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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McIlwaine v W H Scott & Son (Engineers) Li... [2012] NIIT 00324_12IT (31 July 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/324_12IT.html
Cite as: [2012] NIIT 00324_12IT, [2012] NIIT 324_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 324/12
CLAIMANT: Albert McIlwaine
RESPONDENT: W H Scott & Son (Engineers) Limited
Constitution of Tribunal:
Vice President : Mr N Kelly
Members: Mr R Hanna
Ms U Short
Appearances:
The claimant was represented by Mr B Wall, Barrister-at-Law, instructed by John McKee & Sons, Solicitors.
The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Johns Elliott, Solicitors.
WRITTEN REASONS FOR DECISION
1. The unanimous decision of the tribunal that the claim of unfair dismissal was lodged outside the statutory time-limit, and that it should be dismissed for want of jurisdiction, was given orally at the end of the hearing. This document contains the written reasons for that decision.
Background
2. The claimant commenced employment with the respondent on 1 March 2009. As part of a redundancy exercise, he was given formal notification of redundancy on 21 September 2011 with four weeks’ notice. The respondent argued that that notice expired and that the claimant’s employment ended on 21 October 2011. The claimant argued that the notice had expired and his employment had ended on 22 October 2011. The claimant lodged his unfair dismissal claim in this tribunal on 15 February 2012. Therefore, whether the effective date of termination was 21 October 2011 or 22 October 2011, the claim was lodged some three weeks outside the statutory time-limit.
Relevant law
3. The question of jurisdiction was dealt with as a preliminary issue by the tribunal.
4. Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 provides that a claim of unfair dismissal must be lodged in the tribunal within three months of the effective date of termination or within such further period as the tribunal considers reasonable in any case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that three month period.
5. Therefore, questions of time-limitation in relation to unfair dismissal cases raise three separate issues : firstly, whether the claim was presented within the three month time-limit; secondly, if the claim had not been presented within the three month time-limit, whether it had been reasonably practicable to present the claim within that time-limit; and thirdly, if it had not been reasonably practicable to do so, whether the claim had been brought within such further period as the tribunal considered reasonable.
6. In the present case, it is clear that the claim was lodged in this tribunal outside the statutory three month time-limit. The tribunal must therefore move to the second and third issues. Whether or not, in any particular case, it had been reasonably practicable to lodge an unfair dismissal claim within the three month time-limit is a question of fact to be judged against the circumstances of that individual case. In Palmer v Southend-on-Sea Borough Council [1984] ICR 372, the court stated that ‘reasonably practicable’ should be read as ‘reasonably feasible’.
7. In Solus (London) Ltd v Mr T Matthews [UKEAT/0395/10/JOJ] the EAT stated at Paragraph 13:-
“The fact that Mr Matthews made a mistake in presenting a claim form to the wrong tribunal is not necessarily fatal to his claim; but he must show that the mistake was a reasonable one for him to have made. The law sufficiently appears from the following passage in the judgment of Brandon LJ in Walls Meat Company Ltd v Khan [1979] ICR at 60 – 61:-
‘Looking at the matter first without reference to the authorities, I should have thought that the meaning of the expression concerned, in the context in which it is used was fairly clear. The performance of an act, in this case the presentation of a complaint is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief of the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”
Relevant findings of fact
8. The claimant lodged an unfair dismissal claim online with the Employment Tribunal Service in Great Britain (‘the ETS’), in the mistaken belief that this was the appropriate way to lodge a claim in Northern Ireland.
9. The claimant sent the unfair dismissal claim and the covering e-mail from a BT internet e-mail address.
10. In the claim form, lodged with the ETS, the claimant was asked whether he wanted the ETS to communicate with him by post or by e-mail. The claimant opted for e-mail and specified the BT internet e-mail address that he had used to send the claim form and the covering e-mail.
11. The claimant had e-mailed the claim form to the ETS at 16.50 pm on 1 January 2012. Some five seconds later, the claimant received an electronic receipt from the ETS at the BT internet e-mail address. That notice stated:-
“If you have provided contact information you will receive confirmation from the local office confirming receipt within five working days. If you have not heard from the office within five days, please contact the relevant office directly, as all case related information is held with the local offices.”
12. The claimant states that he heard nothing further in relation to this claim. However he did not contact the ETS or any local tribunal office directly, as he had been advised in the electronic receipt, to make enquiries.
13. On 3 January 2012, the ETS sent an e-mail to the BT internet e-mail address. This was the e-mail address that the claimant had accessed on 1 January 2012, had used on 1 January 2012 and on 1 January 2012 had specified as the contact point for the ETS to use. The e-mail of 3 January 2012 stated:-
“In order for the Employment Tribunals (which cover proceedings in England and Wales or Scotland) to have jurisdiction to hear a complaint we need an address for the respondent in either of those countries. If you worked for a respondent that did not reside in or carry on business in either England and Wales or in Scotland then I am afraid we do not have jurisdiction to hear your complaint. I understand that the postcode you have given for your workplace is in Northern Ireland. Therefore unless you can supply an address (including a postcode) that is in either England and Wales or in Scotland we will not be able to accept or process your claim.
Please find attached the link for the Industrial Tribunals and Fair Employment [sic] (Northern Ireland).”
14. The claimant said in evidence to this tribunal that:-
(i) he had never received the e-mail dated 3 January 2012.;
(ii) it had been sent to the wrong e-mail address;
(iii) his e-mail address was a hotmail e-mail address and always had been; and
(iv) he knew nothing about any BT internet e-mail address and could not explain how he had used that e-mail address on 1 January 2012 or how he had specified that e-mail as the point of contact for the ETS.
15. The claimant, having heard nothing in response to his claim form sent on 1 January 2012, according to his account of events, submitted a further tribunal claim in similar terms to the ETS on 10 February 2012. That was some six weeks after the original claim had been sent to the ETS and was after the statutory time-limit had expired. That second claim form was again submitted by e-mail from the BT internet e-mail address. It again prompted a reply very quickly from the ETS which again pointed out that it had no jurisdiction to accept or process the claim.
16. This tribunal was referred to internal e-mail correspondence in the ETS which stated that the following notice was displayed on the GB website which had been accessed by the claimant:-
“FOR CLAIMANTS IN NORTHERN IRELAND
New claimants in Northern Ireland should apply to the Industrial Tribunals and Fair Employment Tribunal Northern Ireland.”
17. The claimant stated in evidence to this tribunal that he could not remember seeing any such notice on the GB website but accepted in cross-examination that there was every chance that it had been displayed.
Decision
18. The tribunal accepts that the claimant, when he lodged his unfair dismissal claim with the ETS in Great Britain, had been under the mistaken belief that that was the correct method of lodging a claim. Such a mistaken belief might in certain circumstances amount to an impediment which, within the terms of the Khan decision (see above), might render it not reasonably practicable to have presented a complaint within the statutory time-limit. However, as that decision makes plain, any such mistaken belief must, in itself, be reasonable and it would not be reasonable if it arises from the fault of the complainant in failing to make reasonable enquiries or in failing to take any other reasonable step.
19. The tribunal does not accept the claimant’s evidence that he knew nothing about the BT internet e-mail address. It is impossible for an individual to have accessed, used and specified an e-mail address of which he knew nothing. Apart from anything else, e-mail addresses do not emerge spontaneously out of the ether. They require the creation of an account. Furthermore, the claimant, in a very careful and detailed claim form, specified, and one has to assume deliberately specified, the BT internet e-mail address on the method by which the ETS should contact him. Finally, that BT internet e-mail address was accessed and used by the claimant on two separate occasions; on 1 January 2012 and 10 February 2012.
20. The tribunal therefore concludes that the claimant must have received the e-mail from the ETS on 3 January 2012 and that therefore the claimant must have been aware or should have been aware on that date that he had lodged his claim in the wrong tribunal. If he had acted properly and promptly, he would still have been within time to lodge a claim in the correct tribunal, ie in Belfast. Even if, for some reason, the claimant had not accessed his inbox on the e-mail address which he had himself used and had specified as the point of contact to be used by the ETS, he accepted that he had received the electronic receipt which made it plain that in the event of him hearing nothing further within five days he should have contacted the local tribunal office to make enquiries. The obvious local tribunal office for the claimant to have contacted was the tribunal office in Belfast. He did not make any such enquiries. He did nothing further for some six weeks and then he repeated his mistake by lodging a second claim, again using the e-mail address of which he claims to know nothing, in the ETS.
21. The tribunal is also of the view that it is common knowledge that the correct tribunal where employment claims should be lodged for Northern Ireland is the tribunal in Northern Ireland, ie in Killymeal House. Several thousand individuals per year manage to do so.
22. The onus of proof is on the claimant to establish that it was not reasonably practicable for him to have lodged his tribunal claim in Belfast within the statutory three month period. He has not discharged that onus. In fact, it is quite clear from the evidence before this tribunal that it had been reasonably practicable for him to have done so. Even accepting his genuine initial mistake in sending his claim electronically to the ETS in Great Britain, he was promptly and clearly notified of his error on the e-mail address that he had used and that he had specified as a point of contact. He was also separately advised that if he heard nothing he should contact the local office within five days. He did not do so. The tribunal therefore concludes that it had been reasonably practicable, or reasonably feasible, for the claimant to have lodged his claim in this tribunal within the three month time-limit. He failed to do so and his claim is therefore not within the jurisdiction of this tribunal.
23. The claim is therefore dismissed for want of jurisdiction.
Vice President:
Date and place of hearing: 26 July 2012, Belfast
Date written reasons for decision recorded in register and issued to parties: