Industrial Tribunals Northern Ireland Decisions

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2257/15

 

 

 

CLAIMANT: Jemma Jane Woods

 

 

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

 

 

 

DECISION

 

The claim was dismissed for want of jurisdiction in an oral decision. Reasons were reserved.

 

 

 

 

 

Vice President

 

 

Date: September 2016

 

This decision was registered and issued to the parties on:

 

 

 

For Secretary
THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2257/15

 

 

 

CLAIMANT: Jemma Jane Woods

 

 

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

 

 

 

WRITTEN REASONS FOR A

PRE-HEARING REVIEW DECISION

 

The decision of the tribunal was given orally at the end of the hearing. The claim was dismissed as being outside the statutory time-limit. Reasons were reserved to be given in writing at a later date. These are the reasons.

 

Constitution of Tribunal:

Vice President (sitting alone): Mr N Kelly

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by Crown Solicitor's Office.

 

1. This was part of the Marks & Others multiple claim. It was therefore a claim from a part-time police officer who sought comparison with a regular constable. Her claim was under:-

 

(1) the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 ('the 2000 Regulations');

 

(2) the Working Time Regulations (Northern Ireland) 1998 ('the 1998 Regulations');

 

(3) the Equal Pay Act (Northern Ireland) 1970 ('the 1970 Act'); and

 

(4) the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order').

 

2. The claimant had last worked as a part-time reserve constable in August 2009 when she had worked 33.5 hours in that month. She had remained on the books as a part-time reserve constable for some time after that before eventually leaving the PSNI on 31 March 2012. During at least part of the intervening period she had been living abroad.

 

3. For the purposes of the equal pay claim, the tribunal is satisfied that this not a ' concealment' case. The pay and benefits of both part-time reserve constables and regular constables had not been secret. They were a matter of public record and would have been widely known, not least to the Police Federation. The tribunal is therefore satisfied that the appropriate time-limit for the purposes of an equal pay claim and Section 2(4) of the 1970 Act is six months from the last day in which the claimant had been employed in PSNI.

 

4. In relation to the part-time workers claim under the 2000 Regulations, Regulation 8(2) provides that a complaint must be made within three months, beginning with the date of the last less favourable treatment or the last detriment. Regulation 8(3) provides that 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.

 

5. In relation to the working time complaint under the 1998 Regulations, Regulation 30 provides that a complaint should be lodged before the end of a period of three months, beginning with the date of the alleged failure to comply with the Regulations. Regulation 30(2)(b) provides that a tribunal may consider a complaint 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.

 

6. In relation to the claim of sex discrimination under the 1976 Order, a complaint must be lodged in the tribunal within a period of three months beginning with the date on which the act complained of was done. Under Article 76(5) a tribunal may nevertheless consider any such complaint which is lodged outside that time-limit if, in all the circumstances of the case, it considers that it is just and equitable to do so.

 

7. The claim form containing the various claims was lodged in the tribunal on 8 September 2015. It was therefore significantly outside any statutory time-limit. With the exception of the equal pay claim, the claim was some six years and one month out of time. In relation to the equal pay claim, it was some three years out of time.

 

8. The provisions enabling an extension of time to the statutory time-limits in this case have primarily to be considered under the ' just and equitable' test. Under the Working Time Regulations, the test was the ' reasonably practicable' test.

 

9. The Great Britain Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] 1 ALL ER 945 concluded that when considering the ' reasonably practicable' test, the tribunal should ask itself whether it had been ' reasonably feasible' to present the claim in time.

 

10. The Great Britain Court of Appeal stated in Wall's Meat Co Ltd v Khan [1978] IRLR 499 that:-

 

"The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits such performance. The impediment may be physical, for example the illness of the complainant or a postal strike; or the impediment may be mental; namely the state of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months if the ignorance - or the mistaken belief - is itself reasonable."

 

11. The ' just and equitable' test provides a broader discretion to the tribunals. However, there is no presumption of an extension of time under this test. It has to be remembered that this is a statutory tribunal with a limited jurisdiction. A significant limitation on its jurisdiction is the limitation in relation to time. That limitation was put in place for a good reason, ie to ensure that claims were dealt with quickly and therefore dealt with at a time when memories of events were fresh and when documentary and other evidence would be readily available. The statutory time-limitation is not easily to be set aside. The onus is on the claimant to make out a case for an extension of time. In the case of Rathakirshnan v Pizza Express (Restaurants) Ltd [UKEAT/0073/15/DA], on 23 October 2015, the Employment Appeal Tribunal stated:-

 

"Pausing there again, if the claimant advances no case to support an extension of time, plainly, he is not entitled to one."

 

The exercise of the discretion involves a multi-factorial approach including a consideration of potential prejudice to either party, the merits of the claim, the reasons for the delay, the length of the delay, the conduct of the employer, the ability of the tribunal to conduct a fair trial of the issues, etc.

 

Decision

 

12. In this case the claimant has been unable to advance any convincing reason for her substantial delay in lodging a claim in this tribunal. She had moved abroad when her husband had commenced employment in another jurisdiction. She had felt that lodging a claim would have involved a great many meetings and she felt that her delay had been justified. However, there was absolutely no reason why her claim could not have been lodged by post or by e-mail even from another jurisdiction. The timing and progress of the litigation could, within reason, have been arranged to suit her intermittent presence in this jurisdiction. Furthermore, the claimant had not sought advice in relation to her claim from the Police Federation, from a lawyer, or from any other source of advice within Northern Ireland. She would have been aware of terms and conditions of service applicable to her colleagues, whether regular constables or part-time reserve constables. A particular issue in this case is the potential prejudice to the respondent, should time be extended as requested by the claimant. The most recent period during which alleged detriment or discrimination had occurred was August 2009. Providing documentary or oral evidence in relation to detailed matters such as shift patterns, hours allocated or worked, duties undertaken, the precise nature of those duties for the claimant and for any comparator, training undertaken, etc would be extremely troublesome this long after the effective dates. Documentation, even if it still existed, would be difficult to retrieve. The memories of witnesses, even if they could be located, would have faded. Because of the substantial delay, it would be difficult now to try this case fairly.

 

13. The conclusion of the tribunal is that the claimant has not established that it had in any sense not been feasible or impracticable to have lodged a claim within the statutory time-limits. The conclusion also is that it would not be just and equitable to extend time-limits in these circumstances where there would be significant prejudice to the respondent if time were to be extended and where the delay is both substantial and not satisfactory explained. The claimant could have at any point have sought advice in relation to her claim and could have at any point, either before or after the statutory time-limits had expired, lodged her claim before 8 September 2015. She choose not to do so.

 

14. The claim is therefore dismissed as being out of time.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 22 September 2016 at Belfast

 

 

Date decision recorded in register and issued to parties: