Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  747/16

 

 

 

CLAIMANT:                          Jeanette Arthur      

 

 

RESPONDENT:                  Doctor Ronald Phillips and Mrs Sandra Phillips

                                                t/a Silver Birch Private Nursing Home

                                               

 

 

DECISION UPON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s claim is dismissed as the tribunal has no jurisdiction to hear it.

 

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):                   Employment Judge Murray

 

Appearances:

The claimant represented herself.

The respondent did not appear and their representatives ELAS did not attend but provided written submissions in advance of the hearing.

 

1.         The issue to be determined was whether or not the claimant’s claim of unfair dismissal was lodged within time and, if not, whether time should be extended to give the tribunal jurisdiction in this matter.

 

2.         The claimant gave sworn testimony and provided various documents in the course of the hearing.  I considered the oral evidence of the claimant, the documents which were presented to me, the claim and response forms, and the written submissions of the respondent’s representative.  I found the following facts and reached the following conclusions.

 

3.         The respondent’s representative Employment Law Advisory Services (ELAS) opted to provide written submissions rather than to attend in person to cross-examine the claimant.

 

4.         The respondent’s submission had attached to it an EAT Decision of T Mobile (UK) Limited v Singleton UKEAT/0410/10/ZT.  That decision does no more than set out the prevailing principles which are firstly, that it is a matter of fact for the tribunal to decide whether or not it was not reasonably practicable for the claimant to lodge her claim within the time-limit and secondly, it is a further matter of fact as to whether or not she moved within a further reasonable period to lodge her claim.

 

5.         The claimant stated that she did not receive the respondent’s submissions in advance of the hearing.  For this reason the claimant was given time to read the submissions and the import of the Singleton decision was explained to her by me. 

 

6.         The claimant’s claim was for unfair dismissal following her dismissal for misconduct on 10 June 2015.  The claimant presented her claim form to the tribunal on 9 March 2016 and the claim was therefore presented outside the three-month time-limit.

 

7.         The effective date of termination was therefore 10 June 2015.  The three-month time-limit expired on 10 September 2015 and the claim was therefore presented approximately six months late.

 

8.         I applied the legal test namely whether it was not reasonably practicable for the claimant to present her claim within the three-month time limit and if it was not reasonably practicable to do so whether she lodged her claim within a further reasonable period. 

 

9.         The factors relied upon by the claimant in her evidence that it was not reasonably practicable for her to present the claim within the time-limit were as follows:-

 

            (1)       That she was shocked about her treatment and was on anti-depressants.  In this regard the claimant presented a box of anti-depressant tablets which had the date removed by her.  The claimant stated that she removed the date as the tablets were in her bag and she did not want anyone to know her business.  The claimant’s evidence was that she has seen her GP on four occasions since the dismissal: once in each of the months of July, September and January and the fourth time she attended was a few weeks before the PHR.  The claimant therefore attended with her doctor on three occasions in the nine months between the date of dismissal and the date she presented the claim form.

 

            (2)       That she was intimidated before her dismissal.  This appeared to relate to the fact that complaints were made about her behaviour towards residents.

 

            (3)       That she was stressed due to the death of her partner’s mother on 7 December 2014; due to her daughter going to university in September 2015; and due to the fact she had to find another job.

 

            (4)       That she was awaiting the outcome of the Northern Ireland Social Care Council (NISCC) process.  The claimant did not receive that until 28 or 29 February 2016 when the NISCC wrote a letter dated 25 February 2016 telling her no action would be taken against her.

 

            (5)       That the PPS confirmed that no prosecution would be pursued and that letter is dated 12 March 2015 which predates the dismissal.

 

            (6)       That she tried to contact her solicitor to find he was on holiday and she did not follow that up as everything was “on top” of her.  In this period she was nevertheless able to work in her current job.

 

10.      It was clear that the claimant had a very strong sense of injustice about the events leading up to her dismissal and that sense of injustice was apparent at the time she received the report of the NISCC on 28 or 29 February 2016.  This report followed a hearing before the NISCC on 24 February 2015 which the claimant attended and she spoke on her own behalf in a hearing which lasted approximately one hour. 

 

11.      The claimant confirmed that she was questioned and provided a statement at a PSNI station in relation to the complaints against her.  She attended that interview with her solicitor Mr Donard King on 24 May 2014.  The PPS wrote on 12 March 2015 to tell her that no prosecution was being pursued against her.

 

12.      The claimant confirmed that she sought advice from her previous solicitor and from two other firms of solicitors and a Citizen’s Advice Bureau at various points following her dismissal.  The claimant stated that when she received advice from those individuals and bodies at the beginning of March 2016, it was that she was outside the three-month time-limit and that she should put in her claim anyway.  The claimant then waited until 9 March 2016 in order to put in her claim.

 

13.      It is my decision that it was reasonably feasible for the claimant to put in her claim within the three-month period.  She had previously had contact with a solicitor at her interview with the PSNI and could have immediately arranged to see that solicitor once she was dismissed or she could have gone to a Citizen’s Advice Bureau to seek advice promptly.

 

14.      Even if it was the case that the claimant was ignorant of the fact that she could make a claim she became aware that she could claim at Christmas 2015 when she revealed her position to her family.  At that stage her sister helped her to research whether she could make a claim to the tribunal and she discovered that she could do so and yet she delayed further in lodging her claim. 

 

15.      The claimant gave no good reason for delaying getting advice and/or lodging her claim until the outcome of the NISCC process.  Waiting for the outcome of the NISCC did not therefore render it infeasible for her to lodge her claim. 

 

16.      Once it was made clear to her at the beginning of March 2016 by three sets of solicitors and a CAB about the importance of time-limits and that the claim was already late, she did not move immediately to put in her claim but waited another few days to think about it.  She then completed the form herself on-line and in that form the narrative provided by the claimant is brief and uncomplicated.  The claimant gave me no good reason for that further delay.

 

17.      In summary it was reasonably practicable for the claimant to lodge her claim within the time-limit.  Even if waiting for the outcome of the NISCC process had rendered it not reasonably practicable, the claimant unreasonably delayed further and I therefore find she would have failed on that limb of the test too.

 

18.      Time-limits are construed strictly in unfair dismissal cases and this is well-settled law.  The burden is on the claimant to persuade the tribunal that it was not reasonably practicable for her to lodge her claim in time.  The claimant has failed to discharge that burden on the facts in this case.

 

19.      The claimant’s claim is therefore dismissed as the tribunal has no jurisdiction to hear it because it was presented outside the time-limit set out in the Employment Rights (NI) Order 1996.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:  22 June 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: