and the respondent’s representative, I would also state, that even if I am wrong on the jurisdictional issue, I would have dismissed the claimant’s claims on the merits. In brief, for the reasons set out in Paragraph 3.5 of this decision, I am not satisfied the claimant is entitled to be awarded any compensation for injury to his feelings, for the initial refusal to take into account by the respondent his NICS Service when determining his lump sum under the first VER Scheme. Secondly, on the basis of the findings of fact made by me (see further Paragraphs 3.6 – 3.11 of this decision) I was not satisfied that the claimant entered into any binding enforceable contract with the respondent or anyone on its behalf to have his lump sum determined under the second VER Scheme and/or for the respondent to make a compensation payment to the claimant arising out of the differences between the first VER Scheme and the second VER Scheme.

Chairman:

Date and place of hearing: 30 – 31 January 2012, Belfast

Date decision recorded in register and issued to parties: