Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2744/14

 

 

 

CLAIMANT:            Myszor Thompson

 

 

RESPONDENT:      Herbel Restaurants Ltd

                                       

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is set out below. 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Greene

 

 

Appearances:

 

The claimant was neither represented nor in attendance.

 

The respondent was represented by Mrs Lynn Sheridan of Peninsula Business Services Limited.

 

 

BACKGROUND

 

1.               On 3 December 2014 the claimant lodged a claim with the Office of the Industrial Tribunals for equal pay, unfair dismissal, breach of contract, sex discrimination and failure to receive written particulars of employment. 

 

2.               The relevant information, in relation to these claims, is set out in her IT1 at paragraph 7.4 which states:

 

“Details of Claim

 

The company has forged Y contract, i was employed on Isle of Man as a team member then transferred to Uk as a Manager, but never been given a contract.  i was working a 45 hours a week but only got paid each week for 39.  after i stared questioning my payments and told the office i think its unfair as my husband working on the same position but on uk contract was receiving overtime pay, which i never did.  after i asked office about my contract they sent me a copy which was Isle of Man contract, that’s when i relised that my wages each week are short regarding to the contract from isle of man.  shortly after i was dismissed what i believe is unfair dismissal.  also got  a copy of my contract by email from UK which i have never signed, dated 14.04.2010, that time i was still on Isle of Man, i have left the island on 28^th of April 2010, never received or seen the original copy,”

 

3.               The claimant also set out that her dates of employment, beginning on 18 January 2009 and ending on 1 March 2013.  The claimant has not provided any other documentation or evidence in relation to her claim.

 

4.               The respondent, in its response, requested a pre-hearing review to determine if the claimant’s claims were out of time and whether she had sued the wrong respondent. 

 

5.               On 25 February 2015 Employment Judge Crothers directed that a pre-hearing review be held on consider:-

 

“(1)   Who is the correct respondent or respondents?

 

(2)    Subject to (1) above, are the claims in time? and, if not, should time be extended?”

 

6.               The claims were scheduled for hearing on 18 March 2015 before myself.

 

7.               On that day the claimant was unable to attend with her representative by reason of being fog bound on the Isle of Man.  The pre-hearing review reconvened later on 18 March 2015 with the claimant’s representative participating by telephone.  At that time the date for a further hearing for today, 13 April 2015, was agreed with both parties and I explained in detail what the claimant was required to prove and show at the pre-hearing review.

 

8.               On today the 13 April 2015 the clamant did not attend nor was she represented.  Nor was any reason or explanation provided for her non-attendance nor was there any application to adjourn the hearing.

 

APPLICATION

 

9.               Mrs Sheridan, on behalf of the respondent, applied that the pre-hearing review should proceed.  I considered the matter and decided that the pre-hearing review should proceed because today’s hearing date was agreed with both parties and the claimant has not turned up and has not provided an explanation for her absence nor had she sought to have the pre-hearing review adjourned. 

 

REASONS

 

10.           The claimant’s claims of unfair dismissal, breach of contract and right to receive written particulars of the terms of her employment require to be brought within three months of the alleged claim occurring and if it is not reasonably practicable to bring them within three months then time may be extended providing they are brought within such further period of time as is reasonable. 

 

11.           The applicable statutory provisions for those claims are Article 145 The Employment Rights (Northern Ireland) Order 1996 (Unfair Dismissal): Article 7 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (breach of contract); and Article 43(4) The Employment Rights (Northern Ireland) Order 1996 (failure to provide written terms and conditions of employment).

 

12.           Giving the claimant the maximum advantage the last date on which any of these claims could arise is 1 March 2013.  The claimant brought her claims on
3 December 2014 and therefore are clearly outside the primary three month period for bringing such claims.  In the absence of any explanation as to the reason for the delay in bringing the claims or what the claimant did in order to advance or bring her claims then it is not possible for me to exercise my discretion in the claimant’s favour.  Therefore these claims are out of time and time cannot be extended.  Therefore the tribunal does not have jurisdiction to entertain these claims and they are dismissed.

 

13.           The claimant also brought a claim for sex discrimination.  The time for bringing such a claim is within three months of the cause of action arising that is by 1 June 2013 at the latest.  If the claim is not brought within the primary period of three months then the tribunal has a discretion to extend that time where it is just and equitable to do so (Article 76 Sex Discrimination (Northern Ireland) Order 1976.

 

14.           Again the claimant’s claim is outside the primary three months period.  If I were to exercise my discretion in the claimant’s favour on a just and equitable basis it is necessary that the claimant provides some evidence or explanation as to why the claim was not brought within the primary three month period and why it would be just and equitable to extend time to enable her to bring a claim more than 18 months later.  However the claimant has not provided any such information or evidence.  Accordingly there is not any basis to exercise my discretion.  Therefore the claimant’s claim for sex discrimination is out of time.  Time cannot be extended. Consequently the tribunal does not have jurisdiction to entertain the claim and the claim is dismissed.

 

15.           The claimant’s claim under the Equal Pay Act (Northern Ireland) 1970 appears to relate to a lesser rate of pay being paid to her, when compared to her husband, for doing the same overtime.  Such a claim must be brought within six months of the cause of action arising.  The last date on which the cause of action could arise is 1 March 2013 and therefore such a claim must be brought by 1 September 2013.  The Equal Pay Act (Northern Ireland) 1970 Section 2ZA(4) does not give any discretion to the tribunal to extend that time.  Therefore the claimant’s claim under the Equal Pay Act (Northern Ireland) 1970 is out of time.  In the absence of any provision to enable the tribunal to extend time it does not have jurisdiction to entertain this claim and therefore that claim is also dismissed. 

 

16.           In light of the tribunal’s findings in relation to the second preliminary hearing issue it is not necessary to consider the first preliminary issue.  The respondent agreed to this course of action. 

 

Employment Judge:      

 

 

Date and place of hearing:  13 April 2015, Belfast. 

 

Date decision recorded in register and issued to parties: