Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   822/14

 

 

 

CLAIMANT:            Tommy McGowan 

 

 

RESPONDENT:      1. Northern Ireland Association for Mental Health

2. Inspire Wellbeing Ltd

 

 

DECISION ON A PRE-HEARING REVIEW

 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge McCaffrey

 

                                       

 

 

Appearances:

 

The claimant appeared in person and represented himself.

 

The respondent was represented by Mr Neil Phillips, Barrister-at-Law instructed by Worthingtons Solicitors.

 

 

 

1.       This Pre-Hearing Review had been arranged to consider a number of issues which are set out below.  At the outset of the proceedings, I took the opportunity to clarify with the parties the correct name of the respondent as there had been some correspondence from the first-named respondent indicating that the correct name of the respondent was Inspire Wellbeing Ltd.  The respondent confirmed that this was the correct name of the respondent and I therefore direct that Inspire Wellbeing Ltd is joined to the proceedings as party without prejudice to any application by the newly joined party set aside the joinder.

 

2.       The issues for decision at this Pre-Hearing Review are as follows:-

 

          (1)      Whether the claimant’s claim of unfair dismissal was lodged within the statutory three month time-limit?

 

          (2)      If the claim was not lodged with the three month time-limit, was it reasonably practicable in all the circumstances for the claimant to have lodged his claim within the three month time-limit?

 

(3)      The claimant seeks to amend his claim to include a claim of discrimination on grounds of disability, particulars of which were to be lodged with the tribunal and the respondent’s representative on or before 29 August 2014.

 

(4)      The Pre-Hearing Review was to consider:

1.       whether the application to amend the claimant’s claim to include a claim of disability discrimination had been brought within the three month time-limit covering such a claim? 

 

2.       if not, is it just and equitable in all the circumstances to extend the time-limit for bringing such a claim?

 

(5)      Whether the claimant’s letter of 30 July 2014 was a withdrawal of his claim and whether the Employment Judge has discretion as to whether or not a withdrawal should be accepted.

 

These matters will be dealt with in turn.

 

3.       Following this hearing the claimant wrote to the Office of the Industrial Tribunals, attempting to restate some of his arguments and to introduce new evidence.  I should make it clear that no further submissions were sought by the tribunal and as such I do not consider it appropriate to take the claimant’s additional submissions into account.  At the start of his letter, the claimant indicates that he felt intimidated by the presence of six people in the room representing the respondent and he had said this at the hearing as well.  Two of these people were the barrister and the solicitor representing the respondent who were at the table and another two were a pupil barrister and apprentice solicitor there to observe proceedings.  There were also two other people present, both employees of the respondent.  The latter four people were seated in the public area of the room.  The claimant addressed one of them by name during the hearing and involved her in the discussion.  It did not appear to me at any stage that the claimant was intimidated by their presence.  The claimant was given full opportunity to put his case over a hearing which lasted for an hour and twenty minutes and showed no hesitancy in putting forward his point of view.

         

          (1)      The unfair dismissal claim

 

4.       The claimant was dismissed from his employment by the respondent with effect from 12 February 2014.  Accordingly the time-limit for lodging his claim expired on 12 May 2014.  The claimant’s ET1 had in fact been lodged on 13 May 2014, one day outside the time-limit.

 

5.       The claimant referred me to a report from his General Practitioner which he had lodged under cover of some correspondence which he had lodged in support of his claim on 15 August 2014.  That report is dated 30 June 2014 and is addressed “To whom it may concern”.  The letter starts by giving the claimant’s name, address and date of birth.  The doctor then sets out a number of conditions from which the claimant suffers including hypertensive disease, alcohol dependency syndrome, asthma, obesity, hypertension, chronic rhinitis, Type 2 diabetes, depression (in 2008), hiatus hernia, autonomic neuropathy due to diabetes and sleep studies.  None of these conditions was diagnosed after 2012.  He then sets out a number of medications which were prescribed for the claimant in 2013 and 2014.  The GP sets out a number of symptoms which the claimant has including shortness of breath, being unable to walk any distance due chronic obstructive pulmonary disease and also sets out the fact that the claimant can suffer from depression and alcohol dependence.  He continues:

 

                      “He would get very depressed and confused at times and would need encouragement with personal needs in taking medication.  He is prone to self-neglect and has lack of motivation due to excessive tiredness.  His alcohol dependence is well controlled now but he would have periodic setbacks from time to time”.

 

          The report is dated 30 June 2014 and it does not refer to the claimant’s state of health in May 2014 or to his health on 31 July 2014 when the claimant wrote a letter to the Office of the Tribunals indicating he was withdrawing his claim. 

 

6.       In his evidence to the tribunal the claimant confirmed he was aware of the time-limits for lodging proceedings but that he could not “face up to” lodging his claim.  He indicated that he was mentally unstable and that his mental state had deteriorated after his dismissal.

 

7.       Under cross-examination the claimant confirmed that he was aware of the relevant time-limits.  He said he thought he had 90 days to lodge his claim as this was the equivalent of three months in his mind, rather than three calendar months.  He also said that every day he meant to lodge his claim, but because of suffering from lack of interest and poor concentration as set out in the GP’s report, it was left to the last minute.

 

8.       The claimant agreed in cross-examination that he had been able, with help from his union representative to appeal against the decision to dismiss him and to conduct his appeal.  The claimant’s letter of appeal, dated 14 February 2014 was opened to us and indeed that made reference to the Employment Rights (Northern Ireland) Order 1996.  The claimant also agreed that he was an elected union official and that he had previously represented himself in the Industrial Tribunal some years ago.  He made the point however that at that time he had not been mentally unstable.  It was his case that it was only after his appeal against dismissal in April 2014 that his health deteriorated and that he was not then capable of lodging his claim.  The claimant made the case that due to mental health problems he would feel good on some days but not on others.  It was put to him that there was no evidence before the tribunal that he was less able to lodge his tribunal claim in the week leading up to 11 May, than on 13 May when it was finally lodged.

 

9.       In an unfair dismissal claim, the relevant time-limit is three months from the date of dismissal of the claimant.  Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that an Industrial Tribunal shall not consider a complaint under Article 145 unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination, or

 

                      “(b)             within such further period as the tribunal considers reasonable in the 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”. 

 

10.     The leading authority in relation to these issues is Palmer and Saunders v Southend-On-Sea Borough Council [1984] IRLR 119.  In that case the Court of Appeal in England and Wales held the test was whether it was “reasonably feasible” for the claimant to have lodged his claim within the three month time-limit.  The responsibility for doing this rests on the claimant.  The respondent argued that the burden rested on the claimant to show that it was not reasonably practicable for him to lodge his claim within the three month time-limit and that the evidence presented by the claimant had fallen short of that test.  The second limb of the test is that the claimant must show that he has acted reasonably in relation to the further time taken to lodge his claim.

 

11.     Mr Phillips conceded that if I found in favour of the claimant on the first limb of the test, that he (acting for the respondent) would face an uphill task in arguing that the further period of one day within which the claimant had actually lodged his claim was unreasonable.

 

12.     I was not persuaded by the claimant’s evidence in relation to this matter.  The medical report which he provided is dated 30 June 2014.  It does not specifically relate to any treatment for mental health issues, but rather suggests that the claimant suffers from depression and alcohol dependence.  While the report does refer to the claimant getting irritated and confused and having lack of motivation due to the excessive tiredness, the report does not refer specifically to the claimant’s state of health in April and May 2014 when the claimant says he was not well enough to lodge the claim.  It should also be noted that the issue of the time-limit for bringing the claim was raised by the respondent’s representative during a Case Management Discussion on 1 August 2014, and it is not clear therefore whether the GP report dated 30 June was obtained in connection with that matter or not.

 

13.     It was clear from the claimant’s own evidence and from the questions he was being asked in cross-examination that he knew of the relevant three month time-limit, that he had intended to lodge his claim within time but in his own words could not “face up to it”.  During the same period however he was competent to write a letter of appeal referring to the relevant legislation, to conduct an appeal against dismissal with assistance from his union representative and to copy his union representative in on correspondence.  It seems surprising that if the claimant, as a union official, was not feeling well enough to lodge the claim himself, he did not seek assistance from a union representative in doing so.  All in all I am not persuaded it was not reasonably practicable for the claimant to lodge his claim within the three month time-limit.  While it may well be that he had good days and bad due to his health conditions, he could have lodged the claim in time on one of his better days.  It was certainly reasonably feasible for him to do this at some point over the three month period prior to 12 May 2014.  Accordingly it is my finding that the claimant’s claim was lodged outside the statutory three month time-limit and that it was reasonably practicable for him to lodge his claim in time.  It is not therefore appropriate in this case to extend the time-limit for lodging of his unfair dismissal claim, and that claim is, accordingly, dismissed.

 

         

 

(2)      Disability discrimination

 

          The claimant advised at tribunal that he wished to lodge a claim of disability discrimination on the basis that he suffers from type 2 insulin dependent diabetes and chronic obstructive pulmonary disease.  He alleged that he had suffered discrimination when he had been refused an interview for a role as a team leader by the respondent in the middle of November 2013.  He was not sure of the exact date.  The time-limit for lodging a claim of disability discrimination on this ground would therefore have expired in mid-February 2014.  This claim had not been spelt out with any clarity by the claimant prior to this Pre-Hearing Review, in spite of the fact that the claimant was asked to provide particulars of his claim on or before 29 August 2014.  Instead he sent to the tribunal and the respondent a series of letters written by the claimant and by other people on his behalf to various organisations over a period of months.  It was not entirely clear from this correspondence exactly what the claimant’s claim of disability discrimination consisted of.

 

14.     The claimant indicated his understanding was that the claim of disability discrimination could be included as part of his whistle-blowing and unfair dismissal in May 2014 and that he had not sought any advice about this.  He argued that the tribunal should extend the time-limit for lodging his claim as he was mentally unstable and not very well.  He indicated that he had been unwell from the date of his dismissal in February 2014 “right through”.  Again he referred the tribunal to the letter from his GP dated 30 June 2014 in relation to his health.

 

15.     In cross-examination it was again put to the claimant that he knew the relevant time-limits for disability discrimination claim and he confirmed that this was the case.  He noted however that his doctor had indicated in his report that the claimant had “lack of interest and poor concentration”.

 

16.     It was put to the claimant that on his own evidence, he was capable from November 2013 onwards until April 2014 of being able to lodge a claim.  He agreed that this was the case and also agreed that he had lodged a grievance with the respondent in relation to their failure to give him a team leader’s role, that he had attended a grievance meeting and had lodged an appeal in relation to the outcome of the grievance.  It was also noted, and the claimant agreed, that he had not raised the issue of disability discrimination at either the grievance or the appeal meeting.  It was then put to the claimant that the first occasion when he had raised the issue of disability discrimination was at the telephone Case Management Discussion in August 2014, and the claimant agreed that this was the case.

 

17.     In disability discrimination claims, the time-limit is set out in Schedule 3, paragraph 3 to the Disability Discrimination Act 1995 (“the 1995 Act”).  That paragraph provides that an Industrial Tribunal shall not consider a complaint under Section 8 of the 1995 Act unless it is presented before the end of the period of three months beginning when the act complained of was done.  Paragraph 3(2) provides that:

 

                      “A tribunal may consider any such complaint which is out of time, if, in all the circumstances of the case, it considers that it is just and equitable to do so”. 

 

          In this case the claimant alleged he had suffered disability discrimination by being refused the opportunity to be interviewed for a promotion in mid-November 2013.  The time-limit for lodging his claim would therefore have expired in mid-February 2014, but no claim had been lodged at that time nor had it been lodged with his unfair dismissal/whistle-blowing claim on 13 May 2014.  The issue was not raised by the claimant until the telephone Case Management Discussion on 1 August 2014.

 

18.     The claimant again referred to his ill-health and to what he said was his own mistake in believing that he could lodge the claim of disability discrimination along with his unfair dismissal claim.  However this was not what he had done.

 

19.     Mr Phillips referred me to the case of Selkent Bus Company Ltd v Moore [1996] IRLR 661 in relation to the test to be applied in considering whether any amendment should be permitted.  In my view this is not a simple “relabeling” of the claim.  The claimant referred in his claim form to an allegation that he had been refused an interview for a promotion, but he did not suggest that this was on grounds of his disability so the claimant now seeks to introduce a new claim.  The claimant had frankly indicated that he was aware of the time-limits in relation to a disability discrimination case but had simply not applied himself to lodging the claim sooner.  It is also noteworthy that the claimant (who had raised the grievance about the refusal of an interview and had also raised an appeal in relation to the outcome of that grievance) had not at any time previously suggested that he had suffered discrimination on grounds of his disability.  The ruling of Mr Justice Mummery (as he then was) in Selkent is still relevant today.  While the learned Judge noted that an application to amend proceedings should not be refused solely because there has been a delay in making it, he indicated that it was relevant to consider why the application was not made earlier and why it was now being made, for example, whether new facts or information had come to light.  Taking all relevant factors into account, he noted that the paramount considerations were the relevant injustice and hardship involved in refusing or granting an amendment.  Questions of delay as a result of adjournment and additional costs, particularly if they were unlikely to be recovered by the successful party, were relevant in reaching a decision.

 

20.     In this particular situation it is my view that granting leave to amend these proceedings to include a claim of disability discrimination would cause greater hardship to the respondent than it would to the claimant.  The claimant knew of the relevant time-limits and did not make the case that he was in poor health in November/December 2013.  His case throughout was that his mental health deteriorated after his dismissal in February 2014, in particular after his appeal was unsuccessful in April 2014.  He was not however able to verify this with any detailed medical evidence relating to his health at that specific time. 

 

21.     He has therefore not shown any reason why he was unable to lodge his claim of disability discrimination within the three month time-limit, and he has not shown any reason why it would be just and equitable in all the circumstances for the time-limit to be extended.  I must bear in mind that it is important not only that I act fairly as regards the claimant in these situations, but also as regards the respondent.  The claimant had not previously raised any grievance or query based on disability discrimination in relation to his non-shortlisting for the team leader’s post.  It would not in my view now be just and equitable to allow him to extend the time-limit to introduce a new claim as part of his claim before the tribunal.  The claimant’s application to amend his claim to include a claim of disability discrimination is therefore dismissed.

 

Withdrawal of the unfair dismissal

 

22.     In light of my decisions in relation to questions 1-4, it is not necessary to deal with this matter.

 

CONCLUSION

 

23.     Given the rulings which I have made in relation to the sensitive time-limits in relation to this matter, the claimant’s claims are dismissed.

 

 

 

Employment Judge:      

 

 

Date and place of hearing:   3 October 2014, Belfast.

                   

Date decision recorded in register and issued to parties: