Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 583/16

1156/16

 

 

 

CLAIMANT: Eamonn McGrath

 

 

RESPONDENT: Southern Health & Social Care Trust

 

 

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant's claim registered under claim reference number 583/16 comprises a valid unfair dismissal claim, lodged within the relevant three months' time limit.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Crothers

Appearances:

 

The claimant was represented by Mr M Quigley, Barrister-at-Law instructed by McCartan Turkington Breen Solicitors.

 

The respondent was represented by Ms C Tiffney, Solicitor of the Directorate of Legal Services.

 

ISSUES

 

1. At a Case Management Discussion held on 12 August 2016, the following issues were agreed for the Pre-Hearing Review hearing as follows:-

 

(1) Whether the claimant's claim registered under claim reference number 583/16 comprises amongst other things a valid unfair dismissal claim, lodged within the relevant three month time-limit?

 

(2) If not, whether the claimant's claim of unfair dismissal lodged under claim reference number 1156/16 was lodged within the relevant three month time-limit? If not, should time be extended on the basis that it was not reasonably practicable for the claimant to lodge his claim in time?

 

2. At the Pre-Hearing Review it was agreed that an additional issue should be added as follows:-

 

Should leave be granted to amend claim reference 583/16?

 

SOURCES OF EVIDENCE

 

3. The tribunal heard evidence from Thomas Brownlee from NIPSA on behalf of the claimant. The tribunal was assisted by helpful written submissions from both sides and oral submissions on 14 October 2016. Copies of the written submissions are appended to this decision.

 

FINDINGS OF FACT

 

4. Having considered the oral and documentary evidence before it, the tribunal made the following findings of fact, on the balance of probabilities:-

 

(i) It was common case that the claimant was one of a number of claimants involved in a multiple case (1976/15) involving claims against various health trusts in relation to the Working Time Regulations and Unauthorised Deductions from Wages.

 

(ii) The claimant presented a claim to the tribunal on 26 February 2016 which was registered as a claim for unauthorised deduction from wages and the right to be paid annual leave under the Working Time Regulations. Paragraph 7.1(a) was ticked in relation to an unfair dismissal claim. This was done by Mr Brownlee. His evidence was that he did not complete Page 5 which included a reference to Kevin McCabe as the claimant's representative, and not Mr Brownlee. Apparently there was confusion within NIPSA as to the correct representative. Kevin McCabe was involved in the multiple cases. Mr Brownlee completed Pages 6 and 7 of the claim form, but the remainder of Page 8 (except for the tick box for unfair dismissal), was not completed by him, but by a secretary within NIPSA. Thomas Brownlee was present when the claimant signed the claim form on 3 February 2016. He claimed that he did not see the attachment to the claim presented to the tribunal on 26 February 2016. However he claimed that he had attached the details of the unfair dismissal claim to the claim form but that the secretary had left these details out of the form when it was presented to the tribunal office. The attachment to the claim form actually presented to the tribunal contained absolutely no reference to an unfair dismissal claim.

 

(iii) Upon receipt of the claim form, the tribunal administration registered the claim under unauthorised deductions from wages and unpaid leave under the Working Time Regulations, but did not register a claim for unfair dismissal. This meant that Kevin McCabe was sent a standard letter by the tribunal acknowledging receipt of the claim. The claimant contended that there was nothing in the letter to alert the claimant that an unfair dismissal claim had been rejected. The respondent received the standard correspondence from the tribunal on the same date indicating that a response was to be received by 5 April 2016. The response was emailed to the tribunal office at 4.10 pm on 1 April 2016. A copy of the response was sent to Kevin McCabe on
7 April 2016. The response, which did not make reference to an unfair dismissal claim, referred to amending claim ref. 1976/15 (the multiple) rather than submitting a new claim. This apparently alerted Thomas Brownlee to the fact that the response did not correspond to an unfair dismissal claim having been presented to the tribunal. He then went to the central file which contained the application in the multiple cases. At this stage it appears that Thomas Brownlee took legal advice from McCartan Turkington Breen Solicitors. A further claim (1156/16) was presented to the tribunal office by courier service on 11 April 2016 containing an unfair dismissal claim and including the attachment which, according to the claimant's case, ought to have been presented as part of case reference 583/16.

 

(iv) It was common case that the effective date of termination of the claimant's employment was 8 December 2015. Mr McGuigan relied on both the tribunal correspondence, (which the claimant claimed meant that an unfair dismissal claim had been accepted in the first place in connection with case reference 583/16), and the administrative error made by NIPSA in completing the first claim correctly. The amendment application made on behalf of the claimant was, in effect, to include in the first claim (583/16) the unfair dismissal details contained in the second claim. The Case Management Discussion on 12 August 2016 was held on the same date on which a Pre-Hearing Review was listed to consider the issue as to whether the claimant's claim of unfair dismissal was in time and, if not, whether time should be extended. This issue arose out of a Case Management Discussion held on 5 July 2016 by teleconference. The claimant's representative did not appear and offered no explanation for his absence. The claimant was contacted and represented himself. Ms Tiffney represented the respondent. Shortly before the Pre-Hearing Review on 12 August 2016, Ms Tiffney was alerted to the additional issue which now comprises the first issue before the tribunal.

 

(v) The tribunal also made the parties aware of Rule 3 of the Industrial Tribunals Rules of Procedure 2005 (as amended) and in particular paragraph (8) which states:-

 

"A decision to accept or not to accept a claim or part of one shall not bind any future tribunal or Employment Judge where any of the issues listed in paragraph (1) fall to be determined later in the proceedings".

 

Paragraph (1) states:-

 

"The Secretary shall not accept or register the claim (or a relevant part of it) if it is clear to him that one or more of the following circumstances applies -

 

(a) the claim does not include all the relevant required information;

 

(b) the tribunal does not have power to consider the claim (or that relevant part of it) ..."

 

(vi) After an initial administrative difficulty regarding the address for the respondent, the claim form in the second case (1156/16) was forwarded to the respondent on 10 May 2016. A detailed response was lodged with the tribunal. Paragraph 27 alerted the claimant to the respondent's argument that the claim was out-of-time. By this time Thomas Brownlee was fully engaged in correspondence with the tribunal. A copy of the response was forwarded to him on 13 June 2016. Thomas Brownlee was aware that a PHR was scheduled to take place on 12 August 2016 when he returned from leave towards the end of July 2016. When challenged in cross-examination as to why he had not alerted the respondent to the first issue before the tribunal, his explanation was that he went through the tribunal form and it came to light that a box had been ticked in relation to unfair dismissal. He then needed to take legal advice. Due to what appears to be a mix-up within NIPSA, the claimant was not represented at the Case Management Discussion held on 5 July 2016. Thomas Brownlee claimed that he left a colleague to take calls in his absence on leave. However he failed to notify the tribunal that this was the case. In general, it seems that the handling of this matter by NIPSA internally was most unsatisfactory, even with the benefit of legal advice.

 

THE LAW

 

5. The Procedural Rules

 

(i) The procedural rules are contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 known as the Industrial Tribunals Rules of Procedure.

 

Rule 1(1) provides -

 

"1. —(1) A claim shall be brought before an industrial tribunal by the claimant presenting to the Office of the Tribunals the details of the claim in writing. Those details must include all the relevant required information (subject to [...](a) rule 53).

 

(2) Subject to paragraph (3), unless it is a claim in proceedings described in regulation 10(3), a claim which is presented on or after 1st October 2005 must be presented on a claim form which has been prescribed by the Department in accordance with regulation 10.

 

(3) Where a claim described in paragraph (2) has not been presented using the prescribed form but the Secretary is satisfied that -

 

(a) the information provided in the claim is substantially the same as the information which would have been provided had the prescribed form been used; and

 

(b) the form in which the claim is presented is not calculated to mislead,

 

that claim shall be taken to have been presented on a claim form prescribed by the Department in accordance with regulation 10.

 

(4) Subject to paragraph [...](b) rule 53, the required information in relation to the claim is -

(a) each claimant's name;

 

(b) each claimant's gender;

 

(c) each claimant's date of birth;

 

(d) each claimant's address;

 

(e) the name of each person against whom the claim is made ("the respondent");

 

(f) each respondent's address;

 

(g) details of the claim;[and](c)

 

(h) whether or not the claimant is or was an employee of the respondent [.](d)

 

(i) [...

 

(j)

 

(k) ...](e)[

 

(5) [...

 

(6) ...](f)

(7) Two or more claimants may present their claims in the same document if their claims arise out of the same set of facts.[

(8) ...](g)

 

What the tribunal does after receiving the claim

 

2. —(1) On receiving the claim the Secretary shall consider whether the claim or part of it should be accepted in accordance with rule 3. If a claim or part of one is not accepted the tribunal shall not proceed to deal with any part which has not been accepted (unless it is accepted at a later date). If no part of a claim is accepted the claim shall not be copied to the respondent.

 

(2) If the Secretary accepts the claim or part of it, he shall -

 

(a) send a copy of the claim to each respondent and record in writing the date on which it was sent;

 

(b) inform the parties in writing of the case number of the claim (which must from then on be referred to in all correspondence relating to the claim) and the address to which notices and other communications to the Office of the Tribunals must be sent;

 

(c) inform the respondent in writing about how to present a response to the claim, the time limit for doing so, what may happen if a response is not entered within the time limit and that the respondent has a right to receive a copy of any decision disposing of the claim;

 

(d) when any statutory provision relevant to the claim provides for conciliation, notify the parties that the services of a conciliation officer are available to them;[

 

(e) ...](a)

 

(f) if only part of the claim has been accepted, inform the claimant and any respondent which parts of the claim have not been accepted and that the tribunal shall not proceed to deal with those parts unless they are accepted at a later date; [and] (b)

 

(g) enter the following details of the claim in the Register (subject to rule 49) -

 

(i) the case number;

 

(ii) the date the Secretary received the claim (on this occasion);

 

(iii) the name of each claimant;

 

(iv) the name of each respondent;

 

(v) the type of claim brought in general terms without reference to detail.

 

When the claim will not be accepted by the Secretary

 

3. —(1) The Secretary shall not accept or register the claim (or a relevant part of it) if it is clear to him that one or more of the following circumstances applies -

 

(a) the claim does not include all the relevant required information; [or](c)

 

(b) the tribunal does not have power to consider the claim (or that relevant part of it) [.](d)[

 

(c) ...](e)

 

(2) If the Secretary decides not to accept a claim or part of one for any of the reasons in paragraph (1), he shall refer the claim together with a statement of his reasons for not accepting it to a chairman. The chairman shall decide in accordance with the criteria in paragraph (1) whether the claim or part of it should be accepted and allowed to proceed.

 

(3) If the chairman decides that the claim or part of it should be accepted he shall inform the Secretary in writing and the Secretary shall accept the relevant part of the claim and then proceed to deal with it in accordance with rule 2(2).

 

(4) If the chairman decides that the claim or part of it should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall as soon as is reasonably practicable inform the claimant of that decision and the reasons for it in writing together with information on how that decision may be reviewed or appealed. [

 

(5) ...](f)

 

(6) Except for the purposes of [paragraphs (7)](a) or any appeal, where a chairman has decided that a claim or part of one should not be accepted such a claim (or the relevant part of it) is to be treated as if it had not been received by the Secretary on that occasion.

 

(7) Any decision by a chairman not to accept a claim or part of one may be reviewed in accordance with rules 34 to 36. If the result of such review is that any parts of the claim should have been accepted, then paragraph (6) shall not apply to the relevant parts of that claim and the Secretary shall then accept such parts and proceed to deal with it in accordance with rule 2(2).

 

(8) A decision to accept or not to accept a claim or part of one shall not bind any future tribunal or chairman where any of the issues listed in paragraph (1) fall to be determined later in the proceedings".

 

(ii) The relevant law is set out in the written submissions appended to this decision.

 

SUBMISSIONS

 

6. The tribunal was assisted by lengthy and helpful written submissions from both parties which are annexed to this decision. Mr Quigley and Ms Tiffney made further oral submissions on 14 October 2016. Mr Quigley contended that, under the Rules, the Secretary had either to accept or reject a claim. He reiterated his submission that the claimant had ticked a box claiming unfair dismissal and that (if not accepted as a claim), the unfair dismissal aspect should have been specifically rejected by the tribunal following determination by an Employment Judge, and the claimant notified accordingly. He further submitted, that the claim had in fact been accepted in the first place, and an amendment should be allowed not to add a claim of unfair dismissal to the first claim but to amplify the details of the claim already made. In the alternative, and in the context of the second claim, he relied on the case of Adams v British Telecommunications PLC UKEAT/0342/15/LA referred to in his written submissions to substantiate his argument that the claimant and his representative had a genuine mistaken belief that the claim had been accepted in the first place (in that case, the claim had been rejected by the tribunal).
Ms Tiffney, on the other hand, reiterated the argument presented in her written submissions that the claim did not get "off the ground", that the issue of acceptance or rejection did not arise under the Rules, and that Rule 3 was not triggered. She further submitted that an unfair dismissal claim had not been registered in the first claim and it was reasonably practicable in the sense of being reasonably feasible for the claimant to have presented a claim of unfair dismissal within three months from the effective date of termination of his employment on 8 December 2015. Ms Tiffney conceded that although the claimant and Mr Brownlee may have had a mistaken belief, it was not a genuine mistaken belief, as reference would otherwise have been made to it in the second claim and certainly before 11 August 2016 when
Mr Brownlee raised the matter referred to in the first issue before the tribunal.

 

CONCLUSIONS

 

7. Having considered the evidence insofar as relevant to the issues before it, together with the principles of law and the submissions, the tribunal concludes as follows:-

 

(1) In this jurisdiction the tribunal is satisfied that the case of Grimmer v KLM City Hopper UK (2005) IRLR 596, has been followed. An example of this is in the case of Fay v An Termann Project Ltd and Anor (2006) NIIT 273/06 where the Employment Judge found that the statement, "I also believe my employer was in breach of the Working Time Regulations" was sufficient to accept such a claim.

 

(2) In Grimmer, the Employment Appeal Tribunal (Judge Prophet) pointed out that it is a vital principle that the Rules of Procedures cannot cut down on an Employment Tribunal's jurisdiction to entertain a complaint which the primary legislation providing an employment right empowers it to determine. If there is a conflict, the Rules must give way. That principle, which accords with the interests of justice, can be applied generally to Rules 1-3 [of the then 2004 Regulations in the English jurisdiction]. What might have been regarded as a mandatory requirement should not be taken to the point of denying the claimant access to the Employment Tribunal system. In deciding whether the requirements of the Rules have been met, the (Employment Judge) as an independent judicial person, has to do more than merely run down a check list. Judge Prophet also referred to the fact that it is a very serious step to deny a claimant the opportunity of having an employment rights issue resolved by an Employment Tribunal. In the interests of justice the threshold for access, should be kept low. In paragraph 15 of his judgement, Judge Prophet went on to state as follows:-

 

"The test for "details of the claim" emerges as being whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the employment tribunal. It follows that, if that test is met there is not scope for either the Secretary or (an Employment Judge) interpreting "details of the claim" as being "sufficient particulars of the claim". If it becomes necessary, as a case proceeds through the system, for further information or further particulars to be obtained, eg, to clarify the issues, that can be done, either on the application of a party or by (an Employment Judge) on his or her own initiative, under Rule 10 (Case Management)".

 

(3) In Grimmer the claimant had clearly indicated in her claim that she wished to pursue a complaint in respect of flexible working. She had ticked the relevant box and, when asked for details of her complaint, had attached a statement which said:-

 

"The Company's business argument for refusing my application is based upon their assumption that, if they concede to my request, others would be requesting similar/same working arrangements".

 

(4) In the case before this tribunal, paragraph 5 of the claim form clearly states that the claimant was an employee under a contract of employment and that his employment began on 3 June 1991 and ended on 8 December 2015. In paragraph 7 under the heading of "Details of your claim" the following appears on the claim form:-

(5) The Rules provide that if part of a claim is being rejected, it must be referred to an Employment Judge for determination. Had this occurred the claimant would have had the opportunity of seeking a review of the decision not to accept an unfair dismissal claim. The tribunal is satisfied, consistent with the principles in Grimmer and its overriding objective, that the unfair dismissal claim must be considered, in the absence of any evidence of rejection, as having been accepted by the tribunal, and it ought to be registered accordingly.

 

(6) The tribunal is therefore satisfied that the answer to issue (1) is in the affirmative and that the claimant's claim registered under claim reference 583/16 comprises, amongst other things, a valid unfair dismissal claim, lodged within the relevant three month time-limit. The tribunal also considers it appropriate and consistent with its overriding objective, to give leave to the claimant to amend his claim to include details of the alleged unfair dismissal and also to give leave to the respondent to amend its response within 14 days from the date of issue of this decision. It follows, therefore, that issue 2 does not arise for further consideration.

 

 

Employment Judge:

 

 

Date and place of hearing: 2 September and 14 October 2016, Belfast.

 

 

Date decision recorded in register and issued to parties:

CLAIMANTS SUBMISSION