Industrial Tribunals Northern Ireland Decisions

 

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF: 1936/16

 

 

 

CLAIMANT: Roisin McDonald

 

 

RESPONDENTS: 1. Northern Ireland Civil Service

2. Department for Communities

 

 

Certificate of Correction

issued pursuant by the Employment Judge in accordance

with Rule 37 of the Industrial Tribunals Rules of Procedure

 

 

Due to a clerical mistake and/or error in the decision in a pre-hearing review recorded in the Register and issued to the parties on 21 February 2017:-

 

(a) At Page 12, Paragraph 3.4, it should read:-

 

" ... McDaid v DHSSPS"

 

(b) At Page 15, Paragraph 3.11, it should read:-

 

" ... going back to 2007 ( Sept 07 - Sept 08 ...)."

 

 

 

 

 

 

Neil Drennan QC

Employment Judge

 

 

Certificate of Correction recorded in Register and issued to the parties on:

 

 

 

 

 

 

 

____________________________

for Secretary

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1936/16

 

 

 

CLAIMANT: Roisin McDonald

 

 

RESPONDENTS: 1. Northern Ireland Civil Service

2. Department for Communities

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

 

(1) The claimant's claim of sex discrimination was presented outside the statutory time-limit, pursuant to Article 76(1) of the Sex Discrimination (Northern Ireland) Order 1976, as amended.

 

(2) Further, although the said claim was out of time, it would be just and equitable, in all the circumstances of the case, for the tribunal to consider the claimant's said claim.

 

(3) In light of the foregoing, a Case Management Discussion requires to be arranged for the tribunal to make such case-management directions/orders, as may be necessary, to enable the claimant's said claim to be determined at a substantive hearing.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant was represented by Mr E O'Lynn in his capacity as the claimant's partner (and not in the capacity of a trade union official for NIPSA).

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

 

Reasons

 

1.1 At a Case Management Discussion on 29 November 2016, as set out in a Record of Proceedings dated 29 November 2016, it was recorded by the President of ITFET as follows:-

 

" ...

 

3. Preliminary Issues

 

The claimant's claim which contains a complaint of sex discrimination was presented on 1 September 2016.  In her complaint the claimant states that on 2 June 2016 the first respondent published a revised Public and Privilege Holidays Policy which meant that if you were on maternity leave on 1 April 2015 or commenced a period of maternity leave after 1 April 2015, you would separately accrue any public or privilege holidays that fell during your maternity leave.  However, that revised policy has not been backdated prior to 1 April 2015. 

 

The claimant who had three periods of maternity leave from September 2007 - September 2008, August 2010 - August 2011 and May 2013 - May 2014 claims that the respondents have discriminated against her on the ground of sex by failing to backdate the revised policy as has happened in Scotland.

 

The respondents dispute the claimant's claim and contend that it has been presented outside the statutory time limit.

 

I am satisfied that the jurisdictional time point is a discrete matter and that it would be appropriate to arrange a Pre Hearing Review to determine the following issues:-

 

(1) Whether the claimant's complaint of sex discrimination has been presented within the statutory time limit?

 

(2) If not, whether in all the circumstances of the case it would be just and equitable for the tribunal to consider and determine the claimant's complaint of sex discrimination."

 

As a consequence, by consent, this pre-hearing review was arranged.

 

1.2 The representatives, at the outset of the hearing, confirmed, for the purposes of the issues to be determined at the pre-hearing review, it was not necessary for the tribunal to consider the respective liabilities, if any, of the respondents and each of them. If necessary and appropriate this can be further considered prior to the substantive hearing at a Case Management Discussion.

 

1.3 As set out in Paragraph 5 of the said Record of Proceedings the President recorded:-

 

"In response to a query raised by Mr O'Lynn, on behalf of the claimant, Mr Mulqueen indicated that the respondent would give the claimant's representative an explanation as to why the respondent has not followed the dignity at work process and that the explanation will be provided by 5 December 2016."

 

Prior to this pre-hearing review hearing, this explanation was not provided. Although the respondents' representative acknowledged no such explanation had been provided, he submitted it was not relevant, for the purposes of determining the time-issues, the subject-matter of the pre-hearing review. The claimant's representative made no application to adjourn the hearing to enable the said explanation, as ordered, to be provided (see later).

 

1.4 By letter, dated 12 December 2016, the respondents' representative provided to the tribunal, as ordered, an agreed statement of legal and factual issues, the subject-matter of the claimant's claim, as set out in the said Record of Proceedings of the Case Management Discussion on 29 November 2016. The statement stated:-

 

"Legal and Factual Issues

 

1. What are the claimant's terms and conditions of appointment in relation to public and privilege holidays and maternity leave?

 

2. What public and privilege holidays, if any, did the claimant accrue during each period of maternity leave in:

 

(a) 2007/2008

 

(b) 2010/2011

 

(c) 2013/2014

 

3. What was the respondents' policy in relation to the accrual of public and privilege holidays during each of the periods of maternity leave?

 

4. From 2007 to date, what changes has the respondent made in its policy on the accrual of public holidays during maternity leave?

 

Legal Issues

 

1. Has the claimant suffered discrimination on grounds of sex?

 

2. Has the claimant suffered discrimination on the grounds of pregnancy or maternity leave?

 

3. Has the claimant presented her claim in time? If not is it just and equitable to extend time in all the circumstances in relation to each period of maternity leave?"

 

It was not disputed, it was the said legal issues at Paragraph 3 above, that were the subject of this pre-hearing review.

 

1.5 At the outset of the hearing, I raised with the representatives whether, despite what had been directed at the Case Management Discussion on 29 November 2016, the time-issues, the subject-matter of this pre-hearing review, were appropriate to be determined at a pre-hearing review, in light of the well-known guidance of the House of Lords in the case of SCA Packaging Ltd v Boyle [2009] UKHL 37 and, in particular, the opinion of Lord Hope:-

 

"9. It has often been said that the power that tribunals have to deal with issues separately at a preliminary hearing should be exercised with caution and resorted to only sparingly. This is in keeping with the overriding aim of the tribunal system. It was set up to take issues away from the ordinary courts so that they could be dealt with by a specialist tribunal as quickly and simply as possible. As Lord Scarman said in Tilling v Whiteman [1980] AC 1, 25 , preliminary points of law are too often treacherous short cuts. Even more so where the points to be decided are a mixture of fact and law. That the power to hold a pre-hearing exists is not in doubt: Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (SR 2005/150), Schedule 1, rule 18. There are, however, dangers in taking what looks at first sight to be a short cut but turns out to be productive of more delay and costs than if the dispute had been tried in its entirety, as Mummery J said in National Union of Teachers v Governing Body of St Mary's Church of England (Aided) Junior School [1995] ICR 317, 323. The essential criterion for deciding whether or not to hold a pre-hearing is whether, as it was put by Lindsay J in CJ O'Shea Construction Ltd v Bassi [1998] ICR 1130, 1140, there is a succinct, knockout point which is capable of being decided after only a relatively short hearing. This is unlikely to be the case where a preliminary issue cannot be entirely divorced from the merits of the case, or the issue will require the consideration of a substantial body of evidence. In such a case it is preferable that there should be only one hearing to determine all the matters in dispute."

 

As Lord Hope recognised the correct course to take in relation to preliminary issues is not straightforward and difficulties can arise, as in the Boyle case, where there is no overlap or inappropriate compartmentalisation. He emphasised, at Paragraph 10 of his opinion:-

 

" ... If separation is resorted to, every effort must be made to ensure that pre-hearing reviews are dealt with the least possible delay, bearing in mind that the merits cannot be addressed until the preliminary issues have been resolved in the claimant's favour. ... "

 

1.6 I was very aware that this pre-hearing review had been arranged, by consent, at the Case Management Discussion; but after expressing these concerns, the respondents' representative in particular, submitted that to determine these preliminary time-issues was appropriate in the circumstances, and to do so, was consistent with the said guidance of Lord Hope in Boyle. I also fully appreciated that decisions, whether to determine such issues at a pre-hearing review can be difficult, especially in advance of any hearing, the making of detailed submissions and the giving of any relevant oral evidence about such time-issues. I therefore emphasised to the representatives that, if having heard any evidence and/or submissions, I decided it was not appropriate to determine these time-issues in advance of any substantive hearing, I would not do so; and these time-issues would therefore require to be determined with all other issues at the substantive hearing. For the reasons set out later in this decision, I concluded, after hearing evidence and submissions, the said time-issues could be properly determined at this pre-hearing review.

 

1.7 Before reaching its decision on the time-issues, the subject-matter of the pre-hearing review, the tribunal heard oral evidence from the claimant. Helpfully, it also heard oral submissions by the respondents' representative and was provided with written submissions by the claimant's representative.

 

1.8 Subsequent to the hearing, by agreement, the respondents' representative provided to the tribunal and the claimant's representative, copies of current and former NICS policies relating to public and privilege holidays, to which reference will be made later in this decision, insofar as relevant and appropriate, for the purposes of determining the said time-issues.

 

2. Relevant law

 

2.1 Sex Discrimination (Northern Ireland) Order 1976, as amended ('the 1976 Order')

 

Article 76 provides:-

 

" (1) A n 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 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 that it is just and equitable to do so.

 

(6) For the purposes of this Article —

 

(a) where the inclusion of any term in a contract renders the making of the contract an unlawful act that act shall be treated as extending throughout the duration of the contract, and

 

(b) any act extending over a period shall be treated as done at the end of that period, and

 

(c) ... ."

 

2.2 In relation to time-issues for the commencement of proceedings, the subject-matter of the agreed issues, as set out previously, it was not disputed by the representatives that there has been considerable case law to assist in the interpretation of Regulation 48 of the Age Regulations. This Regulation is in similar terms to the provisions relating to time for commencing proceedings contained in other anti-discrimination legislation, and case law on the interpretation of such provisions is therefore also relevant to the interpretation of Regulation 48 of the Age Regulations.

 

2.3 It has long been held, as seen in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, that the burden is on the claimant to prove either by direct evidence or by inference from primary facts, that alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'. It further held that in determining whether there was 'an act extending over a period', as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. However that has to be distinguished from the consequences of an one-off decision (see  Owusu v LFCDA [1995] IRLR 574).

 

In Richman v Knowsley Metropolitan BC [2013] Eq LR 1164, it was held, in determining whether there was evidence of 'conduct extending over a period' it is not sufficient to consider only whether there was evidence of a discriminatory policy, rule or practice, in accordance with which decisions were taken from time to time. A tribunal must consider whether there was something more, such as an ongoing process or proceedings or a continuing state of affairs (see also Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548). The mere repetition of a request similarly cannot convert a single managerial decision into a policy practice or rule ( Cast v Croyden College [1997] IRLR 14). However, as noted in Cast, application of a discriminatory policy or regime, pursuant to which decisions may be taken from time to time, is an act extending over a period. There can be a policy even though it is not of a formal nature or expressed in writing, and even though it is confined to a particular post or role.

 

An 'ongoing situation', as referred to by Mummery LJ in Hendricks can include a grievance process carried out by an employer arising immediately from an act of discrimination (namely suspension) and thereby form part of a continuing act ( Bahous v Pizza Express Restaurants [2012] Eq LR 4.

 

Further, when determining whether separate incidents form part of 'conduct extending over a period' one relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents (see Aziz v FDA [2010] EWCA Civ 304 per Jackson LJ)

 

It has long been recognised, especially in this jurisdiction, since Boyle, that determining time-issues at a pre-hearing review, where issues of continuous discrimination are alleged, may not be appropriate. However, where issues of continuous discrimination arise, before deciding whether it is appropriate to determine the time-issues, before deciding whether it is appropriate to determine the time-issues at a pre-hearing review a tribunal has to have regard to reaching its decision, as set out below, to determine the issue, the subject-matter of the decision of the Court of Appeal in the case of Aziz v FDA [2010] EWCA Civ 304, where the Employment Tribunal had been required to determine, at a pre-hearing review, issues of time in a discrimination claim, involving issues of whether the alleged acts formed a continuous act and were not therefore time barred. The Court of Appeal, approving the decision in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 by Hooper LJ held that the test to be applied at the pre-hearing review was to consider whether the claimant had established a prima facie case - the Employment Tribunal must ask itself whether the complaints were capable of being part of an act extending over a period. Jackson LJ in Aziz stated another way of formulating the test to be applied at the pre-hearing review is:-

 

" ... the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs: see Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426 at paragraph 17."

 

2.4 If a claim is brought, out of time, it is then necessary for the tribunal to consider whether it is just and equitable to extend time.

 

In the case of Miller and Others v Ministry of Justice and Others [UKEAT/0003/15] Mrs Justice Laing in her judgment set out point 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. ...

 

(iii) If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the 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 checklist 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 Smith 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 Southwark London Borough Council [2003] ICR 800; [2003] EWCA Civ 15, at Paragraph 33." (See Paragraph 10 of the judgment.)

 

(The principle in Afolubi was subsequently endorsed by the Court of Appeal in Governing Body of St Albans Girls School v Neary [2010] IRLR 124.)

 

Further, it was established in Apelogun-Gabriels v London Borough of Lambeth [2002 IRLR 116, that there is no principle that an extension of time will be granted where the delay is caused by an internal grievance or appeal hearing.

 

2.5 The ' Keeble Guidance' advice (see above) is as follows:-

 

"8 ... It requires the Court to consider the prejudice which each party would suffer as the result of the circumstances of the case and, in particular, inter alia, to:-

 

(a) the length and reasons for the delay;

 

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

 

(c) the extent to which the party sued had co-operated with any requirements for information;

 

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

 

(e) the steps taken by the plaintiff to obtain appropriate professional advice area he or she knew of the possibility of taking action.

 

(In Lindsay v London School of Economics and Political Science [2014] IRLR 218 the Court of Appeal held that:-

 

"An extension of time will not automatically be granted simply because it results in no prejudice to the respondent in terms of a fair trial. If a claim is brought out of time it is for the claimant to show that it is just and equitable for the extension to be granted. This is a multifactoral assessment where no single factor is determinative."

 

2.6 When considering the exercise of the relevant discretion, it is necessary for the tribunal to identify the cause of the claimant's failure to bring the claim in time - see Accurist Watches Ltd v Wadher [2009] UKEAT/102/09 and Morgan where the EAT stated:-

 

"Though there is no principle of law which dictates how sparingly or generously the power to enlarge time is to be exercised (see Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 at Paragraph 25 per Sedley J) a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to do so and the exercise of the discretion is therefore the exception rather than the rule (per Auld LJ in Robertson v Bexley Community Centre [2003] IRLR 434 (A). A litigant can hardly hope to satisfy this burden unless he provides an answer to two questions, as part of the entirety of the circumstances which the tribunal must consider. The first question in deciding whether to extend time is why it is that the primary time-limit has not been met; and insofar as it is distinct the second reason is why after the expiry of the primary time-limit the claim was not brought sooner than it was ... ."

 

In Morgan, the EAT also confirmed it may not always be appropriate to give more than summary reasons for a conclusion that it was just and equitable to extend time and that the precise date of an act or omission may not be material to that question (see further Paragraph 50 of Morgan).

 

As seen above, the reason why a claimant delayed in bringing a claim is a relevant consideration, the test to be applied in not one of reasonable practicability (see  Biggs v Somerset County Council [1996] ICR 364).

 

In Miller, Laing J 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 loosing touch with witnesses (see Paragraph 12 of the judgment). She acknowledged that if there is 'forensic prejudice' to a respondent, that will be 'crucially relevant' in the exercise of the discretion, taking against an extension of time and it may well be decisive; and if there is no 'forensic prejudice' to the respondent that is:-

 

(a) not decisive in favour of an extension; and

 

(b) depending on the tribunal's assessment of the facts may well not be relevant at all.

 

2.7 In the recent case of Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278, HH Judge Clark referred to a potential conflict of approach emerging in recent case law in the EAT as seen in the case of Pathan v South London Islamic Centre [2014] UKEAT/0312/13 and Szmidt v AC Produce Imports Ltd [2015] UKEAT/029/14 and, by way of contrast the decision of Langstaff P, as he then was, in the case of Habinteg Association Ltd v Holleran [2015] UKEAT/0274/14 in relation to how to exercise the discretion where a claimant does not put forward evidence in support of his application for an extension of time, explaining the delay.

 

In Habinteg, there was no explanation for the delay. Langstaff P said that the first consideration from the ' Keeble list' is the reason for and extent of the delay. There had to be some evidence, even by inference; since there was no explanation for the delay he held he could come to no other conclusion then the extension be refused. There was no basis upon which it could be permitted. He followed a similar approach in Smith-Twigger v Abbey Protection Group Ltd [UKET/0391/13]. In Pathan, the tribunal held the claimant had shown no good reason for leaving it until she presented her claim. She was intelligent and had taken advice in order to find out the time-limit. On appeal, the EAT held the tribunal had erred because it had not considered relative prejudice, which was an important factor which should normally be considered by an Employment Tribunal.

 

In Rathakrishnan the EAT, decided the decision in Habinteg was strictly, per incuriam, and held that the exercise of the wide discretion involves a multifactoral approach and failure to provide a good excuse for a delay will not inevitably result in an extension of time being refused. No single factor was determinative. In particular, it held that failure to provide a good reason for the delay in bringing a claim will not inevitably result in an extension of time being refused. Further, the question of balance of prejudice and potential merits of the claim before the tribunal were relevant considerations for the tribunal and it had been wrong not to have weighed these factors in the balance and instead to have terminated the exercise, having rejected the claimant's application for the delay.

 

In both Pathan and Pathakrishnan the tribunal heard the claim on the merits at the same time as it heard the time-point. In the earlier case of Bahous v Pizza Express Restaurants [2012] Eq LR 4 (where again merits and time-points were heard by the tribunal at the same time) HH Judge Clark had similarly held that the merits of the complaint did not require separate consideration but were 'part of the prejudice balancing exercise' likely to be suffered by the respective parties should time not be extended.

 

2.8 In a further recent decision by Laing J in the case of Edomobi v La Retraite RC Girls School [UKEAT/0180/16], she preferred to follow the approach in Habinteg - stating she found it difficult to see " how a claimant can discharge the burden of showing that it is just and equitable to extend time if he or she simply does not explain the delay, nor do I understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the Employment Tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay."

 

The above difference of approach by the different divisions of the EAT may, in due course, require to be resolved by the Court of Appeal. Of course, none of these decisions are binding on this tribunal, albeit they would normally be persuasive. Insofar as it may be necessary for this tribunal to resolve this difference of approach, it preferred the approach seen in Pathan v Rathakrishnan and the multifactoral approach and the necessity, in essence, before reaching any conclusion to put all the relevant factors, as assessed by the tribunal, in the balance; albeit recognising that the absence of any or proper explanation for the delay may, subject to the other factors, as found on the facts, weigh heavily against the granting of any extension - remembering at all times the dicta seen in Robertson , namely - 'the exercise of the discretion in the exception rather than the rule and time-limits are to be exercised strictly in tribunals' (see further support for a multifactoral approach in Lindsay v LSE [2014] IRLR 218).

 

2.9 When assessing whether time should be extended to allow a discrimination claim to be heard out of time, the fault of the claimant is a relevant factor to be considered but a claimant is not to be held culpable for what is properly to be regarded as the fault of his or her legal advisers (see Elias J in Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 and also HHJ McMullen QC in Chohan v Derby Law Centre [2004] IRLR 685).

 

2.10 In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, the House of Lords held that in order for a disadvantage to qualify as a 'detriment' it must arise in the employment field in that the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he thereafter to work. If the claimant was unlawfully discriminated against on the grounds of her sex, in relation to any failure by the respondents to allow her to accrue public and privilege holidays during her periods of maternity leave, I think in the light of the above guidance it would be difficult for the respondents to establish the claimant had not thereby suffered a detriment; albeit I recognise for the purposes of this pre-hearing review, the respondents were not making any admissions in relation to liability or remedy. For the purposes of my decision, it was not necessary for me to reach any final conclusions on this issue (see later).

 

3.1 Insofar as relevant and necessary for the determination for the said preliminary time-issues, and after considering the said oral evidence and the submissions of the parties, I made the following findings of fact, as set out in the following sub-paragraphs.

 

3.2 In Paragraph 7.4 of the claimant's claim form, presented to the tribunal on 1 September 2016, the claimant stated, insofar as necessary for the determination of the issues the subject-matter of this pre-hearing review:-

 

"On 02.06.16 the Northern Ireland Civil Service (NICS) published a revised public and privileged (P+P) holiday policy. As a result, if you were on maternity leave on 1 ^st of April 2015 or started a period of maternity leave after that date you would separately accrue any public or privilege holidays that fell during your maternity leave.

 

I have had three periods of maternity leave covering three years - September 2007 to September 2008, August 2010 to August 2011, and May 2013 to May 2014. Under my contract of employment I'm entitled to 30 days' annual leave and 12 public and privilege holidays. During my maternity leave I was entitled to all my contractual terms and conditions apart from pay, therefore, I was entitled to accrue any P+P holidays that fell during my maternity leave. The NICS policy change denies me and all the other females on maternity prior to 01.04.15 the accrued P+P holidays we were entitled to. I have been treated less favourably on the grounds of my sex, pregnancy and maternity leave. The NICS may have changed their P+P policy with effect from 01.04.15 but it was also wrong prior to this date.

 

...

 

NHS Scotland introduced P+P holiday policy in May 2013 and backdated the accrual of P+P holidays during maternity leave back to 2008.

 

...

 

I believe that the NICS has discriminated against me by failing to allow me to accrue P+P holidays during my periods of maternity leave. As females are those primarily affected by this discrimination, I believe that my employer is acting in contravention of the Sex Discrimination Act 1975. I believe that once they became aware of the breach of this Act they should have immediately revised their procedures and backdated the revised policy for the maximum period retrospection available to ensure their female employees were able to benefit from their failure to address this issue in this past. I believe that I and other females have suffered direct sex discrimination.

 

... ."

 

3.3 In Paragraph 6.2 of the respondents' response form, presented to the tribunal on 17 October 2016, the respondents stated, insofar as necessary and relevant for the determination of the issues the subject-matter of this pre-hearing review:-

 

" ... The respondent denies that the claimant has been subjected to any act of discrimination on the grounds of sex, as alleged, or at all. Further the respondent does not accept that the claimant is contractually to public or privilege holidays.

 

...

 

Further, and/or in the alternative the respondent asserts that this present claim has been presented outside the statutory time-limits and respectfully request a pre-hearing review to determine this issue.

 

Finally, the respondent does not accept that the claimant has suffered any detriment and/or loss and damage in all the circumstances.

 

... ."

 

3.4 In the claimant's claim form, she made reference to a tribunal case of McDaid v BHSSPS, which was settled in or about June 2015. In the respondents' response form it does not accept that the outcome in that case is a matter to be considered by this industrial tribunal. In the circumstances, and, in particular, in the absence of any decision by the industrial tribunal in the McDaid case, I did not consider it necessary or appropriate to consider the detail of that case further, when determining the said time-issues at this pre-hearing review.

 

3.5 It was not disputed that the three periods of maternity leave, referred to by the claimant in her claim form were as follows, namely:-

 

(i) 16.09.2007 to 16.08.2008

 

(ii) 09.08.2010 to 07.08.2011

 

(iii) 29.04.2013 to 27.04.2014

 

3.6 It was further not disputed, on each of these said periods, the claimant was unable to accrue public/privilege holidays, under the then policies of the respondent, during her said periods of maternity leave.

 

3.7 As referred to previously, following the hearing, the respondents' representative, in a letter dated 14 December 2016, provided by agreement, to the tribunal, relevant extracts from the policies which applied during each of the said three periods of maternity leave, together with the 'revised/new' policy which was introduced by the respondents on or about 2 June 2016. The respondents' representative provided the following documents:-

 

"(1) The document entitled NICS HR Public and Privilege Holidays June 2016 is the current policy which was introduced in June 2016 and backdated to April 2015.

 

(2) The document entitled 3.06 Pubic and Privilege Holidays V6.0 applied from March 2013 until superseded by the current policy. This policy therefore applies to the third period of maternity leave.

 

(3) The document entitled 3.06 Pubic and Privilege Holidays V5 applied from mid-2008 (the precise date is not known) until superseded by the above. It therefore applies to the second period of maternity leave and the latter part of the first period of maternity leave.

 

(4) The document entitled Chapter 7 3.06 Pubic and Privilege Holidays PPH applied from 1998 until superseded by the above and therefore applies to the earlier part of the first period of maternity leave.

 

... ."

 

I have considered the terms of each of the said policies provided to me. However, I do not think it is necessary to set the terms of each said policy out in detail for the purposes of determining the issues, the subject-matter of this pre-hearing review. However, if this matter proceeds to a substantive hearing, I have little doubt that the precise terms of each said policy will be required to be considered in greater detail. However, it is sufficient to state, for the purposes of this pre-hearing review that, pursuant to the relevant policies for each said period when the claimant was on maternity leave, the claimant was not able to accrue public and privilege holidays during each said period of maternity leave under the relevant policy applying at that time. The new/revised policy therefore was backdated to April 2015 for any employee who was on maternity leave after that date; but it was not backdated for any employee, such as the claimant, who had earlier periods of maternity leave prior to 1 April 2015. It was not disputed that since the claimant's said periods of maternity leave, the claimant had not required to seek to accrue public/privilege holidays in such circumstances, under any policy relating to such holidays, applied by the respondent.

 

3.8 The claimant, when she was on maternity leave for the said periods and when she was not able to accrue public and privilege holidays under the said policies, as referred to previously, did not, in terms, question on those occasions, the terms of the policy applied by the respondents or the fact that she was not entitled to accrue the said holidays under the said policies. She assumed, in the absence of any other information, for understandable reasons in my judgment, that the said policies applied by the respondents, who are Government Departments, were in accordance with all relevant legislation; and that it never occurred to her that issues of unlawful discrimination by her employers arose from application of the said policies by the said respondents.

 

3.9 It was only when the new/revised policy was introduced by the respondents on or about 2 June 2016, that she became curious and began to question the terms of the policies that had been applied to her during the previous said periods of maternity leave, in relation to the inability to accrue public and privilege holidays. It has to be noted that the claimant is not a legal representative and is not legally trained. She is an Executive Officer Grade I in the Civil Service. Prior to the events, the subject-matter of these proceedings, she had very little knowledge of employment law and/or discrimination law; but she was aware from general discussion 'at work' that there was a 'three month time-limit' for bringing claims to an industrial tribunal. She did not dispute that this three month time-limit had been referred to in general terms, as she recalled, at Equal Opportunities training organised by the respondents which she had attended over the years of her employment. Prior to her first period of pregnancy in or about 2006, she had been a local representative for her trade union, helping members with day-to-day issues which, on occasion, related to allegations of discrimination at work. She had also attended trade union conferences where equal opportunities had been referred to. She had not attended any specific relevant trade union training courses in her capacity as a local representative.

 

She was unaware of the ability to apply for an extension of time to bring a claim on a 'just and equitable' basis, until it was referred to, during the course of discussion in these proceedings, at the first Case Management Discussion held in this matter, before the President of the Tribunals, on 28 November 2016, following the receipt of the respondent's response from on or about 17 October 2016.

 

3.10 The new/revised policy was announced to the workforce on a newsfeed on the HR internet site of the respondents. Significantly, in my judgment, it gave no background to the change and/or the reason for the change in policy; merely announcing there was a new/revised policy. The claimant was particularly curious, when she learnt of the new/revised policy, on or about 2 June 2016, why the date of 1 April 2015 had been chosen for any backdated claims, given her own particular circumstances; but also why an earlier date had not been chosen. In the circumstances, she wondered, at the time, had there been a change in the law and, as a result, she carried out a 'Google search' on her own personal computer. When she did so, she became aware of the McDaid decision, referred to previously, but also that there had been similar policy changes made by NHS Scotland, albeit at a much earlier date.

 

3.11 In light of the foregoing, the claimant wrote by e-mail, to her Departmental HR on 20 June 2016 stating:-

 

" ...

 

The NICS position on the accrual of public and privilege holidays during maternity leave has recently changed and as a result, if you were on maternity leave on 1 ^st of April 2015 or started a period of maternity leave after that date, you will separately accrue any public and privilege holidays that fell during your maternity leave.

 

I am aware that this Directive has probably been introduced as a result of an ET claim (McDaid v DHSSPS) which was settled in June 2015, for accrued leave from 2013 - 2014. Similar to Ms McDaid my contract of employment also states that I am entitled to 30 days' annual leave and 12 days' public/privilege holidays.

 

I am also aware that NHS Scotland introduced a similar Directive in May 2013. Subsequently NHS Scotland sought clarification on possible legal challenges and extended the date retrospectively from which it would apply to 1 ^st of April 2008 to comply fully with relevant legislation.

 

I believe that the NICS is also under a legal obligation to ensure that the rights of staff on maternity leave are upheld and action is taken to include retrospective periods to the earliest possible date under the law from when the NICS became aware that their procedures were in breach of the law. If the NICS position on the accrual of P+P holidays during maternity leave was wrong and needed change from 01.04.15 surely it was also wrong prior to this date.

 

I believe that to restrict retrospection to a period of one year is unlawful and therefore request that all periods of my maternity leave are re-examined and all outstanding accrued public/privilege holidays during the relevant periods are added to my annual leave entitlement. I had three periods of maternity leave covering three years going back to 2007 (except 07-except 08, Aug 10-Aug 11 and April 13 - April 14).

 

I would be grateful if you could please forward my request to the appropriate person/department."

 

3.12 The claimant's e-mail of 20 June 2016 was referred by Departmental HR to Corporate HR later that day, stating:-

 

" ... I got your name as a possible contact from one of my colleagues who spoke to you last week on another query around this policy. Please see query below. I'm not sure where to go with this one. I don't think its necessarily appropriate to look at an individual case in this but is there any rationale around why the NICS is only going back as far as April 2015 when apply this revised policy? [Tribunal's Emphasis]

 

Apologies if this is not your area but any help would be much appreciated ... ."

 

Corporate HR responded to the Departmental HR e-mail, also on 20 June 2016, stating:-

 

" ...

 

The NICS position is that the change in policy, on which TUS were consulted, was predicted upon a policy intention to treat women on maternity leave in a manner that is both reflective of best practice and compatible with anti-discrimination principles.

 

Whilst we appreciate some staff may be disappointed that earlier periods of maternity leave are not captured by the policy change, the NICS is content that the implementation date chosen is appropriate in all the circumstances.

 

... ."

 

The claimant was provided with a copy of this e-mail on or about 26 June 2016.

 

3.13 In evidence, the claimant complained that the said reply to her detailed query was 'bland and basically stated the respondents were satisfied with the date provided, without any further explanation'. I have considerable sympathy with the claimant for this conclusion which, in my judgment, did not properly and fully address, in any meaningful way, the serious and detailed issues raised by the claimant in her e-mail. No doubt these issues will require to be considered and explored in greater detail at a substantive hearing, which may take place in this matter (see later).

 

3.14 In light of her receipt of this reply and her said searches, the claimant by the beginning of July 2016, had came to the conclusion that it was possible she may have been discriminated against during her said periods of maternity leave, when she was unable to accrue the public and privilege holidays which occurred during each said period. Initially, the claimant sought advice from her trade union and, in particular, in late June/early July, following the reply from the Departmental/ Corporate HR to ascertain whether she should bring an internal complaint to the respondents, by way of a grievance or the Dignity at Work Policy, in relation to the issues raised in her said correspondence to Departmental/ Corporate HR. Unfortunately, she was unable to obtain clarity about what was the appropriate internal procedure to follow, which was not helped by the absence, in July/August 2016, of relevant trade union personnel on sick leave. In or about July/August 2016, she also sought advice from the Equality Commission. However, the claimant was adamant, in her evidence, which I accept, all such advice that she sought from both the Equality Commission and/or trade union in the period of July/August 2016, the precise dates of which she could not recall, related to seeking advice in relation to internal complaint procedures against the respondent rather than industrial tribunal proceedings. In any event, I am satisfied that at all times the claimant, being fully aware of the three month time-limit for bringing industrial tribunal proceedings believed, if she was going to bring proceedings in the industrial tribunal in relation to any discrimination claim she might have arising out of the issues raised in her correspondence with Departmental/Corporate HR, that the three month time-limit for bringing such proceedings began on the publication of the new/revised policy on or about 2 June 2016; and, in light of this she then ensured that she presented her claim to the industrial tribunal on 1 September 2016. In addition, she also brought internal complaints, pursuant to the Dignity at Work and grievance procedures, on or about 31 August 2016.

 

4.1 In light of the foregoing, I reached the following conclusions, as set out in the following sub-paragraphs.

 

4.2 There is no doubt, in my judgment, issues of continuous discrimination arise in relation to the various policies which were adopted and followed by the respondents during the three said periods of maternity leave by the claimant. It is not for me to determine those issues for the purposes of this pre-hearing review. However, having regard to the fact that each of the said policies did not allow accrual of public and privilege holidays, which the claimant contends was discriminatory, I am satisfied that the claimant has established, insofar as may be necessary, for the purposes of this hearing, a prima facie case of continuous discrimination (see  Lyfar  v Merck Sharpe). It is also apparent that any detriment suffered by the claimant because of her inability to accrue the public and privilege holidays under the said policies occurred at or about the time of each said period of maternity leave. In particular, it has to be noted that the last of those periods was in or about mid-2014. In the circumstances, and, since the claimant's claim of unlawful sex discrimination was not presented until 1 September 2016, I am satisfied the claimant's claim is out of time, pursuant to Article 76(1) of the 1976 Order. Therefore the issue arises whether the tribunal should consider the said claim, which is out of time, if it consider it is just and equitable to do so, pursuant to Article 76(5) of the 1976 Order.

 

4.3 In deciding whether to extend time on 'just and equitable grounds', the discretion is a wide one and, as seen in the authorities referred to in Paragraph 2.4 of this decision, the exercise of the discretion is the exception rather than the rule. Of course, each case must be considered on its own particular facts. This is an unusual case, given it relates to the application of Government policies and procedures in respect of its employees. Prior to the introduction of the new revised policy on 2 June 2016, the claimant had no reason to doubt the 'legality' of the terms of those policies, which had been applied to her during her previous periods of maternity leave and/or that she had been unlawfully discriminated against on the grounds of her sex. I therefore do not consider the claimant can be the subject of any criticism for failing to bring her claim in the industrial tribunal prior to the introduction of the new/revised policy on 2 June 2016. The announcement of the new policy gave no indication of the reason why the new/revised policy had been introduced. There is no doubt this is a complex area of law, which no doubt at a substantive hearing will require to be further considered (see further Harvey on Industrial Relations and Employment Law, Volume 2, Section J, Paragraph 238 and following; IDS Handbook on Maternity and Parental Rights, Paragraph 3.79 and following). In this context, the claimant is not a lawyer. However, to her credit, she wondered had there been a change in the law, which had given rise to this change of policy, and carried out a 'Google search'. It has long been recognised that such a search has its dangers. However the search revealed sufficient to allow her to write a detailed e-mail to Departmental HR for an explanation. It is of some interest that the representatives of Departmental HR when writing to Corporate HR for clarification said:-

 

"I am not sure where to go with this one."

 

The reply from Corporate HR, as stated in Paragraph 3.13, did not properly and fully address, in any meaningful way, the serious and detailed issues raised by the claimant in her e-mail. The e-mail response from Corporate HR did not address, in any way, the McDaid litigation, raised by the claimant; albeit it has to be recognised these proceedings, which were not against these respondents but a health trust, were settled, without any determination by the tribunal. If the claimant had been provided with a proper and detailed reply to her request for information my conclusions as to whether time should be extended might have been different. In essence, in my judgment, the claimant had asked for information from the respondents, why there had been a change and why it had only been backdated to 1 April 2015, and merely received, what she properly described as a bland reply, stating the respondents were satisfied with the date provided and no further explanation. The claimant, subsequently, did seek advice about internal complaints but not bringing proceedings to the industrial tribunals. Like so many employees she was aware of the three month time-limit for industrial tribunal proceedings; but, unfortunately, she believed, in error, time began to run on 2 June 2016, when the new/revised policy was introduced, and did not realise time was already running. Given, prior to 2 June 2016, the claimant had no idea her previous failure to accrue public and privilege holidays gave rise to any claim, in my judgment, it is not surprising she may have made this error. Since she knew of the three month time-limit, it is also not surprising, following the receipt on or about 26 June 2016 of the e-mail from Corporate HR, she concentrated her attempts to seek advice about how to make internal complaints not claims to an industrial tribunal. The claimant has explained her delay in bringing proceedings, which, in the circumstances, I am prepared to accept. I think therefore any such failure of the claimant for not proceeding at an earlier date and, in particular, following the limited and unsatisfactory reply from Corporate HR on or about 26 June 2016, should not prevent her obtaining an extension of time 'on just and equitable grounds'.

 

Further, there was no evidence from the respondents of any prejudice, 'forensic' or otherwise. In any event, this is not necessarily a determinative factor in whether to exercise my discretion.

 

4.4 For the reasons set out above, I have therefore concluded, although the claimant's claim is out of time, it would be 'just and equitable' for the claimant to consider the claimant's said claim.

 

5. The decision of the tribunal is that:-

 

(1) The claimant's claim of sex discrimination was presented outside the statutory time-limit, pursuant to Article 76(1) of the Sex Discrimination (Northern Ireland) Order 1976, as amended.

 

(2) Further, although the said claim was out of time, it would be just and equitable, in all the circumstances of the case, for the tribunal to consider the claimant's said claim.

 

(3) In light of the foregoing, a Case Management Discussion requires to be arranged for the tribunal to make such case-management directions/orders, as may be necessary, to enable the claimant's said claim to be determined at a substantive hearing.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 14 December 2016, at Belfast

 

 

Date decision recorded in register and issued to parties: