Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS  

 

 

CASE REF:    2880/10

 

 

 

CLAIMANT:                           Seamus Patrick Breen

 

RESPONDENT:                     Department for Social Development

 

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal (Chairman sitting alone) is that the claimant’s complaint of age discrimination has been presented outside the statutory time limit and it is not just and equitable for the claimant’s complaint of age discrimination to be heard and determined.

 

 

Constitution of Tribunal:

 

Chairman  (Sitting alone):     Ms J Knight

 

 

Appearances:

 

The claimant appeared and represented himself.

 

The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

 

 

 

ISSUES

 

1.       Whether the claimant’s complaint of age discrimination has been presented within the statutory time limit.

 

2.       If not, whether it would be just equitable for the claimant’s complaint to be heard and determined notwithstanding that it has been presented outside the statutory time limits.

 

 

EVIDENCE

 

3.       The tribunal heard the oral evidence of the claimant and considered documentary evidence referred to by the parties.  The respondent did not call any witnesses to give oral evidence.

 

 

FACTS

 

4.       The tribunal found the following relevant facts to be proven on a balance of probabilities:-

 

          (1)      The claimant Mr Seamus Breen, who is unrepresented, is employed as an Executive Officer grade 2 (EO2) by the respondent, the Department for Social Development.

 

          (2)      In March 2010, a new pay scale was introduced for the EO2 grade following the implementation of an Equal Pay Settlement which was backdated to 1 February 2009.  The claimant found himself at the bottom of the new pay scale.

 

          (3)      The claimant had written on 21 December 2009 to the Department of Finance and Personnel and on 15 January 2010 to the Head of Pay and Grading Unit outlining his concerns about the impact of the then proposed Equal Pay Settlement on his own position.

 

          (4)      The decision was taken by the respondent to implement the settlement in early to mid March 2010 and the claimant raised a formal grievance on 29 March 2010 with his employer.  He complained that the Equal Pay Settlement was “demoralising, de-motivating, degrading and above all discriminatory”.  The Grievance Policy in the respondent’s HR Handbook provides that all grievances will be dealt with within “a reasonable timescale (normally 28 days) in a manner fully compliant with the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.”  Ms Emma Woods of HR Connect was appointed in the first instance to carry out an investigation of the claimant’s grievance and she met with him on 27 April 2010 to discuss his grievance.

 

          (5)      The claimant sought advice from the Equality Commission of Northern Ireland (“the Equality Commission”) about his grievance.  He was advised that his grievance should reflect any potential claim he may wish to make at a later date to the Industrial Tribunal and that his grievance should specify the relevant heads of discrimination.  The Equality Commission also provided the claimant with a sample statutory equal pay questionnaire.  The claimant accepted that by this time, if not at an earlier stage, he was contemplating making age discrimination and equal pay complaints to the industrial tribunal.  However he understood that he was required to comply with the statutory grievance procedures before lodging tribunal proceedings.  He told the tribunal that that he was waiting for an outcome to his grievance before lodging proceedings and he believed that it would have been “to his detriment to proceed to the tribunal if he had not exhausted the internal procedures to the full.”  The claimant was very clear that the Equality Commission did not advise him about the statutory time limits for presenting an age discrimination claim with the Office of the Tribunals.  The claimant received a reply from the respondent to his statutory equal pay questionnaire on 1 September 2010.

 

          (6)      On 21 May 2010 he wrote again to HR Connect following the advice from the Equality Commission to specify that his grievance was about a complaint of unlawful discrimination contrary to the provisions of the Equal Pay Act Northern Ireland 1970 (as amended) and the Employment Equality (Age) Regulations 2006.  The claimant enclosed a statutory Equal Pay Questionnaire with his letter.  HR Connect sent an email to the claimant on 14 June 2010 acknowledging receipt of his letter and advising that further instruction was awaited from the Department on how best to progress his grievance.  The claimant sent a number of emails to HR Connect during June and July 2010 asking when he would receive an outcome to his grievance.  On 6 August 2010 the claimant received an email from Emma Woods advising him that her investigation report had been forwarded to the Decision Officer.

 

          (7)      In August 2010 the claimant attended a road show organised by the Labour Relations Agency to provide information about compensatory payments being offered to by the respondent to EO2s who felt they were adversely affected by the Equal Pay Settlement.  The claimant decided, following the road show, not to accept the compensatory payment offered to him.

 

          (8)      By letter dated 9 August 2010 the claimant was invited to attend a meeting on the 10 September 2010 with Martin Matthews, Deputy Principal, Employee Relations Unit to discuss his grievance.  This duly took place and the claimant was invited to provide clarification of the grounds of his equal pay and age discrimination complaints.

 

          (9)      By letter dated 1 October 2010 Martin Matthews informed the claimant that his grievance had not been upheld and the claimant duly lodged an appeal on 7 October 2010.  An appeal meeting was held on 5 November 2010.  On 1 December 2010 the respondent informed the claimant that his appeal had not been upheld.  He was informed that there was a further right to appeal.  The claimant did not lodge a further appeal.  By this stage he told the tribunal that he saw no further point in complying with internal procedures and therefore decided not to pursue the internal grievance process to its conclusion.

 

          (10)    The claimant lodged his equal pay and age discrimination complaints with the Office of Industrial Tribunals on the 14 December 2010.

 

          (11)    The claimant’s case was that he had been unaware of the statutory time limit for presenting an age discrimination claim to the Office of the Tribunals even though he carried out his own research on bringing a claim which included visiting different websites on the internet.  However he stated that he read the “English Regulations instead of the Irish ones” thus was unaware of the different time limits.  He also sought advice from his trade union on a number of occasions since early 2010 but received no response.  He further asserted that there was delay on the part of the respondent in dealing with his grievance.

 

          (12)    The respondent’s case was that the alleged act of discrimination occurred as at the date of the implementation of the Equal Pay Settlement in March 2010 and this was not a “continuing act” although the effects were ongoing.  The claimant had therefore presented his complaint of age discrimination outside the prescribed statutory limits even though he had knowledge of all the relevant facts giving rise to his complaint of age discrimination prior to the expiry of the time limits.  It was conceded on behalf of the respondent that no prejudice would be caused to the respondent should the tribunal exercise its discretion to extend the time limits for presenting the claim and that the evidence had not been adversely affected by the claimant’s delay in lodging proceedings.

 

 

LAW AND CONCLUSIONS

 

5.       Regulation 48 (1) of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (the “2006 Regulations”) provides that “An industrial tribunal shall not consider a complaint under Regulation 41 (Jurisdiction of industrial tribunals) unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.”  The claimant’s complaint of age discrimination concerns the effects of the decision to implement the Equal Pay Settlement.  Following the reasoning in Sougrin  v  Haringey Health Authority [1992] IRLR 416 it is necessary to distinguish between a one off act with continuing effects and a continuing act.  In the present case I am satisfied that there is not a continuing act and that time for lodging the age discrimination complaint began to run when the Equal Pay Settlement was actually implemented in March 2010.

 

6.       As the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 were still in force, the normal time limit for presenting the claimant’s complaint to the tribunal was extended for a period of three months beginning with the day after the day on which it would otherwise have expired.  In the claimant’s case Regulation 15 operated to extend the time limit for lodging the originating claim to mid September 2010.  Therefore as the claimant’s originating claim was not presented until December 2010, it was clearly lodged outside the statutory time limit.

 

7.       A tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.  [Regulation 48(4) of the 2006 Regulations.]  Although the discretion is wide, there is no presumption that a tribunal should exercise its discretion to extend time on the just and equitable ground in favour of the claimant.  The tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regards to all the other circumstances of the case, in particular:-

 

          (a)      the length of and reasons for the delay;

 

          (b)      the extent to which the accuracy of the evidence is likely to be affected by the delay;

 

          (c)      the extent to which the parties sued had co-operated with any requests for information;

 

          (d)      the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and

 

          (e)      the steps taken by the claimant to obtain appropriate professional advice once he or she knew the possibility of taking action.  (British Coal Corporation  v  Keeble 1997 IRLR 336 at Paragraph 8.)

 

8.       In the case of Johnston  v  Chief Constable of the RUC [1998] NI 188, approving Hickey  v  Laggan t/a The Fly Bar [1995] unreported, the Northern Ireland Court of Appeal made it clear that the absence of prejudice does not make it just and equitable to ignore the statutory time limits.

 

9.       It is clear from the facts found that the claimant was aware that he had a potential age discrimination claim to the industrial tribunal from in or about May 2010.  The reasons advanced by the claimant in the present case for the delay was that he was unaware of the relevant time limits, was under a misapprehension that he had to await the outcome of the internal grievance procedure before lodging his complaint of age discrimination to the tribunal and there was delay on the part of the respondent in dealing with his grievance.

 

10.     It is not accepted that there was undue delay on the part of the respondent in dealing with the claimant’s grievance, the contents of which were not straightforward and required proper investigation after receiving clarification of the grievance from the claimant.  The grievance procedure itself recognises that it will not always be possible for the process to be completed within 28 days.

 

11.     The claimant is unrepresented and it is accepted that the relevant statutory provisions in force at the time were complicated and not readily understandable by the lay person.  However I am not convinced that the claimant made reasonable efforts to obtain appropriate professional advice in order to familiarize himself with the actual process of making a complaint of age discrimination to the industrial tribunal, including the relevant time limits.  His approach to the Equality Commission was, according to the claimant, limited to seeking advice about his grievance.  Had the claimant sought relevant advice from the Equality Commission or some other agency concerned with providing free employment law advice such as the Labour Relations Agency or Citizen’s Advice Bureau in a timely way, I conclude that his misunderstanding of the law relating to the time limits and the operation of the statutory dispute regulations would not have arisen.

 

12.     Therefore after careful consideration of all the factors I do not find that it is just and equitable to extend the time limit for presenting the claim of age discrimination in this case.  Accordingly I find that the tribunal does not have jurisdiction to entertain the claimant’s complaint of unlawful age discrimination.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:          28 June 2012, Belfast.

 

 

Date decision recorded in register and issued to parties: