Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    558/14

 

 

 

CLAIMANT:                      Anthony McGouran

 

 

RESPONDENT:                Northern Ireland Transport Holding Company t/a Translink (NI) Ltd

 

 

 

DECISION

 

The decision of the industrial tribunal is that it was not reasonably practicable for the claimant to lodge his claim within the initial three month time limit for an unfair dismissal claim, but the period of time he took after the expiration of the time limit was unreasonable.  It would therefore not be appropriate for the tribunal in all the circumstances of the case to extend the time limit under Article 145(2) of the Employment Rights (NI) Order 1996.  Accordingly the claimant’s claim of unfair dismissal is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge McCaffrey

 

Members:                        Mr D Walls

                                        Mr A Henry

 

 

Appearances:

 

The claimant appeared in person and represented himself.

 

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors.

 

 

BACKGROUND     

 

1.               This case related to the dismissal of the claimant by the respondent company from his job as a train driver in August 2013.  The claimant was dismissed for gross misconduct following an incident when a train being driven by him passed a signal at danger, namely a red light at which the claimant should have stopped the train.  This is referred to as a “SPAD” by the respondent.  The incident occurred on the route from Adelaide Depot to Great Victoria Street junction so the train was not on a main line at the time.  Subsequent enquiries revealed that the claimant had been standing up away from the controls of the train, transferring information from his mobile electronic tablet device to his roster book.  The train continued to move because he had extended his left foot onto the pedal which keeps the train moving.  He was not however in the seat close to the controls.  When initially asked about the matter the claimant had indicated that he could not remember touching the tablet and that he did not recall using it.  He was charged with four incidents of gross misconduct, namely deliberately ignoring a violation of safety rules and procedures thereby endangering his own or others’ well being or safety; workmanship or performing to duties below an acceptable standard directly resulting in a serious safety incident; driving a train in a dangerous manner; and unacceptable behaviour likely to lead the company into disrepute.  At the disciplinary meeting he admitted that he had been using the electronic device.

 

2.               Following a disciplinary investigation and hearing at which the claimant was accompanied by his trade union representative the claimant was dismissed for gross misconduct on 21 August 2013.  He exercised a right of appeal and the appeal hearing took place on 5 September 2013.  The grounds of appeal were that the claimant believed that equally severe charges against other employees had not been punished in the same way.  Mr Campbell (who dealt with the appeal) considered these matters but did not consider that the five cases referred to were appropriate comparators for the claimant.  His evidence to the tribunal was that there was no direct parallel between these cases and the claimant’s case. 

 

3.               The claimant had a further and final right of appeal to Mr Mal McGreevy, General Manager, Rail Services.  This appeal hearing took place on 21 October 2013 and the claimant was again accompanied by his trade union representative Mr McKessick.  The main focus of the second appeal was to ask for a lesser penalty and the possibility of ill-health retirement.  The outcome was that the decision to dismiss was confirmed on appeal.

 

4.               The claimant indicated from the outset of the hearing that he did not dispute that the events he was charged with had occurred or that he should be punished for them.  The grounds of his claim were that he alleged he had been treated in a manner inconsistent with the treatment given to other train drivers and that the sanction of dismissal was too severe. 

 

5.               The other issue which arose in relation to the case was that the claimant was dismissed on 21 August 2013, but his claim to the industrial tribunal was not lodged until 16 April 2013, some five months outside the three month time limit.

 

The Issues

 

6.               The issues for the tribunal to consider were as follows:

 

(1)           Was the claimant’s claim of unfair dismissal lodged outside the statutory three month time limit?

 

(2)            If so, was it reasonably practicable for the claimant to have lodged his claim within the three month time limit specified in Article 145(2) of the Employment Rights (Northern Ireland) Order 1996?

 

(3)            If it was not reasonably practicable for the complaint to be presented within the three month time limit, was the complaint presented within such further period as the tribunal considers reasonable?

 

(4)            If the tribunal is satisfied that it has jurisdiction to deal with the claim under Article 145 of the 1996 Order, was the claimant treated inconsistently with other train drivers who were disciplined for the same or similar offences?

 

FACTS

 

7.              The claimant and respondent agreed that the events described above had occurred, and that the claimant had been dismissed for gross misconduct.  The only issues which the tribunal had to decide were therefore those set out above.  We do not propose to rehearse the entire details of the case.  We have confined this section of the decision to the evidence which we heard in relation to outstanding issues, mainly the issue of time limit which goes to the jurisdiction of the tribunal to deal with the case, and secondly, the issue of consistency of treatment, which is the basis of the claimant’s claim of unfair dismissal.

 

8.              We heard evidence from the claimant, from Mr Morrissey, the claimant’s Line Manager and the Disciplinary Officer; Mr Campbell who dealt with the initial appeal and Mr McGreevy who dealt with the second appeal on behalf of the respondent.  A number of documents and pleadings in the case were also opened to us.  On the basis of the information received, we make the following findings of relevant facts.

 

9.              We also consider it appropriate to record that we appreciated the courteous way in which this case was conducted both by the claimant and by the respondent’s representative.  We found the claimant to be a sincere and reasonable individual who acknowledged that a serious error made by him in the course of his employment had effectively ended his career as a train driver.  We are also conscious that the claimant had serious health problems in the summer of 2013 which may have influenced his ability to return to work and which may have impacted on his ability to return to work, had he not been dismissed from his job.

 

10.           The disciplinary procedures in relation to the claimant’s case were delayed because he had suffered a number of heart attacks in the Spring of 2013, and the disciplinary procedure therefore took place in August, although the event giving rise to it had occurred on 30 January 2013. 

 

11.           Following the completion of the internal appeal procedures set out at paragraphs 1-4 above on 5 November 2013, the claimant indicated that he had sought advice initially from the Citizens Advice Bureau and then from Worthingtons Solicitors.   The advice he was given was, in effect, that in order to argue inconsistency of treatment he should be able to reply on a comparator who had also been using a electronic device, but who had not been dismissed.  He was also advised as to the three month time limit, but his evidence was that he was not aware that this time limit could not be extended.  The claimant also indicated that he had been told by Worthingtons that if he did come across a suitable comparator, he should not hesitate to contact them.  So at that time, he was clearly aware of the three month time limit for lodging a claim for unfair dismissal, which expired on 21 November 2013.

 

12.           Some months after this, on 3 March 2014, the claimant received an email from a former colleague Mr Gilliland.  He had forwarded to the claimant a picture taken by a train driver named BS which BS had posted to his Facebook account.  This picture, apparently taken on a mobile phone, showed BS’s feet on the driving pedal of a train, and referred to the fact that the weather was cold, and that it would be best to “stick the foot heater on, get the boots off and get the feet on the hot plate!”.

 

13.           The same photograph was transmitted to Mr Morrissey, the claimant’s former Line Manager, by email on 5 March 2014.  As he was aware that there was a train driver named BS, he arranged to meet him in relation to the matter, and a copy of the investigation interview, which took place on 6 March 2014, was opened to us.  At that meeting, BS indicated that he had not mentioned Translink in the Facebook post, that a very small group of friends could see his Facebook page and he was clear that the train had not been moving at the time.  He indicated that the picture had been taken sometime in February when the weather was cold but he could not say exactly when.  He was clear that he had not driven with the phone on and immediately indicated that he would never again turn a phone on in the cab.  A disciplinary charge of major misconduct was brought against BS, and he was issued with a final written warning on 14 March 2014. 

 

14.           It was not entirely clear when the claimant became aware that BS had not been dismissed in relation to this matter, but he agreed that it must have been some time after 14 March.  He indicated that he had had something of a moral dilemma in deciding whether or not he should use the Facebook photograph, as he thought that it may be “a bit sneaky” to use information of a former colleague’s wrongdoing for his own claim.  However on reflection he felt that it would be of benefit to him that he had a comparator upon whom he could rely.  He said that a week or two after he received the photo, he contacted Worthingtons again.  It was not entirely clear to us as to whether he made an initial phone call, but he agreed that he had forwarded a copy of the Facebook photograph to Worthingtons by email and that it was a day or two later when the solicitor got back to him.  At that stage the solicitor advised that it may be worth pursuing the matter, although it was again made clear to the claimant that there was an issue in relation to time limit.  The claimant had to contact his insurance company again to “reactivate” the insurance.  He was not entirely sure as to whether he had spoken to the solicitor prior to 7 April 2014, when the replies to additional information indicated that the solicitor had been instructed; he indicated it may actually have been 7 April when he spoke to the solicitor.  The claimant’s claim was lodged in the Office of the Industrial Tribunals on 16 April 2014. 

 

15.           In relation to the question of consistency of treatment, the claimant argued that BS had been treated more leniently that he had been.  In his view their offence was the same in that both had been found guilty of using an electronic device on board a train.  He asserted that the train driven by BS was “live” at the time when the picture was taken and that this was clearly shown by the fact that the foot plate appeared to be lit up.  The respondent’s disputed this, indicating that there were clear differences between the claimant’s situation and BS’.  They indicated that there was no evidence that BS had actually been driving the train or that the train had been moving when he had taken the picture with his mobile phone.  By contrast the claimant had been using an electronic device while away from the controls of the train, but using his foot to keep the train moving.  Secondly there had been no adverse security incident in BS’ case, in that there had been no “SPAD” incident and therefore no safety or security implications.

 

THE RELEVANT LAW

 

Time Limits

 

16.           The relevant law in relation to time limits for presenting a claim for unfair dismissal to an Industrial Tribunal is to be found in Article 145 of the Employment Rights (NI) Order 1996 (“the 1996 Order”) which 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)           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 end of the period of three months beginning with the effective date of termination, or

 

(b)        Within such a 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 the end of that period of three months.

 

(3)           Where a dismissal is with notice, an Industrial Tribunal shall consider a complaint under this Article if it is presented after the notice is given but before the effective date of termination ...”

 

17.           The case law in relation to this statutory provision and the equivalent legislation in Great Britain clarifies that “reasonable practicable” is to be construed as meaning “reasonably feasible”.  In Palmer and Saunders v Southend on Sea Borough Council [1984] IRLR 119, the Court of Appeal in England and Wales took the view that the best approach in addition to this matter was to consider whether it was reasonably feasible to present the complaint to the tribunal within the relevant three months.  Harvey on Industrial Relations and Employment Law (Division P1 paragraph 193) comments, this formulation is valuable in stating in clear terms the Court of Appeal’s rejection of two possible extremes of construction, namely pure reasonableness and physical possibility.  The case also makes it clear that it is a matter for the tribunal to decide on what factors must be taken into account in deciding whether or not it was reasonably practicable for the claimant to lodge a claim.  These will include the manner of or the reason for the dismissal, whether conciliation machinery had been used; whether there was any physical impediment preventing compliance such as illness or a postal strike; whether, and if so when, the claimant knew of his rights and whether the claimant had been advised and the nature of the advice given.

 

18.           In the case of Wall’s Meat Co Ltd v Khan [1979] ICR 552, Lord Justice Brampton noted that the “impediment” which prevents the claim being lodged may be physical or mental namely, the state of mind of the complainant in the form ignorance or mistaken belief with regard to essential matters.  He commented that:

 

          “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 the complainant in not making such enquiries as he should reasonably in all circumstances have made, or from the fault of his solicitors or other professional advisors in not giving him such information as they should reasonably in all the circumstances have given him”.

 

19.           So it is clear from the case law that there are two limbs to this test of “reasonable practicability”.  Where a claimant satisfies the tribunal that it was not reasonably practicable to present his claim on time, he must then secondly, satisfy the tribunal that the claim was presented within a reasonable time thereafter.  While this is a matter of discretion for the tribunal, the tribunal must exercise its discretion reasonably and with due regard to the circumstances of the delay.  It is noted that cases do not purport to lay down any particular time as being reasonable in a general sense.  In each case the tribunal must look at the particular circumstances before exercising its discretion.  It is established from the decision in Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 that if an error arises as a result of delay by a legal advisor, then such delay or conduct will be attributed to the claimant with the result that he will not ordinarily be able to rely on the “escape clause” for reasonable practicability. 

 

20.           In this case the claimant has argued that he discovered new facts in March 2014 which led him to reconsider the possibility of lodging a claim of unfair dismissal.  The leading case in relation to this matter is Machine Tool Industry Research Association v Simpson [1988] IRLR 212.  The test set out by Purchas LJ in that case is that the claimant must establish three things:-

 

(i)              that it was reasonable for him not to be aware of the factual basis upon which he could bring an application within the three month time limit (it being accepted that it cannot be reasonably practicable to bring a case based on facts of which he is ignorant);

 

(ii)            that the knowledge gained has, in the circumstances, been reasonably gained by him, and that that knowledge is crucial, fundamental or important to his change of belief from one on which he does not believe that he has grounds for an application, to a belief which he reasonably and genuinely holds, that he has a ground for making an application; and

 

(iii)           that the acquisition of the knowledge is crucial to the decision to bring the claim in any event.  The test therefore involves a study of the claimant’s state of mind: the claimant is not required to prove the truth of the facts which led him to bring his claim.

 

21.           Where the claimant makes a claim based on a “new” fact, but his ET1 form also refers to matters which could have been raised within the time limit, Churchill v Yates and Son Ltd [1983] IRLR 187 also makes clear that the tribunal must consider the question of reasonable practicability separately in relation to the new facts and cannot simply say that because other matters could have been raised within the time limit, it was reasonably practicable to present the claim in time and dismiss the whole complaint.  The tribunal must evaluate the new facts to see whether it is indeed “crucial” in the sense mentioned by Purchas LJ in the Machine Tool case.

 

 

Inconsistency of Treatment

 

22.           In relation to the issue of inconsistency of treatment, Mr Ferrity referred us again to Harvey, Section D1, Part 7 in relation to the issue of the “reasonableness” of the employer’s action in deciding to dismiss.  It is noted at paragraph 1036 that inconsistency of treatment may render a dismissal unfair.  It was also noted by the Court of Appeal (for England and Wales) in Post Office v Fennell [1981] IRLR 221                                                                that employees who behave in much the same way are entitled to be treated in much the same way.  We were also referred to the decision of the EAT in Eaglestar Insurance v Hayward [1981] ICR 860 which related to a case where the claimant had been dismissed, and some seven weeks later a colleague who had committed similar misconduct was not dismissed.  It was held in that case that the claimant was entitled to rely on the subsequent incident as an example of inconsistent behaviour.  Mr Ferrity drew to our attention that that decision related to an application for an application in relation to discovery at the interlocutory stage.  He suggested that it was not authority for the proposition that there was no time-limit in relation to inconsistency in treatment; and invited us to rule on this issue.

 

22.     Harvey at Paragraph 1040 and following notes that there are four “notes of caution” which should be considered in every case.  First of all, in considering previous similar situations, an employer should compare like with like.  In other words, the situations must be truly similar and not just broadly comparable (see Proctor v British Gypsum Ltd [1992] IRLR 7.  Secondly, if an employer is unaware of the conduct of other employees, no inconsistency can have occurred (Wilcox v Humphreys and Glasgow Ltd [1975] IRLR 211).  Thirdly, if an employer consciously distinguishes between two cases of misconduct, then dismissal can only successfully be challenged if there is no rational basis for the distinction made.  In this case, Mr Ferrity argued that the same disciplinary officer had made the decision and had made a distinction between BS’s case and the claimant’s case.  BS had not been driving a train at the time he used the electronic device, whereas the claimant had.  BS had not had a serious security incident whereas the claimant had.  Mr Ferrity noted that the claimant did not make any other attempted challenge of the treatment of BS except to suggest that the respondent did not have clear evidence that the train had not been moving, and suggested that he should have been treated as BS was in absence of that clarification.  Finally, even if there is clear inconsistency of treatment, this is only a factor which may have to give way to flexibility of treatment.  Undue leniency in the past does not mean an employer cannot dismiss fairly in the future, notwithstanding inconsistent treatment.

 

Reasons and decision

 

(1)           Time Limit

 

23.     In this case it is clear to us that the claimant’s claim was not lodged before the initial time-limit expired on 21 November 2013.  The question for us to decide therefore is whether it was reasonably practicable for him to lodge the claim within that time-limit and secondly, whether the further time that he took to lodge the time-limit was a reasonable period.

 

24.     The claimant’s case is that it was not reasonably practicable for him to present his claim in time because it was only in March 2014 that he discovered evidence of the treatment of BS, who had been using an electronic device in the driver’s cab and had not been dismissed as a result.  Prior to that he had been advised in November 2013 by a firm of solicitors that he did not have a reasonable prospect of success, as a result of which his insurance company was advised of this and the claimant believed that he had little chance of succeeding in a claim of unfair dismissal.  As he reasonably said, this was the advice given to him by the solicitor, and you pay your solicitor to give you advice.  He had also been advised by the solicitor that if he became aware of a comparator who had been disciplined for using the electronic device, but not dismissed, that he should not hesitate to contact them again.  In November 2013, the claimant was also aware of the three month time-limit for bringing a claim for unfair dismissal.

 

25.     Applying the test set out in the Machine Tool case referred to above, we are satisfied that it was reasonable for the claimant not to be aware of the facts around the case of BS in November 2013, for the simple reason that those events had not yet occurred.  Secondly, this information was passed to him by a former colleague and it was clear that that knowledge was fundamental in changing his belief from one where he did not believe that he had grounds for an application for unfair dismissal to a belief which he generally and reasonably held that he then had grounds to bring such an application.  It is clear, thirdly, that the acquisition of the knowledge was crucial to the decision to bring the claim in any event. 

 

26.     Harvey also refers to the case of Marley (UK) Ltd v Anderson UK Ltd 1996 IRLR 163 Court of Appeal.  In that case Waite LJ stated that the questions of reasonable practicability and the reasonableness of the delay following discovery of the new facts are both matters “to be weighed separately – ground by ground and fact by fact – under each head of unfair dismissal upon which a complaint or complaints is or are founded”.  This means that we must consider not just the delay between November 2013 when the original time-limit expired and 16 April 2014 when the claim was lodged, but the delay between early March 2014, when the claimant became aware of BS’s photograph and the date when the claim was lodged on 16 April 2014.

 

27.     It was clear that BS was disciplined on 14 March 2014 and it was not clear when exactly the claimant became aware of his circumstances or the fact that BS had not been dismissed.  This must, however, had been after 14 March 2014.  The claimant did however have the photograph on 3 March, although as he said, this gave him something of a “moral dilemma” in that he was reluctant to use information which would discredit a colleague.  His evidence was that he waited “a week or two”, spoke to some friends and colleagues and was advised to speak to a solicitor about the matter after which he contacted Worthingtons again.  It was not clear to us whether he had made an initial contact by telephone and exactly when that contact had been made.  He said that he had sent the photograph by email to the solicitor, and that the solicitor had responded after a “day or two”.  He was not sure whether this was prior to 7 April when the solicitors indicated that they had been instructed in the matter, or whether it was actually on 7 April.  He also indicated that he needed to contact his insurance company again to ensure that he would have insurance cover for the work being done.  The claim form was lodged some nine days later on 16 April 2014. 

 

28.     We have considered this matter carefully.  While we fully appreciate and sympathise with the claimant’s reasons for hesitating to use the information, we nevertheless believe that his scruples in relation to using the information cannot be a valid reason for delaying in lodging his claim.  Similarly, we do not believe that seeking authority from the insurance company could be considered as a justification for delaying and lodging proceedings either.  Neither of these factors in our view would make it reasonable for the claimant to delay in lodging his claim.  It is not enough for the claimant to leave the matter in the hands of his solicitors.  It was not clear to us if the delay of nine days in lodging the claim was due to the fact that the Solicitors were waiting for instructions from insurance company, but again we do not believe that this would be a valid reason for delay.  There are currently no court fees payable for lodging a claim in the Industrial Tribunals in Northern Ireland, and it would have been a matter for the claimant to decide whether or not he wished to pay for the expertise of the solicitor in preparing the claim on his behalf.  He could potentially have lodged the claim himself if he was keen to pursue it, if he was unable or unwilling to pay the solicitor to do the work for him at that point.  From 3 March 2014, the claimant was aware of information which he believed could potentially raise a disparity of treatment between him and another driver.  While we appreciate the reasons why he initially delayed in using this information, we are also aware that he had previously been advised that there was a three month time-limit in relation to the claim.  He said he was not aware that it was not possible for the time-limit to be extended.  Nevertheless he knew the time-limit existed, and it was for him to take steps to act as promptly as possible to pursue his claim.  We are not satisfied that the time taken by the claimant to lodge his claim was reasonable, and accordingly it is our decision that the time-limit for lodging the claimant’s claim in this matter should not be extended.

 

29.     If we are incorrect in this, we would nevertheless have held that the claimant was not unfairly dismissed.  For completeness, it is relevant for us to state that we do not believe that the case of BS and the claimant were truly comparable, for the reasons already given by Mr Morrissey.  The employer in this case has drawn a clear distinction between the misconduct of each of the drivers involved.  In BS’s case, he had used his mobile phone to take a picture of his feet on the train’s pedal.  It was unclear as to when exactly this had occurred, but there was no evidence whatsoever from the respondent’s point of view to show that BS was driving at the time, or that there had been any safety or security issues.  BS had frankly and promptly admitted the misconduct when it was first put to him at the investigatory meeting.  The claimant on the other hand had initially been somewhat reluctant to confess his misconduct, although he had so at the disciplinary meeting.  There was clear evidence that the claimant had not been at the controls while the train was moving, contrary to safety rules and that he had been using an electronic device while the train was moving.  As a result of this there had been a “SPAD” incident.  Mr McGreevy in his evidence to us made it clear that the “SPAD” was the consequence of the misconduct and was not the misconduct which he was most concerned about.  In his words, the claimant had been “doing all of the wrong things in the driving cab”.  While we appreciate that this was one incident and that the claimant had 18 years service with the respondent, having worked his way up from a train conductor’s position to a train driver’s position, and that this dismissal will no doubt have a serious impact on his career prospects, it is clear to us that there was a clear distinction between the conduct of the claimant and that of BS. 

 

30.     In our view there was no inconsistency of treatment by the respondent which would have rendered the claimant’s dismissal unfair and accordingly his claim is dismissed.

 

         

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:         29 and 30 September 2014, Belfast.    

 

Date decision recorded in register and issued to parties: