Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2797/11

 

CLAIMANT:            John Joseph Farry

 

RESPONDENT:      North Down Citizens Advice Bureau

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the claimant has brought his claim outside the three month time limit and that it was reasonably practicable for him to lodge his claim on time.  Accordingly, the claimant’s claim is dismissed.

 

Constitution of Tribunal:

 

Chairman:              Miss E McCaffrey

 

Panel Members:     Mr J McKeown

Mr F Murtagh

 

Appearances:

 

The claimant was represented by Mr T Warnock, Barrister-at-Law, instructed by O’Reilly Stewart Solicitors. 

 

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

 

1.       The Issue

 

1.1     The case was a claim of constructive dismissal brought by the claimant against the respondent.  However, at the outset of the hearing it was noted by the panel that the claimant had resigned by letter dated 14 January 2010.  But he had not actually lodged his claim with the Industrial Tribunal until 17.  November 2011 after a detailed investigation was carried out by the respondent in relation to grievances raised by the claimant and other employees of the respondent. Accordingly, the tribunal directed that the issue of the time limit for bringing the claim should be dealt with as a preliminary issue and evidence was adduced only on this matter.

2.       The Facts

 

2.1     The claimant was employed as Bureau Supervisor at the Hollywood Office of the respondent. The claimant was unhappy at work and believed that he was being bullied by his Manager.  Accordingly, he sent a letter of resignation to the respondent on 14 January 2010 giving notice that he wished to terminate his contract of employment with effect from the end of March 2010.  Accordingly, his effective date of termination of employment was 31 March 2010.

 

2.2     By letter dated 11 June 2010, the claimant wrote to Mr Bill Keary, Chairman of the respondent Bureau, raising a grievance in relation to his treatment by his Manager, Janet Kerrigan.  The claimant indicated that he had been “gathering his thoughts” about what happened to him before he had left.  His understanding was that he needed to lodge a grievance within three months of terminating his employment and that if he did not lodge his grievance within that time limit, the grievance would not be accepted.  His understanding at that time was also that if he did not bring a grievance within the three months, he would be precluded from bringing any claim in the Industrial Tribunals.  He also gave evidence that his understanding was that he had to complete the grievance process before he could contemplate an application to the Industrial Tribunal.  He was unclear as to the source of his understanding, but said clearly on a number of occasions that that was his opinion and belief.  He also mentioned “historical sources” he saw while employed by the respondent in his capacity as Supervisor of the Citizens Advice Bureau office.

 

2.3     Following raising the grievance, the claimant was invited to go to a meeting with Joanne Kane who was appointed by the respondent to investigate the complaint.  This meeting took place in August 2010.

 

2.4     The claimant subsequently wrote to the respondent’s Chairman on 1 March 2011 indicating that he understood that the investigation and report into the claimant’s grievance “and other related matters” had been completed.  He requested that his grievance be concluded without further delay.  The claimant subsequently wrote to the Chief Executive of Northern Ireland Citizens Advice Bureau on 10 June 2011, again expressing his frustration at the delay in the procedure.  That letter included the sentence, “I feel that I will have no alternative but to take action outside of the CAB organisation if there is not a speedy conclusion to this.”  On 10 August 2011, a reply was sent to him by the Chief Executive of Northern Ireland Citizens Advice Bureau referring him to the local North Down Bureau.  Following this, the new Chairman of North Down CAB, the respondent, wrote to the claimant on 20 August apologising for the delay in dealing with the matter and explaining that this was due to changes in personnel.  The claimant wrote again to the chairman of the respondent Bureau on 1 November 2011, indicating that there had been a further delay.  The claimant received a further letter from the Chairman dated 11 November 2011 indicating that he should receive a reply shortly.  The claimant replied by letter of 16 November 2011 again expressing his disappointment at the lack of progress and requesting release of the necessary report under the Data Protection Act 1998.

 

2.5     The claimant’s evidence was that his understanding of the time limit had been the same up to that point, namely that he must wait for the grievance procedure to be concluded before he took any further action.  However, in early November 2011 and in anticipation of conclusion of the grievance process, he made enquiries with his home insurers about insurance cover for legal advice and he then received a telephone call from the solicitors appointed by the insurance company.  The claimant spoke to Ms O’Boyle, Solicitor, and in his words obtained a “totally different perspective”.  Ms O’Boyle made him aware of the three month time limit for lodging a claim to the Industrial Tribunal and the fact that he should not have awaited the outcome of a grievance procedure before lodging his claim.  Following that conversation, the claimant then found a claim form for the Industrial Tribunal in an information folder which he had at home.  He spoke to the Solicitor late one afternoon and took the next day to prepare his claim form.  He then delivered the form to the Tribunal Office the next day, 17 November 2011.

 

2.6     It was the claimant’s clear evidence to the tribunal that he had not made any effort to check the position in relation to the time limit before November 2011 because he didn’t think it was necessary.  He had the clear conviction in his own mind that he knew what the process was and that if he lodged a claim in the Industrial Tribunal before the grievance concluded, the Tribunal would take “a dim view” of it.  He was asked in cross examination if he had access to information, to advice from a solicitor or from the internet and he agreed that he would have had this information to hand or available. 

 

2.7     It was the claimant’s evidence that he believed that he had been constructively dismissed over the Christmas/New Year break in early 2010 and this was the time when he reached the conclusion that he would resign at the end of March.  His evidence was that he waited until June to write his grievance letter because he had not fully decided that he wished to engage in a grievance process as he had been very upset by the way he had been treated.  In January 2010 he had not formed a view that he wished to bring a claim to the Industrial Tribunal but he agreed that he had started to think about it by June 2010.

 

2.8     The notes of the meeting which the claimant had with Joanne Kane in August 2010 referred to possible action in relation to his dismissal and that this was “potentially legal”.  He was specifically asked by Ms Kane what outcome would be satisfactory to him and he indicated that he was asking for compensation.  Joanne Kane had also expressed the likely time scale for the remainder of the enquiry to him and the claimant had not raised any issue in relation to that or expressed any concerns about delay.

 

2.9     It was also put to the claimant that he had had a conversation with Bill Keary the previous Chairman, in June 2010, indicating that he was considering bringing a claim to the Industrial Tribunal and Mr Keary understood that “we would get the papers shortly.”  Mr Keary referred to this in a record of his own meeting with Joanne Kane.  The claimant’s response was that he did not recall having that conversation.

 

 

3.       The Relevant Law

 

3.1     At the time when the claimant resigned his position, the statutory grievance procedures introduced by the Employment (Northern Ireland) Order 2003 were still in force.  These procedures were not repealed until 3 April 2011, over a year after the claimant resigned.

 

3.2     Counsel helpfully referred us to the transitional provisions in relation to the changes in the disciplinary and grievance procedures.  It was agreed that the relevant law governing the time limits in this case was in fact the “old law” under the Statutory Dispute Resolution Regulations as the grievance was lodged in June 2010 and related to matters predating the enactment of the Employment Act 2011 by which those procedures were repealed.  Under Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, the time limit for the presentation of a constructive dismissal claim will be extended by a period of three months provided that the employee lodges a grievance with the employer within the relevant initial three month time limit after the resignation.  The claimant in this case resigned with effect from 31 March 2010 and raised a grievance by letter dated 11 June 2010.  This grievance was lodged within the three month time limit and therefore if the claimant had lodged a claim, the time would have been extended until the end of September 2010.  Given that the claim was not lodged until 17 November 2011, it is agreed by all parties that the claim was out of time. 

 

3.3     Article 145(2)(b) of the Employment Rights (Northern Ireland) Order 1996 provides that the tribunal may consider a complaint “within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable with a claim for the complaint to be presented before the end of that period.”

 

As the learned authors of Harvey point out, there are two limbs to the test.  First of all, the employee must show that it was not reasonably practicable for him to present his claim on time.  Secondly, the tribunal must be satisfied that the further period within which the claim was in fact presented was reasonable.  There has been much discussion in cases over the years as to the appropriate test to be applied in considering whether it was reasonably practicable for a claim to be lodged.  In Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 Lord Justice May established the “reasonable feasibility” test when he indicated:

 

“Perhaps to read the word “practicable” as the equivalent of “feasible” as Sir John Brightman did in Singh v Post Office 1973 ICR 437, and to ask colloquially and  untrammelled by too much legal logic – “Was it reasonably feasible to present the complaint to the Employment Tribunal within the relevant three months?” – is the best approach to the correct application of the relevant sub-section” [1984] ICR at 384, 385.

 

Harvey notes that prior to the inception of the Statutory Dispute Resolution Procedures, if an employee delayed making an unfair dismissal claim where he had invoked an internal procedure he would inevitably find it difficult to get his claim accepted if, as a result of pursuing the internal procedure, the claim was presented to the tribunal out of time.  Palmer and Saunders makes it clear that unless there were exceptional circumstances, the mere fact of it being an internal process was not sufficient to justify a finding that it was not reasonably practicable to present the claim in time.  The courts have shown a certain amount of flexibility and it is fair to say that the reasonable belief of the claimant is always a relevant factor to be taken into account.

 

Mr Warnock for the claimant relied heavily on the recent decision in the case of John Lewis Partnership v Charman [2011],UKEAT 0079/2403 a decision of the Employment Appeal Tribunal where the claimant’s ignorance of the time limit for claiming for unfair dismissal was held to be reasonable in circumstances where he pursued an internal appeal at the expense of presenting an unfair dismissal in time.  Mr Justice Underhill in the Charman case emphasised that the starting point was that if an employee was reasonably ignorant of the relevant time limits, it cannot be said to be reasonably practicable for him to comply with them.  He pointed out that in the Charman case, the claimant (who was aged 20, relatively young and inexperienced) was unquestionably ignorant of the time limits and relied very heavily on the partial knowledge of his father.  The question, as the judge emphasised, was whether that ignorance was reasonable.  He said:

 

“The question thus comes down to whether a claimant should have made such enquiries immediately following his dismissal.  As to that, I think it is reasonable to infer, although I accept it is not explicit, that the judge formed a view that it was reasonable for the claimant and his father not to make such enquiries at the stage of the initial dismissal decision but to await the outcome of the internal appeal.” 

 

The judge added, “It has repeatedly been emphasised that the question of reasonable practicability is the question of fact (subject to one about the effect of third party advice, which does not arise here) and it follows also that decisions of a tribunal relating to that question will be correspondingly difficult to challenge.” 

 

In Marks and Spencer plc v Williams Ryan [2005] EWCA CIV 470, Lord Philips said that the proposition that

 

“The existence of an internal right of appeal is of no relevance to the question of whether it is reasonably practicable to make a timely complaint to the Employment Tribunal” is not a principle of law but merely a “conclusion which will often be drawn when considering the vital question of fact, namely whether the employee could reasonably be expected to be aware of the fact that there was a time limit for making a complaint to the Employment Tribunal.” 

 

Mr Justice Underhill distinguished the situation in Charman from the situation in the case of Bodha v Hampshire AHA, where the claimant had been advised throughout by a trade union official who was well aware of the three month time limit but decided nevertheless to defer issuing proceedings.  In Palmer, too, the applicants were being advised by a trade union.  In both those cases therefore Mr Justice Underhill commented that the issue was whether the pursuit of an internal appeal in itself made it not reasonably practicable to present a claim in the Industrial Tribunal.  It was not whether it was reasonable for the applicants not to be aware of the time limits, which was the question in the Charman case.

 

Mr Warnock proposed that all of the case law predating the abolition of the grievance procedures should be treated now as unreliable and effectively overturned.  While we appreciate that decisions of the Employment Appeal Tribunal are strongly persuasive, we prefer the approach taken in Royal Bank of Scotland v Bevin [2008] ICR 682, where Judge Richardson preferred to treat the case as an exception to the Palmer principle rather to regard Palmer as having been “repealed” by the repeal of the Statutory Grievance Procedures.

 

4.       Decision

 

4.1     We have considered all of these matters carefully.  We are of the view that, as was emphasised by Mr Justice Underhill, each case turns on its own facts and we must make our decision on the basis of the case before us.

 

4.2     Unlike Mr Charman, the claimant in this case had been working for the Citizens Advice Bureau for a number of years.  His evidence to the tribunal was that he had in fact been involved in giving advice on employment issues albeit to a limited extent. He made the comment that if he felt he could not advise an individual then he would advise people to seek legal advice.  He had however a very firm view in mind that there was a three month time limit for bringing a claim and that he must bring a grievance in advance of bringing any Industrial Tribunal claim.  His understanding was that there were three months to lodge the grievance and three months to complete the internal process and that only after that, could he consider lodging a claim with the Industrial Tribunal.  He agreed however that he had access to information and to the internet and he agreed that there were booklets and sources available at the CAB office.  Indeed, it is significant that when the claimant was advised of the application of the time limit, he was able very quickly to find information in a folder at home to prepare his claim and to lodge it, albeit within two days of receiving the advice.

 

4.3     We also take account of the fact that in his correspondence to the respondent, the claimant clearly makes reference to constructive dismissal when raising his grievance in June 2011.  We also accept that he raised the matter in a conversation with the respondent’s Chairman in June 2010, indicating that he would be going to a tribunal and that they would be “receiving papers” shortly.  The claimant neither sought advice nor took it and in our view this is not a case where his ignorance is reasonable.  This is a case where the applicant was or could have been aware of the time limits had he looked for the information.  He delayed claiming. He was labouring under a misapprehension in relation to the question of the grievance but in our view this was not a reasonable misapprehension.  He had access to appropriate information, indeed the relevant information was in a folder in his own home and he could have availed of the information at any time. 

 

4.4     In our view, it was reasonably practicable for the claimant to present his claim in time and he failed to do so. It is not therefore appropriate for us to extend the time limit in this case and the claimant’s case is dismissed.

 

Chairman:

 

 

Date and place of hearing:         6 March 2012, Belfast

 

 

Date decision recorded in register and issued to the parties: