Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 2717/15

 

 

CLAIMANT: Mandy Campbell

 

RESPONDENT: Belfast Health & Social Care Trust

 

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal does not have jurisdiction to hear and to determine the claimant's respective claims of unfair dismissal and of failure to provide a written statement of employment particulars. In regard to the claimant's claim of (associative) disability discrimination under the Disability Discrimination Act 1995, the tribunal orders that time shall be extended, upon grounds of justice and equity, for that claim to proceed to be heard and to be determined by a tribunal.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Leonard

Appearances:

The claimant appeared and represented herself.

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

 

REASONS

 

1. This case comes before the tribunal by way of a pre-hearing review as a result of directions made by Employment Judge Buchanan at a Case Management Discussion held on 30 August 2016. In the record of that Case Management Discussion dated 6 September 2016, Employment Judge Buchanan referred to a previous Case Management Discussion which took place on 9 August 2016. In both of these the tribunal, with the assistance of the parties, had identified issues to be dealt with by way of pre-hearing review. These included the following issues expressly listed for determination by this tribunal at this pre-hearing review:-

 

1.1          Whether the claimant's complaints of unfair dismissal and failure to provide a written statement of particulars had been presented within the three month statutory time limit.

 

1.2          If not, whether it was not reasonably practicable for the claimant to have brought those complaints within the three month statutory time limit.

 

1.3          If not, whether those complaints had been brought within a reasonable time thereafter.

 

1.4          Was the claimant's claim form capable of being construed as including a claim of (associative) disability under the Disability Discrimination Act 1995?

 

1.5 If not, was it just and equitable to extend the time for bringing such a claim?

 

2. The tribunal heard evidence from the claimant, given under oath. The tribunal sought clarification from the claimant concerning particular matters of evidence and specific issues and the claimant was subject to cross-examination by the respondent's representative. The tribunal also had before it all relevant documents in respect of the claim, including the claim form and the response thereto and an agreed bundle of correspondence and documents. The tribunal also had copies of the respective records of proceedings in regard to the various Case Management Discussions which had taken place. The tribunal must make some observations concerning the claimant's evidence. The claimant provided oral evidence to the tribunal over a number of hours. The tribunal was particularly concerned at the quality of this evidence which, to a degree, lacked consistency, clarity and cogency. The claimant's evidence was not just at times vague, imprecise and seemingly confused and confusing; of specific concern was the fact that a number of matters contended, without equivocation, in oral evidence by the claimant to be categorical and unqualified statements of fact were, latterly, under further questioning amended or modified by the claimant in various respects. On occasions the claimant initially provided specific evidence which, after one or a number of modifications, ultimately arrived at a point where it was entirely at variance which initial evidence given by her. Any motivation of the claimant in this regard and what compelled her to conduct proceedings in this manner was not fully clear. As a consequence, the tribunal was compelled to take into account this regrettable lack of cogency and consistency in making relevant determinations of fact.

 

THE TRIBUNAL'S FINDINGS OF FACT

 

3. The tribunal, on balance, made the following findings of fact relevant to the issues requiring to be determined:-

 

3.1 The claimant commenced employment as a home help, with effect from 14 July 1987, in the North and West Belfast Community Unit. The respondent's records, which were not challenged by the claimant and which were accepted by the tribunal as being factually correct, show that the claimant had continuous service as a home help from July 1987 until 7 August 2015, upon which latter date her contract of employment was terminated by the respondent, on notice. The tribunal will mention below some of the circumstances concerning how the contract came to be terminated.

 

3.2 In examining the claimant's claim form, this being dated 10 December 2015 and which was received by the Office of the Tribunal on 11 December 2015, it is noted that in section 7 of the claim form paragraphs 7.1, 7.2 and 7.3 have been left entirely blank and uncompleted. These parts consist of the sections in the form where the claimant might have availed of an opportunity to set forth in writing the basic details of her claim, including specifically any claim for unlawful discrimination which she wished to have determined by a tribunal. In the claim form paragraph 7.4 was completed in manuscript. Again, this will be further mentioned below, but when first questioned about the completion of the claim form, the claimant's evidence was that she had personally completed section 7.4. The claimant then amended her evidence and stated that section 7.4 had been completed by another person on her behalf. Apart from the written material contained in paragraph 7.4, documentation available to the tribunal possibly of assistance in clarification of the claimant's claim or claims, consisted of a letter dated 12 April 2016 directed to the President of the Tribunal. Examining that letter, apart from requesting a postponement of the case and alluding to difficulties in obtaining representation, this letter states as follows:

 

" It is not just an unfair dismissal and written statement case, it is also about disability discrimination because of my role as the carer for my disabled son who has autism".

 

The letter then proceeds in an endeavour to add further detail to that specific assertion of unlawful discrimination.

 

3.3 Examining the respondent's response to the claim, in paragraph 6.2 of the response the respondent Trust's representative makes the observation that the claimant had not indicated in her claim form what claim she was making, but that it appeared that the claimant was making a claim for unfair dismissal. A preliminary time-point was taken on behalf of the respondent in that it was asserted that the claimant's contract of employment had ended on 7 August 2015 and yet her claim form was not received by the Office of Tribunals until 11 December 2015. The respondent's representative requested a pre-hearing review in order to determine the jurisdictional point. The response made on behalf of the respondent, further, went into some detail in explaining the background to a modernisation process involving the respondent's care service provision, which modernisation process proposed the introduction of new ways of working for home care staff by means of team-working schedules and rotational working. The information also alludes to close consultation by the Trust with the main representative trade union, Unison, and to the fact that the respondent and Unison reached agreement in respect of the proposed modernisation process changes in January 2013. The claimant was a long-time member of Unison. It is of note that in her claim form, she named Joe Lynch, of Unison, as being her representative.

 

3.4 The respondent, as part of this process, offered alternative options to affected employees, including the claimant. The two options offered to the claimant were either a "guaranteed hours contract" or a "bank contract". Less than 1% of the affected workforce, of approximately 600 staff, did not choose one or other of these two options; included in this very small percentage was the claimant. It is evident from the information provided by the respondent, which was not directly controverted by the claimant, that an offer letter was issued to the claimant in April 2014 concerning the proposed changes and the claimant was requested to confirm her acceptance. A short time thereafter the claimant responded by indicating that she did not accept the four hours per week contract which was on offer. Further endeavours were then made by the respondent to meet with the claimant and her trade union representative for the purpose of discussing the options open to the claimant, in view of the impending expiry of the claimant's existing contract terms and in the light of her refusal to accept the alternative guaranteed hours contract offered.

 

3.5 Further discussions concerning alternative options followed, this part of the process leading into the year 2015. A letter was sent by the respondent to the claimant dated 15 May 2015, which she received a short time afterwards, detailing the arrangements that had been offered and mentioning the failure on the part of the claimant to take up the options available. In that letter the respondent stated the assumption that the claimant no longer wished to continue in employment and that the purpose of the letter was to advise the claimant that her contract would end on 7 August 2015. Accordingly, by means of this letter, the claimant was afforded nearly three months advance notice of termination of her contract. Further telephone contact was made by the respondent with the claimant, who confirmed receipt of the May 2015 letter and the claimant indicated that she was seeking advice from her trade union.

 

3.6 The respondent made four further endeavours to meet with the claimant and her trade union representative, towards the end of June and into early to mid-July of 2015. However, the claimant did not attend these arranged meetings. The claimant's contract with respondent was terminated with effect from 7 August 2015 on foot of this written notice given some weeks earlier. A grievance process was immediately invoked by the claimant and a number of endeavours were made to have the claimant attend various meetings arranged with the purpose of progressing the grievance. However, it appears that the claimant did not take up the opportunities afforded to her to have a meeting and the process was not effectively concluded. It is not necessary to provide any more detail of these events and matters in view of the nature and purpose of this hearing. The tribunal's focus necessarily must be upon the claimant's evidence and upon other relevant matters from which the tribunal may draw factual conclusions concerning the precise nature of the claimant's claims and the reason or reasons for the lateness in any presentation of the claimant's claims.

 

3.7 Specifically, in respect of the lack of progression and conclusion of the grievance process, the claimant appears to have laid almost the entirety of the blame upon her trade union, Unison. Apart from this, the claimant has presented evidence and arguments in this case which centre around the fundamental proposition that none of the other individuals and agencies, whose assistance the claimant endeavoured to recruit, were enthusiastic about becoming involved in assisting her for the reason that they took the view that it was essentially a matter for the claimant's trade union to provide the claimant with advice and assistance and that they could accordingly only provide very limited assistance, or indeed no assistance at all. The tribunal will mention below some of the endeavours that the claimant appears to have made to seek advice and assistance.

 

3.8 Regarding the effective date of termination of the employment contract, it is entirely clear that the claimant was provided with significant advance notification of the termination of her contract. The employment contract was terminated with effect from 7 August 2015, which date the tribunal determines constitutes the effective date of termination, for statutory time limitation and computation purposes.

 

3.9 The tribunal, not without some difficulty on account of the claimant's evidence, was able to reach some further material conclusions of fact. A much-repeated theme in the claimant's evidence was lack of assistance and support from Unison and the claimant endeavoured to portray Unison as not giving her any real assistance whatsoever. Notwithstanding this assertion, the claimant appears to have continued to remain a member of Unison throughout the process and indeed until a point well beyond the date of termination of the employment contract. Indeed, in her claim form, she expressly has identified her representative as being a Unison official, Joe Lynch. This is so despite the fact (derived not without some difficulty on the basis of some markedly confused and confusing evidence) that the claimant probably obtained the paper claim form from either the Equality Commission or from an Ulster Unionist party advice centre (and not from Unison). Unison was not the only source of assistance which the claimant endeavoured to recruit throughout the course of her difficulties. The list of sources (or potential sources) of advice and assistance which emerged from the tribunal's best interpretation of evidence was indeed quite extensive. The claimant appears to have sought assistance from, firstly, the Ulster Unionist Party representative in the Crumlin Road, Belfast, consistency office, secondly, Belfast Law Centre, thirdly, the Equality Commission, fourthly, at least five firms of solicitors, fifthly, her local Citizens' Advice Bureau, sixthly, the Bar's Pro Bono unit, seventhly, the University of Ulster law clinic, eighth, Autism Initiatives NI and, finally, the Unison-appointed lawyers. Of course not all of these sources, upon the tribunal's best assessment, provided actual comprehensive or specific advice to her and the tribunal concludes that, very probably, a number of these sources provided no advice to her at all, or that her contacts or attempted contacts did not in reality result in any effective communication of advice or granting of assistance. It has to be said that the tribunal found the task of endeavouring to ascertain precisely when the claimant sought advice from any of these sources and what, if anything, might have been communicated, to be extremely arduous. It can however be said with certainty that the claimant had at least four contacts with the Equality Commission, two of these being with a Paddy Conway. The first of these, the tribunal believes, was a meeting which probably occurred on 18 June 2015. The second contact with Mr Conway probably consisted of a telephone conversation which occurred on 24 November 2015. The claimant also had at least two telephone contacts with a person she named as Liz Milliken of the Equality Commission on 10 and 14 September 2015. The Equality Commission dispatched literature to the claimant regarding employment rights and the tribunal believes that it did so around the time of the first contact with Mr Conway in June 2015. The claimant maintained in her evidence that this written material received by her from the Commission related only to unfair dismissal and that the material did not refer to unlawful discrimination. She was adamant that none of this literature dispatched and received by her contained any advice relating to time limitations in respect of bringing employment law claims. The claimant maintained that she looked at, as she put it, "bits and pieces" of this written information which she received from the Commission. The claimant made reference in her oral evidence to some medical attention which she required around this time, necessitating one or more hospital visits due to some manner of a chemical burn or allergic reaction sustained by her. From the evidence, this matter of itself does not appear to have been in any way a significant contributory factor towards any delay in her submission of the claim form to the tribunal.

 

3.10 The claimant also had approximately four contacts with a gentleman believed to be called Andy McCann of her local Citizens' Advice Bureau, which the tribunal understands is located on the Crumlin Road, Belfast. At best assessment, three of these contacts were made prior to her contract termination date and a fourth was apparently quite soon after the termination date. When questioned about the advice she might have received from the Citizens' Advice Bureau, the claimant endeavoured to maintain that she was advised to appeal, not against her dismissal from employment, but rather against the refusal of her trade union, Unison, (as she saw it) to represent her. It must be said that the tribunal found this particular evidence to be curious and inherently lacking in credibility. In terms of the claimant's approaches to a number of solicitor's offices, the tribunal's best assessment of the scant evidence was that the claimant telephoned three solicitor's offices. However, the outcome of these telephone contacts is far from clear. The evidence also appears to suggest that the claimant personally called at two solicitor's offices seeking legal advice and assistance. No names or further details were provided in regard to any of these solicitors. One of these solicitor's firms appears to have requested a substantial financial retainer from the claimant prior to carrying out any work and accordingly the claimant did not proceed with that firm. The fate of any other contacts made by the claimant with the various solicitors was impossible to determine from the claimant's evidence, nor the stage to which any discussions might or might not have progressed in regard to any advice which might possibly have been sought and afforded by any one or more of these firms of solicitors. These various approaches were somewhat scathingly dismissed by the claimant, in general terms, by declaring to the tribunal that they "were of no assistance to her", without however providing any more details, which might otherwise have clarified things.

 

3.11 The claimant also had contact with the Labour Relations Agency. The evidence appears to suggest that the claimant's contact with the Labour Relations Agency occurred a relatively short time prior to the termination of employment. The claimant endeavoured to portray the Labour Relations Agency as not really wishing to get involved in assisting her until any grievance raised on her part with the employer had been considered. The claimant, again, endeavoured to have the tribunal accept her fundamental assertion that she did not really receive any assistance of any material value from any of these sources of potential help and advice. She steadfastly maintained throughout the course of the hearing the position that no one had alerted her to any time limitations and that the first she became aware of time limitation being an issue was when she spoke with Mr Conway of the Equality Commission on the 24 November 2015 upon which occasion Mr Conway appears to have made some comment to the claimant that she was possibly out of time in regard to bringing her complaint.

 

3.12 For these reasons, the task of endeavouring to establish some manner of a timeline concerning relevant dates relating to the claimant's various attempts to recruit assistance and the task of establishing specific details of any assistance and advice that might have been afforded to the claimant (or any failure properly to afforded advice) was extremely difficult. However, what can be certainly concluded is that the claimant was markedly industrious in her efforts to recruit various individuals and various agencies or organisations to provide to her assistance and advice throughout a time which commenced, if not before, certainly around the contract termination date and which continued until shortly before this hearing. It is also readily apparent that the claimant bore a strong sense of grievance concerning the way she perceived she had been treated. This sense of grievance thus seems to have compelled the claimant into making strenuous and repeated endeavours to recruit assistance.

 

3.13 When questioned concerning the specific circumstances whereby the claimant submitted a claim form to the tribunal, yet again the tribunal encountered difficulty in establishing the facts. Evidently the conversation with the Equality Commission on 24 November 2015 had some degree of impetus in that the claimant possibly obtained from whatever source, at that time (if she had not done so before) a paper claim form. Her state of knowledge as at that date was clearly that she was very probably out of time for making a claim. The claimant's next action then appears to have been to seek an appointment with the Ulster Unionist party constituency office. This might well have been for the purpose of seeking assistance in the completion of the claim form. However, if not before, certainly at this time the claimant also appears to have been assisted by a Claire Dundas from the family support centre of Autism Initiatives NI.

 

3.14 Having initially stated to the tribunal that she personally had completed the claim form, the claimant's modified evidence was that it was Claire Dundas who actually completed the manuscript wording in the form, materially at paragraph 7.4, upon the claimant's instruction. The tribunal has no information to confirm whether or not Claire Dundas did or did not have any knowledge of employment rights and the law. The possible role and function of the Ulster Unionist constituency office staff in the completion of the form and any advice that might have been given to the claimant by constituency staff going towards the completion of the form and indeed any function regarding the submission of the form to the tribunal office was far from clear. Nonetheless, the claimant endeavoured to portray any delay which occurred between the 24 November 2015 conversation with the Equality Commission and the receipt of the claim form by the tribunal office as arising on account of the delay in the claimant getting an appointment with the constituency office. The claimant's evidence was that this latter process took about two weeks. Notwithstanding this evidence, the necessity for such a delay to have arisen in the first place and the precise function (if any) of the constituency office in the completion or submission of the form was entirely unclear. It was next to impossible to establish dates precisely concerning the essential events occurring at this time. The best assessment that can be made is that there was a gap of approximately two weeks, possibly more, between the claimant obtaining the paper claim form (from whatever source that might have come) and the claim form finally being dated 10 December 2015, signed by the claimant and being submitted to the tribunal, the form receipt date being 11 December 2015.

 

3.15 The tribunal noted that the claimant attended the tribunal for the oral hearing in possession of a small electronic notebook or tablet which she placed in front of her. She referred to that electronic device throughout the course of the proceedings over a number of hours. The claimant also referred to her mobile phone, on occasions, in an endeavour to refresh her memory concerning specific dates and other matters. It was evident that the claimant possessed some degree of capacity enabling her to conduct electronic communications. The claimant accepted in her evidence that she had searched various electronic resources for information concerning employment rights (it is noted that the claimant expressly mentioned that she had conducted an internet search using the search term "unfair dismissal"). However, the claimant denied in cross-examination that any of this material which she had accessed electronically had in any way drawn to her attention statutory time-limitations. Despite all of this activity, including personal enquiries and seeking assistance from a considerable number of sources, the claim form was received by the tribunal in excess of one month after the effective date of termination of the claimant's contract of employment.

 

3.16 The tribunal explored with the claimant, in the context of her claim form, the content of the letter dated 12 April 2016 (hereinafter referred to the "April 2016 letter"). This letter clearly sets forth an express assertion of associative discrimination under DDA 1995 by the use of the words, "it is also about disability discrimination because of my role as the carer for my disabled son who has autism". The claimant was unable to provide any explanation as to why sub-paragraphs 7.1, 7.2 and 7.3 in the claim form had not been completed and why she had failed fully to articulate in paragraph 7.4 of the form any fully unambiguous or fully express claim for unlawful discrimination of this type. Notwithstanding this, she maintained in her evidence that this unlawful discrimination had been apparent to her from the outset. Concerning the circumstances in which the April 2016 letter came to be written, the claimant apparently seems to have been referred to the Bar's Pro Bono unit and thence to the Belfast Law Centre. This letter was drafted, so it appears, upon the claimant's express instructions given to Belfast Law Centre at that time, in April 2016. However, the letter was written and dispatched considerably after the expiry of the three month time-limit following the contractual termination date and considerably after the date of lodgement of the claim form, which had initiated the proceedings. Around this time, further, the claimant commenced being represented by the Ulster University Law Clinic. However the Clinic came off record, towards the end of August 2016 and prior to this hearing.

 

3.17 The claimant has an adult son who lives with her, who unfortunately has a disability. This disability consists of moderate to severe autism. The claimant is the primary carer for her son. In the course of this hearing the claimant made it fully clear that her associative discrimination case, as mentioned expressly in the April 2016 letter, related not to any other allegation of unlawful discrimination but, rather, that this allegation was confined to a claim which concerned a duty on the respondent's part to make reasonable adjustments under DDA 1995 in connection with the claimant's caring responsibilities for her son.

 

3.18 One of the essential issues in this case relates to the actual content of the claim form and to the way in which the form has been completed. The tribunal has carefully scrutinised the content in order to ascertain both the express and any possible implied claim or claims that might be contained within the wording of the form in order to deal with the essential issues requiring to be determined in the case. It is not in issue and the tribunal accepts, without any difficulty, that the claim form may be properly construed as encompassing a claim of unfair dismissal and a claim of failure to provide a written statement of employment particulars. More controversial, however, is any wording contained within the claim form which may be fairly and properly construed as constituting an express or implied claim of unlawful discrimination. In this latter regard it is worth noting that paragraph 7.4 of the claim form opens and then proceeds with the following words:-

 

" I was not offered reasonable alternative employment, due to my role as a carer for my son. The Trust would not accommodate my request to remain in my current role...... They did not care that they were not following procedures. I think they acted outside the law. There are aspects of this I don't understand or have the confidence to answer because of the way I was treated. All I wanted was to keep my hours that I worked."

 

3.19 At paragraph 9.1 of the claim form, concerning any special arrangements requested, the following words appear:-

 

" I am only available at certain times because of my role as a carer for my son."

 

The tribunal does not need to mention any other facts for the purposes of its determination of the issues in the case.

 

THE APPLICABLE STATUTORY PROVISIONS

 

4. The applicable statutory provisions are to be found in the Employment Rights (Northern Ireland) Order 1996 ("ERO 1996") and in the Disability Discrimination Act 1995 ("DDA 1995"). Material to this case are Articles 43 and 145 of ERO 1996 which provide as follows:

 

"43.-” (1) Where an employer does not give an employee a statement as required by Article 33, 36 or 40 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned.

 

(2) - .....

 

(3) - .....

 

(4) An industrial tribunal shall not consider a reference under this Article in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made-”

(a) before the end of the period of three months beginning with the date on which the employment ceased, or

 

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the application to be made before the end of that period of three months.

 

.....

 

145.-” (1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.

 

(2) Subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal-”

(a) before the end of the period of three months beginning with the effective date of termination, or

 

(b) 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".

 

Concerning DDA 1995, the material provisions are as follows: -

"8 (1) A complaint by any person that another person-”

 

(a) has discriminated against him in a way which is unlawful under this Part, or

 

(b) is, by virtue of section 57 or 58, to be treated as having discriminated against him in such a way,

 

may be presented to an industrial tribunal.

SCHEDULE 3

 

Part I

 

3 (1) An industrial tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done.

 

(2) 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."

 

THE SUBMISSIONS OF THE PARTIES

 

5. The claimant's case, as made in submissions, was relatively straightforward. The claimant contended that she had tried but had failed to get proper and sufficient advice and assistance from a number of different sources, most particularly from her trade union, Unison, upon whom she appeared to lay most of the blame. She contended that she was entirely ignorant of any time limitations until she was first alerted on 24 November 2015 in the course of conversation with Mr Conway of the Equality Commission. She endeavoured strongly to make the case to the tribunal that the law was against people such as her and that the law ought to be changed.

6. For the respondent, in a detailed oral submission made by Miss Tiffney, the tribunal was referred to and considered the following cases:

Selkent Bus Co Ltd v Moore [1996] IRLR 661

Robertson v Bexley Community Centre [2003] IRLR 434

Hainsworth v Ministry of Defence [2014] IRLR 728

Coleman v Attridge [2008] IRLR 722

Schultz v ESSO Petroleum Company Ltd [1999] IRLR 488

Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53

Walls Meat Company Ltd v Khan [1979] ICR 52

Riley v Tesco Stores Ltd [1980] ICR 323

Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119,

London International College v Sen [1993] IRLR 333.

 

Balfour Beatty Engineering Services v Allen UKEAT/0236/11

 

Woodhouse v Hampshire Hospitals NHS Trust UKEAT/0132/12

 

7. The respondent's representative, Ms Tiffney submitted that the claim form had not included any detail of the claims that were now being made, particularly the claim of associative discrimination under DDA 1995. The case had been reasonably and properly construed by the respondent, initially, as constituting a claim merely for unfair dismissal. The representative submitted that it was entirely improbable, with the claimant seeking to recruit so many sources of information, advice and assistance, that not one single one of these sources had provided to the claimant any information at all regarding statutory time limitations. For example, the claimant had received advisory literature from the Equality Commission. At the very least this had made reference to unfair dismissal, upon the claimant's own evidence. It was extremely improbable that such literature did not make some commentary concerning statutory time limits. The respondent's representative submitted that the claimant's evidence was entirely lacking in cogency and consistency. For whatever reason, having had her employment contract terminated, with considerable advance notice having been given to her by the respondent, the claimant had simply failed to pursue her claim in a proper and diligent fashion, notwithstanding all of the assistance which she had very actively sought and which she must have received, to some extent, having pursued so many potential sources. If the claimant had approached advice-giving agencies and if these agencies had either failed to provide advice or if they had provided incorrect advice, the claimant's remedy was against those advisers, rather than the claimant being permitted to rely on the "not reasonably practicable" test. Accordingly, it was submitted that the tribunal ought to determine that it was indeed reasonably practicable for the claimant to have presented her claim in time. However, even if the tribunal were not of a mind to accept that latter submission, the claimant still had delayed for a further period, upon the upon best interpretation of the evidence, very probably for at least two weeks after having completed the details of the intended claim in the claim form. For that reason the tribunal ought to determine that the claim had not been presented within such further period as was reasonable, in all the circumstances. Regarding the associative discrimination claim under DDA 1995, the representative's submission was that there was no mention of that claim whatsoever in the claim form. The first assertion made in respect of such a claim arose in the content of the April 2016 letter. Accordingly this unlawful discrimination claim constituted an entirely a new claim. The representative referred the tribunal to the case of Selkent Bus Co Ltd v Moore [1996] IRLR 661 and to Harvey Div. PI [190-208]. The circumstances of the matter, it was submitted, could not properly be described as putting a new label on facts already pleaded, as this consisted of an entirely separate and an entirely new claim, which was made by the claimant, for the first time, in April 2016. In respect of any claim for unlawful discrimination the applicable test was the "just and equitable" test. The respondent's representative conceded that this test constituted a somewhat lower hurdle for the claimant to jump than the test concerning the non-discrimination elements of her claim (this latter being the "not reasonably practicable" test applicable to the non-discrimination claims). Nonetheless, the tribunal had to examine the late assertion of unlawful discrimination upon the basis of justice and equity. The tribunal was required to take into account relevant factors and issues emerging and to consider the relevant case law. The authorities were generally in agreement that the granting of an extension of time must be the exception rather than the rule. The tribunal was entitled to examine the balance of prejudice in granting the extension and in refusing this. The representative argued that, looking at the balance of prejudice, there had been an extensive delay in bringing the discrimination claim, amounting to a period of some five months beyond the normal time limitation. The claimant had provided no proper or credible explanation for this delay. The respondent's representative requested the tribunal to note that the claimant had indeed asserted that she was fully aware of this discriminatory element to her claim from the outset (in other words from the time that she had submitted her claim form). One of the factors requiring to be considered by the tribunal, so it was submitted, included whether or not any claim might have been misconceived. In this regard, the respondent's submission was that the claimant's claim for associative discrimination under DDA 1995 was fully misconceived. The representative drew the tribunal's attention to the fact that, under cross-examination, the claimant had made it entirely clear that her associative discrimination case related solely to an alleged duty to make reasonable adjustments under DDA 1995 and not to any other manner of a claim for unlawful discrimination. The representative referred the tribunal to the case of Hainsworth v Ministry of Defence [2014] IRLR 728. The submission was that this case served to clarify that a reasonable adjustments duty claim could not possibly fall under the ambit of associative discrimination under DDA 1995. Accordingly, such a claim bore no reasonable prospect of success and it was misconceived. Whilst it was accepted on behalf of the respondent that there might have arisen hardship which would be suffered by the claimant if an otherwise valid and proper claim for unlawful discrimination (being out of time) was not accepted by the tribunal, as the present claim for associative discrimination could not possibly stand any hope of success on the merits, any potential hardship was negated. This ought properly to be taken into account in the tribunal's determination. For these reasons, the tribunal was invited by the respondent to reach a determination that, in regard to the non-discriminatory elements of the claim, the claim was out of time and that it had indeed been reasonably practicable for the claim to have been brought within time. Further, if the tribunal was against the respondent in that regard, in any event the claim had not been brought within a reasonable period of time thereafter. Regarding the claim for associative disability discrimination under DDA 1995, the tribunal ought properly to conclude that the claim form was not capable of being construed as including such a claim. In respect of the endeavour to amend the claim by means of the April 2016 letter, the tribunal should accept that this constituted an entirely new claim or cause of action which was considerably out of time. The tribunal ought properly to determine, applying the appropriate considerations that it was not just and equitable to extend time for the bringing of such a claim, under all of the circumstances.

 

THE TRIBUNAL'S DETERMINATION

 

8. This is undoubtedly a somewhat difficult case. The tribunal has been faced with a claimant whose actions and motivations were at times not clearly articulated or readily evident. What is however clear is that the claimant's evidence to the tribunal has been somewhat unsatisfactory and this fact has presented significant issues. The tribunal has been set a number of tasks in this pre-hearing review. The first of these tasks is to determine whether the claimant's complaints of unfair dismissal and of failure to provide a written statement of particulars of employment have been presented within the applicable statutory time limit. The tribunal has determined that the effective date of termination of the contract of employment was 7 August 2015. There is no doubt that the claimant was given considerable advance notification of that contractual end date. Time accordingly runs from that date, 7 August 2015, for the purpose of ERO 1996, Articles 43 (4) (a) and 145 (2) (a). The determination of the tribunal, upon these facts, is that the claimant's complaints of unfair dismissal and of failure to provide a written statement of employment particulars have been presented outside the statutory time limit of three months.

 

9. The tribunal's next task, having reached such a conclusion, is to determine whether it was not reasonably practicable for the claimant to have brought those complaints within the three month time limit. As is often observed, there exists a considerable body of authority concerning the effect of the "not reasonably practicable" test posed by the statute, including its application in circumstances where a party may have consulted advisers who might, in particular circumstances, have failed to provide proper advice concerning time limits. The cases which have been referred to by the respondent's representative are listed above; the points emerging from these cited authorities which are relevant to this case have been fully noted by the tribunal. In Marks & Spencer PLC v Williams-Ryan [2008] ICR 193, a case that was not expressly cited but which is nonetheless relevant, Lord Phillips reviewed the relevant authorities in detail upon this topic with a view to identifying whether it was a correct proposition of law that, as he put it (at paragraph 24 (page 1301)):

 

"... if an employee takes advice about his or her rights and is given incorrect or inadequate advice, the employee cannot rely upon that fact to excuse a failure to make a complaint to the Employment Tribunal in due time. The fault on the part of the adviser is attributed to the employee."

 

Lord Phillips concluded (at paragraph 31 (page 1303)):

 

" What proposition of law is established by these authorities? The passage I quoted from Lord Denning's judgment in Dedman was part of the ratio. There the employee had retained a solicitor to act for him and failed to meet the time limit because of the solicitor's negligence. In such circumstances it is clear that the adviser's fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an Employment Tribunal."

 

10. On the facts of this case it is fully clear that the claimant made robust endeavours to obtain advice and assistance. However, it has been somewhat difficult for the tribunal penetrate a haze of vague, shifting and at times contradictory evidence in order to discern with clarity precisely what advice and assistance the claimant might have indeed received, for the claimant provided few clues to the tribunal in the course of her evidence, markedly lacking in clarity and in detail as it was. To the extent to which the claimant might have sought, but might not have been given, proper and adequate advice concerning time limits, the above statement made by Lord Phillips would be applicable. The claimant has endeavoured to base a significant aspect of her claim upon the proposition that she endeavoured to seek advice and assistance from a considerable number of different sources, but that all of these, in effect, failed her. She asserts that it was only at a late point in things when she received what seems to have been a warning uttered by a member of staff of the Equality Commission, on 24 November 2015, that she might be out of time, that this conversation caused her, for the first time, to comprehend that there was a significant time limitation issue. Unless there was no real and proper meaningful contact made by her with any of the advice-giving agencies and unless any request on her part for advice and assistance was, in any of these instances, not effectively communicated by her to the potential advice-giver, the reality appears to be that either advice was indeed properly afforded to the claimant regarding time limitations (which advice was then disregarded or not acted upon by the claimant) or alternatively that the sources of advice failed properly and correctly to discharge their advice-giving responsibilities, such as they might have been. The tribunal's conclusion in regard to all of this is that it was reasonably practicable for the claimant to have presented her claim in time concerning these two (non-discriminatory) statutory heads of claim. In the light of this finding, it is not necessary for the tribunal to reach a determination as to whether those complaints had been brought within a reasonable time thereafter. Accordingly, the tribunal accedes to the respondent's representative's submission on these points. For the reason that these are matters which go to the heart of the tribunal's jurisdiction and are not merely matters of procedure, the tribunal determines that it has no jurisdiction to deal with the respective complaints of unfair dismissal and of failure to provide a written statement of particulars. Accordingly, these complaints must fail.

 

11. This then brings the tribunal to the complaint of unlawful discrimination. The tribunal's task is to determine whether the claimant's claim form is capable of being construed as including a claim of (associative) disability discrimination under DDA 1995 (see Coleman v Attridge Law [2008 IRLR 722 ECJ in that regard). As mentioned, for whatever reason the claimant did not avail of the opportunity afforded to complete the details in appropriate sections of the claim form. However, sections 7.4 and 9.1 have been completed in manuscript. The tribunal has endeavoured to explore with the claimant the precise circumstances regarding the obtaining and completion of the paper claim form and the person or persons who might have advised and assisted her in that process, from the start of the process to the end. This has been difficult. The claimant's most common response when questioned has been to state that she does not remember. Upon the best interpretation of the evidence, the tribunal concludes that Claire Dundas of Autism Initiatives NI most probably assisted the claimant in completion of the form and that it is probably her manuscript that is present within the forgoing two sections of the form. The claimant has personally signed the form. The tribunal has carefully scrutinised the content of the completed parts of the claim form, bearing in mind the probability that the form was completed with the writing assistance of Claire Dundas, but without any specific input or other assistance at that point in time being afforded either by a legal professional or indeed by someone well-versed in employment and discrimination law, or a person properly trained and equipped to give such advice from an advice-giving agency.

 

12. Bearing the foregoing in mind, the tribunal has considered the content of the claim form in the light of the submission made on behalf of the respondent that there is no express or even an implied allusion to unlawful discrimination present within the form and the assertion that the first mention of this discrimination claim emerges from the April 2016 letter. If the respondent's assertion were indeed correct, how does this proposition account for some of the wording present in the form? As mentioned above, at the very outset of section 7.4 the words are used: " I was not offered reasonable alternative employment due to my role as a carer for my son". Here, there is no express reference made to the son having a disability or any other such circumstances. The text continues with the words: " The Trust would not accommodate my request to remain in my current role". Further on in this passage the words are used: " They did not care that they were not following procedures. I think they acted outside of the law. There are aspects of this that I don't understand or have confidence to answer because of the way I was treated." Towards the conclusion of the claim form, section 9.1 is completed as follows: " I am only available at certain times because of my role as a carer for my son." The claimant's contention is that a complaint of unlawful discrimination was always in her mind at the time she was completing, or arranging to have completed, and when she was signing and dating the claim form. She contends that she had a clear idea in her mind, at this specific time, that she was the victim of unlawful discrimination. The claimant has also clarified in oral evidence that this consists of an associative discrimination claim connected with an alleged failure on the respondent's part to afford a reasonable adjustment under DDA 1995. This is certainly clearly encapsulated in the material part of the April 2016 letter. The claimant has explained to the tribunal, at hearing, that this specific claim is directly connected to her, regrettably, having caring responsibilities for an adult son with the disability of autism. She has also mentioned having caring responsibilities for a brother, but that appears to be of lesser significance.

 

13. Having examined the claim form, the tribunal is unable to accept the submission made on behalf of the respondent. This submission is to the effect that the claim form is entirely incapable of being read or interpreted so as to include the discriminatory element. To accept this submission the tribunal would have to attach no interpretive value or weight whatsoever to the words quoted above. The significance of these words to the claimant indeed appears to have been such that the words were placed at the very start of the written passage. If the claimant was instructing Claire Dundas to write these words into the paper claim form on her behalf (which the tribunal believes was probably the case) these opening words must have been foremost in the claimant's mind at the time the form was being completed.

 

14. What then did the claimant mean by employing these words? She refers expressly to her role as a carer for her son. She does not state expressly that her son has a disability. However, she knows that the employer is aware of this as it had emerged in earlier discussions. To a lay person such as the claimant, assisted in the completion of the form by a party with no obvious legal or employment law expertise or credentials of which the tribunal is aware, it might well not have appeared necessary expressly to state that her son had a disability, for she was stating that she was a carer to her son and that statement, to her, might have been sufficient. She has stated expressly in the form that she was not offered reasonable alternative employment. Linking these two assertions together, the most compelling inference which the tribunal can draw from all of this is that the claimant was requesting reasonable alternative employment arrangements commensurate with her caring responsibilities for her disabled son. Bearing in mind the context in which the form was completed, the tribunal's assessment is that the claimant intended to make the assertion (qualifying things as she did towards the end of the passage with the statement that she felt that the respondent had acted outside the law but that there were aspects of the matter that she did not understand or have the confidence to answer) that there had been some manner of wrongdoing directly connected with her caring function for a disabled son and the employer's failure to accommodate that. Accordingly, the tribunal is unable to conclude that the first reference to this discrimination claim emerged in the April 2016 letter. Whilst this latter reference is entirely unambiguous and clear and it appears to have arisen as a result of an engagement between the claimant and Belfast Law Centre at the material time, nonetheless, the claimant had also intended to include a reference to the matter in a claim form and indeed she did so, albeit imperfectly.

 

15. Turning then to the matter of time limitation in all this, the statutory period provided for by Schedule 3, Part 1 (3) (1) and section 8 of DDA 1995, is a period of three months. Time in this case, as far as the discrimination claim is concerned, may be computed upon the proposition that the act complained of is the act of dismissal of the claimant, for no continuing act of discrimination on account of a failure to afford a reasonable adjustment could have occurred after the dismissal date and any failure to make adjustments must have crystallised at that date. Accordingly time runs from 7 August 2015. For this reason, the claim of associative discrimination under DDA1995 is out of time, on the same basis as time has been computed for the non-discriminatory elements of the claim.

 

16. The tribunal was referred by the respondent's representative to a considerable body of law concerning amendment to claims, which the tribunal notes is fairly settled law. The leading case in this regard is the case of Selkent Bus Co Ltd v Moore [1996] IRLR 661. In this regard judicial discretion is properly to be exercised, as was observed in Selkent "... in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions". The tribunal has fully considered the respondent's representative's reference to Harvey (and other relevant portions of Harvey) and the applicable legal principles. Examining the content of the claim form and of the April 2016 letter, the tribunal has considerable difficulty in accepting the submission made on behalf of the respondent that the circumstances of the matter could not be properly described as putting a new label on facts already pleaded. This submission is predicated upon the impossibility of interpreting the claim form as so as to include a claim for discrimination and upon the proposition that such a discrimination claim emerged for the first time in the April 2016 letter. Insofar as there is any doubt about this, the tribunal is required to examine the case as set out in the original application to see if it provides any manner of a "causative link" with any amendment. The tribunal, bearing fully in mind the content of the respondent's representative's submission and the cases cited in argument together with the references to Harvey, regards the April 2016 statement as constituting a clarification and an elaboration of an imperfectly-initiated discrimination claim which can nonetheless be seen to exist in the content of the December 2015 claim form. Accordingly, there is a clear linkage and the April 2016 letter is making fully clear what is imperfectly expressed but nonetheless present in the claim form.

 

17. Even if the tribunal's interpretation is incorrect on this latter point and the April 2016 letter is to be properly deemed an amendment to the claim, such can properly be seen as putting a new or a clearer label on facts already pleaded: " I was not offered reasonable alternative employment, due to my role as a carer for my son". The contentions are really quite simple. The claimant was carer to a son with a disability. She required the employer to offer reasonable alternative employment commensurate with that caring responsibility. On this basis, the respondent ought properly to have been alerted, from the outset, to the factual issues and contentions being raised by the claimant in her claim. If the tribunal is entirely wrong in respect of the foregoing, it would nonetheless only be in respect of amendments falling into the category of entirely new claims, unconnected with the original claim as pleaded, that time limits might require to be considered (see Harvey Div. PI [312 ff]). Only in this latter situation would the tribunal be required to consider whether the new claim was in time and, if it is not, whether time should be extended to permit such a claim to be made. In this latter respect, the Court of Appeal in Ali v Office of National Statistics [2004] EWCA Civ 1363, [2005] IRLR 201 held, for example, that direct and indirect discrimination are different types of unlawful act, so that where a claim of direct discrimination was made in time, a subsequent claim of indirect discrimination made out of time could not be considered within the original claim but required an application for leave to amend under the 'just and equitable' provisions. However, this does not apply in the instant matter.

 

18. The tribunal therefore returns to a scrutiny of the timing of the submission of the claim form. As the claim form was lodged out of time, the tribunal is required to reach a determination as to why that was so and whether it would be just and equitable to extend the time for bringing such a claim of unlawful discrimination under DDA 1995. In making this determination, the tribunal is required to take account of any relevant evidence and issues which might bear upon the proper and fair exercise of the tribunal's discretion. As has been readily accepted by the respondent's representative, this "just and equitable test" is quite a different test to that (the "not reasonably practicable" test) which is applicable to the other statutory heads of claim. The relevant test enables a wider range of factors to be taken into account.

 

19. The tribunal's assessment of the reason for lateness, as has been mentioned above, takes into account the engagement of the claimant with multiple agencies, some of which possibly afforded to her little or no assistance as she saw it, for example the solicitors that were approached by her. The claimant was actively seeking assistance over a period of many weeks. Subjectively, the claimant seems to have acquired the view that it was for others to help her. When one source of help that she approached failed to assist her, as she observed it, she turned to the next source. In her pursuit of this process the statutory time limit, of which the claimant pleads ignorance until it was too late, slipped away until a point was reached where the claim form was lodged approximately one month out of time.

 

20. In assessing the matter, the tribunal is entitled to examine the relative balance of prejudice in granting any time extension as between the claimant and the respondent, when set against the consequences of refusal. Examining this, the tribunal cannot discern how significant prejudice might be caused to the respondent. The respondent ought properly to have been alerted to the matter on account of the content of the claim form. The subsequent elaboration in April 2016 clarified matters. The tribunal cannot observe how there would be very significant difficulty presented for the respondent to obtain relevant evidence and to assemble relevant witnesses in order to address any issues sought to be raised by the claimant in her claim of discrimination. There might be some measure of prejudice in terms of effort, cost and delay in obtaining relevant evidence and in dealing with the claim. However, any such has to be set in the balance against the prejudice to the claimant if the matter were not permitted to proceed. The tribunal notes the proposition, made in argument on behalf of the respondent, that the discrimination claim stands no reasonable prospect of success and the submission that it is misconceived. The cases cited in argument in that respect have been noted. It is correctly observed that the claimant made clear that her associative discrimination case related to the employer's duty to make reasonable adjustments under section 6 of DDA 1995 and not to any other manner of claim for unlawful discrimination. The case of Hainsworth v Ministry of Defence [2014] IRLR 728 has been cited as constituting authority for the proposition that a reasonable adjustments duty claim cannot fall within the reach of associative discrimination under section 6 of DDA 1995. Likewise the case of Woodhouse v Hampshire Hospitals NHS Trust UKEAT/0132/12 has been mentioned, in which latter case the EAT considered legal principles arising in Selkent. However, in this latter case of Woodhouse it was observed that an application should not be refused solely because there had been a delay in making it.

 

21. The delay between the expiry of the statutory time limit of three months and the submission date of the claim form is not excessive. The focus of the "just and equitable" discretion to accept a late claim of discrimination potentially available to the tribunal is set in a very different context to the tribunal being required to focus upon a discriminatory claim contended by the respondent to have been first made in April 2016, some five months late. This latter proposition has been rejected by the tribunal. The tribunal is thus presented with a claim for discrimination which is just a little over one month late. Having noted the submissions advanced for the respondent, it is not for the tribunal to reach any manner of a determination taking into account an examination, at this stage, of the potential merits of the case (in the light of the Hainsworth and Woodhouse cases mentioned above). That is the function of the tribunal tasked with a full hearing of the case, upon the merits.

 

22. Exercising the discretion available to the tribunal and taking full account of all the factors mentioned above, the tribunal determines that, in the particular circumstances of this case, it is just and equitable to grant an extension of time. This being so, the decision of the tribunal is that the claimant's claim for associative discrimination under DDA 1995 can now proceed to a hearing upon the merits. The others claims are dismissed for want of jurisdiction.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 20 October 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: