Industrial Tribunals Northern Ireland Decisions

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Cite as: [2012] NIIT 02058_11IT, [2012] NIIT 2058_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2058/11

CLAIMANT: Alice Dodds

RESPONDENT: Northern Ireland Hospice Care

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

1. The title of the respondent is ordered, by consent, to be amended to:-

Northern Ireland Hospice

2. The claimant’s claim, pursuant to the Working Time Regulations (Northern Ireland) 1998, is dismissed, having been orally withdrawn, without objection, at the commencement of this pre-hearing review by the claimant’s representative.

3(i) The claimant’s claim of unfair dismissal was out of time, as the claimant did not present her claim within the time-limit of three months beginning with the effective date of termination and the tribunal was not satisfied that it was not reasonably practicable for the said claim to be presented to the tribunal before the end of the said period of three months.

(ii) The tribunal therefore does not have jurisdiction to consider the said claim of unfair dismissal, pursuant to Article 145 of the Employment Rights (Northern Ireland) Order 1996; and the said claim must be dismissed.

4(i) The claimant’s disability claim pursuant to the Disability Discrimination Act 1995, as amended, was out of time; and the tribunal was not satisfied it was just and equitable, in the circumstances of the case, to extend the time.

(ii) The tribunal therefore does not have jurisdiction to consider the claim pursuant to Section 17A(8) and Schedule 1, Paragraph 3, of the Disability Discrimination Act 1995, as amended; and the claim must therefore be dismissed.

5. The tribunal refused to make a Preparation Time Order in favour of the claimant against the respondent, arising out of the adjournment of the hearing of this matter on 16 December 2011.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr D Gracie, a ‘McKenzie Friend’.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Reasons

1.1 The claimant presented a claim to the tribunal on 4 September 2011, in which she made a claim of unfair dismissal, a claim of disability discrimination and also a claim pursuant to the Working Time Regulations (Northern Ireland) 1998. The respondent presented a response to the tribunal on 14 October 2011, in which it denied liability for each said claim but also requested a pre-hearing review, in order for the tribunal to determine issues of time in relation to the claimant’s said claims.

1.2 Following a Case Management Discussion on 16 November 2011, a Chairman of the Tribunal directed a pre-hearing review be arranged to consider the following issues:-

(i) Whether the claimant’s claim of unfair dismissal was lodged within the requisite time-limit. If the claim was not lodged in time whether time should be extended as it was not reasonably practicable for the claim to be lodged in time and the claim was lodged within a reasonable period after the time-limit expired?

(ii) Whether the claim for disability discrimination was lodged in time. If it was not lodged in time whether it is just and equitable to extend time?

1.3 At the commencement of this pre-hearing review, I ordered, by consent, that the title of the respondent be amended to:-

Northern Ireland Hospice

Further, the claimant’s representative orally withdrew the claimant’s claim, pursuant to the Working Time Regulations (Northern Ireland) 1998 and the said claim is therefore dismissed.

1.4 The claimant’s representative confirmed, at the commencement of the pre-hearing review, that the claimant’s claim pursuant to the Disability Discrimination Act 1995, as amended, related solely to a claim that there was a failure by the respondent to comply with its duty to make reasonable adjustments; and further that this claim was based on the disability of the claimant’s son, relying on the decision of the Employment Appeal Tribunal in the case of EBR Attridge Law LLP v Coleman (No 2) [2010] IRLR 10, following the decision of the European Court of Justice in the said case, as reported in 2008 IRLR 722. It was further not disputed by the parties that, contrary to what was stated in the Record of Proceedings of the Case Management Discussion on 16 November 2011, dated 22 November 2011, that the respondent now disputed that any such associative claim could be made arising out of any failure by the respondent of its duty to make reasonable adjustments, which was denied, under the Disability Discrimination Act 1995, as amended.

1.5 The claimant was dismissed, without notice, on 23 August 2010, for gross misconduct. However, she was paid by the respondent a salary until 30 September 2010. For the purposes of determining the time-issues, the subject-matter of this pre-hearing review, the respondent did not dispute the effective date of termination of the claimant’s employment with the respondent, for the purposes of the relevant legislation, was 30 September 2010. Further, the subject-matter of the claimant’s disability claim related to alterations to the claimant’s work pattern, which were first notified to the claimant in or about April/May 2010. Again, for the purposes of determination of these time-issues, the respondent did not dispute that any such claim continued from the time of the notification up until 30 September 2010.

2.1 The tribunal, insofar as relevant and material to the determination of the said issues, made the following findings of fact, as set out in the following paragraphs, after consideration of the claimant’s oral evidence, the documents/correspondence referred to by both parties, which were admitted, by consent, without formal proof and the oral submissions of both representatives. The respondent did not call any oral evidence.

3.1 The claimant was employed at the material time by the respondent as a Senior Staff Nurse. Following her dismissal for gross misconduct, the respondent, in or about September 2010, referred to the Nursing & Midwifery Council (‘the Council’) the allegation that the claimant’s fitness to practice was impaired, arising out of some matters, which were also the subject-matter of the said gross misconduct relied upon by the respondent in relation to her said dismissal. By letter dated 18 May 2011, the claimant was notified by the Council that the allegation had been referred to an investigation committee. I was informed this investigation, by the Council, is presently ongoing and has not yet concluded. However, I noted that, in response to the said notification by the Council, the claimant, by letter dated 5 June 2011, was able to give to the Council a full and detailed response to each of the matters which had led to her said dismissal and which, as set out above, were also the subject-matter of the said investigation by the Council in relation to the claimant’s fitness to practice.

3.2 In or about May 2011, the claimant obtained new employment as the Occupational Health Nurse with F G Wilson & Company Limited, a major Northern Ireland employer, and has been able to work full-time, without the necessity for any absence, including any such absence, in particular, in that position from the commencement of this employment to date.

3.3 The claimant relied on a medical report from her General Practitioner, dated 25 October 2011. This had been obtained for the purposes of the Council’s investigation and not for these proceedings. However, it confirmed the claimant’s history of anxiety and depression requiring treatment since 2001 and that she was the main carer for her son who suffers from cerebral palsy, none of which was disputed by the respondent. Her General Practitioner, in this report, stated her symptoms were well controlled on medication but reformed, significantly in my opinion, in the context of these proceedings, only to the attendance by the claimant on 27 May 2011, when she reported worsening stress and anxiety symptoms, as a result of which her medication had to be increased. The report stated she would continue to be reviewed and that the General Practitioner expected an improved response and any difficulties on her ability to concentrate with regards to anxiety and depression to also improve. Firstly, it must be noted that there are no references in the report to any attendances between May 2011 and September 2011, when proceedings were issued in the tribunal and, as seen above, she was able to carry out her employment duties at F G Wilson & Company Limited throughout this period, without the necessity for any sick absence. Secondly, it must be noted, there is no reference to any attendances and/or any increase in symptoms in the period following her dismissal and the above attendance on 27 May 2011.

3.4 In a letter to the tribunal dated 14 October 2011, in relation to the respondent’s application for his pre-hearing review and her objection thereto, the claimant stated, inter alia:-

“ … the emotional consequences of dismissal were severe, both at the time and for the following months. I could not attend or function normally … .”

The claimant in her evidence repeated the above and indeed sought to suggest, in essence, that she was a recluse during this period, save for carrying out the essential tasks relating to her son’s care. If her symptoms were as severe as she suggested, I would have expected to see this reflected in the above medical report; not only in relation to the attendances with her General Practitioner in the relevant period but also references to the necessity for her to be prescribed an increase in her treatment. None of this appeared in the medical report, as set out above and, in the circumstances, I was not prepared to accept that the claimant’s medical condition had any relevance to the failure to bring her tribunal proceedings until 4 September 2011.

3.5 In her letter dated 11 October 2011, the claimant also stated:-

“ … I totally refute the allegation that action regarding dismissal was not actively being pursued by me. On the contrary, I have been actively pursuing advice regarding this matter from the date of my dismissal. I have actively consulted my union (Unison), my solicitor and the NMC … .”

3.6 The claimant accepted in evidence that at all material times, she believed dismissal and the alterations to her work pattern were unfair and wrong and should be the subject of challenge. She acknowledged that she had been assisted by her trade union representative at her disciplinary proceedings, which had resulted in her dismissal. After discussion with her trade union representative, she accepted that she had decided not to proceed, for her own reasons, with any appeal of her dismissal; albeit she still considered it to be unfair. She maintained, in evidence, that she had not been given any advice by her trade union representative about tribunal proceedings and/or time-limits nor had she sought any advice from him at any time following her dismissal.

In addition, the claimant stated in evidence that she consulted a well-known firm of solicitors in Belfast in or about November/December 2010, which it must be noted would have been within the three month period following 30 September 2010, as referred to previously. The fact that the claimant consulted these solicitors at that time is at variance with her evidence to the tribunal that, at this time, she was, in essence, a recluse and unable to function normally. She maintained she informed these solicitors of all matters relating to her case and, in particular, the alterations to her work patterns but also, the reasons for her dismissal and her belief that these changes and dismissal were unfair and wrong and she wished to challenge same. However, she stated that, despite doing so, she was not informed by the solicitors about the possibility of tribunal proceedings and/or the time-limits for same and/or how to go about it. She accepted she was aware, in general, of employees taking tribunal proceedings but she contended that she had no idea, as a non-lawyer, how to go about it. Despite this, she maintained she did not seek any advice from the solicitors about such matters.

The claimant was somewhat vague in her evidence about dates and/or the sequence of events but stated that, sometime early in the New Year, she had also contacted Disability Action about the changes to her work pattern and her said dismissal, who had referred her in turn to the Equality Commission who she stated had referred her to the Labour Relations Agency. Despite telling all these various bodies the facts of her case, as she had previously done with the firms of solicitors, she continued to maintain that none of these organisations gave her any advice about tribunal proceedings and/or time-limits and/or how to go about bringing such proceedings.

3.7 The claimant accepted that, in or about July 2011, she contacted a firm of English solicitors, whose name she had found on the internet, who gave her written advice, which I understand included advice about challenging these matters by way of tribunal proceedings; although the claimant again insisted she was not given any advice about time-limits or how to bring tribunal proceedings. Although this firm of solicitors were not going to act on her behalf in any tribunal proceedings, the claimant does not appear to have asked the said firm about such matters; albeit she could easily have done so. It also must be noted, despite the claimant having been informed by these solicitors about challenging these matters by way of tribunal proceedings, the claimant still did not bring proceedings until 4 September 2011. Despite the advice given by the English firm of solicitors, she made no further enquiries how to bring tribunal proceedings from them or the Labour Relations Agency or her trade union. She also had previously consulted solicitors in Northern Ireland. She had access, at the material time, to the internet, where she could have ascertained how to bring tribunal proceedings; but she did not do so until shortly before 4 September 2011.

3.8 The respondent did not suggest any particular prejudice to it, if the time was extended by the tribunal in relation to the claimant’s claims.

4.1 Article 145 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order) provides as follows:-

“(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) …, an industrial tribunal shall not consider a complaint under this Article 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 that end of that period of three months.

… .”

4.2 Article 17A of the Disability Discrimination Act 1995, as amended, provides as follows:-

“ …

(8) Part I of Schedule 3 makes further provision about the enforcement of this Part and about procedure.”

“Schedule 3

3(1) An industrial tribunal shall not consider a complaint under Section 17A unless it is presented before the end of the period of three months beginning when the act complained was done.

(2) A tribunal may consider any such complaint when it is out of time, if in all the circumstances of the case, it considers it is just and equitable to do so.

(3) For the purposes of Sub-Paragraph (1) –

…

(b) any act extending over a period shall be treated as done at the end of that period; and

… .”

5.1 The claimant properly did not dispute that her claim of unfair dismissal under the 1996 Order and/or her claim under the Disability Discrimination Act 1995 had not been brought within the three month time-limit referred to in the provisions of the 1996 Order and the 1995 Act, as referred to in the previous paragraph of this decision.

In the circumstances, it was therefore for the claimant to persuade the tribunal to extend the time, pursuant to the said provisions.

5.2 In particular, a claimant, in relation to an unfair dismissal claim, who seeks an extension of time, pursuant to Article 145 of the 1996 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 requires her to show precisely why she did not present her 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, the Court of Appeal, has indicated that the said word 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 that ‘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 a case under the 1995 Order. However, the wider ‘just and equitable’ test is not what Parliament has provided under Article 145 of the 1996 Order in relation to a claim of unfair dismissal; although it could have done so had it thought it appropriate.

5.3 In particular, I was not satisfied that the claimant, on the facts as found by me, has shown any medical reason why it was not feasible for the claimant to have brought her claim for unfair dismissal in the said three month period. Indeed, even applying the wider ‘just and equitable’ test, in relation to the claimant’s claim under the 1995 Order, again no medical reason could excuse the delay in bringing the proceedings. Indeed, I found her exaggeration of her medical condition and its consequences in the relevant period, which I do not accept, was also relevant to my conclusion, as set out below, about her credibility in this matter.

5.4 The claimant consulted a firm of solicitors in November/December 2010. This was within the relevant three month time period referred to above. Although the claimant maintained in evidence that she had informed the solicitors of all these matters, namely the changes to her work pattern and her reasons for dismissal, I found her evidence less than credible that neither the firm of solicitors had made any reference to tribunal proceedings and/or time-limits in relation to bringing such proceedings. I have concluded the claimant either ignored what she was told, for her own reasons, in the same way as she decided not to appeal the dismissal decision; or, if there was any such failure, it arose because the claimant did not give all the relevant information to the solicitors about her claims, as she has contended, in evidence, she had done to enable them to give her relevant advice. The claimant, early in 2011, consulted both Disability Action and/or the Equality Commission and/or the Labour Relations Agency; but again she maintained, in evidence that I found less than credible, that there was no reference by any of these bodies to either tribunal proceedings and/or time-limits in relation to bringing such proceedings. Again, if the claimant informed them of all relevant matters, as she contended in evidence, I do not believe that there would have been such a failure by all of these bodies. I have concluded, as with the firm of solicitors, that if the claimant did tell them all relevant matters, then there was no such failure and she chose to ignore what she was told for her own reasons; or, contrary to what she has told the tribunal, she did not give them all the relevant details about her claims to enable them to give her relevant advice. I find the alleged omission by Disability Action and/or the Equality Commission all the more extraordinary, given that these bodies would have particular interest in relation a claim under the 1995 Act. A failure by either the firm of solicitors or one of the bodies to give appropriate advice might have been possible but, in my judgment, it seems most unlikely all failed to do so. This emphasises the lack of credibility of the claimant’s evidence in relation to issues upon which the onus is firmly upon her.

5.5 In the circumstances, I am not satisfied that the claimant has shown that it was not reasonably feasible for her to bring her claim of unfair dismissal within the said three month period following 30 September 2010. Even if I am wrong and it was not feasible for the claimant to present her claim until she obtained the advice from the English firm of solicitors on 21 June 2011, I am not satisfied that the claimant, by not bringing her claim until 4 September 2011, brought it within a reasonable time thereafter. Even allowing for the fact the claimant is a lay person, I was not satisfied, if she had displayed the necessary urgency and application, she could not have found out how to bring the claim to the tribunal long before 4 September 2011. The claimant is an intelligent person working in a responsible position in a large firm, who in my judgment could, without much difficulty, have found out how to bring her claim before the said date. She did not even approach the English firm of solicitors, whom she accepted had told her about the necessity for tribunal proceedings. She made no further contact, following the advice from the English firm of solicitors with either the Labour Relations Agency or her trade union representative. I am also satisfied she had ready access to the internet and could easily have ascertained how to bring tribunal proceedings before she in fact did so. In addition, she had previously consulted solicitors in Northern Ireland and knew how to do so.

5.6 As I indicated above, the test of ‘just and equitable’, which is relevant to the claim under the 1995 Act, is much wider in the test of ‘reasonably practicable’ for a claim of unfair dismissal. Indeed, as set out in the case of Robinson v Bexley Community Centre [2003] IRLR 434, an employment tribunal has a very wide discretion in determining whether or not it is ‘just and equitable’ to extend time. It is entitled to consider anything that it considers relevant. However, time-limits are exercised strictly in employment cases. When tribunals exercise their discretion to consider a claim out of time on ‘just and equitable’ grounds, there is no presumption that they should do so unless they can justify the failure to exercise the discretion. On the contrary, a tribunal cannot hear a complaint unless the claimant convinces it that it is ‘just and equitable’ to extend time. The exercise of discretion is thus the exception rather than the rule. For similar reasons to those set out above, in considering the extension of time in relation to the claim of unfair dismissal, albeit the test is wider, I remain unpersuaded that the claimant has shown, even on just and equitable grounds, that the discretion should be exercised in her favour. I was not convinced in the circumstances it was just and equitable to extend time. The fact that the respondent has not shown any particular prejudice if time was extended was not relevant to my conclusions on this issue.

6.1 In light of the forgoing I therefore decided:-

(i) The claimant’s claim of unfair dismissal was out of time, as the claimant did not present her claim within the time-limit of three months beginning with the effective date of termination and the tribunal was not satisfied that it was not ‘reasonably practicable’ for the said claim to be presented to the tribunal before the end of the period of three months.

(ii) The tribunal therefore does not have jurisdiction to consider the said claim of unfair dismissal, pursuant to Article 145 of the 1996 Order and it must be dismissed.

(iii) The claimant’s disability claim arising out of the respondent’s failure to make reasonable adjustments pursuant to the 1995 Act was out of time and the tribunal was not satisfied it was ‘just and equitable’, in all the circumstances of the case, to extend the time-limit.

(iv) The tribunal therefore does not have jurisdiction to consider the said claim pursuant to Section 17A(8) and Schedule 3, Paragraph 3 of the 1995 Act; and the claim must be dismissed.

7.1 Arising out of the adjournment of this pre-hearing review on 16 December 2011, as set out in the Record of Proceedings for that hearing, I decided, in relation to the claimant’s application for a Preparation Time Order, that, although the necessity for the adjournment of the pre-hearing review was a matter for which the respondent’s representative could be the subject of criticism, I did not consider it appropriate, in the exercise of my discretion, to make any such Order. I did so, in particular, because I was satisfied that any preparation for the hearing by the claimant was not ‘lost’ by the adjournment and was able to be utilised by the claimant and her representative at the hearing of this matter.

Chairman:

Date and place of hearing: 19 December 2011, Belfast

Date decision recorded in register and issued to parties: