Industrial Tribunals Northern Ireland Decisions

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Cite as: [2013] NIIT 1154_13IT, [2013] NIIT 01154_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1154/13

CLAIMANT: Pauline Brennan

RESPONDENT: Andena Residential Home Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

The claimant’s claim was out of time; and the tribunal decided it was reasonably practicable for the claimant to have presented her claim in time. The tribunal therefore does not have jurisdiction to consider and determine the claimant’s claim.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was represented by her son, David Curry.

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

Reasons

1.1 The claimant presented to the tribunal on 14 June 2013, a claim for unfair dismissal from her employment with the respondent as a Care Assistant at Andena Residential Home. The respondent presented a response to the tribunal on 26 July 2013, in which it denied liability for the claimant’s said claim. In the said response, the respondents also made an application for a pre-hearing review to enable the tribunal to determine various jurisdictional points. Following a Case Management Discussion on 20 August 2013, as set out in the Record of Proceedings dated 21 August 2013, a Chairman of the Tribunal directed that a pre-hearing review should be listed to consider the following issues:-

“(i) Whether the claimant’s claim was lodged outside the three month time-limit for unfair dismissal claims and, if so, whether, firstly, it was reasonably practicable for her to lodge the claim within the requisite time-limit, and, secondly, whether the tribunal should extend time?

(ii) Whether the claimant should be required to pay a deposit of up to £500.00 as a condition of continuing her claim on the grounds that the claim has little reasonable prospect of success?”

1.2 At this hearing, I heard oral evidence by the claimant in relation to the said time-issue, as set out above. Having regard to the terms of the overriding objective, I also heard submissions from both the claimant’s representative and the respondent’s representative in relation to the second issue, in relation to whether the tribunal should make a Deposit Order against the claimant as a condition of her continuing her claim on the grounds that the claim has little reasonable prospect of success. In view of the decision of the tribunal, as set out above, it was not necessary for me to determine this second issue.

2.1 The Employers Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), insofar as relevant and material, provides as follows:-

“Article 145

(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) Subject to Paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –

(a) before 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 reasonably practicable for the complaint to have been presented before the end of that period of three months.”

2.2 The claimant, in her claim form, stated that her employment started on 20 February 2012 and ended on 7 March 2013. The respondent in its response form agreed that the claimant’s employment started on 20 February 2012 but stated that her employment ended on 18 February 2013. I was informed by the claimant that the date 7 March 2013 was the date stated by the respondent on her P45. I was not provided with a copy of the P45 but, following submissions by both parties, it was accepted, by both parties, that this date was wrong/in error and that the effective date of termination of the claimant’s employment was on 18 February 2013, when the respondent wrote to the claimant, following a disciplinary hearing, informing her that she was summarily dismissed from her employment on the grounds of gross misconduct. The claimant received the said letter on 18 February 2013. In the circumstances, the relevant three month fixed period therefore expired on 18 May 2013. Since the claimant’s claim form was not presented to the tribunal until 14 June 2013, the claimant’s claim was out of time, unless the tribunal was prepared, in the exercise of its discretion, to extend time, pursuant to the provisions of Article 145 of the 1996 Order, as set out above. Even if the effective date of termination had been 7 March 2013, which I do not accept, the claimant’s claim would still have been outside the relevant three month time-limit. The claimant also confirmed that she was paid by the respondent on 22 February 2013 all monies due and owing to her on foot of her contract of employment up to and including 18 February 2013.

3.1 Having heard oral evidence from the claimant on the said time-issue, pursuant to Article 145 of the 1996 Order, I made the following findings of fact, as set out in the following sub-paragraphs.

3.2 Following receipt of the hand-delivered letter dated 18 February 2013, on 18 February 2013, informing her of her dismissal, the claimant, by letter dated 25 February 2013, informed the respondent she wished to appeal the said decision, which letter was acknowledged by the respondent on 1 March 2013. In the letter dated 1 March 2013, Mr McConville, the director of the respondent, stated:-

“I will be out of the country from 2^nd of March 2013 until 9^th of March 2013 so we will get back to you within the next 14 days to propose a date for the appeal and a date for you to review CCTV footage.”

By letter dated 7 March 2013, the claimant asked that the date for the appeal be set after 25 March 2013 – “owing to private and personal reasons”. In a letter dated 22 March 2013, Mr McConville noted that the claimant wished to view the CCTV tapes independently before the said appeal hearing. In the event, the appeal hearing took place on 18 April 2013 and, by letter dated 2 May 2013, the claimant was informed that the appeal against the respondent’s decision to dismiss the claimant’s claim on the grounds of gross misconduct was rejected. It was not disputed by the claimant she would have received this letter, dated 2 May 2013, by no later than 3/4 May 2013; although, in this context, it has to be noted 6 May 2013 was a Public Holiday.

3.3 The claimant produced at this hearing, without objection by the respondent, a medical report from her General Practitioner dated 2 September 2013. This report recorded the claimant had attended the surgery on 20 February 2013, following the loss of her job. At that time, her General Practitioner doubled her antidepressant medication and put on her short course of Temazepam. On review on 13 March 2013, the course of Temazepam was stopped but the claimant continued, and has continued to date, on the same increased dosage of antidepressant. There is no other record of any other attendance with her General Practitioner and, in particular, in the period following 13 March 2013.

In or about February/March 2013, the claimant’s former husband, with whom she had remained on good terms, was diagnosed with a terminal illness. The claimant, understandably, was not only very upset by his condition, but she was also required to provide support to her children during this very difficult period in their lives, culminating in the death of their father on 28 March 2013. I am satisfied that the reference to private and personal reasons in the letter dated 7 March 2013 related to the condition of her former husband.

3.4 Despite her medication and the difficulties in relation to the illness and subsequent death of her former husband, I noted that the claimant, during this period, was not only able to write her notice of appeal but, having done so, she was also able to consult local Citizens Advice Bureau and its representative, JA, shortly following receipt of the letter dated 18 February 2013. I was satisfied that when she did so, she was advised by JA, as confirmed in the correspondence between the parties in March 2013, that JA had advised the claimant to have the CCTV footage looked at by an independent person prior to the appeal. I am satisfied, at that time, the priority was the appeal hearing and the steps to be taken in relation thereto, including viewing of the CCTV footage by an independent person. Although I have no doubt, during this period, the claimant was told by JA of the option of going to the tribunal, if the appeal was unsuccessful, there was no advice sought by the claimant or given by the Citizens Advice Bureau in relation to the time period for bringing such a claim. This was because, at the relevant time, the claim was still in time and indeed expected to be heard in April 2013 and the claimant herself had not considered the option of going to the tribunal as she was extremely confident, as she confirmed in evidence, that she would be successful on appeal and her employment would be reinstated by the respondent. Given she was not intending, in the circumstances, to bring any claim to the tribunal I am satisfied she did not make any further enquiries of JA or anyone else at that time about the necessary steps to be taken in relation to any tribunal proceedings or indeed the time period in which such proceedings had to be brought.

3.5 Upon receipt of the letter rejecting her appeal, dated 2 May 2013, by on or about 3/4 May 2013, the claimant went to see JA the following week, by no later than on or about 7/8 May 2013. He confirmed to the claimant that the Citizens Advice Bureau could not act for the claimant in tribunal proceedings but he gave her a list of names of representatives/solicitors who could act in such proceedings. This was still within the relevant three month time-limit. I am not satisfied that JA, during this meeting, gave the claimant any advice in relation to the bringing of tribunal proceedings in relation to her dismissal, nor was any advice sought from him by the claimant, other than he gave to her the said list of representatives/solicitors who would be able to act on her behalf, after confirming to her the Citizens Advice Bureau could not act for her in any tribunal proceedings.

3.6 The claimant, following her dismissal on 18 February 2013, as confirmed during the course of the appeal hearing, was able, to her credit, to look for alternative employment during this period and also to attend interviews for employment, albeit unsuccessfully.

Whilst I appreciate the claimant would have been very disappointed by the result of her appeal, she knew that the next step, from what she had been told by JA, if she wished to pursue the matter, was to bring tribunal proceedings. She did not attend her doctor during this period. She continued to apply for employment, as required to do so by the Benefits Office. I note she had been able to conduct a detailed appeal hearing in April 2013, as appears from the minutes of that hearing. In these circumstances, I am satisfied that the claimant exaggerated her evidence to the tribunal about her reluctance to leave the home due to her disappointment over the result of the appeal, in the period following notification of the rejection of her appeal. Indeed, I took into account that she was able to meet with JA very soon after notification of the result of the appeal. Despite all this, the claimant, did not consult until, at least, the end of May 2013, but more likely early June 2013, by which time the three month time-limit had expired, with Employment Law Services in Belfast. This was one of the bodies on the list given to the claimant by JA. The claimant was somewhat uncertain in her evidence about the date of that consultation and therefore I have concluded it was during the period set out above. I am satisfied when she did consult with Employment Law Services in Belfast, she was advised Employment Law Services of the relevant three month time-limit, and which was confirmed in writing to her by on or about 7 June 2013. Following this advice, the claimant presented her claim to the tribunal on 14 June 2013, with the assistance of the Employment Law Services in Belfast.

4.1 The claimant’s claim having been presented to the tribunal on 14 June 2013, the claim was therefore out of time and it was necessary for her to apply for an extension of time, pursuant to Article 145 of the 1996 Order, as set out above.

The statutory test in Article 145(2) of the 1996 Order involves two distinct questions:-

“(a) Was it reasonably practicable to present the complaint in time?

(b) It was not, did the claimant bring the complaint within a further reasonable period?”

It has long been established it is for the claimant to prove that it was not reasonably practicable to bring the claim in time and it is a question of fact for the tribunal to decide. In this context, it always has to be remembered that the test for an extension of time which applies under the discrimination legislation potentially affords a tribunal a far wider discretion than in the case of the reasonably practicable extension set out in Article 145(2) of the 1996 Order (see further Hutchison v Westward Television Ltd [1977] IRLR 69 and British Coal v Keeble [1997] IRLR 336). Under discrimination legislation a test of ‘just and equitable’ applies.

In Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, May LJ stated, at Paragraph 125:-

“To construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ is to take a view too favourable to the employee. On the other hand ‘reasonably practicable’ means more than what is reasonably capable physically of being done … In the context in which the words are used in the 1978 Consolidation Act, however inaptly as we think, they mean something between the two. Perhaps to read the ‘practicable’ as the equivalent of ‘feasible’ … and to ask colloquially and untrammelled by too much legal logic – ‘was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?’ – is the best approach to the correct application or the relevant sub-section.”

May LJ, in the course of his judgment set out a number of relevant factors but emphasised they could not be exhaustive, but stated they should a form an useful starting point and therefore the tribunal should consider, amongst other things:-

“(a) the manner in which, and the reason for which, the employee was dismissed, including any internal ‘conciliatory appeal procedure’;

(b) the substantial cause of the employee’s failure to comply with the statutory time-limit;

(c) whether he knew he had the right to complain that he had been unfairly dismissed;

(d) whether there had been any ‘misrepresentation’ about any relevant matter by the employer to the employee;

(e) whether the employee was advised at any material time and, if so, by whom; the extent of the advice is knowledge of the facts of the case and the advice given to the employee.”

In Wall’s Meat Company Ltd v Khan [1979] ICR 52, Brendon LJ gave the following guidance:-

“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 on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises 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.”

Harvey on Industrial Relations and Employment Law, Volume 3, Section P1, has emphasised:-

“(207) So, whilst a claimant’s state of mind is to be taken into account, it is clear that his mere assertion of ignorance either as to the right to claim, the time-limit or the procedure for making the claim is not to be treated as conclusive … moreover, as the courts pointed out, the widespread public knowledge of unfair dismissal rights, it is all the time becoming more difficult to an employee to plead such ignorance successfully …

(208) [Given] if an employee is reasonably ignorant of the right to claim, it will inevitably follow that he will be unaware either of the correct mode of making a claim or the time within which it should be made. But if he knows in general about the availability of the remedy, he may still be ignorant of how and when to pursue it. In these circumstances, as Brendan LJ noted in the Walls Meat case, it may be difficult for him to satisfy a tribunal that he had behaved reasonably in not making suitable enquiries about these matters. Shaw LJ in the same case commented that ‘mere ignorance’ of the time-limit will not of itself amount to reasonable impracticability, save perhaps where the employee does not discover the existence of his right until a short time before the expiry of the time-limit. Pauler LJ took a similar view in Riley v Tesco Stores [1980] ICR 323 at 335.”

In the case of Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379, Lord Denning MR said:-

“If a man engages skilled advisers to act for him and they mistake the limit and present it too late – he is out. His remedy is against them.”

In deciding whether it was practicable for a complaint of unfair dismissal to be presented within the stipulated time period, the Court of Appeal held in Dedman that the Employment Tribunal should enquire into the circumstances and ask themselves whether the claimant or his advisers were at fault in allowing the time period to pass by without presenting the complaint. If either were at fault, then it could not be said to be impracticable for the complaint to have been presented in time.

In Marks & Spencer PLc v Williams-Ryan [2005] IRLR 562, Lord Phillips MR, having reviewed the authorities upheld the Dedman principle as a proposition of law:-

“[In Dedman] the employee had retained a solicitor to act for him and failed to meet the time-limit because of the solicitor’s negligence. In such circumstances it is clear that the adviser’s fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an Employment Tribunal.”

As in Reilly, the issue in William-Ryan was whether a claimant could rely on the escape clause where she had received advice from a Citizens Advice Bureau. Lord Phillips holding there was no binding authority equating advice from a CAB with advice from a solicitor stated:-

“I would hesitate to say that an employee can never pray in aid the fact that he was misled by advice from someone at a CAB. It seems to me that this may well depend on who it was who gave the advice and in what circumstances. Certainly, the mere fact of seeking advice from a CAB cannot, as a matter of law, rule out the possibility of demonstrating that it was not reasonably practicable to make a timely application to an Employment Tribunal.”

In Williams-Ryan, the Court of Appeal rejected the argument that fault on the part of a CAB representative must necessarily be treated as the fault of the employee, as this was not a case where specific misleading advice was given by the CAB. The claimant merely rang up the CAB Office and spoke briefly to someone who advised her to exhaust the employer’s internal appeal procedure. Nothing was said about a claim to an Employment Tribunal, and, specifically, she was not advised that she need not file her claim until after the internal appeal was concluded. In these circumstances, there was no fault to be considered and the case was decided on other grounds. Although the Dedman principle has been upheld by the Court of Appeal in Williams-Ryan, in Northamptonshire County Council v Enwhistle [2010] IRLR 740, Underhill J acknowledged that it is not inevitable there will be a finding of reasonable practicability in every case where a claimant instructs solicitors and receives the wrong advice and accepted that there may be circumstances where there are special reasons why a solicitor’s failure can be explained as reasonable (see further Riley and the judgment of Waller LJ).

4.2 Prior to the commencement of the statutory disciplinary and dismissal procedures, pursuant to the Employment Rights (Northern Ireland) Order 2003 (‘the 2003 Order’) and the Employment Rights (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’), which came into operation on 3 April 2005, an employee, who delayed making an unfair dismissal claim whilst he invoked an internal disciplinary or dismissal procedure, normally found it difficult to get it accepted if, as a result of pursuing the internal process, he presented his claim to the tribunal out of time. Unless there was exceptional circumstances, the mere fact of invoking an internal appeal procedure was not generally regarded as sufficient to justify a finding that it was not reasonably practicable to present the claim in time. (In Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, where the Court of Appeal expressly approved the following guidance of Browne-Wilkinson J when he stated in Bodha v Hampshire Area Health Authority [1982] ICR 200:-

“There may be cases where the special facts (additional to the bare facts that there is an internal appeal pending) may persuade an Employment Tribunal, as question of fact, that it was not reasonably practicable to complain to the … tribunal within the time-limit. But we do not think that the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was ‘reasonably practicable’ to present a complaint to the … tribunal.”

In Harvey on Industrial Relations and Employment Law, Volume 3, Section P1, it is stated:-

“(253.01) Whilst the mere fact of impending internal appeal will not of itself enable a claimant to claim that it was not reasonably practicable to present a claim in time, the question of the claimant’s state of knowledge of his or her rights and of the time-limit will nevertheless be relevant to consideration of whether he or she is entitled to the benefit of the escape clause. Thus in Marks & Spencer PLc v Williams-Ryan [2005] IRLR 562, the claimant’s belief that she had to conclude her internal appeal before starting tribunal proceedings, allied to a reasonable ignorance of the time-limit for bringing an unfair dismissal claim, enabled her to claim successfully that it was not reasonably practicable for her to make her claim in time.”

In John Lewis Partnership v Charman [UKEAT/0079/11], the claimant’s ignorance of the time-limit for claiming unfair dismissal was held by the Employment Appeal Tribunal where he pursued an internal appeal at the expense of presenting an unfair dismissal claim in time. The central issue to be determined was whether, given that he did not know of the time-limit – “he ought reasonably to have made enquiries about how to bring an employment tribunal claim”. If he had done so, it would have been inevitable, in the judgment of the Appeal Tribunal he would have been put on notice of the time-limits immediately following his dismissal. On the facts of the case, the EAT held it was not reasonable to have expected him to do so. Underhill J, as he then was, accepted that the claimant and/or his father knew in general terms there was a right to bring a claim for unfair dismissal to an industrial tribunal but he was ‘unquestionably’ unaware of the time-limits.

Underhill J in the course of his judgment after reviewing the authorities stated:-

“The starting point is that if an employee is reasonably ignorant of the relevant time-limits it cannot be said to be reasonably practicable for him to comply with them. Brandon LJ said this is terms in Walls Meat Co Ltd v Khan [1979] ICR 52 at Page 61 and the passage in question was explicitly endorsed by Lord Phillips in Williams-Ryan … In the present case the claimant was unquestionably ignorant of the time-limits, whether one considers his own knowledge or that of himself and his father. The question is whether that ignorance was reasonable. I would accept it would not be reasonable if he ought reasonably to have made enquiries about how to bring an employment tribunal claim, which would inevitably have put him on notice of the time-limits. The question thus comes down to whether the claimant should have made such enquiries immediately following his dismissal …

… .”

In Marks & Spencer, Lord Phillips said in terms 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 there was a time-limit for making a complaint to the Employment Tribunal …”.

Having concluded that he could not see, on the facts that it was unreasonable to defer investigating the position about a possible Employment Tribunal claim until the claimant knew the outcome of the appeal, Underhill J distinguished Bodha and Palmer, insofar as they might suggest a contrary conclusion, on the ground the claimants in those cases were represented by trade union officials who knew or must be taken to have known the time-limits and they had taken a deliberate decision to delay making a claim until the internal appeal process had been concluded, which decision bound the claimants and prevented them from saying it was reasonably practicable to have presented their claims in time.

In Dillon and Another v Todd and Another [2011] UKEAT, Underhill J, following his judgment in Charman, stated:-

“It is well established in the context of the cognate provision of Section 111(2) of the 1996 Act [Article 145 of the 1996 Order] that reasonable ignorance of time-limits (by a person who is not represented by solicitors or other skilled advisers] will render it not reasonably practicable for him to comply with those time-limits.”

4.3 The statutory dismissal procedures contained in the 2003 Order and the 2004 Regulations allowed, in certain circumstances, a one-off extension by three months where such a disciplinary and dismissal procedure applied. Those circumstances were where the employee presented a complaint to the tribunal after the expiry of the normal time-limit but had reasonable grounds for believing, when it expired [tribunal’s emphasis], that a dismissal or disciplinary procedure was being followed, whether statutory or otherwise, in respect of matters that consisted of or included the substance of the tribunal complaint (see Regulation 15 of the 2004 Regulations). The statutory grievance procedures were abolished by the Employment Act (Northern Ireland) 2011 (‘the 2011 Act’), which came into force on 3 April 2011. By Section 3 of the 2011 Act, the provisions concerning extensions of time-limit, which included thereby Regulation 15, insofar as it applied to the statutory dismissal procedures, were repealed; and therefore the time-limit, and any extension thereto for an unfair dismissal claim, reverted to the previous three month time-limit, as set out in Article 145. It is of interest to note that since the appeal procedure, in the present case, ended with the letter by the respondent to the claimant dated 2 May 2013, this was still within the normal time-limit period of three months and therefore no such extension of time under Regulation 15 of the 2004 Regulations would have been able to be used by the claimant, in this case, even if Regulation 15 had still been in force.

In a series of cases in Great Britain when a similar provision to Regulation 15 of the 2004 Regulations still applied to give such a one-off extension, as set out above, the effect of those cases was that where the statutory dismissal procedure had been invoked but ended prior to the expiry of the normal time-limit, the only period that was relevant to the determination of the reasonably practicability question was that part of the limitation period remaining following the ending of the internal appeal process. Each case depended on its own facts but the shorter the period in question the more chance the claimant had in showing that it was not reasonably practicable to present the claim before the end of the normal time-limit; and, if he did so, he still had to go on to show that he presented the claim within a reasonable time of the relevant expiry date and so should be granted an extension (see further, for example, Royal Bank of Scotland v Bevan [2008] ICR 682, Ashcroft v Haberdashers Aske’s Boys School [2008] ICR 613).

There would seem to be little doubt that these cases in Great Britain, as referred to above, were clearly influenced by the fact that Regulation 15 (under the equivalent Regulations in Great Britain) allowed for an extension of time where an internal appeal procedure was taking place at the end of the relevant three month period.

Indeed in Charman, a case decided after the repeal of the statutory procedures and the said one-off extension of time provision, Underhill J accepted not only that the Ashcroft dicta (and presumably also Bevan) depended on the fact the said statutory procedures and one-off extension of time provision were in force but also, since their repeal, “the law had accordingly reverted to what it was before”. Thus, I do not propose to follow the decisions in Bevan and Ashcroft since, in Northern Ireland, as set out above, Regulation 15 of the 2004 Regulations is no longer in force. It was therefore necessary to determine the present proceedings on the basis of the dicta set out in Bodha by Browne-Wilkinson J, and approved in Palmer and Saunders; but also as more recently interpreted in Marks & Spencer PLc v Williams-Ryan and, in particular, in Charman and Dillon by Underhill J. In relation to Charman, it is necessary to note that, unlike the present proceedings, the notification of the result of the appeal was after the expiry of the three month time-limit.

4.4 Where a claimant satisfies the tribunal that it was not reasonably practicable to present a claim in time, the tribunal must then proceed to consider whether it was presented within a reasonable time thereafter. As seen in Marley (UK) Ltd and Another v Anderson [1994] IRLR 152, if a tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the statutory three month period, there are no time-limits on what can be regarded as a further reasonable period for presenting the complaint. However as set out in Biggs v Somerset County Council [1996] IRLR 203, although the tribunal has a wide discretion in deciding what is a reasonable further period, the tribunal has to take into account all the circumstances in order to achieve a fair balance. It is not concerned only with difficulties faced by the claimant. Therefore an extended further period may be unreasonable if the employer were to face difficulties of substance in answering the claim. In Northumberland County Council v Thompson [UKEAT/209/07], it was held that when considering the reasonableness of a delay, a proper consideration of all the relevant circumstances includes a continuing need by the tribunal to investigate, throughout the period of the delay, the actual knowledge that the claimant had as to his rights and ‘what knowledge he should have had if he had acted reasonably in all the circumstances’. In Cullinane v Balfour Beatty Engineering Services [UKEAT/053/10], Underhill J emphasised that the question of whether a further period is reasonable is not the same as asking whether the claimant acted reasonably (still less is it equivalent to the question whether it will be just and equitable to extend time); instead requires ‘an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceeding 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. Indeed, Underhill J stated, obiter, that if the delay between the expiry of the primary time-limit and the eventual presentation of the claim is objectively unreasonable on the above basis, the fact that it was caused by the fault of the claimant’s advisers, rather than by the claimant himself, will not make any difference to that conclusion.

5.1 In the light of the facts as found by the tribunal and the legal authorities referred to at Paragraph 4 of this decision, I reached the following conclusions in relation to the issues, the subject-matter of this pre-hearing review.

As set out previously, the first issue which the tribunal was required to determine:-

“Was it reasonably practicable to present the complaint in time?”

I was satisfied it was reasonably practicable to present the complaint in time. The respondent’s representative, properly in my view, acknowledged that, in the immediate period following the claimant’s receipt of the dismissal letter dated 18 February 2013, the claimant, as set out in the medical report, had to attend her General Practitioner on 20 February 2013 and was given a large increase in her antidepressant medication and additionally she was put on a short course of Temazepam. However, at a review on 13 March 2013, her course of Temazepam was stopped; albeit she remained, and still does, on an increased dose of antidepressant medication. However, significantly, she has not required to attend her General Practitioner at any date since the review on 13 March 2013. Clearly, as acknowledged by the respondent’s representative, this was a relevant factor to be taken into account in the period in or about March 2013, which was compounded by the illness and death of her husband in March 2013, which clearly was very upsetting both for her and her family. All of this I accept, but it also has to be recognised that, despite the claimant’s evidence, which I do not accept, that she was housebound during this period, she was able to not only write her notice of appeal but also to consult with JA of the Citizens Advice Bureau, to which I will refer later. In addition, the claimant, properly and to her credit, following her dismissal to the date of her appeal in April 2013 and subsequently, applied for employment and attended interviews; albeit these were unsuccessful. In these circumstances, prior to the end of March 2013, I am prepared to accept the claimant had a number of serious difficulties, as outlined above in her life. However, despite these difficulties, she was able to cope and, in particular, prepare for the internal appeal, with the assistance of the Citizens Advice Bureau. Indeed, it is apparent from the minutes of the appeal hearing, the claimant was able to vigorously contest the decision to dismiss her. In light of the foregoing, the particular scrutiny of the tribunal has been on the last part of the three month period (see further Schultz v Esso Petroleum [1999] IRLR 488).

5.2 When the claimant consulted JA she was informed of the option of going to an industrial tribunal; but she clearly made, at that time, on her evidence, the decision that she did not intend to go to a tribunal as she was confident that she would be successful on appeal. In light of this decision by the claimant, at that time, I am satisfied that any advice given by JA only related to the internal appeal and, in particular, in relation to the viewing of the CCTV footage and that his advice was not sought about how to go about tribunal proceedings and, in particular, any relevant time-limits. As I have set out previously, since the commencement of the 2011 Act the claimant is not entitled to any extension of time pursuant to Regulation 15 of the 2004 Regulations. Indeed, on the particular facts of this case, since the claimant was informed of the outcome of her appeal by letter dated 2 May 2013, even if Regulation 15 of the 2004 Regulations had been in force, the claimant would not have been entitled to any extension as the internal appeal procedure had concluded prior to the end of the relevant three month period. As seen in Bodha and Palmer and Saunders, but also Williams-Ryan and Charman, the fact of an impending internal appeal, by itself, is not sufficient to justify a finding of fact that it was not reasonably practicable to present a complaint to the tribunal.

I consider that in Williams-Ryan, but, in particular, in Charman and Dillon, there has been a more generous approach to this issue, especially where a person has not had any relevant representation, than might previously have been considered to be the position, based on the decisions in Bodha and Palmer and Saunders. I am not satisfied JA of the Citizens Advice Bureau was representing the claimant throughout these proceedings. If he had been there could have been no question of any extension of time, on foot of the dicta in Bodha and Palmer and Saunders. Certainly, initially, JA told the claimant of the option of tribunal proceedings; but she decided at that time she was not going down the legal route, as she was confident she would win the appeal. These facts seem very similar to the facts found in Charman. However, unlike in Charman, the claimant received notification of the result of her appeal on 3/4 May 2013 and consulted with JA by 7/8 May 2013. At that time, unlike Charman, the claim was still in time. Further, JA told her the Citizens Advice Bureau could not represent her and crucially gave her a list of solicitors/bodies who could represent her in any tribunal proceedings, which she knew was the next and only remaining step open to her if she wished to further challenge the decision to dismiss her. Although the decision in Bevan and Ashcroft are influenced by the then statutory procedures in force, they made clear that where an internal procedure is invoked but ends prior to the expiry of the normal time-limit, as occurred in the present case, that part of the limitation period remaining following the end of the internal process is of particular relevance to the determination of the reasonably practicability issue.

I can find no good reason why the claimant did not act upon the information given to her by JA until, at best, the last few days of May 2013 and more probably during the beginning of June 2013. By that time the claimant was out of time. It is apparent that, having made the relevant enquiries, the claim was then presented within a short time thereafter by the claimant, following advice from Employment Law Services, who were on the list provided to her by JA and who assisted the claimant in presenting her claim to the tribunal on 14 June 2013. In the circumstances, I have therefore come to the conclusion that it was reasonably practicable for the claimant to have presented her claim in time. In particular, I can find no good reason the claimant did not make the enquiries which she should have done, following receipt by her of the list of relevant advisers given to her by JA on or about 7/8 May 2013. This is in a context in which the claimant has known since she first consulted JA that an option for her was tribunal proceedings; albeit she decided to await the result of the appeal, as she was confident it would be successful, without making any further enquiries either from JA or anyone else about how to go about tribunal proceedings. Her failure, from on or about 7/8 May 2013 to end of May/beginning of June 2013, to make the relevant enquiries cannot be explained, in my view, by the fact that she was so upset by the result of the appeal. I note the claimant was able to consult with JA within a few days of receipt of the letter informing her of the rejection of her appeal.

5.3 Even if I am wrong and it was not reasonably practicable for the claimant to have brought her claim by 18 May 2013, I am not satisfied that the claimant was able to show that she brought her claim within a reasonable period thereafter. As stated above, it was not until, at best, the last few days in May 2013 and probably the first week in June 2013 that the claimant made the necessary and relevant enquiries with Employment Law Services. Similarly, the claimant has now shown any good reason why she failed to take action in the period between 18 May 2013 and end of May 2013/ early June 2013.

6.1 I am satisfied, for the reasons set out above, the claimant’s claim was out of time and it was reasonably practicable for the claimant to present her claim in time. The tribunal therefore does not have jurisdiction to consider and determine the claimant’s claim and it must be dismissed.

Chairman:

Date and place of hearing: 3 September 2013, Belfast

Date decision recorded in register and issued to parties: