Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 794/15

 

 

 

CLAIMANT: Julie McKernan

 

 

RESPONDENT: Mivan (No. 1) Ltd (In Administration)

 

 

 

DECISION

The claimant's claim under Article 220 of the Employment Rights Order 1996 is well-founded. The amount due to the claimant will be determined during the course of a further hearing, if necessary.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Buggy

 

Appearances:

 

The claimant was represented by Mr J O'Neill, Solicitor, of Thompsons NI, Solicitors.

 

The respondent was debarred from participating in the proceedings, because no response had been presented on behalf of the respondent.

 

REASONS

 

1.             In Glendinning v Mivan (No. 1) Ltd (In Administration) (Case Ref. No. 470/14) the complainant complained that this respondent had failed to comply with collective constitution duties, which were imposed by Article 216 of the Employment Rights (Northern Ireland) Order 1996 ("ERO").

 

The context

 

2.             That complaint related to mass redundancies which were made by the respondent on or about 14 January 2014.

 

3.             That complaint was the subject of a Decision ("the Article 216 Decision") which was issued on 10 December 2014.

 

 

4.             The Article 216 Decision dealt both with liability and with remedies.

 

5.             A protective award was made as part of that Decision; the respondent was ordered to pay remuneration for the protected period, which began on 14 January 2014 and lasted for 90 days.

 

6.             As was made clear at sub-paragraph (3) of paragraph 22 of that Decision, the protective award applied to all employees of the respondent who had been dismissed as redundant at any time from 14 January 2014 onwards.

 

7.             It is quite clear that this claimant was dismissed by way of redundancy on 10 February 2014. Accordingly, although the protective award does not mention her explicitly, she clearly is implicitly within its scope.

 

8.             It seems to be doubtful, to say the least, that money will ever be recovered from the respondent in respect of any remuneration paid to this claimant pursuant to the protective award.

 

9.             However, the Department for Employment and Learning ("the Department"), as the statutory guarantor in respect of certain employment debts, will have to make a payment to the claimant if the claimant is entitled to remuneration under the protective award.

 

10.          Because this claimant was not explicitly named in the protective award, and because she was not a pending Article 217 claimant at the time the protective award was made, the Department is reluctant to make a payment to her (in its role as statutory guarantor), in respect of remuneration due pursuant to the protective award, unless and until she has made a successful claim to a tribunal, pursuant to Article 220 of ERO, for such a payment.

 

11.          That is the only reason why this Article 220 claim has been made.

Procedural matters

 

12.          The respondent has not presented a response in this case.

 

13.          The respondent has permitted the commencement/continuation of these proceedings.

 

The issues

 

14.          In any Article 220 claim, there are three main issues. Those are as follows:

 

(1) Was this claimant within the scope of the relevant protective award?

 

(2) Has the employer failed to pay the due remuneration pursuant to the protective award?

 

(3) Has the Article 220 claim been made within the statutory time-limit?

 

15.          I will deal with those three issues in the order indicated above.

 

16.          First , I am satisfied that the claimant was made redundant by the respondent with effect from 10 February 2014. Accordingly, she is within the scope of the protective award.

17.          Next , I consider whether or not the respondent is in breach of an obligation to pay remuneration to her pursuant to the relevant protective award.

 

18.          Paragraph (1) of Article 218 of ERO provides as follows:

 

"(1) Where an industrial tribunal has made a protective award, every employee of a description to which the award relates is entitled [subject to provisions which are irrelevant in the present context] to be paid remuneration by her employer for the protected period".

 

19.          The claimant has made this claim under Article 220 of ERO. The claimant's relevant cause of action is set out at paragraph (1) of Article 220, which provides as follows:

 

"(1) An employee may present a complaint to an industrial tribunal on the ground that he is an employee of a description to which a protective award relates and that her employer has failed, wholly or in part, to pay him remuneration under the award."

20.          There are statutory provisions, in relation to various employment rights, which make explicit provision that "failure" occurs when the period expires within which the relevant employer might reasonably be expected to do the failed act if it was to be done. (See for example, section 48(4) of the Employment Rights Act 1996, which applies in Great Britain). However, I take the view that such statutory provisions are merely declaratory: they state the obvious. It is obvious that, if a person does not explicitly refuse to do something, he only fails to do that thing when the period expires within which he might reasonably have been expected to do the failed act.

 

21.          In this instance, the protective award was made in December 2014. This claimant has still not been paid. Accordingly, there has been a "failure", within the meaning of Article 220.

 

22.          The remaining issue is the time limit issue. That is going to have to be discussed in greater detail than was necessary in respect of the first of the two of the three issues (as identified at paragraph 14 above).

 

The time-limit issue

 

23.          Paragraph (2) of Article 220 provides as follows:

 

"(2) An industrial tribunal shall not entertain 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 day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of failure to pay remuneration, or

 

(b) within such 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."

 

24.          Accordingly, there are three time-limit sub-issues, which are as follows:

 

(1) Was the Article 220 claim brought within the primary time-limit (as set out at sub-paragraph (a) of paragraph (2) of Article 220)?

 

(2) If not, am I satisfied that it was not reasonably practicable for the complaint to be presented within that primary time-limit?

 

(3) If so (if the complaint was not presented within the primary time-limit, and if I am satisfied that it was not reasonably practicable for the complaint to be presented within that primary time-limit), has it been presented within such further period as I consider to be reasonable?

 

25.          Below, I deal with each of those sub-issues in the order indicated above.

 

Was the claim lodged within the primary time-limit ?

 

26.          At the latest, the primary time-limit ended in mid-July 2014. (That was approximately six months after the beginning of the protected period: see paragraphs 40 - 42 below).

 

27.          This claim was not presented until 13 April 2015.

 

28.          Accordingly, it is clear that this claim was not presented within the primary time-limit.

 

Reasonable practicability

 

29. In these proceedings, an essential element in the claimant's cause of action is the "failure" of the employer to pay remuneration pursuant to the protective award. Failure denotes more than mere omission. A failure is a wrongful omission. However, an employer cannot wrongfully omit to make a payment due under a protective award at a time when there is no such protective award. There was no protective award in existence at any time during the primary limitation period (which ended in July 2014). Unless and until a protective award was made, the employer could not "fail" to make a payment of remuneration pursuant to the award. Accordingly, until there was a protective award, this claimant could not possibly make a well-founded Article 220 claim.

 

30. For those reasons, and because of those circumstances, it was not reasonably practicable for this claimant to make this claim within the primary time-limit.

 

A "reasonable period"?

 

31.          The wording of the Article 220 time-limit is very similar to the wording of other time-limits which apply in respect of a wide variety of rights which are conferred upon employees by employment law. In particular, an analogous form of words is used for the purpose of prescribing the statutory time-limit in respect of unfair dismissal claims.

 

32.          If a particular statutory provision is cast in similar terms to another statutory provision, case law on the interpretation of that other provision is likely to be useful in construing the particular provision.

33.          Nevertheless, it is important to remember that employment law is social protection legislation and that, accordingly, it has to be construed purposively.

 

34.          It is particularly important that unfair dismissal claims should be brought speedily, for two reasons, among others. First, any unfair dismissal claim will often be fact-sensitive. Secondly, a dismissal usually creates unease and uncertainty within a workplace, so it is better for any unfair dismissal claim to be presented speedily (so that it can be processed speedily).

 

35.          Similar considerations do not apply in relation to the bringing of Article 220 claims. First, the question of whether a particular Article 220 claimant is inside, or outside, the scope of the relevant protective award is unlikely to be a fact-sensitive issue; in any event, any such issue will probably be resolved by looking at documentation rather than on the basis of the notoriously differing recollections of persons who have been involved in a particular discussion or dispute. Secondly, delay in bringing an Article 220 claim is unlikely to promote disharmony or uncertainty within a workplace (especially because, typically, the relevant workplace will have ceased to operate).

 

36.          Having made those observations, I wish to make it clear that I have not lost sight of the fact that, in the context of late claims, limitation periods exist not just for the purpose of protecting respondents from claims in respect of which the cogency of evidence has diminished. I have reminded myself that the Article 220 time-limits, like most other limitation periods, also exist for the broader purpose of protecting potential respondents from having the threat of legal action hanging over them for an unduly long period. As Roth J noted at paragraph 99 of Chinnock v Wasbrough [2015] EWCA Civ 441 (07 May 2015):

 

"99. As has often been observed, any regime of limitation involves a compromise between the desire to enable a claimant who has suffered a wrong to have a legal remedy and the desire to protect a defendant from having to defend stale claims or having the threat of legal action hanging over them for a very long time. In Haward v Fawcetts [2006] 1 WLR 682, Lord Scott of Foscote referred to the various statutes of limitation as "Parliament's attempt to strike a balance between these irreconcilable interests, both legitimate" and continued (at [32]):

 

"It is the task of the judiciary to identify from the statutory language and the purpose of each amending enactment the balance that that enactment has endeavoured to strike and to apply the enactment accordingly"."

 

37.          In my view, the best analysis of legislation relating to the secondary element of an Article 220-type time-limit is contained in the judgement of Underhill P in Cullinane v Balfour Beatty Engineering Services Ltd [2011] UKEAT 0537/10/0504. At paragraph 16 of his judgement in that case, Underhill P made the following comments:

 

"The question at "stage two" is what period - that is between the expiry of the primary time-limit and the eventual presentation of the claim - is reasonable. That is not the same as asking whether the claimant acted reasonably, still less is it equivalent to the question of whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted - having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time-limit is three months. If a period is, on that basis, objectively unreasonable, I do not see how the fact that the delay was caused by the claimant's advisors rather than by himself can make any difference to the conclusion".

 

38. In Mathews v Nortel Networks UK Ltd (In Administration) and Others NIIT 06598/09IT (17 April 2014), I was dealing with applications for leave to amend unfair dismissal claims, so as to add certain claims of automatically unfair dismissal. In that context, I applied the guidance which had been set out in Cullinane. As I made clear at paragraph 66 of the Decision in Mathews, in that case, in deciding (against the background of the Cullinane guidance) whether each relevant claimant had brought his or her proceedings within such "further" period as was reasonable, I focussed, in particular, on three issues, which the parties, in that case, all agreed were the most relevant issues in that context:

 

(1) the reason for the delay,

 

(2) any prejudice suffered by the relevant respondent because of the delay and

 

(3) the duration of the delay.

 

39. In the present case, it seems to me that, although I am entitled to have regard, and I ought to have regard, to any relevant factor, those three issues, as identified at paragraph 66 of Mathews, are also the most important relevant matters to which I ought to have regard in determining the "further reasonable period" sub-issue.

 

40. Before going on to apply the legal principles (relating to the "reasonable period" sub-issue) to the facts of this case, I note that, in some situations, the primary time-limit in an Article 220 claim could be as long as nearly six months (in contrast to the three month primary time-limit which applies in unfair dismissal claims).

 

41. Why six months rather than three months? The legislation envisages - and ever since it was first enacted in the Employment Protection Act 1975 it has always envisaged - the possibility that a protective award might be made in advance of any dismissals taking effect. If the award is made prior to the coming into effect of the relevant dismissals, the primary Article 220 limitation period will be available to a potential Article 220 claimant. If the award was made in advance, an Article 220 claimant will still be presenting the claim within the primary time-limit envisaged in sub-paragraph (a) of paragraph (2) of Article 220 if he brings that claim within approximately six months of the beginning of the protected period. (If there is a 90 day protective award, and if no part of the remuneration due under that protected award is in fact paid by the employer, the effect of sub-paragraph (a) of paragraph (2) is that there is a primary time-limit of 90 days from the start of the protected period, plus the following three months, within which to bring an Article 220 complaint in relation to failure to pay.

 

42. I note that three months consists of approximately 91 days. So, 90 days plus three months is just short of six months.

 

43. At paragraph 16 of Cullinane, Underhill P recommended that a tribunal or employment judge, in considering the "further reasonable period" question, should have regard to the fact that the relevant background (in relation to unfair dismissal) is that the primary time-limit is one of three months.

 

44. In the context of the present case, in deciding what is a "reasonable period", it seems to me to be equally appropriate for me to have regard to the fact that, in some instances, in relation to some protective award remuneration, a primary time-limit of nearly six months may be available to a potential Article 220 claimant.

 

45. At paragraph 71 of Mathews, I made the following observations:

 

"71. I am sure that, in assessing what "further period" is reasonable (in the context of the secondary time-limit in Article 145 [of ERO]) the "goodness" or otherwise of the reason for delay is a matter to be taken into account. The "goodness" of such reasons varies, within a relatively wide continuum. At opposite ends of that continuum are very good reasons and very bad reasons. If a claimant had been in a coma throughout the entire period of "secondary" delay that would be an excellent reason for that "further period" of delay. On the other hand, if the entire period of "further" delay was explained merely by the fact that the claimant, although always meaning to do it, had never quite got around to putting in a claim, that would be a very poor reason for a delay ..."

 

In the present case, in assessing what "further period" is reasonable, I have acted in line with the principles which I described in the quoted extract from paragraph 71 of Mathews.

 

46. London Borough of Southwark v Afolabi [2003] IRLR 220 was a discrimination case. Nevertheless, the point which Gibson LJ made in that case (at paragraph 31 of the judgment) is a point which, in my view, applies also in the context of the determination of the "reasonable period" sub-issue in respect of Article 220. At paragraph 31 of the judgement in Afolabi, Gibson LJ commented that, in a case in which it is alleged that the delay in bringing the proceedings has affected the cogency of the evidence, that usually should be proven specifically, and that the allegation usually cannot easily be established merely by making general observations about the effects of the passage of time. In deciding the "reasonable period" sub-issue, I have had regard to that guidance of Gibson LJ in Afolabi.

The facts

47. This Article 220 claim was made on 15 May 2015, approximately five months after the date on which the protective award was made.

48. In this case, the claimant provided a written witness statement.

 

49. In that statement, she answered the question "When did you instruct Thompsons NI to lodge your claim with the Tribunal?" in the following terms:

 

"I first contacted Thompsons NI by email of 23 February 2015. I then received a letter dated 24 February 2015 from Mr O'Neill of Thompsons NI which explained the basis of the case and provided a standard form for me to complete and return with the necessary fee. I completed and returned this form and payment within a matter of days and understand that it was received by Thompsons NI on 5 March 2015. I understand from Mr O'Neill that the reason for the delay in lodging my claim with the Tribunal was that he was awaiting a reply from the Administrators to a request that they pay my Protective Award or consent to me bringing this claim to the Tribunal and that this refusal and consent was received by Thompsons NI on 9 April 2015."

 

50. In the same statement, the claimant answered another question ("Why did you not [instruct Thompsons NI to lodge a claim] earlier?"). She answered that query in the following terms:

 

"I found out about this possible claim from a fellow employee in my new firm, Christine Taggart, who was also an ex-Mivan employee, around 21 ^st or 22 February 2015. I only occasionally met her as I was often in London and as she worked in a different department. I sent this email to Thompsons enquiring about this claim within 2 days of this conversation."

 

51. I consider that, in respect of the period from December 2014 until 22 February 2015, there was a relatively "good" reason for the claimant's delay.

 

52. I consider that the reasons for delay during the period from 23 February 2015 until 13 April 2015 were relatively "poor" reasons for delay. (Because of my ultimate conclusion on the time-limit issue, I do not at present need to explain, or expand upon, the latter conclusion, but I will be happy to do so in the event of there being an appeal against this Decision).

 

53. It has not been suggested, by or on behalf of the respondent, that it will suffer any prejudice as a result of the lateness of the bringing of this claim.

 

54. The Department will end up making a payment to the claimant, pursuant to this claim, if the claim is successful. Accordingly, in deciding the "reasonable period" sub-issue, I have assumed that it is appropriate for me to have regard to the question of whether the Department will sustain any prejudice as a result of the fact that this claim was presented approximately four months after the Article 220 cause of action first arose. The Department was notified of this hearing. It could have participated in this hearing if it had chosen to do so. (It chose not to do so for what I have no doubt are sensible reasons). The Department has not suggested that it will suffer any prejudice as a result of the further delay in presenting this claim from December 2014 onwards.

 

55. As I have already concluded (at paragraph 30 above), the claimant could not bring an Article 220 claim until the protective award had been made and the protective award was not made until 10 December 2014.

 

56. There is nothing about the intrinsic nature of an Article 220 claim which would lead me to believe that it is likely that the delay in bringing this claim, during the period from 10 December 2014 onwards, has prejudiced the Department.

 

My conclusions on the "reasonable period" sub-issue

57. I have concluded that this Article 220 claim has been brought within a further period which I consider to be reasonable (in the sense in which those terms are used in sub-paragraph (b) of paragraph (2) of Article 220). I have so concluded, mainly on the basis of the following:

 

(1) I consider that the main reason for the claimant's delay, in bringing her Article 220 claim, throughout the period from December 2014 until 22 February 2015, was a relatively "good" reason. I consider that the main reasons for the claimant's delay in bringing her Article 220 claim, throughout the period from the end of February until 13 April 2015, were relatively "poor" reasons.

 

(2) I consider that I have no basis for concluding that the respondent, or the Department, has suffered, or will suffer, any prejudice as a result of the delay in bringing the Article 220 claim during the period from December 2014 until the date on which the claim to this tribunal was presented.

 

(3) I have noted that, in some circumstances, in relation to some elements of protective award remuneration, the primary time-limit for an Article 220 claim can be nearly as long as six months.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 15 June 2015, Belfast

 

 

Date decision recorded in register and issued to parties: