Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2241/15

 

 

 

CLAIMANT: Rosemary Richardson

 

 

RESPONDENT: Ards and North Down Borough Council

 

 

 

DECISION ON A PRE-HEARING REVIEW

The claimant's claims of unlawful discrimination on grounds of gender and her part-time worker status were lodged outside the statutory three month limit and it would not be just and equitable in all the circumstances to extend time. The claimant's claims of sex discrimination and discrimination on grounds of her part-time worker status are dismissed.

 

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey (sitting alone)

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Savage and Company Solicitors.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Jones Cassidy Brett Solicitors.

 

ISSUES

 

1.             This was a pre-hearing review to determine the following issue:-

 

Whether the claimant's claims are out of time and, if so, whether time should be extended on a just and equitable basis?

 

2.             The claimant had lodged claims of unlawful sex discrimination and unlawful discrimination on grounds of her part-time worker status on 7 September 2015 in relation to her non-appointment as Head of Economic Development and Tourism for the respondent organisation on 27 March 2015. The respondent asserts that the claim had been lodged outside the statutory three month time limit and had requested this pre-hearing review.

 

THE FACTS

 

3.             I heard oral evidence in this matter from the claimant and considered the documents opened to me. On that basis I make the following findings of fact in relation to the time-limit issue. The claimant gave very detailed evidence, not all of which was relevant to the time-limit issue and so I have not rehearsed all the detail of what she said. In essence her case was that although she was aware of the three month statutory time-limit in relation to discrimination claims, she believed that the respondent had deliberately delayed providing her with information on which she could ground a claim of unlawful discrimination and on this basis she sought an extension of time for bringing her claim.

 

4.             The claimant was and currently remains employed by the respondent as a Tourism Development Officer (job-share). She works three days a week in that role. Following the reorganisation of local Government, the claimant and two others were eligible to apply for a ring fenced post of Director of Economic Development and Tourism ("the post").

 

5.             The claimant attended for interview on 27 March 2015 and was advised the same day that she had been unsuccessful. She was also told that no other candidate was deemed suitable for appointment, that the post would be re-advertised and that she was eligible to apply. The interview panel consisted of Christine Mahon, Director of Regeneration Development and Planning, Wendy Monson, Director of HR and Organisational Development and David Clarke, Director of Corporate Services.

 

6.             The claimant attended a meeting on 8 April 2015 with Christine Mahon on other issues. At the end of that meeting she asked Ms Mahon for some feedback in relation to her application for the post. Ms Mahon gave her informal feedback and pointed out in the course of that discussion that the claimant "being job share had not helped her cause", as the claimant and her job share partner had used some of the same project examples at interview. She indicated that it would have been better had the claimant and her job share partner avoided overlap or duplication. She gave further qualitative feedback in relation to the examples the claimant had used at interview. The claimant was then concerned that her being a job share worker had affected the outcome of the interview. She said in cross examination that as of 8 April 2015 she believed that she had suffered discrimination on the grounds of her gender and her part-time status.

 

7.             The claimant sent an email to Wendy Monson that evening requesting feedback scores from her first interview to assist in her consideration as to whether or not to reapply for the post. Ms Monson replied the following morning just after 9.00 am, indicating that normal practice would be that candidates receive verbal feedback which the claimant had already received from Christine Mahon. She noted that scores were not usually divulged as they were meaningless without knowing the scores of other candidates. She also said that as the respondent was in the middle of live recruitment exercises at Head of Service level they would not divulge the wording of the questions and the claimant's scores as they were using broadly similar questions for other recruitment exercises at the same level. The claimant replied pointing out that Christine Mahon's comments were that her feedback had been informal and that Ms Monson would be providing formal feedback on behalf of the panel. She said that she understood Ms Monson's comments about divulging scores and asked if there was an individual score against the benchmark on each competence. She went on to say she was happy to receive any additional qualitative feedback. Later that morning at 12.45 pm the claimant emailed Ms Monson again and said that on further reflection she did not "wish to press this" at a time when she knew things were busy and pressurised. She went on to say,

 

"I probably have enough information for now to make my decision and I can always come back to you later for a fuller briefing once the various recruitments are out of the way."

 

Ms Monson responded, noting that what Christine Mahon had already shared with the claimant was

 

"broadly all the feedback we could give anyway given that we are in the middle of live Head of Service recruitment exercises."

 

8.             The claimant replied that afternoon indicating that she understood the "live" situation but noting that she had been given only generic feedback, not specific feedback on individual questions. She also said that she felt that formal feedback was important and something she had been encouraged to seek during recent training so she hoped that she had "not caused any annoyance". The claimant suggested in cross-examination that she had not withdrawn her request for her scores in this email chain. As a matter of fact, I find that she had withdrawn her request for feedback in total at this time subject to her reservation that she may come back for a "fuller briefing".

 

9.             The claimant did not reapply for the post of Head of Economic Development and Tourism. Towards the end of April an email setting out the new Head of Service appointments was circulated around staff at the respondent organisation. The claimant noted at that stage that the post of Head of Economic Development and Tourism was the only post out of thirteen where a ring-fenced officer had not been appointed to the job and this caused her concern.

 

10.          On 11 May 2015 the claimant emailed Wendy Monson seeking structured feedback.

On or about 15 May 2015 the claimant spoke to Victoria McArdle an Advice Officer with the Equality Commission regarding the possibility of bringing a claim before an Industrial Tribunal in relation to the alleged discrimination. Ms McArdle subsequently emailed the claimant some advice and information, including a link to the necessary documentation required for progressing her claim, a tribunal claim form and an application for assistance from the Equality Commission. Her email also included the sentence:

 

"Please note that there are STRICT STATUTORY TIME LIMITS which can be as short as three months within which discrimination claims must be issued in the tribunals/courts".

 

The claimant replied, saying that she would keep an open mind and decide after her feedback meeting whether to take matters further.




 

11. A feedback meeting was arranged to take place on 18 May, but due to a mislaid file it had to be rearranged. There was then some juggling of dates, following which the claimant sent an email to Ms Monson and Ms Mahon on 28 May 2015 saying that she now must insist on proper feedback. She noted, quite fairly, that she was applying for other posts and was keen to get proper feedback before she went into any more interviews. The rearranged feedback meeting took place on 3 June 2015. At that meeting the claimant repeatedly requested her scores at interview and was told by Ms Monson that she would have to request her scores in writing.

 

12.          Following the 3 June meeting, the claimant attended interviews for other posts in the respondent organisation and completed her final interview on 15 June 2015. She asserted that she had not lodged a written request for her interview scores more promptly after the 3 June meeting because she was concerned that it would affect the outcome of the other interviews she was due to attend. She then made a written request for her interview scores by email on 18 June to Ms Monson asking for the information by the next day. She was advised by return email the same day that this was a Subject Access Request ("SAR") under the Data Protection Legislation and that she needed to pay a fee of £10. On 23 June 2015 the claimant amended her SAR to include information in relation to all four posts for which she had applied. It was her contention that she should have been told that the request for scores was a SAR in April when she made the original application for feedback on 8 April. She alleged that, had she had the information in relation to her scores sooner, this would have given her sufficient information on which to make a decision as to whether to proceed with a claim before the Industrial Tribunal.

 

13.          The claimant had been in touch with her union representative Leighton Arnell sometime between 8 April and 22 June. She subsequently emailed Mr Arnell on 22 June 2015 in relation to obtaining information regarding her interview scores. She stated in that email:-

 

"If I can get the information I am running out of time for any potential grievance or (if it came to it) industrial tribunal (my interview was on 28 June (sic) and I know I have only three months to register a tribunal). I will update you on how I got on tomorrow but how would NIPSA advise me if I get no joy? ... I hasten to add that I am not intent on a tribunal but I am in no position to establish if I was treated fairly until I get the scores and information I requested ..."

 

14.          On the same day she emailed Victoria McArdle in the late evening, setting out her concerns about not having been provided with her scores. She added that she had now been asked to provide a data subject access request and that the organisation had up to eight weeks to reply. She continued:-

 

"I am therefore left in a position where I have not seen the score information which I hope will allow me to decide whether I had been discriminated against, yet if I don't go down the formal grievance and potential industrial tribunal route, the deadline for me to submit a claim for a tribunal is 27 June (this Saturday) to stay within the "three month less one day" rule."

 

15. This confirms that the claimant had, as she said, been "googling" information on discrimination on the internet, as the "three months less one day" time limit applies in England, not Northern Ireland, where the time limit is three months. The claimant went on to ask for some further advice and in particular asked whether, if she submitted a claim to a tribunal that meant her employer would be contacted immediately to advise them of this or can it be delayed until she has seen the information she requested? The claimant indicated she had attempted to telephone Ms McArdle on a couple of occasions to discuss this email with her but as it transpired Ms McArdle was not available and phoned her back on 30 June, after the 27 June deadline. At that stage Ms McArdle advised the claimant that even though she had missed the deadline it was possible that she could seek an extension of time if she was in a position to show that her employer had obstructed her getting relevant information.

 

16. In the interim, probably on or about 26 June, the claimant had spent some time preparing a first draft of a claim form to the Industrial Tribunal. She said however that when she had done so, her claim looked "insubstantial" and so she held off lodging it. She also said that at her feedback meeting on 3 June 2015, Ms Mahon had emphasised her integrity and that of Ms Monson as regards the marking, and so the claimant felt that she would be challenging their integrity if she brought a claim. The claimant agreed in cross examination that she had been aware of the statutory SD74 questionnaire procedure, by which she could obtain information from the respondent, from her contact with the Equality Commission.

 

17. Having spoken to Ms McArdle the claimant then waited for a response to her SAR request. The reply from the respondent was sent to her by email and by hard copy, received by the claimant on 28 July 2015. The claimant then responded on 3 August 2015, setting out further questions and details in relation to the matter. The respondent replied to this on 20/21 August 2015 providing additional information. When asked why she had not acted immediately to lodge a claim on receipt of this material, the claimant said that she had to spend some time analysing this information, which consisted of nine pages of notes and records in relation to the four posts she had applied for. None of these pages is closely typed, consisting mostly of score sheets from interviews.

 

18. On 31 August 2015 the claimant emailed Victoria McArdle again asking for some further advice. She received a telephone call the following week (on or about 3 September) from Paddy Conway of the Equality Commission due to Ms McArdle's non-availability. He advised her that she should lodge a claim forthwith. The claimant then spoke to Ms Savage by telephone on 4 September 2015, sent her a draft ET1 form which the claimant had prepared and subsequently submitted her claim form on line on 7 September 2015.

 

19. The claimant alleged that there had been a delay on the part of the respondent in producing documents to her during the last week of June. She maintained that the documentation she had sought could have been provided to her very easily within a few days and she could have collected the documentation ahead of the 27 June time limit. When she was asked why she considered there had been obstruction on the part of the respondent, she said that she believed there had been a delay on its part to stop her bringing a claim. When it was put to her that the respondent was not aware that she was considering a claim to the industrial tribunal, her answer was that she believed a rational person (particularly an HR Director) who was involved in tribunal complaints previously would have had a reasonable suspicion of her intention from the fact that the claimant was pressing to receive information during the last week of June and specifying dates close to the three month deadline. She conceded however that she had never told anyone in the respondent organisation that she was intending to make a tribunal complaint as she had not decided to do so.

 

20. The respondent pointed to the fact that Mr Clarke (one of the interview panel members for the post) had been suffering from an extremely serious illness since July 2015, was off on long term sick leave and unlikely to be able to return to work in the near future. It was put to the claimant that, had she brought her claim in time, the respondent would have been able to speak to Mr Clarke and take instructions from him before he became ill and the claimant agreed that this was the case.

 

THE RELEVANT LAW

 

21. The law in relation to time limits for claims of unlawful discrimination on grounds of sex is to be found in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) which provides as follows:-

 

"76(1) An Industrial Tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of -

 

(a)       The period of three months beginning when the act complained of was done; ...

 

(5)   A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers it is just and equitable to do so."

 

22.          It is relevant to note that the three month time limit applies to claims in respect of employment under Part III of the Order while a time limit of six months applies in relation to claims in respect of goods, facilities and services under Article 66. Proceedings in relation to discriminatory advertisements and discriminatory practices may only be brought by the Equality Commission itself within a period of six months from the act complained of. There are therefore different time limits for different claims.

 

23. In relation to claims under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (as amended), Regulation 8 of those Regulations provides as follows:-

 

"8(1) Subject to Regulation 7(5) a worker may present a complaint to an industrial tribunal that his employer has infringed a right conferred on him by Regulation 5 or 7(2).

 

(2) Subject to paragraph (3) an Industrial Tribunal shall not consider a complaint under this Regulation unless it is presented before the end of the period of three months (or in a case to which Regulation 13 applies, six months) beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where the act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them.

 

(3) 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."

 

Again it may be seen that a claim in relation to an allegation of unlawful discrimination in relation to employment is subject to a three month time limit while a claim in relation to the Armed Forces under Regulation 13 is subject to a six month time limit.

 

24. There is considerable case law on the question of extension of time under the "just and equitable rule". Most recently the principles in relation to such an extension of time have been considered by Mrs Justice Laing in the case of Millar and Others v Ministry of Justice and Others (UKEAT/0003/15/LA) , a judgment delivered in March 2016.

 

25.          In her judgment Mrs Justice Laing sets out points of general application as follows:-

 

"There are five points which are relevant to the issues in these appeals.

 

(i)         The discretion to extend time is a wide one: Robertson v Bexley Community Centre [2003] EWCA Civ 576; [2003] IRLR 434 , paragraphs 23 and 24.

 

(ii)        Time limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule (Ibid, paragraph 25 ). In Chief Constable of Lincolnshire v Caston [2010] EWCA Civ 1298; [2010] IRLR 327, Wall LJ (with whom Longmore LJ agreed), at paragraph 25, put a gloss on that passage in Robertson , but did not, in my judgment overrule it. It follows that I reject Mr Allen's submission that, in Caston , the Court of Appeal "corrected" paragraph 25 of Robertson . Be that as it may, the EJ in any event directed himself, in the first appeal, in accordance with Sedley LJ's gloss (at paragraph 31 of Caston ) which is more favourable to the claimants that the gloss by the majority.

 

(iii)      If an ET directs itself correctly in law, the ET can only interfere if the decision is, in a technical sense, "perverse", that is, if no reasonable ET properly directing itself in law could have reached it, or the ET failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence. No authority is needed for that proposition.

 

(iv)      What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET ( DCA V Jones [2007] EWCA Civ 894; [2007] IRLR 128 . The prejudice which a respondent will suffer from facing a claim which would otherwise be time barred is "customarily" relevant in such cases (ibid paragraph 44).

 

(v)        The ET may find the check list of factors in Section 33 of the Limitation Act 1980 ("the 1980 Act") helpful ( British Coal Corporation v Keeble [1997] IRLR 336 EAT ); the EAT (presided over by Holland J) on an earlier appeal in that case had suggested this, and Smyth J (as she then was) recorded, at paragraph 8 of her judgment, that nobody had suggested that this was wrong. This is not a requirement, however, and an ET will only err in law if it omits something significant: Afolabi v Suffolk London Borough Council [2003] ICR 800; [2003] EWCA Civ 15 at paragraph 33." (See paragraph 10 of the Judgment).

 

26.          Keeble is authority for the proposition that the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regard to all other circumstances, in particular the length and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the parties sued had co-operated with any request for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate professional advice once she or he knew of the possibility of taking action.

 

27.          Mrs Justice Laing also identified two types of prejudice which a respondent may suffer if the limitation period is extended. The first is the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence. The second is what she described as the "forensic prejudice" which the respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents and losing touch with witnesses (see paragraph 12 of the Judgment).

 

28.          Most recently in Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278 , the Employment Appeal Tribunal clarified that exercise of the wide discretion to extend time involves a multifactoral approach. The court held that no single factor was determinative. Failure to provide a good excuse for the delay in bringing a claim will not inevitably result in an extension of time being refused. In that case Judge Peter Clarke held that the question of balance of prejudice and potential merit of the claim before the employment tribunal had been a relevant consideration for the tribunal and that it had been wrong not to have weighed those factors in the balance, but instead to have terminated the exercise having rejected the claimant's explanation for the delay.

 

REASONS AND DECISION

 

29. This is a case where the claimant was clearly aware of the applicable time limits in relation to lodging her claim of sex discrimination and discrimination on grounds of being a part-time worker from at least 15 May 2015, when she spoke to Victoria McArdle at the Equality Commission. She said that the reason for her delay in lodging the claim was that she did not have sufficient information from her employer to justify her suspicion of unlawful discrimination and she felt that she did not want to lodge a claim prematurely. The claimant had a conversation and email advice from Victoria McArdle of the Equality Commission, on 15 May, which clearly advised the claimant in relation to the statutory time limits and the fact that they were strict statutory time limits. The claimant also had an email link from the Equality Commission to the necessary information, an application form to the tribunal and an application form to the Equality Commission for funding but decided not to proceed to lodge a claim at that time. The claimant suggested that the Equality Commission's email to her on 17 May was unclear and suggested that the applicable time limits were in some way flexible. This contradicts the advice given in the Equality Commission's email, which makes it clear that there are strict statutory time limits which can be as short as three months and the claimant does not seem to have made any attempt to clarify the position. It is also clear from the emails the claimant sent to Victoria McArdle and to Leighton Arnell on 22 June 2015 that she was well aware that the time limit for her lodging a claim before the industrial tribunal would expire on 27 June. She agreed that she had googled information in relation to discrimination on a number of occasions between April and the end of June 2015 and that she had started to draft a claim form to the industrial tribunal during the last week of June. The reason why the claim form was not lodged at this time, according to the claimant, was that the claim form appeared "insubstantial". I am therefore satisfied that the claimant knew of the facts giving rise to her potential cause of action from 8 April 2015, and that she had professional advice as to the applicable time limits from 15 May 2015 at the latest.

 

30. The claimant's suspicion that she may have suffered unlawful discrimination on grounds of her gender and/or part-time status had however been formed much earlier, on 8 April, after her informal discussion with Christine Mahon. She indicated that while recruitment exercises were going on for other posts where she was a candidate, she felt pursuing a request for her scores might impact on her success or failure in those job applications. She also considered that lodging an application to the tribunal would impugn the integrity of Ms Monson and Ms Mahon, both of whom she indicated had been adamant in their feedback meeting with her on 3 June that their scores for her performance were fair and that they had shown absolute integrity in their assessment of her. While I can appreciate that these concerns could be raised, I find it difficult to accept that the claimant's concerns were genuine: she is a mature woman with considerable experience in management roles in different bodies, including the IDB. She had received training on equality issues and had sat on an interview panel for the respondent organisation. I do not accept her concern that lodging a claim in the industrial tribunal would have impacted on how she was assessed for the other posts was genuine. She would also be aware that claims are lodged in industrial tribunals from time to time which challenge decisions made by others.

 

31. She had a feedback meeting with Ms Monson and Ms Mahon on 3 June but did nothing further after that until 18 June when she emailed Ms Monson seeking her interview scores. The claimant's reason for postponing the written request for her scores was that she had other interviews to do and some of these were for posts within Ms Mahon's division. While that is perhaps understandable, the request for scores would have presumably gone to the HR Department headed up by Ms Monson rather than to Ms Mahon and secondly, the final interview was completed on 15 June 2015. The claimant confirmed in cross examination that she had decided to wait until the outcome of the interviews she still had to undertake before making a decision. Even if the claimant had been concerned about lodging a claim before 15 June, there was certainly no reason not to do so after that date but before 27 June and it would still have been in time. It is difficult therefore to understand why the claimant did not lodge a claim at least on a protective basis, given the clear advice she received from the Equality Commission. When she was pressed as to why she had not lodged a decision after that, she indicated that she had been trying to get her score information and also that while she had gone online and started to

 

 

complete the application form on or about 26 June, she considered she did not have enough information to bring the claim. However as Mrs Justice Laing pointed out in Millar,

 

"the lack of belief in the strength of the claim was not a good reason for extending time." (See para 20 of the judgment).

 

The claimant seemed to place a lot of weight on the time taken by the respondent to reply to her written request for her scores made on 18 June and amended on 23 June to include all four interviews she had undertaken. The reply she was given was on 27 July, some 34 days later, and within the 40 day period allowed under the Data Protection Legislation. The claimant had alleged that she had been less favourably treated than two other colleagues Linda McAllister and Julia Harkness who had made requests for their scores at feedback interviews and been told to make a Freedom of Information request. Each of them had received a response: Ms McAllister 22 days later and Ms Harkness 26 days later. The claimant believed they had been treated more favourably than her, but this did not necessary take account of the fact that she had amended her request on 23 June and requested the details of three further interviews. The claimant alleged that the respondent had deliberately obstructed her request for information in the last week in June so as to make it more difficult for her to lodge her claim in time. Given that the claimant only made her written application for her interview scores on 18 June and then changed her request on 23 June, I do not accept this construction of the respondent's response. I am also conscious that the claimant had raised the issue of her scores at an earlier stage in April and then withdrew the request. When she raised it again in May, she was asking for a meeting to discuss feedback and did not make a formal request for her scores until the feedback meeting on 3 June. She was told to put that request in writing but failed to do so until 18 June. I do not accept the claimant's suggestion that the respondent was deliberately obstructive of her efforts to obtain information during the last week in June. The claimant sought information under an SAR on 18 June, she asked for the information by the next day and then amended the request on 23 June. Given that the respondent had 40 working days to reply under the legislation and that the claimant had made her request at such a late stage, it seems to me unreasonable to expect a response by return.

 

32.          The claimant by this stage had been in touch with the Equality Commission and was well aware of the time limit so I find it astounding that she did not pursue this matter more promptly if she genuinely was seeking the information on her scores to clarify the position in relation to a discrimination claim. At the end of June the claimant had attempted to contact Ms McArdle (on 22 June) but was unable to reach her. When she was asked why she did not contact someone else in the Equality Commission she gave a rather vague answer, saying that Ms McArdle was her main contact at the Equality Commission and that she had been really busy in work that week. Given that the claimant worked three days a week it surprises me that she could not have contacted the Equality Commission at some point on her days off if she was really concerned to lodge her claim promptly.

 

 

33.          Even when the claimant received a reply from the respondent with information regarding her scores at the end of July she did not consider that the response was sufficient. The claimant took from 28 July to 3 August to respond seeking further information. When the respondent sent her further information on 20/21 August, she took a further 10 days to contact the Equality Commission on 31 August 2015 seeking further information. While she left voicemail messages for Ms McArdle, it does not appear to have occurred to her to phone the Equality Commission's advice line to speak to someone else in Ms McArdle's absence. It was only when she spoke to Mr Conway the following week that he advised her to proceed to lodge a claim form straight away. The claimant at this stage prepared a claim form on line after having spoken to Ms Savage on 4 September and lodged a claim form herself on 7 September.

 

34.          Taking account of all of the circumstances and in particular the reasons for the delay, I consider that the claimant delayed in lodging her claim unnecessarily. Her claim was lodged approximately 10 weeks after the date when the time limit expired. She knew of the facts giving rise to the cause of action on her own evidence on 8 April 2015. She said she was taking steps to obtain the information which would allow her to decide whether to lodge a claim, but in fact she did not pursue this with any great alacrity through April, May and the early part of June. By 15 May at the latest, the claimant was aware of the time limit which applied to her claim, but failed to lodge a claim timeously, although she had all the relevant information to hand. While I accept that she was concerned about the impression that would be given to her employers if she indicated that she was going to lodge a claim of discrimination, purely and simply seeking her scores by way of feedback would not necessarily have alerted her employers to any potential claim. As she stated in one of her emails she was applying for other posts and wanted the feedback to help her prepare for those jobs, which is a perfectly acceptable reason for seeking the details she required. The claimant's evidence on a number of occasions was vague and contradictory. She said that she could not remember what she had put in the claim when she started the draft, she got a number of dates incorrect, she alleged that the respondent had been obstructing her in obtaining information in April and May and then withdrew that comment when she was asked about why she did not respond to correspondence or pursue the matter more vigorously and more quickly. She referred on occasion to the fact that she was not in work or that she had commitments over the weekend which appear to have delayed her pursuing the matter more quickly. Frankly, these are not valid reasons: a claimant should be able to decide to bring a claim or not and be prepared to do so on her own time, rather than her employer's.

 

Summary

 

35.          I am conscious of the dicta of Mrs Justice Laing in Millar , which confirm that the exercise of the discretion to extend time is the exception rather than the rule. I take account of the fact that the claimant had concerns that she had been discriminated against on grounds of her job share status on 8 April and was aware of the deadlines for lodging a claim by 17 May at the latest. She could have pursued the request for feedback in writing much more quickly but did not do so until 18 June. At that stage she alleges that the respondent was slow in replying but had she lodged her request for information much more promptly, she would have had the relevant information in ample time before the time limit expired. I am not therefore satisfied that the claimant acted promptly once she knew of the facts giving rise to the cause of action in April, or that she acted promptly to obtain professional advice, once she had preliminary advice from the Equality Commission in May. Even when she

 

 

obtained replies from the respondent in mid-July, she took 6 days to ask for supplementary information and then took a further 10 days to analyse replies in August, rather than lodge a claim promptly.

 

36. The respondent has raised a potential prejudice to them in defending the case in that Mr Clarke is likely to be unavailable to give evidence due to a serious illness. Mr Mulqueen did not labour this point unduly. I appreciate that it would have been useful for the respondent to talk to all three of the panel members and have them available as witnesses for any hearing of this matter particularly as Mr Clarke was the only man on the panel and one of the claims was for sex discrimination: I do not consider that the delay would prejudice the respondent as far as the other two panel members are concerned. However I do not think that this is the only factor in favour of refusing an extension of time in this case, as I have set out above. I am concerned that the claimant was vague in some of the answers she gave as to why she delayed. I am not satisfied that she was concerned only about the impression it would make on her Directors within the workplace: the claimant also referred to the cost, stress and strain of bring a tribunal claim which I accept are valid considerations, but any claimant must decide ultimately whether to pursue a claim to assert their statutory rights. For all the reasons set out at paragraphs 29 to 36 above I am not persuaded that it would be just and equitable in all the circumstances to extend the time limit in this matter and accordingly the claimant's claims of sex discrimination and discrimination on grounds of her part-time workers status are dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 4 and 5 April 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: